Reclaiming Constitutionalism: Democracy, Power and the State 9781509916122, 9781509916153, 9781509916139

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RECLAIMING CONSTITUTIONALISM Reclaiming Constitutionalism articulates an argument for why the constitutional phenomenon remains attached to the state—despite the recent advent of theories of global constitutionalism. Drawing from the idea that constitutionalism historically sought to build social consensus, this book argues that the primary aim of constitutionalism is to create social peace and to shield, rather than to limit, the power of political elites in any given state. Implicit in the effort to preserve social peace is the fundamentally important acknowledgement of social conflict. C ­ onstitutionalism seeks to offer a balance between opposing social forces. However, this balancing process can sometimes ignite, rather than appease, social conflict. Constitutionalism may thus further a project of social struggles and emancipation, for it incorporates within its very nucleus the potential for an agonistic version of democracy. In light of the connection between social conflict and constitutionalism, this book explores the conditions for and locations of the former. From the state and the EU to the global level, it considers the role of citizenship, national identities, democracy, power, and ideology, in order to conclude that the state is the only site that satisfies the prerequisites for social conflict. R ­ eclaiming constitutionalism means building a discourse that opens up an ­emancipatory potential; a potential that, under current conditions, cannot be fulfilled beyond the borders of the state.

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Reclaiming Constitutionalism Democracy, Power and the State

Maria Tzanakopoulou

OXFORD AND PORTLAND, OREGON 2018

Hart Publishing An imprint of Bloomsbury Publishing Plc Hart Publishing Ltd Kemp House Chawley Park Cumnor Hill Oxford OX2 9PH UK

Bloomsbury Publishing Plc 50 Bedford Square London WC1B 3DP UK

www.hartpub.co.uk www.bloomsbury.com Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA www.isbs.com HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published 2018 © Maria Tzanakopoulou 2018 Maria Tzanakopoulou has asserted her right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, ­electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www. nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2018. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-50991-612-2 ePDF: 978-1-50991-613-9 ePub: 978-1-50991-614-6 Library of Congress Cataloging-in-Publication Data Names: Tzanakopoulou, Maria, author. Title: Reclaiming constitutionalism : democracy, power, and the state / Maria Tzanakopoulou. Description: Oxford [UK] ; Portland, Oregon : Hart Publishing, 2018.  |  Includes bibliographical references and index. Identifiers: LCCN 2017051086 (print)  |  LCCN 2017052193 (ebook)  |  ISBN 9781509916146 (Epub)  |  ISBN 9781509916122 (hardback : alk. paper) Subjects: LCSH: Constitutional law. | Citizenship. | State, The. | Democracy. | Social structure. Classification: LCC K3165 (ebook)  |  LCC K3165 .T93 2018 (print)  |  DDC 342—dc23 LC record available at https://lccn.loc.gov/2017051086 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

TABLE OF CONTENTS

Acknowledgements���������������������������������������������������������������������������������������������������� ix Introduction�������������������������������������������������������������������������������������������������������������� xi

PART I: Constitutions and Constitutionalism: The Legal, the Political, the Citizen and the Status quo Introduction of Part I�����������������������������������������������������������������������������������������������3 1. The Roots of Law, the Roots of Constitutionalism�����������������������������������������7 I. The Foundation of Law: Politics and Social Conflict as Roots of the ‘Legal’�����������������������������������������������������������������������������������������������7 A. Politics Proper as a Perpetual Social Battle—Democracy as a Perpetual Social Battle�����������������������������������������������������������������8 B. Separating Law from Morality: Neo-Kantian, Positivist and Marxist Perspectives������������������������������������������������������������������12 i. The Neo-Kantian Tradition�����������������������������������������������������12 ii. The Positivist Objection against the Link between Law and Morality�����������������������������������������������������������������������������14 iii. The Marxist Thesis�������������������������������������������������������������������15 C. Law as the Product of Social Conflict—Law as the Mediator of Social Conflict������������������������������������������������������������������������������17 II. Constitutionalism in Modernity: The Social and Historical Juncture������18 A. Instances of Pre-constitutional Thought�����������������������������������������18 B. The Enlightenment: Natural Rights, Popular Sovereignty and the Social Contract��������������������������������������������������������������������21 C. The French and American Revolutions: Launching into the Constitutionalism of Modernity������������������������������������������������������23 2. The Telos of Modern Constitutionalism�������������������������������������������������������29 I. Constitutionalism in Modernity�������������������������������������������������������������29 A. What is the Constitution?�����������������������������������������������������������������29 II. Constitutionalism, Ideology and the Politics of Consensus������������������33 A. Constitutionalism and the Politics of Consensus, Constitutionalism as the Politics of Consensus������������������������������33 B. Constitutionalism and Citizenship, Citizenship and Democracy, Democracy and Consensus: An Alternative Understanding of Constituent Power and of Constitutionalism�����������������������������36

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Table of Contents C. Constitutionalism and the Politics of Dissensus, Constitutionalism as the Politics of Dissensus: In Defence of the Constitution���������������������������������������������������������������������������39

Conclusion of Part I: The Question of the Nation State�������������������������������������45 PART II: The Constitutional Failure of Europe: Citizenship, Democracy and Consensus Introduction of Part II�������������������������������������������������������������������������������������������49 3. The Dialectics of Citizenship: Europe as a Citizenship-Capable Entity�����53 I. The No-Demos Thesis������������������������������������������������������������������������������53 II. The Nation, the State and Europe�����������������������������������������������������������54 A. The National Project as Universal Project���������������������������������������56 B. The Imperialistic Nature of National Universalism������������������������58 III. Citizenship and Community: Citizenship as a Dynamic Concept�������59 IV. Political Citizenship: Citizenship as a Dynamic Process������������������������61 V. Social Citizenship and Equality��������������������������������������������������������������63 A. Citizenship and Equality������������������������������������������������������������������63 B. Social Citizenship�����������������������������������������������������������������������������64 4. What Kind of European Citizenship?������������������������������������������������������������69 I. European Citizenship in Practice������������������������������������������������������������69 II. The European Public Space���������������������������������������������������������������������73 A. The Individual Citizen����������������������������������������������������������������������78 III. Deliberative Europe���������������������������������������������������������������������������������81 A. A Note on the European Public Interest������������������������������������������84 B. Comitology and the OMC���������������������������������������������������������������84 C. Testing the Deliberative Model against the Public Interest������������88 Conclusion of Part II: European Citizenship Revisited��������������������������������������93 PART III: Global Governance: Discourse and Truth, Power and Resistance Introduction of Part III������������������������������������������������������������������������������������������99 5. Global Governance as Discourse—Global Governance as Truth��������������103 I. Truth and Discourse: An Invented Dilemma���������������������������������������103 A. Discourses, Dominant Ideologies and Historically Organic Ideologies����������������������������������������������������������������������������������������105 II. Global Governance Discourse���������������������������������������������������������������108 A. Describing the Basic Precepts of Governance�������������������������������108 B. The Extension of Governance Rhetoric: Global Governance������111 C. The Political Bias of Global Governance Discourse����������������������115 i. Global Governance as a Natural Development����������������������119

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6. Foucault and Power: Global Governance beyond Discourse���������������������125 I. Global Governance beyond Discourse: The Terms of the New Paradigm����������������������������������������������������������������������������������������125 II. An Introduction to the Discussion on Power��������������������������������������126 III. Foucault and the Function of Power����������������������������������������������������127 A. Liberal and Neoliberal Governmentalities������������������������������������130 B. Global Governmentality: Global Governance as a Hegemonic Biopolitical Process�������������������������������������������������������������������������132 IV. A Positive Reflection on Global Governance: The Example of the Problematics of Global Poverty��������������������������������������������������133 V. The Possibility for Resistance at the Global Level��������������������������������136 7. The Unviability of Global Citizenship: Looking into the Deeds of Global Civil Society�����������������������������������������������������������������������������������139 I. Global Civil Society: Back to the Dialectics of Citizenship�����������������139 A. PPPs as a Technology of Government�������������������������������������������142 B. Due Process Rights as a Technology of Government�������������������146 II. The Prospects of Global Citizenship����������������������������������������������������149 A. Global Contestatory Politics: Global Social Movements and the Prospects of Global Social Conflict����������������������������������149 B. New Old Constitutionalism, the Internationalised State and Global Democracy�������������������������������������������������������������������152 C. Global Contestatory Politics in the Absence of Internationalised Classes: Global Contestation, Local Contestation�������������������������155 Conclusion of Part III�������������������������������������������������������������������������������������������159 PART IV: The Foundation of Power: Bringing Constitutionalism back to the State Introduction of Part IV����������������������������������������������������������������������������������������163 8. The Capitalist Mode of Production: The Economic Relation as the Primary Relation of the Nation State������������������������������������������������167 I. The Mode of Production in Marxist Thought�������������������������������������167 A. The Historical Juncture and the Mode of Production as the Basis for Understanding Societies���������������������������������������167 B. The Capitalist Mode of Production: An Economic, Political and Ideological Relation�����������������������������������������������������������������168 C. The Role of the National Element in the Capitalist Mode of Production����������������������������������������������������������������������������������170 II. The Detachment of the Capitalist Mode of Production from the Nation State: An Implausible Suggestion���������������������������������������172 A. The Global/National Dilemma and its Relevance to Constitutionalism���������������������������������������������������������������������������172

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Table of Contents B. Ruling out the Existence of Global Collective Subjects����������������174 i. The Notion of Social Capital: Back to the Indispensability of the National Element�����������������������������������������������������������176

9. State, Ideology and the Class Struggle���������������������������������������������������������181 I. State and the Economy: A Dialectical Relationship�����������������������������181 II. The Intervention of Ideological State Apparatuses in the Economic Relation���������������������������������������������������������������������������������182 III. The Foundation of Power: The State is Permeated by Class Struggle��������������������������������������������������������������������������������������������������186 IV. Power as a Relation and State as its Primary Locus—the Role and Symbolisms of the National Constitution������������������������������������190 Conclusion of Part IV: Revisiting State Constitutionalism������������������������������193 Conclusion: State, Power, Constitutionalism�����������������������������������������������������199

Index�����������������������������������������������������������������������������������������������������������������������203

ACKNOWLEDGEMENTS

This book is the product of my PhD thesis, which I began working on in 2011. My initial idea to focus on global constitutionalism was embraced by my supervisor, Dawn Oliver QC, who stood by my side throughout my PhD years, scrutinised my work the way not many supervisors do, and who, in the face of our different worldviews, taught me the value of the unbiased reader’s academic integrity. My secondary supervisors, Colm O’Cinneide and Jeff King, have also contributed to this book and I am grateful to them for their significant assistance and guidance. I owe the title of this book to my viva examiner, Richard Rawlings, who suggested that the initial ‘In Defence of Constitutionalism’ did not reflect the full scope of the work, and counter-proposed ‘Reclaiming Constitutionalism’—which I adopted without a second thought. Neil Walker, my other viva examiner, equally encouraged me to publish my thesis and I thank him too for his comments and advice. I am immensely grateful to my Public Law teachers at the University of Athens, where I studied for my undergraduate degree. First and foremost, Nikos ­Alivizatos, who inspired me to study constitutional law and encouraged me to do so in the UK, as well as Georgios Gerapetritis for being supportive to this day. I am also grateful to Bill Asquith and Rob Crossley at Bloomsbury Publishing for their editorial support. Thank you to my colleagues and good friends, Eva Nanopoulos and Anastasia Tataryn, as well as to Martin Jonsson, for every second they have spent reading parts of this book and commenting on them. Giorgos Baskozos has always been ready to discuss everything, from constitutional theory to Marxism, and from Foucault to the technicalities of European Law, despite being a scientist. Maria Vougiouklaki, Eleni Vougiouklaki, Dafni Sfesta, and Fay Naskari have been unwitting accomplices in the making of this book. Eva Philippaki has provided both emotional and technical support. I thank each one of the above for being around me. Last, I would like to thank my brothers, Antonios and Dimitris, whom I consider co-authors of this book. Antonios, not just for patiently bearing all of my moments of dispiritedness and anxiety while writing my thesis, but also for all the intellectual and financial support he offered, and for putting everything into perspective, from legal academic writing and research to emotional distress when I lacked the experience to do so. I owe him an apology, among other things, for not having managed to use the Oxford comma correctly in the pages of this book.

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Acknowledgements

Dimitris, for acquainting me with left wing politics since we were at a young age, but also for unpremeditatedly teaching me that Philosophy is untouchable by those who cannot be entirely devoted to it. To him I owe the fact that my work has not sought to take a more philosophical turn. This book is dedicated to the hero that is my dad, Moschos, and to the memory of my mum, Lopa.

INTRODUCTION

Constitutionalism, a concept tied to the sovereign state, has in recent years come under considerable strain. Scholars, policy makers and public opinion are increasingly doubtful as to the capacity of individual states to manage their own affairs. The global reach of problems including environmental degradation, terrorism or military operations coupled with the globalisation of communications and with global flows of people, services and capital increasingly challenge the t­erritorial jurisdiction of the nation state. At the same time, the growing involvement of international organisations in nation states’ domestic affairs and the decisive influence exerted by non-state actors on the management of sovereign issues test the regulatory power of the sovereign state. These developments cast doubt upon the relevance of constitutionalism. The modern concept of constitutionalism developed in tandem with the transition from the irrational imposition of authority in feudal societies to the capitalist state and the rule of law. A quintessential characteristic of constitutionalism has ever since been the establishment of domestic limitations to sovereign power. If, as the argument has it, the sovereign state is no longer able to regulate and manage its internal affairs, the question of relevance of state constitutionalism becomes urgent. In response, the idea of a global version of constitutionalism capable of placing legal restraints to the increasingly more intrusive action of non-state or transnational powers intervening in state affairs gains prominence. The above thoughts set the background of the following discussion which, while by no means denying the extraterritorial reach of problems and the involvement of non-state actors in domestic affairs, develops a defence of nation state constitutionalism and argues that the latter is adequate to its task. The following analysis is concerned primarily with a vindication of state constitutionalism in its traditional form and only at a second level does it deal with what it considers to be the weaknesses of theories of global constitutionalism. At the outset, the following discussion does not propose a legal or political strategy to resolve the problems and contradictions of the modern nation state. Much less does it suggest that the nation state provides an ideal form of political organisation. Instead, the analysis proposes an alternative constitutional thinking; a discursive framework for constitutionalism which, instead of focusing on the question of locus (the global/statist constitutionalism dilemma), stresses the importance of a constitutional understanding as a process that can improve the position of the most disadvantaged parts of society. Surely, in order to propose an alternative understanding of constitutionalism the question of locus must

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be addressed while the alleged need for global constitutionalism must also be dealt with in the flow of the discussion. The alternative understanding of constitutionalism proposed in the following discussion is grounded upon two standards. The first standard relates to the function of legal systems in capitalist societies. The second standard refers to the social and political needs that constitutional law and the constitution, as launched at the end of the eighteenth century, came to respond to. The application of the above two standards leads to an approach of constitutionalism as a legal field that constructs and demarcates the framework within which social conflict materialises. The link between constitutionalism and social conflict is at odds with the conventional understanding that sees constitutionalism primarily as the establishment of the rule of law and of limitations to the power of the sovereign. While the significance of the above constitutional features is not rejected, it is argued that they constitute part of the broader purpose of constitutionalism which is, as remarked above, the demarcation of the framework within which social conflict unfolds. The further objective of that demarcation is the appeasement of social conflict and the maintenance of social consensus within the constitutional order. At this point, a clarification on methodology is important: the discussion does not offer a comparative analysis nor does it aspire to define constitutionalism in a way that should capture every constitutional order of the world. The examination of constitutionalism does not draw on a given constitutional regime. Instead, the discussion is a deductive exercise that sees constitutionalism as a system with a number of particular characteristics which function in certain ways and open up certain possibilities. Constitutionalism is thus approached as a concept which like every concept, idea or reality in history is permeated by an internal logic but importantly also by internal contradictions and can therefore often be subject to unforeseeable transformations. Transformations and contradictions are important within this context, for they suggest that a concept or reality can be turned on its head. In light of this, the following discussion is an effort to promote a project of social equality that builds upon already existing concepts whose discursive and cognitive framework is reconstructed in a useful, if not always uncontroversial, way. The argument is developed in four parts of which the first discusses the ­concept of constitutionalism (Part I) and the remaining three examine whether and how the understanding offered in Part I is appropriate to different loci of social organisation, and in particular, to the EU (Part II), the global space (Part III) and the nation state (Part IV). In a nutshell, the discussion is based on the premise that every society is permeated by conflict and antagonisms. Social conflict is understood as the ubiquitous struggle between opposing social forces in their effort to protect and/or further their own interests. Based on this premise, the discussion proceeds with the argument that constitutionalism creates the conditions needed for pacification of social conflict. As a result, constitutionalism serves a political purpose. That is the creation and maintenance of social consensus within a given political structure at a given historical period.

Introduction

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While the ­maintenance of consensus in modern capitalist societies clearly serves the ­interests of the most powerful members of the social body, constitutionalism can potentially result to the advantage of the weak. By acknowledging the existence of conflict and in its effort to act it out constitutionalism sets in motion a trade-off between the most powerful and weakest parts of society. This trade-off can under certain circumstances generate an emancipatory potential (Part I). The above approach precipitates the question of locus. A coherent analysis necessitates an exploration of the sites in which social conflict resides. While the discussion argues that social conflict is ultimately located within the nation state, it does not foreclose the transformation of the European Union into a constitutional entity. The Union possesses the structural and institutional capacity to reorganise into a constitutional regime. Still, as will be argued, such reorganisation would presuppose that the European people should form collective political subjects that would engage in the kind of social conflict that up to this day has only transpired at the level of the state. With that said, once Europe transforms into a constitutional regime, its character and nature will not be qualitatively different from the character and nature of the nation state (Part II). Unlike Europe, the global space cannot develop into a constitutional entity because it lacks, inter alia, the necessary institutional background to create a global demos, understood once again as collective political subjects that compete over their respective power (Part III). The above described approach to constitutionalism, global constitutionalism, social conflict and the nation state is thus permeated by the question of power. In the last part of the discussion social conflict and power are presented as, by and large, one and the same concept. Their ultimate root is found within the legal, political and social conditions of the nation state which therefore emerges as the sole constitutional entity (Part IV). More particularly, the first chapter (1) of Part I argues that the content of constitutional arrangements within the nation state reflect the political outcome of the antagonisms that unfold between the state’s opposing social forces. In turn, constitutionalism creates a framework which can perpetuate the dominance of the prevailing forces in a given society. This is the framework of liberal political values within which constitutionalism seeks to restrict political confrontation in societies. The national element plays a fundamental role here, creating as it does the conditions for the development of a collective national identity and therefore of a fiction of unity under common national interests. In methodological terms, the argument is developed through the prism of Marxist theory and, in particular, of the writings of Marxist philosopher Louis Althusser. Althusser sees the foundation of the legal phenomenon not in moral principles, or the law itself, but rather in politics understood as ubiquitous social conflict. The second chapter (2) of Part I seeks to reconcile the hegemonic function of constitutionalism with what is understood as its likely emancipatory potential. In order to bring together these seemingly opposing functions, the discussion focuses on the concepts of constituent power and democracy. Chapter two proposes an understanding of constituent power as a process of constant c­ reation

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and r­ecreation of the constitution by the citizen. This understanding triggers a particularly broad perception of democracy and citizenship as two concepts closely linked with politics of contestation and social conflict. Democracy is not understood as a way of political organisation based on the rule of law and on the guarantee of individual and political rights. Rather, it is seen as the ability of the oppressed, vulnerable and disadvantaged citizen to overturn not just the political status quo but also the dominant interpretation of constitutional values and principles. Thus, the question follows whether constitutionalism bestows upon the citizen the power to challenge the very ideology of liberalism and consensus that the constitutional order itself imposes. The discussion answers this question in the affirmative provided that two conditions are met. First, genuine challenge of established powers and values necessitates that social and political conflict remain unrestricted by the confines of legal/constitutional ideology. This is not merely an acknowledgement that the political cannot be restricted by the legal. It is also a suggestion that constitutionalism sows the seeds of its own destruction. Secondly, the citizens or demos should not be understood as an undifferentiated multitude tied together by virtue of belonging to the same legal and political entity. Rather, the demos should be understood as collective political subjects united under their common interests and constituted as such by virtue of their conflicting interests against other social forces of a given legal and political order. This understanding also puts on clearer display the understanding of social conflict as a competition of social interests which may not always be visible or conscious but which is ubiquitous and permeates the social body. In sum, the first part of the discussion proposes a redirection in constitutional thinking. It suggests that constitutionalism demarcates the limits of social conflict through the provision of rights and freedoms in exchange for consensus. While the constitutional project effectively pacifies social conflict, it can also provide the spark igniting such conflict. Political struggles can often unfold in the name of, and in defence of, the constitution. This does not however suggest that struggles should remain restricted to the limits that the constitutional order imposes. ­Constitutionalism can therefore further the project of social equality because it presupposes a conflictual version of democracy and citizenship. This antagonism is seen as an inherent element of the constitution. In conclusion of the first part, it is suggested that constitutionalism is as much about limitations to sovereign power as it is about the ability to overturn it. It is for this reason that constitutionalism remains relevant and thus it is necessary to examine where it can be located and under which conditions. Part II of the thesis argues that constitutionalism is potentially viable in the European Union, which however lacks the will to become a constitutional order. Europe possesses no constituent power although it has institutionalised European citizenship. The European version of citizenship does not however correspond to the active, political and antagonistic version of citizenship that can transform a multitude into collective subjects. The prospects of pan-European social conflict are thus precarious. The second part embarks on the discussion by arguing that

Introduction

 xv

Europe is a citizenship-capable entity. While citizenship has always been c­ onnected to the nation state, a national identity is not a prerequisite to the creation of ­collective European social forces. Citizenship, chapter three argues, is a dialectics, whose rationality changes together with the polity to which it applies. Drawing from this reading, which is inspired by Etienne Balibar’s work, it is argued that a ­pre-given national identity is not a necessary condition for citizenship. H ­ owever, once ­European citizens are constituted as collective subjects Europe will necessarily have come to resemble the nation state. In line with Part I, it is argued that citizenship must go hand in hand with an antagonistic version of democracy and allow citizens to challenge both the status quo and the dominant meaning of European values, principles, and versions of the European public interest. Europe can achieve such challenge on the part of its citizens not least because its institutional structure and increased legal harmonisation can further the creation of common interests and citizen identification that transcends national identities. The second chapter of Part II (chapter four) examines the jurisprudence of the Court of Justice of the European Union (CJEU) as well as the rhetoric and practice of the European institutions, to argue that Europe effectively prevents the creation of collective subjects. The Union does not only block collective disagreement but also promotes a deliberative and consensual logic which hinders the development of democratic dissensual practices. In light of the above, the working of constitutional arrangements in Europe fails to meet the standards of constitutionalism. Europe presents a constitutional mentality that could potentially prove dangerous for the entire European endeavour as the gap left by the institutional hindrance of pan-European social conflict comes to be filled with a battle that gradually takes the form of nationality against nationality. The understanding of citizenship and democracy as inborn elements of ­constitutionalism is further applied in Part III. Part III extends the discussion to the global space in order to examine whether the latter can possibly acquire the ­characteristics of a constitutional entity. An answer in the affirmative may seem foreclosed as the global space, unlike the nation state or the Union, does not possess the institutional capacity to create the common identity and sense of unity that are indispensable to citizenship and democracy. However, the discussion around a global version of constitutionalism cannot be left unexamined. This is so, first, because it is a sophisticated and cutting-edge approach to both constitutionalism and the world order. Secondly, the argument that both the state and its social forces are in a process of internationalisation puts forward the idea that social conflict can escape state and/or regional borders. To explore the above issues, Part III focuses extensively on the concept of global governance. Focus on the concept of global governance has a twofold justification. First, global ­governance discourse seems to have created a particular discursive field which can no longer be easily divided from reality. Second, many global constitutionalist theories rely upon global governance discourse to justify the need for recourse to global constitutionalism. Part III argues that the image of the world offered by the global governance discourse has become embedded in the rhetoric of scholars,

xvi 

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international institutions and global actors, notably the so-called global civil society. The discourse describes the global space as a system of rule which, freed from the forces of coercion and command, operates on the basis of mutual persuasion and maintenance of control. A myriad of actors are dragged into the global regulatory order, which the global governance discourse describes as a cooperative, consensual and non-adversarial space where global players strive together for their common interests. Chapter five argues that this description becomes enmeshed with reality in the sense that it creates a discursive framework on the basis of which individuals are to make sense of their role and place in the world. Based on the work of Foucault and his understanding of the concept of power and power’s ability to build subjectivities, chapter six suggests that power operates everywhere locking populations into its reproduction. Drawing on this understanding, chapter seven puts forward the argument that global civil society, a body treated by dominant discourse as the global demos, in fact reproduces the power structures that it seeks to contest. At this stage, the discussion also turns to a series of accounts that go beyond the mainstream discourse and posit the internationalisation of the state and of collective social forces as well as the idea of global contestatory politics. While the value of these alternative approaches to global governance is not rejected, chapter seven argues that they are either inconclusive, and therefore not helpful, as regards the prospects of global social conflict or that they are in fact referring to local rather than global political contestation. In light of the above, the antagonistic version of citizenship and democracy applied in the previous chapters seems to be out of the question. Part III closes the discussion on global governance and power by anticipating an objection: if power locks populations into its reproduction, then the understanding of constitutionalism as a potential tool for the challenge of power is unviable not just in the global space but also within the nation state. Part IV replies to this objection by examining the nature of the nation state and the roots of power through a Marxist lens. The focus this time shifts to the capitalist mode of production which produces certain asymmetric relations in contemporary capitalist states dividing societies into opposing forces. The ensuing conflict between opposing social forces, usually concealed and unconscious but sometimes discernable and tangible, is seen as the root of all power relations. The reproduction of the latter rests on certain political and ideological conditions that only the state can generate and maintain. Power therefore resides in the nation state and is rooted in the ubiquitous and continuous polarity of the state’s social forces. This constitutes the essence of social conflict or, in Marxist terms, of class struggle: a struggle which, may take different forms, from ethnic and racial to religious or gender-related, but which always bears a class significance (chapter eight). Certainly, much like in the global area, power in the nation state is capillary; it operates at every level building subjectivities. But, unlike the global space, the nation state is the site where power and social conflict are ultimately rooted, organised and reproduced. In other words, the nation state is the level at which social conflict materialises and where social conflict can prove decisive for

Introduction

 xvii

the specific conditions and shape that each social formation will take. It is within this context that constitutionalism can become an effective and useful instrument, legitimising as it does the democratic social struggles that materialise within the nation state. All in all, the argument that unfolds seeks to refocus constitutional discourse on the nation state where power is rooted and where its dominance can be unsettled (chapter nine).

xviii 

PART I

Constitutions and Constitutionalism: The Legal, the Political, the Citizen and the Status quo

2 

Introduction of Part I Constitutionalism is a legal and political term with an all-pervasive influence, the foundation of legitimacy of the legal and political order, the main source of rights and freedoms and the basic guarantor of the citizen’s power, entitlements and responsibilities. Yet, constitutionalism has never obtained a comprehensive or unanimously agreed upon definition. Perhaps this is because ‘determining what a constitution means can never be entirely separated from what one hopes and aspires for it to mean’.1 The purpose of Part I is, therefore, not to suggest a definition for constitutionalism. The purpose is much less to provide an empirical description of constitutional developments, national or regional. The purpose is, instead, to suggest an alternative conceptual framework for constitutionalism. That framework will seek to enable the re-imagination of constitutionalism as an instrument with a potential to serve the weaker fractions of societies, those vulnerable and oppressed. Part I further describes a series of concepts that will be recurring throughout the discussion, including law, politics, ideology, citizenship and democracy. The following two chapters attempt a synthesis of structural Marxism and republican constitutionalism. Chapter one employs the theoretical tools of structural Marxism in order to articulate a theory of law that sees the foundation of the legal phenomenon, not in moral principles or the law itself, but rather in politics understood as ubiquitous social conflict. Seen in this light, constitutionalism is approached as a phenomenon determined by social reality and the historical and political juncture. It is suggested that constitutional law is a field of law which, like all legal fields, embodies the political outcome of social antagonisms unfolding within society. In other words, the constitution tends to be constructed and construed in such way as to favour and perpetuate the dominance of the most powerful groups in a legal and political order. The constitutional order, thus, emerges as a space that structurally tends towards the maintenance of established power relations. A key feature of the constitutional equation is the generation of social consensus understood as the prerequisite to maintenance and smooth reproduction of social, legal and political systems. However, it is precisely the tendency to generate consensus that can possibly set free an emancipatory potential of constitutionalism.

1  KE Klare, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 South African Journal on Human Rights 146, 151 [emphasis in original].

4 

Introduction of Part I

The second section of chapter one situates the origins of constitutionalism at the end of the eighteenth century and the French Revolution which culminated in the creation of the nation state and the birth of liberal democracy. The period commencing in the French Revolution witnesses a clear-cut politico-ideological turn of constitutionalism. Rooted in the ideology of the homogenous nation and the common national interest as well as in the liberal notions of the free and equal individual, constitutionalism serves to present society as a uniform structure rather than as a field divided by massive inequalities. In this, it secures consensus and maintains power structures by guaranteeing the interests represented by those who established it. Chapter two seeks to square the understanding of constitutionalism as a hegemonic tool with the idea of constitutionalism as a potentially emancipatory instrument. To make the conceptual reconciliation viable, chapter two focuses on the concept of constituent power. At this juncture, the tradition of republican constitutionalism is partly adopted and partly rejected. With republican constitutionalists, constituent power is seen as a process of constant recreation of the political constitution by the citizen. The notion of consensus plays a crucial role here. As a result of its tendency to create consensus, the constitutional order engages in a political trade-off between dominating and dominated social forces. Rights and freedoms offered in exchange for pacification of social conflict can build up to the creation of collective social forces united under their common interests and ready to renegotiate the meaning of established constitutional values in the political arena. To this end, rights and freedoms must be employed ‘in a strategic political mode; (…) constitutional law [must] ensure that it structures and withdraws appropriately to the redress of disadvantage, disempowerment and injustice’ and (…) ‘[a] constitutional thinking of dissensus must commit to redressing the points of foreclosure on which the consensual political order rests’.2

Within this context, the analysis distances itself from the republican tradition by arguing that political confrontation cannot and should not be restricted in the confines of established legal understandings and discourse. Social conflict and political dissent, if they are to be meaningful, must allow for the disruption of established social realities, relations and structures. Recreation of the constitutional order by the constituent power may thus lead to a social battle able to ­displace, in part or in whole, the prescriptions of the dominant legal paradigm. This is not an easily endorsable understanding of constitutionalism for it sees constitutionalism as an arrangement able to open up space for challenge of the very structures it seeks to protect. Yet, the project of social equality sometimes requires one to work on the basis of already existing concepts and to reconstruct their discursive and cognitive framework in a fundamentally different, if not

2  E Christodoulidis, ‘Against Substitution: The Constitutional Thinking of Dissensus’ in M ­Loughlin and N Walker (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford, Oxford University Press, 2012) 207–08.

Introduction of Part I

 5

always uncontroversial, way. Part I concludes by introducing the next steps of the analysis. Based on the above theoretical scheme, the following parts extend the analysis of constitutionalism to the European Union and global level in order to review the viability of a European and global version of constitutionalism understood as the framework of social consensus and social conflict.

6 

1 The Roots of Law, the Roots of Constitutionalism I.  The Foundation of Law: Politics and Social Conflict as Roots of the ‘Legal’ ‘[In] every republic there are two different inclinations: that of the people and that of the upper class, and (…) all the laws which are made in favour of liberty are born of the conflict between the two.’1 N Machiavelli

Machiavelli approaches the relation between law and social conflict in a way that is sometimes downplayed and sometimes unreservedly rejected by legal and political scholars. Law is often depicted as a wholly ‘autonomous sphere of activity’ devoted exclusively to the ideal of justice.2 Other times, law is approached in terms of its metaphysical or ethical foundation as a tool that sustains political orders due to its intrinsic quality and cohesion.3 The idea that law is situated above and beyond a specific social and political context has come to dominate modern Western ­philosophical thought.4 Rejection of an ethical or metaphysical understanding would indicate that the law must be determined by factors lying outside the legal sphere. This would further have a twofold implication. On the one hand, there can be no universal­ 1  N Machiavelli, The Portable Machiavelli (P Bondanella and M Musa tr, London, Penguin Books, 1979) 183. 2  For a wholesale rejection of the relation between law and politics, see, eg, O Fiss, ‘The Autonomy of Law’ [2001] Faculty Scholarship Series http://digitalcommons.law.yale.edu/fss_papers/1316. 3  This is largely part of the neo-Kantian line of thought. For a more thorough analysis, see D D ­ yzenhaus, ‘Constitutionalism in an Old Key: Legality and Constituent Power’ (2012) 1 Global Constitutionalism 229, 233. He speaks of the theoretical attempt to show how the ‘legal order and law itself are best understood from the inside, from a participant perspective that argues that legal order has intrinsic qualities that help to sustain an attractive and viable conception of political community’. 4  For an opposite view, see CM O’Brien, ‘Reframing Deliberative Cosmopolitanism: Perspectives on Transnationalisation and Post-National Democracy from Labor Law’ (2008) 9 German Law Journal 1007, 1039. She speaks of ‘skepticism concerning law’s autonomy from the influences of politics and market, this skepticism itself now an established strand of legal scholarship and one that has survived the strongest, passing, claims of economic determinism or “synchronization”’.

8 

Roots of Law, Roots of Constitutionalism

conceptualisation of the legal phenomenon. On the other, legal arrangements and the different forms that these assume throughout history are attributable to non-legal causes. The premise of this understanding is that law secures the smooth functioning of dominant relations and dominant structures. Yet, p ­ recisely because dominant relations and structures have always been the subject of social ­antagonisms, with their specific form being contingent upon the outcome of social struggles, law comes, in the final instance, to be partly determined by social conflict itself. Social conflict is the conflict between opposing social forces within social formations. It is not necessarily a conflict that is always discernible or always conscious and premeditated. It is, however, a conflict that springs de facto out of relations of domination. It is therefore a ubiquitous battle resulting from power relations rooted in societies’ contradictions. While the primary contradiction in societies is that between labour and capital, social conflict does not necessarily imply restriction of every form of social antagonism in the narrow limits of the labour-capital contradiction. It implies however, that all forms of conflict, be it racial, ethnic, gender-related and so forth are in many ways interwoven with the labour-capital relation and thus bear a class significance.5 If law is to be attributed to extra-legal sources, it may be attributable to social conflict understood in the above sense. This suggests not just an alternative understanding of the law, but also a specific understanding of politics. Before examining the relation between the legal and the political more closely, the next sections discuss politics as a concept tied to the conflict between social forces.

A. Politics Proper as a Perpetual Social Battle—Democracy as a Perpetual Social Battle Let us return to Machiavelli. Machiavelli may not be the first thinker who acknowledges the impossibility of establishing societies freed from antagonistic and c­ onflictual understandings of the good life.6 Yet, he is certainly the first to recognise and articulate so skilfully the vital importance of social conflict for the conduct of politics, if not, in the final analysis, for the progress of history itself.7 5  For empirical evidence connecting, eg, domestic violence against women with the ­socio-economic status of the family, see, eg, AR Roberts, ‘Myths, Facts, and Realities Regarding Battered Women and Their Children: An Overview’ in AR Roberts (ed), Handbook of Domestic Violence Intervention: Strategies, Policies, Programs and Legal Remedies (Oxford, Oxford University Press, 2008) 7; see also L Althusser, For Marx (London, Verso Books, 2005) 89–116; NA Poulantzas, State, Power, Socialism (London, Verso, 2000) 43. On the class significance of racial and ethnic inequalities, see E Balibar and IM Wallerstein, Race, Nation, Class: Ambiguous Identities (London, Verso, 1991). 6  See next section (II) on instances of pre-constitutional thought that acknowledged the existence of conflictual perceptions of the good life already in antiquity. 7  See, eg, N Machiavelli, Discourses on the First Decade of Titus Livius (NH Thomson tr, London, K Paul, Trench & Co, 2004); N Machiavelli, History of Florence and of the Affairs of Italy: From the Earliest Times to the Death of Lorenzo the Magnificent (University Park, Penn, The Pennsylvania State University, 2007).

The Foundation of Law

 9

Drawing on the Machiavellian tradition, the foundation of politics is seen in the conflicting interests of opposing social forces. This is relatively close to a ­Schmittian conception of the political. In his Concept of the Political, Schmitt articulates the friend-enemy position according to which social actors organise ­themselves politically in line with their different interests.8 For Schmitt, the distinction between friend and enemy becomes the essential feature characterising a political entity.9 Crucially, the Schmittian division between friend and enemy does not refer to individual contestation or to conflict between randomly formed groups of ­individuals.10 Schmitt’s conflict, as Leo Strauß brings to our attention, is not concerned with the isolated, non-organised individual.11 Herein, Strauß continues, lies the vital contrast between the Hobbesian state of nature and the ­Schmittian political state: unlike Hobbes’ war of all against all the Schmittian war does not occur randomly but is, instead, conducted on the basis of conflicting interests of different social groups.12 By adopting this position, Schmitt acknowledges, albeit with distaste, the intrusion of social heterogeneity and of conflicting social interests into the political process. His theory is a well-organised attack against M ­ arxism. Yet, it is also the first and perhaps sole time that a civic theory does not merely admit but is, instead, predicated upon the basis of a purely ­Marxist premise. That is the ubiquitous existence of social struggle.13 While acknowledging the fundamental importance of social antagonisms, Schmitt understands politics in the rather restricted framework of decision and exception. At the same time, Schmitt sees the purest form of political opposition in the domain of theology and the antithesis between good and evil.14 But, as will be suggested, the concept of politics is both broader and more complicated. Politics cannot be explained comprehensively by reference to Schmitt’s ­theologico-political understanding of social reality as it cannot be explained adequately through vague and unspecified references to social struggles and ­antagonism. ‘Politics is a paradoxical form of action’15 that reaches beyond antithetical relations within the established social body. It extends to the ability of

8  G Schwab, ‘Introduction’ in C Schmitt, The Concept of the Political (Chicago, The University of Chicago Press, 2007) 12. As Schwab notes, Schmitt was concerned that the further implication of this would be that the state would abolish its monopoly of political activity. 9 Schmitt, The Concept of the Political (n 8), 26ff. For more recent similar approaches, see, inter alia, E Laclau and C Mouffe, Hegemony and Socialist Strategy: Towards a Radical Democratic Politics, 2nd edn (London, Verso, 2001); C Mouffe, On the Political (Abingdon, Routledge, 2005). 10  A Lavranou, ‘Introduction’ in C Schmitt, The Concept of the Political (Athens, Kritiki, 1988) 19 [in Greek]. 11  L Strauß, ‘Notes on Carl Schmitt, The Concept of the Political’ in Schmitt, The Concept of the Political (n 9) 106. 12 ibid. 13  Lavranou, ‘Introduction’ (n 10) 28–29. 14 JD Sánchez Estop, ‘Althusser’s Paradoxical Legal Exceptionalism as a Materialist Critique of Schmitt’s Decisionism’ in L de Sutter (ed), Althusser and Law (Oxford, Routledge, 2014) 69. 15 J Rancière, D Panagia and R Bowlby, ‘Ten Theses on Politics’ (2001) 5 Theory & Event .

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Roots of Law, Roots of Constitutionalism

those excluded and those invisible to claim a part in the established social and political order. When this claim takes the form of a rupture and of an interruption of the established order of things by challenging existing certainties and realities then politics becomes ‘politics proper’.16 To put forward an idea of politics proper means to acknowledge ‘the permanent possibility of inescapable conflict between values’.17 It also means that politics is not merely synonymous with social conflict. Politics is also what determines the ways in which that conflict is to be handled. While law plays a key role in this process, ‘the main role must be given to the realm of the political for it will require some common impetus in handling this conflict’;18 an impetus, which, as will explained later, the law can neither create by itself nor fully contain. The understanding of politics as politics proper is at odds with the traditions, which based on the assumption that human action is dictated by reason, conceive politics as an interminable and consensus-oriented dialogue between rational individuals.19 A fierce rival of consensual theories, Jacques Ranciere articulates his polemic against the idea of politics as a consensual process. By inviting a dangerous blend between politics and morality and by treating the political in terms of moral principles and instrumental rationalities, consensual theories, Ranciere explains, do not merely fall short of an accurate description of human societies. Rather, they constitute a wholesale ‘attempt to get rid of politics’.20 Indeed, when ‘political argument (…) follow[s] the procedures and protocols of deliberative action’;21 when, in other words, political practice disregards the existence of conflict between social forces and between conceptions of the good then oppression and exclusion are neglected and politics proper ceases to exist. In the final analysis, politics entails within it the constant possibility of unsettling given structures, hierarchies and realities.22 To understand politics in this way also means to articulate an argument in favour of democracy as the political form that can guarantee the ability to interfere with established arrangements, even if in ways that cannot always be considered

16  ibid; see also C Douzinas, Human Rights and Empire: The Political Philosophy of Cosmopolitanism (Abingdon, Routledge-Cavendish, 2007) 104. 17  I Berlin, The Crooked Timber of Humanity (London, John Murray, 1990) 80 as cited in M L ­ oughlin, Sword and Scales: An Examination of the Relationship Between Law and Politics (Oxford, Hart Publishing, 2000) 123. 18  E Loizidou, Judith Butler: Ethics, Law, Politics (Abingdon, Routledge-Cavendish, 2007) 119. 19  For a more comprehensive description of this this position, see J Gray, Enlightenment’s Wake: Politics and Culture at the Close of the Modern Age (Abingdon, Routledge, 2007) 123; see also ­Loughlin, Sword and Scales (n 17) 8; see also Carl Schmitt’s sarcastic comment in his Political Theology: ‘­German romantics possess an odd trait: everlasting conversation. (…) [T]o them it constitutes the true realization of their spirits. Catholic political philosophers (…) would have considered everlasting conversation a product of a gruesomely comic fantasy, for what characterized their counterrevolutionary political philosophy was the recognition that their times needed a decision’; C Schmitt, Political ­Theology: Four Chapters on the Concept of Sovereignty (Chicago, University of Chicago Press, 1985) 53. 20  J Rancière, ‘Who Is the Subject of the Rights of Man?’ (2004) 103 The South Atlantic Quarterly 297. 21 Douzinas, Human Rights and Empire (n 16) 104. 22  The idea of the subjective nature of reality and truth is further explored in Pt III, esp ch 5.

The Foundation of Law

 11

reliable or effective. Here, democracy is seen as providing a terrain that permits the expression of conflictual relations within societies, enables the surfacing of social contradictions and, at its peak, allows for the challenge of oppressive hierarchies. Instead of approaching democracy as an intrinsic quality of human nature or as an abstract ideal conceived beyond and above the historical juncture or human necessities, democracy is understood as a political form that can possibly promise the maximisation of the power of the people (…), where power is understood as the ability of the people to maximise their interactions with each other, to intervene in the social and physical environment, to regulate successfully their own lives and to realise their own interests.23

Democracy is therefore seen as a political concept incorporating the claim that the people rule themselves. According to this understanding, democracy does not necessarily dictate the precise institutional forms through which the power of the people will be channelled. On the contrary, democracy must be able to transgress the prescribed institutional boundaries of representative democracy, free markets and even universal rights.24 Democracy is, in the final analysis, understood as permanent social antagonism and as a political struggle that can assume different forms and generate different collective social forces according to the given circumstances, needs and demands of a specific period in time. Democracy is a political form dictated by necessity. But, as every political form it is necessarily also incomplete, its completion made possible through the inclusion in it of a minimum ‘positive social content’.25 Because that content is conditional upon the outcome of political struggles, it tends to be dictated by dominant social forces which, as a rule, are capable of presenting their interests as universal.26 Constitutionalism plays a major role in this process by suggesting the universality of the polity’s established realities and understandings, yet at the same time

23  D Tzanakopoulos, ‘From Choice to Necessity: Putting Politics in Command’ (2012) 23 Law and Critique 271, 278. In Pt III (ch 6, section III) power will be redefined as ‘the ability to guide conduct in such way as to put it in the service of a desirable outcome and as the action upon the action of ­others’. This Foucauldian understanding of power does not contradict the definition given here. What ­Foucault terms ‘the ability to guide conduct’ and ‘action upon action’ is here rephrased as ‘interaction and intervention in the physical environment’. The Foucauldian phrase ‘service of a desirable outcome’ is here termed ‘realisation of one’s own interest’. 24  D Bensaid, ‘Permanent Scandal’ in G Agamben, A Badiou, D Bensaid, W Brown, J-L Nancy, J ­Ranciere, K Ross and S Zizek, Democracy in What State? (New York, Columbia University Press, 2012) 42. See also W Brown, ‘We Are All Democrats Now …’ ibid, 45. Transgression of institutional boundaries does not in any way imply recourse to violence. A suitable empirical example of such transgression is provided by the popular uprising in Greece which has gradually since 2011 created a new political subject, overturned an unpopular government and, in the final analysis, redefined the idea and boundaries of democratic politics. See C Douzinas, Philosophy and Resistance in the Crisis: Greece and the Future of Europe (Cambridge, Polity Press, 2013). 25  Bensaid, ‘Permanent Scandal’ (n 24) 42. 26  The mechanisms through which the universalisation of interests becomes possible are further explored in Pt IV.

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Roots of Law, Roots of Constitutionalism

by providing room for the disruption of their content. As will be discussed later, constitutionalism cannot be seen separately from either politics or democracy understood in the above sense. It is a field of law that is essentially political and, importantly also essentially democratic, incorporating as it does the well-known limitations of liberal democracy but at the same time opening the way to the emancipatory potential of democratic politics.

B. Separating Law from Morality: Neo-Kantian, Positivist and Marxist Perspectives Emphasis on social conflict invites an understanding of the legal process as a process permeated by the constant and unavoidable clash of interests and values. The understanding of the law as the outcome of political processes implies, first and foremost, that the law is neither an abstract value serving an abstract ideal of justice nor a neutral tool for the regulation of human societies. To rearticulate this in positive terms, law is, both in its formal and in its substantive form, the product of political contention and compromise: formally, because its establishment is the outcome of a political decision and substantively, because legal regulations seek to intervene in societies in a political fashion and reflect, albeit not always faithfully, a given society’s state of affairs during a concrete historical juncture.27 This position distances itself from many dominant contemporary understandings, notably the neo-Kantian tradition which places its emphasis on morality. Reflecting on one of the most influential texts adopting a neo-Kantian understanding, the next sections turn to the link between law and morality before discussing the theories of positivism and structural Marxism.

i.  The Neo-Kantian Tradition In his Theory of Justice, John Rawls creates a fictitious scenario in which the principles of justice are chosen by individuals under a veil of ignorance, namely under circumstances of absolute deprivation of any information of their social ­circumstances.28 Their individual conception of the good, place in society, class position, social status and even their historical record remain unrevealed to them.29 This situation, called ‘original position’ ensures that men are not guided by their prejudices in the quest of the principles of justice, as they are not aware of the contingencies that set them in opposition.30 Rawls uses the notion of pure procedural justice as the basis of his theory: the principles of justice are arrived at

27 

D Dimoulis, The Law of Politics (Athens, Ellinika Grammata, 2001) 14 [in Greek]. J Rawls, A Theory of Justice (Oxford, Oxford University Press, 1973) 12. Ibid 136. The reference to the historical record was added in a later edition. See J Rawls, A Theory of Justice (Cambridge, Mass, Harvard University Press, 1999) 160. 30 Rawls, A Theory of Justice (n 28) 19, 137. 28  29 

The Foundation of Law

 13

through a process in which all parties stand on an equal footing. That is, the parties enjoy the same procedural rights when choosing principles of justice: ‘each can make proposals, submit reasons for their acceptance and so on’.31 Parties are also rational. Rationality suggests, according to Rawls, that the parties are able to make coherent choices between the options open to them.32 Rawls’ theory concludes that ‘the principles of justice are the result of a fair agreement or bargain’ between rational and procedurally equal individuals.33 In this light, the way individuals look at their respective societies cannot but be objective.34 Rawls goes on to apply his theory of justice to law. The justice of law, the argument goes, should be assessed from the same perspective. The representative legislator is equally deprived of any knowledge of his particulars. Thus, the justice of legislation, and particularly of legislation concerning economic and social policies, shall be assessed through a process of deliberation wherein differences of opinion are ‘reasonable’.35 In a nutshell, for Rawls, justice is what rational individuals ‘would consent to as equals when none are known to be advantaged or disadvantaged by social and natural contingencies’.36 Rawls’ theory reflects a dominant conception of the legal phenomenon:37 law is seen as a universally agreed-upon contract serving as the foundation of a theory of justice.38 The Rawlsian theory is at the borders between political theory and jurisprudence and substitutes the discussion about conflict and antagonism with a discussion about legitimacy.39 Although Rawls’ is a normative theory, it has repercussions at the descriptive level for it searches for solutions to the actual problems of human societies by reference to concepts, such as ‘the good’, ‘the rational’, ‘­the reasonable’ and ‘the just’ without any reference to historical context.40 Rawls avoids asking the obvious question why human societies are neither just and good nor rational and reasonable. In short, the real world seems absent from Rawls’ account. He keeps away from reflections on the historical and political juncture that would possibly display the reasons why, instead of a ‘perpetual peace’, we find ourselves confronted with injustice and unstoppable war.41

31 

ibid 19. ibid 43. 33  ibid 12,19. 34  ibid 516. 35  ibid 199. 36  ibid 19. 37  See, eg, J Gray, Enlightenment’s Wake: Politics and Culture at the Close of the Modern Age (­Abingdon, Routledge, 2007) 3–4. 38  P Sotiris, ‘Beyond the Politics of Rights’ (2008) 102 Theseis: Marxism, Law, Rights 91 [in Greek]. 39  Douzinas (n 16) 168. 40  D Christopoulos, ‘Towards a Construction of a Marxist Theory for the State’, (2008) 102 Theseis: Marxism, Law, Rights 33 [in Greek]. 41  Both Schmitt and Hegel remind us that the state is causally linked to war and that perpetual peace will not arise through procedures and mechanisms managed by the states; see Dimoulis, The Law of Politics (n 27) 224. 32 

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ii.  The Positivist Objection against the Link between Law and Morality Kelsen undertakes to expose the hazards inherent in the connection between law and morality. A robust opponent of the idea that the foundation of law lies outside itself, Kelsen objects to Neo-Kantian theories although his writings predate Rawls’ Theory of Justice. Kelsen’s objection does not spring from a desire to prove the determination of law by the social reality. Quite the opposite, Kelsen seeks to demonstrate law’s autonomous nature. For Kelsen, law flows from the law itself. He, nevertheless, teaches something noteworthy: when law is considered as the expression of moral principles, be they justice, peace or ‘the good’, then any given legal order is legitimised through a circular scheme: a legal system is regarded as expressing the absolute moral justice, which in turn functions as a legitimating factor, as the moral basis for that very legal system.42 Reflecting on the alleged universality of values, Kelsen argues that if it is assumed that what is good is not good under all circumstances and if we accept that moral systems differ depending on the historical juncture or on one’s national identity or, within one single nation, on one’s class, profession or status, then we must acknowledge the relativity of moral values.43

Kelsen further rejects the assumption that moral systems are naturally directed towards the preservation of peace. By reference to Heraclitus, Kelsen, suggests that it is war, rather than peace, that constitutes the ‘father’ and ‘king’ of everything. War is seen as ‘the highest norm-creating authority, the highest value, hence “good”’.44 Kelsen’s relativism may have dangerous repercussions while his theory has not escaped criticism even within the positivist tradition.45 A complete account of Kelsen’s theory of law is, however, beyond current purposes. The aim is instead to emphasise how Kelsen, whether intentionally or not, admits the impossibility of political dissent which he also seems to view as normatively desirable.46 This becomes evident in a comment on Paul’s letter to the Romans, where Kelsen argues against the identification of law with justice. He writes: The thesis that law is moral by nature (…) is rejected (…) not only because [it] presupposes an absolute moral order, but also because in its actual application (…) [it] amounts to an uncritical justification of the national coercive order that constitutes [a] community.47 If law is not separated from ethics, then there is a perilous probability that it is considered just by its very nature.48

42 

ibid 47. H Kelsen, Pure Theory of Law (Clark, NJ, The Lawbook Exchange, 2005) 64. 44  ibid 64. 45  See, eg, HLA Hart, The Concept of Law (Oxford, Clarendon Press, 1961) 105. 46 Kelsen, Pure Theory of Law (n 43) 67. 47  ibid 68. 48  ibid 59, 63. 43 

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 15

iii.  The Marxist Thesis For Marxism, as for positivism, any link between law and morality is categorically rejected. Marxism sees the state as a complex web of terms and relations divided into structure and superstructure. In its simplified form, the structure corresponds to the economic base, including primarily labour forces and relations of production. The superstructure is composed of the legal, political and ideological forms of the state which are determined by the economy. Determination of the structure by the superstructure should not, however, lead to the conclusion that the legal, political or ideological spheres are mere reflections of the economy. While the superstructure is determined by the economy, its different spheres retain a relative autonomy in the sense that they possess their own history and particularities and that, therefore, a specific internal logic within these spheres is produced and maintained.49 When commenting on relative autonomy and the need to refrain from subjecting reality solely to the economic relation, Louis Althusser quotes the words of Friedrich Engels: The economic situation is the basis but the various elements of the superstructure—the political forms of the class struggle and its results- to wit, constitutions established by the victorious class after a successful battle, etc., juridical forms, and then even the reflexes of all these actual struggles in the brains of the participants’ political, juristic philosophical theories, religious views (…)—also exercise their influence upon the course of historical struggles, and in many cases preponderate in determining their form.50

Law, understood in the main as crystallisation of dominant interests in juridical forms, plays a significant role here. Despite the primacy of the economic element, law does not abolish its tendency to determine the outcome of political struggles. The effect of the law on political struggles is, however, not neutral. As a sphere that tends to express the political status quo, law does not merely solidify the reproductive rules of the capitalist relation; it also produces a certain reality that affects the terms of social conflict. Like law itself, the reality that the law produces is never neutral but rather serves predominantly political strategies. It follows that, contrary to Kelsen for whom the foundation of law lies in law itself and contrary to the neo-Kantian foundation of law on moral principles, Marxism situates the source of law outside the legal sphere. Althusser places ­particular emphasis on the concept of overdetermination. Law is understood as a sphere that is relatively autonomous but at the same time overdetermined by other spheres, including the political and ideological. As every element of the

49 

See Althusser, For Marx (n 5) 111. Letter from Engels to J Bloch, 21 September 1890 (Marx-Engels, Selected Works, vol II, pp 488–89), as cited in Althusser (n 5) 112. 50 

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superstructure, law is overdetermined, in the final instance, by the economy. In the ­capitalist economy this translates into a perception of the law as, on the one hand, a product of the capitalist relation of production and, on the other, as a state apparatus that serves the reproduction of that relation.51 This is achieved both through the ideological function of law and through its material existence. For structural Marxism, the law’s double function is key to capitalism, guaranteeing as it does, not merely the institutions and regulations that perpetuate capitalist rule but also the invisibility of law’s bias. Thus, the law guarantees the function of productive relations whose form corresponds to the interests of a dominant class. In this way, law is ‘at the forefront of political struggles: from the destruction of Labour Law to the exploitation of Patent Law; from the privatisation of Public Law to the ongoing hegemony of Commercial Law’, the law’s effects, whether tangible or ideological, always wield power to construct the actual terms of social conflict.52 However, law and politics should not be conflated. The relative autonomy of the law means that the latter is more than a simple expression of political dominance while politics reaches much further than the field of law, possessing a horizon and an end that stretch out far beyond strictly defined legal categories.53 As already remarked, in order to accomplish the maintenance and furtherance of capitalist rule, law necessarily also serves an ideological function. From the construction of the legal subject as the naturally free and equal individual bearer of rights to the depiction of the state as neutral, law insinuates itself into the individual and the social body fixing ‘the adjustment and cohesion of men in their roles, their functions and their social relations’ and making them appear obvious, n ­ atural and normal.54 While the detection of an ideological function in the naturally free and equal individual is not exclusive to Marxist thought,55 the idea that legal ideology construes a given society as the aggregate of individuals merits attention. In eliminating any notion of social forces, the law tends to assume the absence of clashing collective interests, namely of social conflict. Similarly, legal ideology depicts the state as a neutral arbiter located above such interests and as an institution which articulates the field of social relations in a manner that guarantees the general welfare of the population and the public interest.56

51  L Althusser, E Balibar and J Bidet, On the Reproduction of Capitalism: Ideology and Ideological State Apparatuses (GM Goshgarian tr, London, Verso, 2014) 166ff. 52  L De Sutter, ‘Introduction’ in de Sutter, Althusser and Law (n 14) 1. 53  ibid 4. 54  Althusser L, Philosophy and the Spontaneous Philosophy of the Scientists (London, Verso 1990) 25. 55  See M Warren, ‘The Threat of the Outside: Althusser’s Reflections on Law’ in de Sutter (n 14) 26. Kelsen, eg, notes that ‘[the] idea of a legal subject independent of the law (…) is designed to establish the institution of private property (…). It is easy to understand why the ideology of legal subjectivity seeks to establish a link with the ethical value of individual freedom and of an autonomous personality, if property is always included in this freedom’. See Kelsen (n 43) 171. 56 L Althusser, Philosophy of the Encounter: Later Writings, 1978-87: Later Writing, 1978–1987 (F Matheron and O Corpet eds, London, Verso, 2006) 119.

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 17

Yet, the state is neither neutral nor situated over and above conflicting i­nterests.57 The state is a mechanism, or as Althusser sees it, a motor that transforms one form of energy into the other: we would clearly say that the state is a machine for producing power. In principle, it ­produces legal power—not for reasons involving the moral privilege of legality, but because, even when the state is despotic, and ‘dictatorial’ to boot, it always has an interest, practically speaking, in basing itself on laws; (…) What, then, is this energy (…) that is transformed into (legal) power by the state-machine? (…) [This energy is] quite simply, the Force or Violence of class struggle, the Force or Violence that has ‘not yet’ been transformed into Power, that has not been transformed into laws and right.58

In the above extract, state, power, ideology and the law wind together to produce an equation of fundamental importance. Social conflict is marked by the omnipresent violence of the dominant class against dominated classes and finds expression in the form of law, which is itself a form of power. Ideology manages to conceal violence so effectively, because, it can never be reduced to the level of ideas. Ideology constructs our understanding of the world precisely because it is ‘always reproduced and reconstituted in practice’.59 It becomes the material reality based on which we make sense of ourselves and of our relations to others. It is the very point of ideology to present itself as a truth, as a reality, thus making itself invisible. The process is mediated by the state, for ideology cannot be effectively imposed unless the mechanisms of the state, from the school to the workplace, spread it through the social body. The above remarks suggest an understanding of the law as a field that has roots and produces effects beyond the legal sphere to the sphere of politics and social reality. The law, while retaining a relative autonomy, serves certain political interests and strategies. One of the principal manifestations of the political nature of the law is its dialectical function, namely its intervention in social conflicts in a way that both dominant and dominated social forces can make equally valid claims to it.60

C. Law as the Product of Social Conflict—Law as the Mediator of Social Conflict To reiterate, [if] law can only be explained and founded in terms of law, it becomes eternal, and ­somehow causa sui. As a self-sustaining reality, not only does it not need any outer

57 

For a comprehensive discussion of the state, see Pt IV. Philosophy of the Encounter: Later Writings, 1978–87: Later Writing, 1978–1987 (n 56) 105–07. 59  J Fiske, ‘Culture, Ideology and Interpellation’ in J Rivkin and M Ryan (eds), Literary Theory: An Anthology (Oxford, Blackwell Publishers, 1998) 308. See further Pt III (ch 5) and Pt IV for a more thorough analysis of ideology as practice and reality. 60  Dimoulis (n 27) 55. 58 Althusser,

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­ etermination to come into existence, but it can even pretend to consistently ‘explain’ as d the result of an eternal legal truth the social and economic relations proper to capitalism.61

Law’s foundation is external to it. Law is produced by and intervenes in social conflict largely determining its outcome. Law determines and is determined by the social reality and the historical and political juncture.62 In light of this, it makes sense to look at the constitutional phenomenon through the social reality in which it emerged and through the political necessities that it came to respond to.63 The following section focuses on the emergence of constitutionalism in modernity with a view to establishing a connection between constitutionalism as a mode of organisation of a polity on the one hand and social conflict on the other.

II.  Constitutionalism in Modernity: The Social and Historical Juncture A.  Instances of Pre-constitutional Thought Constitutionalism in its current form emerges with the birth of the nation state in the eighteenth century. However, seeds of constitutional thought have existed as long as political thinking has.64 Even in the absence of constitutions understood as codified legal documents composed of abstract, universal principles, the basic idea of constitutionalism as an arrangement that holds the polity together s­ecuring internal harmony exists already in antiquity.65 61 

Althusser (n 5) 75. the same reason, this understanding of law is also in tension with Luhman’s conception of law as a reflexive mechanism or as a system of autopoiesis. While, with Althusser, I acknowledge the relative autonomy of law, Luhman’s absolute autonomy of the legal system—its conceptualisation as a field autonomously reproducing itself free from any interaction with other spheres of society—is at odds with the idea that the source of law lies partly outside the legal system. See N Luhmann, ‘Reflexive Mechanismen’ (1996) 17 Soziale Welt 1; N Luhmann, ‘Autopoiesis, Handlund und kommunikative Verständigung’ (1982) 11 Zeitschrift für Soziologie 366. 63  Tierney refers to the idea (an idea, which he himself does not embrace) that ‘[the] artificial distinction between the legal and the political (…) is dependent upon politically informed assumptions about reality. (…) What is needed then is a historically and sociologically contextualized account’; S Tierney, ‘“We the Peoples”: Constituent Power and Constitutionalism in Plurinational States’ in M Loughlin and N Walker (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford, Oxford University Press, 2012) 237. 64  For McIlwain, politico-legal thinking is considered as important for the shaping of the idea of constitutionalism as legal institutions. In light of this, there is some value in discussing ideas that precede the constitutional nation state. See CH McIlwain, Constitutionalism: Ancient and Modern (Ithaca, NY, Cornell University Press, 1947) 62. 65  Jellinek distinguishes between the formal and substantive constitution. The latter contains the legal rules for the establishment, way of taking office and jurisdiction of a state’s highest organs together with the circumscription of the basic relationship between the individual and state power. As these rules have been present in more or less all forms of political organisation, it seems reasonable to speak of a type of premature constitutionalism in antiquity. See, G Jellinek, Allgemeine Staatslehre (O.Häring, 1914) 505. 62  For

Constitutionalism in Modernity

 19

Since antiquity, legal thinking remains contingent upon the political necessities of each historical period. Sometimes, the understanding of the law as an effective tool for intervention into the political domain and for pacification of social conflict becomes explicit. For example, the permanent instability of the Greek poleis during the time that Aristotle was writing permeates the entirety of the ­philosopher’s political thinking, which develops against the backdrop of the constant threat of revolution (stasis).66 Confronted with the everlasting fear of stasis and its concomitant destructive power, Aristotle’s philosophy is guided by the need to preserve the status quo.67 Stasis represented the reverse side of harmony, a disastrous lack of equilibrium and a potentially catastrophic threat. For this reason, the Aristotelian purpose of the law often seems to be the preservation of stability by any means. For Aristotle, the rule of law can sometimes be realised only through active ­disobedience.68 When laws are unjust they must be actively disobeyed by the citizen who, guided by reason, must destroy the unjust constitution. It would be misleading to draw analogies between the Greek city state and modern constitutional orders, not only because ‘Greek society was founded upon slave-labour, and had, therefore, for its natural basis the inequality of men and of their labour-powers’69 but also because democracy was often rejected as a form of government pursuing the ‘commoner’ interest and distancing itself from virtue.70 However, it is suggestive that the understanding of constitutional arrangements is pervaded by the need to preserve the harmony of the political order, even at the cost of destroying unjust laws. In Aristotelian constitutional thinking, legal change is not synonymous with instability. Quite the opposite, it is a means to that very end. In the Roman Empire, political and legal thinking develops under conditions of relative political stability and therefore takes a different turn. Cicero’s statement that the Roman people are united under their common consent to the laws as well as under their mutual interests perhaps marks the first time in history that law is clearly presented as a factor of social cohesion.71 Yet, the Roman conception of political and legal organisation of the state heralds a breakthrough in constitutional history for another reason. Rome did not merely possess a developed institutional system of checks and balances. More importantly, it was the place where the roots of the modern concept of pouvoir constituant resides: Cicero develops the notion of a limitless constitutional power vested in and exercised by

66 McIlwain, Constitutionalism 67 ibid.

(n 64) 39–40.

68  J Frank, ‘Aristotle on Constitutionalism and the Rule of Law’ (2006) 8 Theoretical Inquiries in Law 37. 69  Capital, T I, p 73; vol I, 59–60 as cited in L Althusser and E Balibar, Reading Capital (London, Verso, 1979) 123. 70  I Ward, An Introduction to Critical Legal Theory (Oxford, Cavendish Pub, 1998) 11. 71  ‘sed coetus multitudinis iuris consensus et utilitatis communion sociatus’ in K Mavrias, Constitutional Law (Athens, Sakoulas, 2005) [in Greek] 50; see also E Balibar, ‘Is a Philosophy of Human Civic Rights Possible? New Reflections on Equaliberty’ (2004) 103 The South Atlantic Quarterly 311.

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the s­ overeign citizenry.72 And Gaius defines lex as that ‘which the people orders and has established’.73 The above examples do not reflect the complexity of either legal arrangements or political thinking in pre-constitutional orders. Nevertheless, they manifest that political necessity may dictate constitutional strategies and determine constitutional tendencies. As the history of Rome demonstrates, however, next to political necessity constitutional evolution has also been shaped by political aspirations. Cicero, for example, uses the idea of natural law and natural rights to back his political strategies and intentions. Influenced by the philosophy of the Stoics, ­Cicero writes that ‘the true law is the law of reason, in accordance with nature known to all, unchangeable and imperishable’.74 Here, the philosophy of the Stoics is tailored and partly abused in order to rationalise the imperial goals of the Roman Empire.75 Cicero’s constitutional ideal retains drastic ideological and political implications to our day. If ‘the true law, the law of reason’ cannot but be the same everywhere,76 then the ‘civilising mission’ of the Empire, its ‘higher purpose of (…) rescuing the barbarian’ is easily justified.77 It is not difficult to detect the influence of this line of thought on today’s humanitarian rhetoric; a rhetoric which, according to its critics, has managed to legitimise the most violent atrocities.78 Pre-constitutional legal thinking assumes different forms throughout history, but has more often than not been preoccupied with the provision of a legal framework and a political terrain wherein social antagonisms could be defused ­without disturbing the smooth continuance of social and political life. This offers a positive understanding of constitutionalism as the overarching legal and political mentality of a polity that seeks to ensure that polity’s reproduction. Within this positive approach to constitutionalism, a negative understanding is also implied. Contrary to an approach to constitutionalism as mainly the institutionalisation of constraints to power, this approach sees constitutionalism not so much as legal limitations to political power or as restraints to the power of the sovereign, but rather as a legally mediated political trade-off between dominant and dominated social groups. Constitutionalism as a legal mediator of social conflict is equally expressed in the philosophy of the Enlightenment and the constitutional developments that followed it.

72 Jellinek, Allgemeine

Staatslehre (n 65) 507. Cited in McIlwain (n 64) 44. 74  Douzinas (n 16) 17. 75  ibid 17; see also J Bodin, The Six Bookes of a Commonweale (R Knolles, tr Impensis G Bishop, 1606) 48. 76  Douzinas (n 16) 157. 77  A Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge, Cambridge University Press, 2004) 96. 78  See, eg, S Žižek, ‘Human Rights and its Discontents’. Lecture at Bard College, November 1999. www.lacan.com/zizek-human.htm. 73 

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 21

B. The Enlightenment: Natural Rights, Popular Sovereignty and the Social Contract Mediaeval France was permeated by political disputes whose spread throughout the ancien régime has been a decisive factor for the subsequent development of the French constitution.79 In an effort to deal with the political conflicts of the sixteenth century, Claude de Seyssel, a French diplomat and jurist, published an influential treatise titled La Grande Monarchie de France.80 De Seyssel constructed a constitutional system for the French state based on the division of ‘wealth, h ­ onors, offices and administration’ between all classes within the social ­structure.81 This would, according to de Seyssel, create harmony and preserve the monarchy.82 The accommodation of conflict through privileges to all social forces is an interesting pre-constitutional indicator of the tie between preservation of the polity’s established order and constitutional thinking. However, de Seyssel’s model of government suffered from a decisive fault. It did not foresee any possibility for legal change, while innovations were considered dangerous for social stability.83 In an era characterised by rapid changes, de Seyssel’s static theory was inappropriate, as it could not adequately accommodate social conflict and institutional crises.84 However, what de Seyssel’s constitutional thinking fails to achieve, is later accomplished by the philosophy of the Enlightenment. Shaped by the political necessities of the sixteenth century, the philosophy of the Enlightenment marks the common philosophical uprising against the irrational imposition of authority. It stamps the effort to create a secular foundation for political power. In the backdrop of ‘the dissolution of Europe into national states and (…) the [political] struggle[s] of the absolute rulers with the estates’ this secular foundation sometimes takes the form of the sovereign and sometimes of the people.85 Hobbes, writing against the background of the English Civil War, developed his philosophical thinking on the premise that human nature cannot escape conflict.86 Hobbes speaks of the sovereign as the ultimate source of right and as the possessor of the absolute power to rule. He perceives security as the greatest human need and, against this background, he does not hesitate to argue in favour of a tradeoff between the natural right to liberty on the one hand and law understood as

79  In fact, the severity of the conflicts has induced the statement that France had always had a constitution. NO Keohane, ‘Claude de Seyssel and Sixteenth Century Constitutionalism in France’ in JR Pennock and JW Chapman (eds), Nomos XX: Constitutionalism (New York, NYU Press, 1979) 48. 80  C De Seyssel, La Grande Monarchie de France (Gollot de Pre, 1519). 81  WF Church, Constitutional Thought in Sixteenth Century France: A Study in the Evolution of Ideas (New York, Octagon Books, 1969) 39. 82  ibid 39. 83  ibid 41. 84  ibid 73; Keohane, ‘Claude de Seyssel and Sixteenth Century Constitutionalism in France’ (n 79) 73. 85 Schmitt, Political Theology (n 19) 16–17. 86  Douzinas (n 16) 20.

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the rule of the sovereign on the other.87 Hobbes accepts the natural liberty and equality of all individuals but advocates in favour of their voluntary renouncement in return for security provided by an almighty coercive power. He produces an authoritarian image of a legal order wherein law is solely the command of the sovereign: ‘Auctoritas, non veritas, facit legem’: ‘the verification is but the testimony and record, not the authority of the law; which consisteth in the command of the sovereign only’.88 Thus, for Hobbes, law is neither prefigured by the legal system nor does it derive from wisdom or truth.89 Locke, writing under circumstances of relative peace, produces an image of ­naturally good individuals.90 Locke fashions the Hobbesian theory in a more democratic direction. Contrary to Hobbes, the Lockean individual cannot be alienated from their natural rights. They can merely delegate them to the sovereign. This notion of covenant between the sovereign and the people has all the hallmarks of a constitutional arrangement.91 In Locke’s philosophy the foundation of a polity’s constitution is trust.92 Locke equates trust with the consent given from civil society to the government and reserves for the people the right to disobey in case of a state’s interference with their natural rights.93 Rousseau comes to take a different position. He overturns the Hobbesian argument that natural liberty is sacrificed in exchange for security. For Rousseau, genuine liberty requires self-government and natural liberty acquires its full meaning only when it is rendered into civil liberty.94 Thus, liberty and the law do not inevitably stand in relation of mutual antagonism. By contrast, the clash between law and liberty can be avoided provided that law is established by the people ­themselves.95 The latter are thus transformed from a multitude into a people and

87  M Loughlin, ‘Public Law and its Discontents’ Global and Comparative Public Law Colloquium NYU (19 September 2011). 88  T Hobbes, Leviathan Or, The Matter Form, And Power of a Commonwealth, Ecclesiastical and Civil (John Bohn, 1839) 260. 89  In presenting the sovereign as the ultimate source of law, Hobbes repeats Bodin, who, equally influenced by the political environment his era, equates the sovereign with an absolute authority. However, as one scholar puts it, Bodin’s is a kind of ‘constitutional absolutism’, since the sovereign rules in the interest of the people. See M Koskenniemi, ‘Miserable Comforters: International Relations as New Natural Law’ (2009) 15 European Journal of International Relations 395, esp fn 9. 90  Douzinas (n 16) 20. Note that the differences between Hobbes and Locke mirror the contrast between Cicero and Aristotle, who also developed different theories in accordance with their respective political environments. 91  Loughlin (n 17) 165. 92  ibid 168. 93 ibid. 94  Loughlin, ‘Public Law and its Discontents’ (n 87). 95  Rousseau’s thought here seems to partly meet Montesquieu for whom liberty requires that citizens subject themselves to the relationships required by their conception of the law. Liberty is not just avoiding what the law forbids but rather a positive ideal according to which the citizen lives freely within the normative framework that the law prescribes. According to this reading, liberty is not freedom to construct different ways of life but rather freedom to live freely within one particular way of life prescribed by the law. See C Wimberly, ‘Liberty and the Normative Force of the Law in Montesquieu’s The Spirit of Laws’ (2010) 14 Minerva-An Internet Journal of Philosophy 36.

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through their common general will become the new sovereign. Here, Rousseau clearly formulates the principle of popular sovereignty but, more importantly, his conceptualisation of the sovereign people as naturally free and equal individuals united under their common general will become the favourite dogma of the French revolutionaries, providing as it does the very foundation of classical liberalism and the theoretical basis of the modern constitution.96 The emergence of natural rights as inborn elements of the individual marks the gradual renouncement of both classical and theological natural law: Law is no more legitimate unless it is in line with the rational nature of individuals.97 ­Natural law thus becomes an expression of right reason. The influence exerted by these ideas on the legal and political developments of the following centuries cannot be overstated. The constitutional documents following the French and American Revolutions stamp the institutionalisation of the philosophy of the Enlightenment in the constitutional orders of modernity.

C. The French and American Revolutions: Launching into the Constitutionalism of Modernity At the outset, the French Revolution is not a direct consequence of the philosophy of the Enlightenment. Certainly, the causes of the Revolution go far back in history but, as far as the eighteenth century is concerned, one cannot ignore the profound social and economic disorder of France as well as the fact that the antagonisms between opposing social forces were more severe in France than in the rest of the Western world. The ancien régime of absolute monarchy along with the privileges conferred upon the aristocratic class resisted powerfully the rise of new social forces, notably the bourgeoisie. The French Revolution was the almost inevitable outcome of the conflicts permeating the French state and was, therefore, bound to happen. Yet, as Hobsbawm notes, the philosophy of the Enlightenment ‘probably made the difference between a mere breakdown of an old regime and the effective and rapid substitution by a new one’ and, in this respect, the outcome of the Revolution is attributable to it.98 The Revolution was not just bound to happen; it was also bound to succeed. The resistance of the aristocratic class, rather than dispiriting the middle class, infuriated it.99 The latter, acting in the interests of the bourgeoisie, was composed of the vast majority of the French population, comprising everyone not belonging to the clergy or noble class.100 The Revolution was destined to succeed for two reasons. First, the Revolution finds the bourgeoisie united on the basis of its

96 

Loughlin (n 87). Douzinas (n 16) 19. E Hobsbawm, The Age of Revolution 1789–1848 (New York, Vintage Books,1996) 58. 99  ibid 54–58. 100 ibid. 97  98 

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c­ommitment to the philosophical principles of natural rights and the rational individual. ­Secondly, the same class manages to create a fiction of unity between itself and the poorer fractions of society, namely peasants and workers.101 Unity is here founded upon the novel idea of the nation and the appeal to the latter’s general will. The above ideas and philosophical principles find expression in the constitutional principles proclaimed in the institutional materialisation of the Revolution, the French Declaration of Rights of Man and Citizen: the inborn and universal qualities of freedom and equality (Article 1); the natural and imprescriptible rights to liberty, property, security and resistance to oppression (Article 2); the declaration of the Nation as the principle of any sovereignty (Article 3).102 The obvious imprint of the Enlightenment results in the extension of equality before the God to equality in the public sphere. It is at this juncture that the notion of democratic citizenship also comes into existence.103 The revolutionary declarations were undoubtedly radically ahead of anything that the world had experienced so far. However, they also were double-edged swords, as the principle of universalism becomes assimilated to the ideology of the dominant class. In his Jewish Question, Marx remarks that abstract rights have functioned as an ideological mystification by artificially depicting the citizens as free and equal. In this, Marx argues, natural rights conceal a reality permeated by social conflict.104 It is, however, not the early Marx of the Jewish Question but rather the later caustic Marx of The Capital that best describes the limitations in the idea of the naturally free and equal individual: [The] sphere that we are deserting, within whose boundaries the sale and purchase of labour-power goes on, is in fact a very Eden of the innate rights of man. There alone rule Freedom, Equality, Property and Bentham. Freedom, because both buyer and seller of a commodity, say of labour-power, are constrained only by their own free will. They contract as free agents, and the agreement they come to, is but the form in which they give legal expression to their common will. Equality, because each enters into relation with the other, as with a simple owner of commodities, and they exchange equivalent for equivalent. Property, because each disposes only of what is his own. And Bentham, because each looks only to himself.105

101 

ibid 60. Declaration of Human and Civic Rights of 26 August 1789, art 1–3, . 103  E Laclau, ‘An Interview with Ernesto Laclau and Chantal Mouffe’ (1999) as cited in M Mokre, ‘The Ratification of the Constitution and the European Public Sphere’ in SP Riekmann and W Wessels (eds), The Making of a European Constitution (Wiesbaden, Verlag für Sozialwissenschaften, 2006) 259. 104  K Marx, The Jewish Question (Athens, Odysseas, 1978) 75 [in Greek]; For reactions provoked by the Jewish Question and on further bibliography, see L Ferry and A Renault, French Philosophy of the Sixties: An Essay on Antihumanism (Amherst, Mass, The University of Massachusetts Press, 1990) xi–xii. 105  K Marx, The Capital, vol I (London, Lawrence & Wishart, 1938) 155. 102 

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And he goes on to note that, The only force that brings them together and puts them in relation with each other, is the selfishness, the gain and the private interests of each. Each looks to himself only, and no one troubles himself about the rest, and just because they do so, do they all, in accordance with the pre-established harmony of things, or under the auspices of an all-shrewd providence, work together to their mutual advantage, for the common weal and in the interest of all.106

Without necessarily rejecting the liberating potential of rights, Marx targets the naturalisation of social relations of dominance. Innate rights restrict the limit of the political and immunise institutions against political challenge. Marx’s criticism focuses notably on property and contractual rights, the institutions at the centre of the emerging market society of the late eighteenth century. The naturalisation of property and contractual rights is not an accidental result of the French Declaration. In feudal societies economic power was identified with political dominance and it was in the interest of the rising middle class to break off the ties between the two. The separation of man from community, noted by Marx, and the former’s commitment to the private realm through natural rights achieves precisely this: ‘to remove politics from society and [to] bring to an end the automatic identification of the economic dominant class with political leadership’.107 At the same time, the Declaration celebrates the French national identity and identifies the people with the nation, elevating the latter’s sovereignty to the ­polity’s ultimate authority. ‘The nation recognized no interest on earth above its own, and accepted no law or authority other than its own—neither that of humanity at large nor of other nations’.108 These words by Abbé Sieyes refer to the paradox resulting from the simultaneous celebration of universalism and the provision of a strong political basis for nationalism in the articles of the Declaration. On a second reading, however, this paradox is only ostensible. In fact, universalism and nationalism worked together to legitimise colonialism and state markets. The similarities with Cicero’s exploitation of the idea of universalism in order to justify the imperial goals of the Roman Empire and civilise the barbarian ‘other’ are conspicuous. With regards to national markets, their evolution in a symbiotic relationship with the nation is also not coincidental for the idea of common belonging to the nation secured the loyalty and consensus needed for the smooth function and reproduction of the national market.109 The depiction of the people as an ultimately homogenous community—the image of a powerful population sharing both the same past and the same vision of a utopic future—thus becomes

106 

ibid 155. Douzinas (n 16) 101. Quoted in TW Murphy, Hidden Wisdom (New York, The Disinformation Company, 2010) 228. 109  J Rifkin, Die Empathische Zivilisation: Wege zu einem Globalen Bewusstsein (Frankfurt am Main, Campus Verlag, 2010) 217. 107  108 

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a powerful weapon in the hands of political elites.110 Hence, Hobsbawm’s harsh comment that, ‘on the whole the classical liberal bourgeois of 1789 (…) was not a democrat but a believer in constitutionalism, a secular state with civil liberties and guarantees for private enterprise, and government by tax-payers and propertyowners’.111 Quite surprisingly, instead of a picture of constitutionalism as the guarantor of democratic government, one is here faced with the depiction of constitutionalism and democracy as opposing forces. This view, however unorthodox, emerges anew in the history of the American Revolution. Indeed, a version of the history of American constitutionalism sees the US ­Constitution as the product of rich property holders who struggled to protect their assets through the prevention of potentially radical democratic pressure.112 Like the French Revolution, so too, its American counterpart was not simply a war for independence. The fruit of the Revolution, the US Constitution declares democracy and independence for the American nation and freedom and equality for the American people. However, the American Revolution is the upshot of the desire for freedom from colonial masters as much as it is the upshot of the balance of powers that had resulted out of the internal social conflict.113 Whatever the merits of the constitutionalism/democracy dichotomy put forward by historians, one cannot overlook the eighteenth century’s massive social struggles between aristocracy and the ‘middling men’, the Republic’s subsequent middle class.114 Madison’s assertion that the Constitution would produce ‘a disinterested and dispassionate umpire in disputes between different passions & interests’115 reflects precisely the ambition of the Founding Fathers to mediate the impact of middling men’s influence on state legislatures through the creation of a neutral federal government.116 Madison’s words present American constitutionalism as a tool for preventing multiple conflicting social interests from joining forces to create dominant majorities.117 In light of this, the dichotomy between constitutionalism and democracy cannot be easily or unconditionally foreclosed. Constitutionalism owes its glorious tradition to its quality as a symbol against authoritarian rule and irrational power and to its radical potential against o ­ ppression

110 

ibid 217.

111 Hobsbawm, The

Age of Revolution 1789–1848 (n 98) 59. CA Beard, An Economic Interpretation of the Constitution of the United States (New York, The Free Press, 1913), cited in D Acemoglu and JA Robinson, Economic Origins of Dictatorship and Democracy (Cambridge, Cambridge University Press, 2006) 33. 113  American historians seem to be divided around the question of the exact nature of these conflicts, and in particular about whether they were purely economic or can also be characterised as social or political. See RA McGuire, ‘Constitution-Making: A Rational Choice Model of the Federal Convention of 1787’ (1988) 32 American Journal of Political Science 483 for further bibliography. The disagreement, however, seems to be misleading to the extent that a social conflict is always also political. 114  GS Wood, Empire of Liberty: A History of the Early Republic (Oxford, Oxford University Press 2009) 29–30. 115  J Madison, Federalist Papers No10 (1987), as cited in Wood, Empire of Liberty (n 114) 33. 116 Wood, Empire of Liberty (n 114) 31–33. 117 ibid. 112 

Constitutionalism in Modernity

 27

and injustice. However, constitutionalism did not develop in a political vacuum but has rather been determined by social antagonisms and conflict. Constitutional settlements, either by way of formal constitutions or by way of substantive arrangements, materialise against the background of conflict of economic, social and political interests. A historical reading of constitutional settlements and of the reasons and political necessities that brought them into being provides useful insights for an alternative understanding of constitutionalism. Without neglecting that constitutionalism will always carry with it the liberal precepts of the philosophy of the Enlightenment, such alternative understanding is premised upon the assumption that, like all law, constitutions are products of certain powers at certain times in history and, as a rule, in the service of particular interests. The following chapter attempts to resolve the tension between constitutionalism as a tool for political dominance and constitutionalism as a democratic arrangement.

28 

2 The Telos of Modern Constitutionalism I.  Constitutionalism in Modernity A.  What is the Constitution? The period following the demise of absolutism and the rise of representative democracy and formal constitutions in France and America is succeeded by a rapid expansion of constitutionalism and democracy in the rest of notably the Western world. Constitutional expansion has neither been uniform nor smooth and uncomplicated. However, the rapidity and geographical width of democratisation is impressive. From antiquity until the mid-eighteenth century, democracy is perceived as a degraded form of government, and yet within the next two centuries it comes to constitute the only acceptable political regime, although it does not always remain faithful to the dominant liberal democratic paradigm (eg Islamic or socialist democracies).1 The unprecedented expansion of representative democracy is formalised through the creation of written constitutions. Not surprisingly then, constitutionalism is frequently linked to possession of a formal written document of higher legal status. The connection between the written constitution and constitutionalism does usually not go as far as to result in equation of the two.2 While the written constitution is a strong indicator of a constitutional order, the distinction between written and unwritten constitutions refers more to form and less to substance.3 Britain and Israel are constitutional orders but lack a written constitution. Similarly, Canada and New Zealand have

1 K Chrysogonos, ‘Why the Constitution? Historical Conditions of Constitutionalism’ [in Greek]. 2  In the US, eg, holds the view that the best (although not the sole) way to ensure the principles of constitutionalism is through a formal document of higher legal status. GJ Schochet, ‘Introduction: Constitutionalism, Liberalism and the Study of Politics’ in JR Pennock and JW Chapman (eds), Nomos XX: Constitutionalism (New York, NYU Press, 1979) 11. 3  A Tomkins, Public Law (Oxford, Oxford University Press, 2003) 9. I choose not to focus on the question of form or, for that matter, of hierarchical supremacy of the constitution. These issues, while important, do not further or are in any other way associated with the current purpose which is to demonstrate how constitutionalism provides (and restricts) the field for political and social ­struggle.

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The Telos of Modern Constitutionalism

never established a uniform constitutional document but have rather accumulated numerous documents of constitutional status, which are considered too important to not count as a constitution.4 Even in the context of US formal constitutionalism the varying judicial interpretations which at times clash with the original text have invited the remark that ‘perhaps (…) the American Constitution [is] as unwritten as the British’.5 ‘[The] real constitution of a state’ is thus more properly understood in broad terms as a legal ideology of political organisation that ‘lies in [the state’s] social conditions, culture and political system rather than in any formal legal provisions supposedly regulating state power’.6 A broad understanding of constitutionalism is neither uncontroversial nor easy to defend. This is so, not merely because it rejects the formal quality of the constitution, but, more importantly, because is disassociates the constitution from the limitation of state powers. The true essence of the constitution is often tied to the rule of law understood as the principle which reflects that ‘the state’s bodies act according to the prescriptions of law, and law is structured according to principles restricting arbitrariness’.7 In fact, the idea that the essential quality of the constitution and, therefore, of constitutionalism is the regulation and control of state power dominates constitutional thinking. Constitutionalism, the argument sometimes goes, must at least be law, while the essential quality of constitutionalism is the legal limitation of government.8 Equally, in the context of American constitutionalism the essence of constitutionalism is found in the idea of public power controlled by superior law, irrespective of the exact substantive content of the constitutional document.9 Other times, constitutionalism is characterised as an

For an interesting account on matters of form, hierarchical supremacy and so forth, see TC Grey, ‘Constitutionalism: An Analytic Framework’ in Pennock and Chapman, Nomos XX: Constitutionalism (n 2) 189. Grey gives an account of relevant disagreements between Bentham, von Gierke and Paine. See, in turn, O von Gierke, Natural Law and the Theory of Society: 1500 to 1800 (Cambridge, Cambridge University Press, 1934) 152; T Paine, ‘The Rights of Man’ in The Essential Thomas Paine (New York, New American Library, 1969) 246; J Bentham, The Works of Jeremy Bentham vol 9: Constitutional Code (Edinburgh, William Tait, 1838–1843) 119. 4 Z Elkins, T Ginsburg T and J McIton, The Endurance of National Constitutions (Cambridge, ­Cambridge University Press, 2009) 6. 5  SM Griffin, ‘Constituent Power and Constitutional Change in American Constitutionalism’ in M Loughlin and N Walker (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford, Oxford University Press, 2012) 60. 6 R Bellamy, ‘Introduction: Constitutionalism, Democracy and Sovereignty’, in R Bellamy (ed), Constitutionalism, Democracy and Sovereignty: American and European Perspectives (Aldershot, ­Ashgate Publishing, 1996) 1. 7  A Sajó, Limiting Government: An Introduction to Constitutionalism (Budapest, Central European University Press, 1999) 205. 8  CH McIlwain, Constitutionalism: Ancient and Modern (Ithaca, NY, Cornell University Press, 1947) 21. 9 RS Kay, ‘American Constitutionalism’ in L Alexander (ed), Constitutionalism: Philosophical ­Foundations (Cambridge, Cambridge University Press, 1998) 16.

Constitutionalism in Modernity

 31

‘achievement’, ruling out, as it does, ‘any sort of arbitrary power’.10 Thus, constitutionalism is predicated first and foremost upon the idea of limited government:11 A constitutional regime is, importantly, a regime that focuses not on the achievement of governmental aims (or aims of governance), but rather on providing a stable and legitimate framework for interaction between the regime’s subjects and for interaction between those subjects and the powers that be. Hence, constitutionalism would include such things as democracy and transparency, place a premium on free expression, due process and participation on the basis of equality, and would encompass the exercise of authority in accordance with some version of the rule of law, be it limits internal to the organization (emanating from its own documents) or external to the organization (subjecting it to general international law and human rights standards). And in this scheme, an important role is reserved for judicial review: in the final analysis, judges will be deemed to be the guardians of the rule of law and of the constitution, for they are, many would agree, above politics. Constitutionalism typically aims to tame man’s quest for power, and aims to do so by providing legal limits.12

While the above description does not equate constitutionalism with limits to governmental power, it strongly indicates that taming power through legal restrictions is regarded as the essential quality of the constitutional order. Constitutional courts also play a key role here. The term constitutionalism is sometimes identified with the post-war constitutional movement, during which constitutional courts were established as a reinforcement of constitutional orders.13 Yet, constitutionalism is also identified with the philosophical questions connected with the constitution, ie the ethos and telos of certain constitutional provisions;14 with a theory of power or social decision-making;15 with the fundamental rules of ‘being together’ (Gemeinwesen) in a public community;16 and, in the final analysis, with ‘the embodiment of a particular nation’s democratically self-given legal and ­political commitments’.17 10  D Grimm, ‘The Achievements of Constitutionalism and its Prospects in a Changed World’ in M Loughlin and P Dobner (eds), The Twilight of Consttutionalism? (Oxford, Oxford University Press, 2012) 10. 11  M Loughlin, ‘What is Constitutionalisation’ in Loughlin and Dobner, ‘What is Constitutionalisation’ (n 10) 59. 12 J Klabbers, ‘Constitutionalism Lite’ (2004) 1 International Organizations Law Review 31, 33 [emphasis added]. 13 P Craig, ‘Constitutions, Constitutionalism and the European Union’ (2001) 7 European Law ­Journal 125. 14  J Weiler, ‘Does Europe Need a Constitution? Demos, Telos and the German Maastricht Decision’ (1995) 1 European Law Journal 219. 15  M Maduro, ‘From Constitutions to Constitutionalism: A Constitutional Approach to Global Governance’ in D Lewis (ed), Global Governance and the Quest for Justice, Volume I: International and Regional Organizations (Oxford, Hart Publishing, 2006) 227. For more interpretations of constitutionalism and further bibliography, see, eg, A Stone Sweet, ‘Constitutionalism, Legal Pluralism and International Regimes’ (2009) 16 Indiana Journal of Global Legal Studies 621. 16  K Hesse K, ‘Verfassung und Verfassungsrecht’ in E Benda, W Maihofer and H-J Vogel (eds), ­Handbuch des Verfassungsrechts der Bundesrepublik Deutschland (Berlin, Walter de Gruyter, 1995) 3–18. 17  J Rubenfeld, ‘The Two World Orders’ (2003) 27 Wilson Quarterly 22, 29.

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Despite their differences, most descriptions of the constitutional phenomenon imply or explicitly endorse a strong link between constitutionalism and liberal democracy: the rule of law, limits to governmental power, individual rights, participation and self-determination. True, modern constitutionalism is born together with liberalism, and, as such, the former becomes inscribed in the essence of the latter. Constitutionalism is predicated upon the idea of naturally free and equal individuals, who mutually agree on the establishment of a government in which they aspire to have a share.18 The government is limited because any other form of government can potentially divest the individual of its natural freedoms and its right to self-government. Whichever way one looks at constitutionalism, in the end, one always arrives at the liberal ideas of limited government and negative freedoms. Constitutionalism is, in the final analysis, the liberal political ideology that accompanies the adoption of the constitution.19 At this juncture, constitutionalism finds itself involved in a complex nexus comprising liberal democracy, public sovereignty and citizenship understood as participation in the public life of a political body. Yet, none of the above features explains what it is that bestows upon liberal constitutional democracies their stability and longevity. It is sometimes argued that there is no way to construct a clear-cut and unambiguous definition of constitutionalism, because its essence does not lie in certain ideas and institutional devices, but rather ‘in the mystery of its binding force’.20 This may suggest that there is a certain symbolism inherent in constitutionalism which confers upon the constitution legitimacy and therefore the power to bind. That symbolism is, however, neither a mystery nor does it suggest a metaphysical power of constitutionalism. On the contrary, it is precisely what constitutionalism stands for and what it symbolises, that make its binding force penetrable and intelligible, once an extra element is added to the equation: consensus. It would not be satisfactory to exhaust the question of constitutionalism in its supposed unfathomable mystery. The question of binding force thus needs to explore the ways in which constitutionalism generates consensus. A possible answer is that constitutionalism squeezes antithetical ends in the comprehensiveness and invincible status of liberal values. Constitutionalism creates the symbolic framework in which we exercise our liberties and in which we understand ourselves. The symbolic framework of constitutionalism is the framework of liberalism where the common good is a value-neutral concept and the individual is a rational being. These liberal concepts are accompanied by the idea that the transcendental self is built outside any notion of the social and the particular. With that said, it would be potent to replace the word symbolism with the term ­ideology. Constitutionalism can generate consensus because it creates and

18  See Schochet, ‘Introduction: Constitutionalism, Liberalism and the Study of Politics’ (n 2) 4; UK Preuss, ‘The Political Meaning of Constitutionalism’ in Bellamy, Constitutionalism, Democracy and Sovereignty: American and European Perspectives (n 6) 12. 19  Loughlin, ‘What is Constitutionalisation’ (n 11) 52. 20  Preuss, ‘The Political Meaning of Constitutionalism’ (n 18) 12, 24–25.

Constitutionalism, Ideology, Consensus

 33

reproduces an ideology that is dominant. That is the ideology of liberalism but crucially also the ideology of the united and undivided nation.

II.  Constitutionalism, Ideology and the Politics of Consensus A. Constitutionalism and the Politics of Consensus, Constitutionalism as the Politics of Consensus Why do we feel bound by the constitution? Althusser partly attributes our ­self-regulation to what he calls ‘moral ideology’, a practical ideology which includes our intuitions about the right and the wrong and which largely corresponds to positive law and, one may add, in particular, to constitutional prescriptions.21 Inherent within this scheme is a complex relation between moral law (perceptions of the right and wrong), positive law (what is actually prescribed by the law) and our metaphysical status (the way subjects understand themselves): For creatures that understand themselves to be by nature equal and free, that want to pursue their individual ends, and that do not wish to be harmed by others, living in accordance with a set of codes whose sole purpose is to guarantee these pursuits and relations makes exquisite sense.22

Althusser understands legal ideology as the matrix of dominant liberal [­bourgeois] ideology. Ideology becomes dominant because it is omnipresent in everyday life while presenting itself as a self-evident truth: It is from this permanent reciprocal reference from one ‘self-evident truth’ to the next, from the ‘self-evident truth’ of legal ideology to the ‘self-evident truth’ of moral ideology, from there to the ‘self-evident truth’ of philosophical ideology, and from there to the ‘self-evident truth’ of political ideology that every ideological ‘self-evident truth’ draws its immediate confirmation, imposing itself on every individual.23

Within this context, the legal subject, the individual that understands itself as a self-determined rational bearer of rights, is constituted through the process of subjection: [The] ideology of the rights of man, freedom, equality, the freedom to choose one’s ideas and one’s representative, and equality at the polls, has in the end produced (…) a

21  It is practical in the sense that it is not limited to the world of ideas but is rather expressed ­materially. For a more comprehensive discussion of ideology, see Pt IV. 22 WS Lewis, ‘Althusser on Laws Natural and Juridical’ in L de Sutter (ed), Althusser and Law (Oxford, Routledge, 2014) 41. 23  L Althusser, E Balibar and J Bidet, On the Reproduction of Capitalism: Ideology and Ideological State Apparatuses (GM Goshgarian tr, London, Verso, 2014) 224.

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The Telos of Modern Constitutionalism

‘­self-evident truth’ that is accepted without visible coercion.24 (…) We plainly have to do with an ideological apparatus, since it functions without violence, ‘all by itself ’, ‘on the ideology’ of its agents, who accept its rules and practise them by observing them, convinced as they are that they must ‘fulfil’ [one or the other duty] and that that is ‘normal’. Subjection and consensus are one and the same thing.25

Constitutionalism embodies and epitomises the liberal ideology of the rational free individual bearer of rights, of the abstract and universal understanding of the self, while it imposes a certain ‘neutral’ understanding of the common good. This has been potently implied in the words of a Tory politician: Constitutions do not only have functions. They also have goals: They are underpinned and indeed shaped by values, by certain visions of what is in the public interest, by certain political ideas. Constitutions are not value-neutral legal documents. One cannot understand them unless one understands what values they are seeking to promote. They are living representations of the politics which made them and which consume them. Law is not autonomous neither superior to mere politics and especially public law, which is essentially and deeply a political subject.26

If one reads between the lines, it is suggested that constitutionalism is directed at maintenance and reproduction of political structures; the slowing down of the pace of any possible ideological, and therefore political, change. Crucial in the process of consensus-generation is the concept of the undivided nation, the demarcation of the ‘inside’ from the ‘outside’. Indeed, the distinction between the ‘internal’ and ‘external’ is essential to constitutionalism.27 It is essential, first because it is on the basis of the internal ‘commonness’ that the particularities of one’s social position are blocked out when compared to the common good of the nation. It is essential, secondly, because it is on the basis of the coverup of social asymmetries that social consensus is created. It is partly a task of the constitution to demarcate these boundaries although this demarcation is never complete and is always permeated by contradictions. The constitutional moment is the opening act of the creation of a new legal order, the ‘constitutional big bang’ as it is sometimes called.28 In this, it becomes the institutional expression of the state’s enclosure, of its separation from the rest of the world.29 It is the very same moment that may often transform a multitude into ‘the people’ and which metamorphoses the crowd into the citizenry through the declaration of the constituent power’s will to unite under a common legal order. 24 ibid. 25 

ibid [emphasis added]. D Armitage (ed), Bolingbroke’s Political Writings (Cambridge, Cambridge University Press, 1997) 88, as cited in Tomkins, Public Law (n 3) 5. 27  Grimm, The Achievements of Constitutionalism and its Prospects in a Changed World’ (n 10) 12. 28  K Milewicz, ‘Emerging Patterns of Global Constitutionalization: Towards a Conceptional Framework’ (2009) 16 Indiana Journal of Global Legal Studies 413. 29  C Douzinas, Human Rights and Empire: The Political Philosophy of Cosmopolitanism (Abingdon, Routledge-Cavendish, 2007) 272. 26 

Constitutionalism, Ideology, Consensus

 35

The choice of the words ‘partly’ and ‘often’ indicate that the conversion from a multitude to ‘the people’ has not always been straightforward. Constitutionalism has not necessarily brought about the transformation of multiple ethnic groups into demos.30 However, it has frequently been followed by transmutations in collective identities partly formed on the basis of ethnic characteristics. Constitutionalism has often provided the channel through which minor ethnic communities have united and formed much broader collective national entities.31 Certainly, such transmutations did not occur automatically at the moment of the constitutional big bang nor can they be generalised. By contrast, they have demanded diverse, lengthy and painful socio-political processes. As a rule, these processes have enjoyed the ideological backing of constitutionalism, expressed primarily through the constitutional idea of the undivided nation. It is for this reason that nationalism often emerges after the creation of statehood through the c­ onstitution.32 The rationale for this is simple: States in [the interstate system] have problems of cohesion. Once recognized as sovereign, the states frequently find themselves subsequently threatened by both internal disintegration and external aggression. To the extent that ‘national’ sentiment develops, these threats are lessened. [Those] in power have an interest in promoting this sentiment.33

It turns out that the ideology of constitutionalism does not merely construct the free and equal rational subject, but rather also the free rational German, Polish, American citizen. At this juncture, however, constitutionalism reaches a crucial crossroads: on the one hand, it promotes social consensus to secure the undisturbed and smooth continuance of the established order of things. On the other, it creates national citizenship, understood as the active participation of the citizen in the political body. Yet, if participation in the political community is absorbed into consensus, then citizenship becomes an empty concept. The question thus becomes whether citizenship can make a meaningful contribution within the consensual constitutional order. The next section looks into the question of citizenship by exploring the idea of the constituent power.

30  Ernest Gellner explains that for every 10 ethnic groups only 1 is accompanied by a constitutional nation state. See E Gellner, Nations and Nationalism (Athens, Alexandreia, 1992) 87–88 [in Greek]. 31  Chrysogonos, ‘Why the Constitution?’ (n 1) explains that this happened because ethnic communities were multiple while at the same time small in size. Such conditions would not guarantee the creation of sufficiently large internal markets, which, as was remarked earlier, grew in a symbiotic relationship both with the state and with constitutionalism. 32 E Hobsbawm, Nations and Nationalism Since 1780: Programme, Myth, Reality (Cambridge, ­Cambridge University Press, 1990) 46–79. 33  E Balibar and IM Wallerstein, Race, Nation, Class: Ambiguous Identities (London, Verso, 1991) 81–82; see also R Bellamy and D Castiglione, ‘The Communitarian Ghost in the Cosmopolitan Machine: Constitutionalism, Democracy and the Reconfiguration of Politics in the New Europe’ in Bellamy (n 6) 111, who speak about the ‘ideological glue of the nation’. See also M Loughlin, Sword and Scales: An Examination of the Relationship Between Law and Politics (Oxford, Hart Publishing, 2000) 142.

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B. Constitutionalism and Citizenship, Citizenship and Democracy, Democracy and Consensus: An Alternative Understanding of Constituent Power and of Constitutionalism Theorists have constructed two alternative conceptions of the constituent power. The two-contract theory sees the constituent power as a collective entity that exists for an instant, during the generation of the constitution and dissolves at the time the constitution is complete.34 A rival position, supporting the ­‘reflexive ­theory of constituent power’, assumes that subjects understand their c­ ollective identity as belonging to a body politic only in retrospect: ‘[I]ndividuals retroactively identify themselves as members of a polity in constituent action by exercising the powers granted to them by a constitution’.35 The reflexive theory understands constituent power as a theoretical construct paradoxically coming into existence only by ­virtue of the constitution that it establishes. In contrast to the two-contract theory, the reflexive theory sees constituent power as p ­ ersisting through time; as a body able to re-assemble and to transform the ­original document. The disagreement appears to come down to the question of whether the bearer of constituent power is changeable through time and of who is, in the final ­analysis, the bearer of political power within a political body. The two-contract theory suggests the unbeatable authority of the political powers that established the constitution and whose decisions cannot but remain unchallenged because the forms of legal and political organisation imposed by them enjoy ­hierarchical ­supremacy. The depiction of the two-contract constituent power is akin to that of the omnipotent sovereign. It constructs a concept of constituent power that almost ‘secularises a theological heritage’.36 It understands the creation of the political body almost metaphysically as a process that occurs momentarily before the generation of the constitution and that is terminated at the time the ­constitution is complete. The two-contract theory is in a sense helpful, highlighting as it does a significant function of the constitution. That is, it exposes the constitution’s potentially hegemonic role: if the constituent power is equated with the constitutional assembly, then the particular obtains the power to tie down the universal.37

34 

Loughlin (n 11) 50–51. Lindahl, ‘Constituent Power and Reflexive Identity: Towards an Ontology of Collective ­Selfhood’ in Loughlin and Walker, The Paradox of Constitutionalism (n 5) 19–20. 36  The full extract reads: ‘We did not have to wait for Schmitt to know that the politico-juridical concept, like all the others, secularises a theological heritage’. See J Derrida, Rogues: Two Essays on ­Reason (P-A Brault and M Naas tr, Redwood City CA, Stanford University Press, 2005) 154. 37  On this, see Althusser’s discussion of individuals as ‘always-already subjects’. Like the unborn child who is always-already a subject because of the ‘ideological ritual’ that surrounds the event of birth, so a constituent power which has not yet come into existence would be always-already determined by the ideology of the constituent power which created the constitution. See L Althusser, ‘Rousseau: The Social Contract: The Discrepancies’ in L Althusser, Politics and History: Montesquieu, Rousseau, Marx 35 H

Constitutionalism, Ideology, Consensus

 37

This ­conceptualisation of the constituent power and of the constitution may prove useful for political stability, not least because it bestows upon the constitution a quality of absolute and unquestionable supremacy, which is indispensable to the smooth reproduction of a social and political order. The above function of the constitution is well-documented, especially in the context of the American constitutional order.38 For all its usefulness, however, the two-contract theory faces logical and normative difficulties. In l­ogical terms, the two-contract theory cannot be accepted because it suggests that the ­constitutional moment is simultaneously the beginning and the end of political action, which thus becomes suppressed and contained within the legal process of constitutiongeneration. In normative terms, constituent power needs to be c­ onceived in an alternative way; one which opens up the way to political dissent and bestows upon the people the ability to challenge the established order of things. The reflexive theory rejects the idea of constituent power as a finite body which simultaneously comes to existence and vanishes at the constitutional moment and which indefinitely determines our understanding of ourselves and of our role in the political body. ‘If the self ’, one commentator argues, ‘is always-already determined’ at the constitutional moment, then ‘there is no self-determination w ­ hatsoever’.39 It may, therefore, be useful to re-imagine constituent power, with Toni Negri, as a body which is persistent through time, collective and unforeseen;40 one which, in the final analysis, is qualified to and capable of questioning the very constitutional arrangement of the political order to which it is subject. For Negri, however, constituent power is identified with the ‘people’ understood as an unvaried and homogenous body. Negri’s broad understanding of the ­people needs to be qualified or else it may result in a legitimisation of power along the same lines in which the constitution, by proposing an abstract and universal understanding of the self, usually through appeals to the nation, is assimilated in and employed by the dominant ideology. Negri’s unqualified definition may also result in upholding the traditional constitutional idea of national common interests. It may, in other words, assist the concealment of social divisions and conflict by identifying the interests of dominant and dominated social forces. Through a cyclical process, the discussion thus arrives back to where it started. The unqualified identification of the constituent power with the people at large does not help to resolve the tension between citizenship and the consensual c­ onstitutional order.

(London, Verso, 2007) 113ff and esp Althusser, Balibar and Bidet, On the Reproduction of Capitalism: Ideology and Ideological State Apparatuses (n 23) 192ff. 38  See, eg, S Griffin, ‘The United States of America’ in D Oliver and C Fusaro (eds), How ­Constitutions Change: A Comparative Study (Oxford, Hart Publishing, 2011) esp 258–59. 39  E Christodoulidis, ‘Against Substitution: The Constitutional Thinking of Dissensus’ in Loughlin and Walker (n 5) 208; regarding the meaning of ‘always-already’; see n 37. 40  A Negri, Insurgencies: Constituent Power and the Modern State (M Boscagli tr, 2nd edn, ­Minneapolis, University of Minnesota Press, 2009) 2–36, 146ff.

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The Telos of Modern Constitutionalism

Where the people is not understood as an undifferentiated multitude of individuals, they must be seen as collective subjects that come together on the basis of objective characteristics, including for example social status, race or g­ ender.41 Crucially, however, these factors only have a pre-political significance for they are per se insufficient to transform random groups into collective political ­subjects.42 What constitutes the collective political subject as such is common political action. The latter necessarily presupposes the existence of other collective subjects against whose collective interests political action is directed. Here, the constitutional order emerges as a space permeated not by the common national interest of the undifferentiated multitude, but rather by conflict between the polity’s social forces. It is at this juncture, that an alternative understanding of constitutionalism comes to the surface. If the constituent power is embodied in the clashing collective social forces of the polity, the constant renegotiation of the constitutional arrangement suggested by the reflexive theory becomes subject to the outcome of social conflict; a conflict that the constitutional order has a structural tendency to appease in order to preserve itself. In light of this, one may legitimately refrain from a negative approach to constitutionalism as primarily the limitation of political power. Instead, constitutionalism may be understood in much broader terms, as the legal, political and conceptual field wherein social conflict materialises. Based on this reading, constitutionalism can be re-imagined and re-conceived as a positive tool that opens up the space for political action and for an antagonistic version of democracy. This means that constitutionalism, while necessarily endorsing the dominant ideology and safeguarding the longevity of power structures, must also occasion the questioning of everything that has up to now been a given: the logic of national consensus, the logic of individualism, the logic of natural rights. At this point, the idea of citizenship as meaningful political participation can enter the constitutional equation, provided that citizens, the ‘people’, are understood as collective political subjects rather than as individual bearers of rights. It could be objected that this understanding of constitutionalism is s­elfcontradictory. Indeed, a historical reading of constitutional arrangements reveals that the legal and political organisation of societies has always been structured with an eye to preserving the established political powers. In the latest phase of constitutionalism which coincides with the creation of the nation state and the birth of liberal democracy the constitution serves a clear politico-ideological function. Based on the ideology of the homogenous nation and the common interest as well as on the liberal notions of the free and equal individual, it serves to present society as a uniform structure undivided by inequalities. In this, it secures

41  I have borrowed this qualification of Negri’s theory from D Dimoulis and S Lunardi, ‘­Constituent Power Beyond Liberal Constitutionalism and the Impotency of the Multitude’ (2012) 120 Theseis [in Greek]. 42 ibid.

Constitutionalism, Ideology, Consensus

 39

c­ onsensus and maintains power structures by guaranteeing the interests represented by those who established it.43 This understanding is not easily reconcilable with an idea of constitutionalism as a positive tool capable of opening up the space for the challenge of the very values it seeks to protect. In order to make viable a conceptual scheme in which ‘the constitutional’ goes hand in hand with ‘the democratic’ seen as an antagonistic process we must read in the constitution an emancipatory potential. In other words, we must see constitutionalism as a tool able to expose the violence inherent in claims about the existence of a universal truth through allowing the negotiation of that truth in the political arena. The outcome of this process may often result in a version of the truth that serves the interests of dominant social forces.44 Yet, if constituent power is read as a process of constant (re-)creation by the citizen and if, in turn, citizenship is seen as involving collective social forces in an antagonistic political process then constitutionalism does, for all its limitations, create the conditions necessary for the challenge of the truths it imposes. It is, for example, the crucial task of democratic citizenship to render the dominant meaning of constitutional values like self-determination or freedom negotiable at the political level: to enable the re-imagination of freedom and selfdetermination as constantly at stake rather than as natural or pre-given universal rights. Citizenship must enable the liberating promise of these values to extend to society at large. It must, in other words, facilitate rather than restrict a type of social conflict that will reach from the level of ideas and universal truths to the level of outright challenges to the status quo.

C. Constitutionalism and the Politics of Dissensus, Constitutionalism as the Politics of Dissensus: In Defence of the Constitution In his History of Florence, Machiavelli examines the reasons why Rome was able to thrive and secure liberty, despite or, rather, because of its internal conflict.45 The quarrels of Rome established different ranks of society, those of Florence abolished the distinctions which had previously existed. (…) While the people of Rome endeavored

43  I choose the formulation ‘interests represented by’ and not of ‘interests of ’ because I conceive these interests to be persistent through time irrespective of whom their physical bearer is. As will be explained further in Pt IV, I take these interests to be the interests of capital understood as a social relation. 44  In Pt III, I will elaborate on the idea of truth. Suffice it to say for current purposes that truth is understood as the product of ‘conflicting values, discourse, language and power’. See E Loizidou, Judith Butler: Ethics, Law, Politics (Abingdon, Routledge-Cavendish, 2007) 73. 45  N Machiavelli, History of Florence and of the Affairs of Italy: From the Earliest Times to the Death of Lorenzo the Magnificent (University Park, Penn, The Pennsylvania State University, 2007); see also HF Pitkin, Fortune is a Woman: Gender and Politics in the Thought of Niccolo Machiavelli (Chicago, Chicago University Press, 1999) 91.

40 

The Telos of Modern Constitutionalism

to associate with the nobility in the supreme honors, those of Florence strove to exclude the nobility from all participation in them: [In Rome] after some disputes concerning particular points, both parties agreed to the enactment of a law which, while it satisfied the people, preserved the nobility in the enjoyment of their dignity. On the other hand, the demands of the people of Florence being insolent and unjust, the nobility, became desperate, prepared for their defence with their utmost energy, and thus bloodshed and the exile of citizens followed.46

For Machiavelli, an enforced consensus will obscure the antagonisms of the real world and end up in disaster. By contrast, any society that allows for conflict and dissent will produce mobilised social forces, which will contribute to the furtherance of democracy, freedom and public welfare. On this reading, conflict is ­creative rather than destructive.47 Machiavelli’s idea of how a constitutional system can achieve this state of affairs is put forward in his Discourses, a text written to present a viable constitutional system for Florence to Pope Leo.48 Machiavelli’s proposal for a constitution satisfies both those in power and the middle class. At the same time, Machiavelli secures the Pope’s place in the Republic in order to eliminate the possibility of rejection by him of the plan’s most controversial constitutional proposal: the creation of a channel for participation in the government of 1000 common citizens.49 Machiavelli models his system on the example of the earlier constitutional settlement of Florence which was developed to eliminate class divisions by ensuring genuinely equal participation in government. The Machiavellian constitutional system thus incorporates class divisions and class conflict into the constitution whose ‘class-specificity’ renders the constitutional machinery capable of facilitating popular containment.50 It has been remarked that the Machiavellian model is at odds with the turn taken by constitutionalism in modern liberal democracies: modern, ‘­class-anonymous’ constitutions, founded as they are on the principle of formal equality before the law, present societies as homogenous and suppress class divisions.51 They are therefore bound to fail because they do not provide the subordinated and oppressed with weapons to challenge political hegemonies.52 However, while the

46 Machiavelli, History

of Florence (n 45) 121. Ankersmit, Aesthetic Politics: Political Philosophy Beyond Fact and Value (Redwood City, ­Stanford University Press, 1996) 171–72. 48  N Machiavelli, Discourses on the First Decade of Titus Livius (NH Thomson tr, London, K Paul, Trench & Co, 2004). 49  ibid Chs IV and VI; see also JP McCormick, ‘People and Elites in Republican Constitutions, Traditional and Modern’ in Loughlin and Walker (n 5) 119–20. 50  McCormick, ‘People and Elites in Republican Constitutions, Traditional and Modern’ (n 49) 108. 51 ibid. 52  Interestingly, if we compare this description with the Bolshevik Constitution of 1918 a similar pattern emerges: a reading of the first part of the 1918 Constitution suffices to show that the ­Russian bourgeois class was fully excluded from any position in the state apparatus: ‘Russia is declared “A ­republic of Soviets of Workers’, Soldiers’, and Peasants’ Delegates”. All the central and local power is vested in these Soviets’. Despite the radical content bestowed to civic, political and socio-economic 47 FR

Constitutionalism, Ideology, Consensus

 41

enforced homogeneity and class-anonymity of modern constitutionalism can hardly be denied, the argument that dominated social forces are stripped of their power to challenge hegemonies as a matter of constitutional principle may not always withstand scrutiny. The negative influence of enforced homogeneity is noticeable in the example of the constitutional models of post-communist countries.53 The constitutional drafters in Central and Eastern Europe have been preoccupied almost exclusively with the reinforcement of each nation’s ethnic identity. The resulting dominance of the nationalistic element in legal and political life has precipitated a ­de-politicisation of conflict and its re-conceptualisation along ethnic lines.54 Internal social dissent and conflict have been blocked and replaced by an alleged need for absolute homogeneity and the de-politicisation of politics.55 Not surprisingly then, the respective constitutions, despite being drafted on the model of Western democratic constitutional texts, have not resulted in strong and stable political regimes.56 A version of constitutionalism that celebrates difference has therefore gained support, notably in the constitutional discourse around multi-national states. The shortcomings of multinational constitutional systems are often attributed to the lack of constitutional channels for the expression of dispute and dissent. ­Contrary to the usual assumption, the practice of many subnational movements is not necessarily secessionist or separatist.57 Instead, these movements often base rights, when compared to contemporaneous constitutions of Western democratic states, the 1918 Constitution suffered from a crucial deficiency. It depicted the Soviet social formation as relatively united by implying that the sole social conflict within the USSR was the one of workers and peasants on the one hand against capitalists and foreign imperialists on the other. This was, of course, an inaccurate depiction of the Soviet reality by the Constitution, which concealed the violent clash between the peasants and Bolsheviks, the severe inter-party battles, and a number of other equally serious socio-political conflicts. In other words, the 1918 Constitution did not seek to intervene in the deep social divisions of the Soviet Union. At the risk of oversimplifying what was, in fact, an extremely complex socio-political situation, this constitutional deficiency can be seen as one among the reasons of instability of the Soviet regime, which led to the wide-reaching socio-political reformation between 1918 and 1936. See The Russian Soviet Constitution, Constitution of the Russian Socialist Federal Soviet Republic: Order of the Fifth All-Russia Congress of Soviets, passed on the 10th of July, 1918 (The People’s Russian Information Bureau 1919), esp Pt I, ch I (1), 1; Pt I, ch II (3), 2; Pt I, ch III (4), 3; Pt II, ch V (13–18, 21, 22), 4–5. 53  UK Preuss, ‘The Exercise of Constituent Power in Central and Eastern Europe’ in Loughlin and Walker (n 5) 226. 54 ibid. 55  ibid 225, 227. 56  It suffices to consider the ethnic composition of Central and Eastern Europe in order to see why a reinforcement of nationalism in the area was only bound to bring instability: the number of H ­ ungarians in Romania and Serbia, the Serbs in Croatia and Bosnia-Herzegovina, the Turks in ­Bulgaria and so forth. See, eg, P Pamir, ‘Nationalism, Ethnicity and Democracy: Contemporary Manifestations’ (1997) 2 The International Journal of Peace Studies ; Sajó refers to the CEE’s ethnic nationalism as ressentiment nationalism. See A Sajó, ‘Constitutional Enthusiasm Towards Network Constitutionalism?’ Jean Monnet Working Paper 5/04 www.jeanmonnetprogram.org/archive/papers/04/040501-03.pdf. 57  S Tierney, ‘“We the Peoples”: Constituent Power and Constitutionalism in Plurinational States’ in Loughlin and Walker (n 5) 236.

42 

The Telos of Modern Constitutionalism

their claims on constitutional grounds as in many cases the deep-rooted disagreement within plurinational states touches on the constitutional settlement within the multinational state itself as well as on the need for the state to better accommodate minority interests. Thus, disagreement does not necessarily attach itself to demands for secession.58 In other words, what is sometimes regarded as a secessionist move or claim should instead be seen as a demand for constitutional rearrangement within the state. In light of this, secessionist tendencies have sometimes been described as efforts to restore a constitutional balance that would recognise heterogeneity and inter-societal differences.59 The above observations appear to include more than just a normative argument about how constitutionalism should be understood. Instead, the claim seems to be that constitutionalism is not viable when it does not acknowledge the e­ xistence of social conflict. A successful constitution thus cannot achieve consensus w ­ ithout at least some minimum recognition by the constitutional settlement of the omnipresence of conflict, antagonisms and opposing societal values. Despite the ‘classanonymity’ and forced homogeneity of modern liberal constitutionalism, the claim that modern constitutions do not in any way accommodate class divisions cannot be unconditionally accepted. Affirmative action, collective labour rights and social rights provisions are few of the indicators that constitutionalism can be read as a political trade-off that next to concealing class divisions, also seeks to even them out. Certainly, the political trade-off is conceptually restricted within the narrow confines of liberal democracy. The right to strike, for example, may be safeguarded by liberal constitutionalism but the question of when it is just or fair to strike is also dictated by the liberal universalist understandings of the common good, the fair and the just. In other words, it is dictated by particular understandings of values that correspond to versions of truth constructed in accordance with the interests of a political and economic elite. The ensuing gap needs to be filled in by an antagonistic version of democracy and by an understanding of citizenship as a potential challenge against dominant truths. This has been summarised subtly as follows: Constitutions can be both initiated and sustained as hegemonic tools, [e.g. by representing a particular interest as the public interest]. But constitutions can also be compromised or operationalized in ways that owe no fidelity to the original compact or be

58 

ibid 239, 240. ibid 245; see also N Walker, ‘The Idea of Constitutional Pluralism’ (European University I­ nstitute, 2002) Working Paper http://cadmus.eui.eu/bitstream/handle/1814/179/law02-1.pdf. ‘Even in the extreme case, where the demand is for secession and autonomy, the critique’, Walker notes, ‘tends to be centred on the existing allocation of sovereign constitutional units rather than the very idea of the sovereign constitutional unit itself ’, at 16. For an opposite view, see C Offe, ‘“Homogeneity” and Constitutional Democracy: Coping with Identity Conflicts through Group Rights’ (1998) 6 Journal of Political Philosophy 113. 59 

Constitutionalism, Ideology, Consensus

 43

interpreted in new ways. Here the constituent power insinuates itself in the discourse of constitutionalism in the form of oppositional politics.60

The idea that constitutionalism should be open to the masses and subject to political confrontation constitutes one of the main tenets of the tradition of republican constitutionalism. Republican constitutionalism supports the idea of the political constitution and forms the opposite pole of legal constitutionalism. The roots of the conflicting constitutional understandings can be traced back to the early stages of American constitutionalism and the disagreement between Hamilton and Madison on the nature of the US Constitution.61 For the strand of political constitutionalism represented by Madison, the constitution is seen as an essentially political institution, functioning as a legal filter for political action.62 For Madison, constitutional interpretation needs to be practised in the political arena and must remain subject to conflict. By contrast, for the Hamiltonian legal constitutionalism, constitutional stability is a task accorded to the judiciary, which is thus invited to perform an essentially political role.63 The clash between the conflicting constitutional understandings remains unresolved as legal orders often tend to display elements of both legal constitutionalism and the political constitution.64 However, the frequent abstractness of constitutional provisions signifies the founders’ desire to postpone a terminating decision on how a political issue is to be concluded.65 The judiciary should to the extent possible be normatively neutral in the course of constitutional interpretation or else the borders between a legal order and a non-legal ethico-political system would become blurred.66 The exclusion of constitutional matters from the realm of political contestation would therefore signify the retreat of democracy.67 In this respect, the tradition of republican constitutionalism is in the right. However, by approaching the law as both a source of empowerment of politics and a filter for political action, republican constitutionalism seems to suggest that, even when negotiated in the political arena, constitutional values do not drop their quality as legal matters.68 60 

M Loughlin and N Walker, ‘Introduction’ in Loughlin and Walker (n 5) 4. For a current version of the debate, cf B Ackerman, We the People: Foundations (Cambridge, Mass, Harvard University Press, 1991) and B Ackerman, We the People: Transformations (Cambridge, Mass, Harvard University Press, 2000) esp 67ff with LD Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford, Oxford University Press, 2004). 62  Loughlin (n 11) 56. 63  ibid 57. 64  See, eg, Tomkins (n 3) 24ff on the turn of British constitutionalism from the political to the legal constitution. 65  D Dimoulis, The Law of Politics (Ellinika Grammata, 2001) 82. 66  ibid 112; see also Loughlin, Sword and Scales (n 33) 210. For a different view, see AS Miller,’ ­Judicial Activism and American Constitutionalism: Some Notes and Reflections’ in Pennock and Chapman (n 2) 336–37, 367. 67  M Tushnet, ‘Policy Distortion and Democratic Debilitation: Comparative Illumination of the Countermajoritarian Difficulty (1995) 94 Michigan Law Review 245. 68  For a comprehensive analysis of these issues, see E Christodoulidis, Law and Reflexive Politics (Dordrecht, Kluwer Academic Publishers, 1998) 142–43. 61 

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The Telos of Modern Constitutionalism

The ­ensuing limitation of politics in the strict confines of legal prescriptions is problematic for it fails to acknowledge the relatively autonomous nature of both the legal and the political. If political contestation remains faithful to and restricted by the legal sphere then politics loses its ability to radically redefine the world and our understandings of it and of ourselves. In other words, politics ceases to be politics proper. At this point, there emerges an image of constitutionalism as a field that ‘sows the seeds of its own destruction’.69 If constitutionalism enables an antagonistic version of democracy and citizenship, then it must necessarily also withdraw from the field of political contestation when democracy so requires. All in all, constitutionalism is understood broadly, as demarcating the field of social conflict with a view to creating consensus. Within the context of this hegemonic function, constitutionalism also opens up the space necessary for a challenge not only of political arrangements but also of dominant understandings of liberal constitutional values. This is the version of constitutionalism that will form the premise upon which the rest of the discussion will unfold.

69  D Dyzenhaus, ‘The Politics of the Question of Constituent Power’ in Loughlin and Walker (eds) (n 5) 123.

Conclusion of Part I: The Question of the Nation State Constitutionalism is an elusive concept. It has been celebrated as the victory of democracy and has been denounced as a hegemonic tool in the hands of political elites. The preceding analysis does not claim that the truth is somewhere in between. This first part argues that constitutionalism, both through its normative prescriptions and through its ideological function, constructs the social conditions needed for the maintenance of power relations and power structures through the generation of consensus within a given polity. This should not cause surprise, as every political order seeks to sustain itself. It is, however, important to reflect on how consensus is built and on how it impacts on democracy. If democracy is understood narrowly as a way of political organisation on the basis of the rule of law and of the guarantee of individual and political rights then democracy and consensus are two unconditionally compatible concepts. If, however, democracy is seen as a mode of politics that cannot be restricted in the narrow confines of legal language and practice; if, in other words, democracy is seen as entailing a possibility for those oppressed, vulnerable and disadvantaged to rise, then social conflict needs to be added to the constitutional equation. The history of constitutionalism teaches that its purpose has been more to silence social conflict than to limit political power. Having said that, any connection between constitutionalism and democracy, understood in the above sense, appears to be prima facie defective, and the effort to conceive constitutionalism as a democratic concept reaches an impasse. It is at this juncture, that a ­re-conceptualisation of constituent power as the constant re-creator and re-negotiator of the constitution and its values becomes indispensable. This means, first, that citizenship must be understood in line with an antagonistic version of democracy. It means, secondly that the people cannot be conceived as an undifferentiated crowd but rather as social forces united under their common political interests and reshaped into collective political subjects. It, finally, requires that constitutionalism with its ­liberal precepts and sometimes violently unqualified universalisation of liberal values should often withdraw from the field of political battle; a battle which it can, nevertheless, spark off. The effort to generate consensus does not come without a price. Constitutionalism creates the legal and conceptual field wherein social conflict materialises and it constructs this field in a way that is beneficial to those in power. But, this necessarily requires that the constitution engages in a political trade-off: consensus is here secured in exchange of rights and freedoms. While these rights and freedoms

46 

Conclusion of Part I: The Question of the Nation State

usually restrict political struggle within the limits of liberal thinking they can also precipitate the expression of social conflict; a conflict within which these very ­values may be contested. This is one of the most thorny and complex contradictions of constitutionalism as understood in the preceding discussion: the ability of constitutionalism to free political action from liberal thinking by using the very liberal tools that constitutionalism itself provides us with. All in all, this first part argues in favour of redirecting constitutional discourse. Sometimes the weakness of constitutionalism is found in its alleged recent inability to limit power effectively. Its restriction within the nation state, so the ­argument goes, renders constitutionalism ill-suited to the limitation of global centres of power which increasingly threaten nation state sovereignty. We should therefore expand constitutionalism beyond the nation state. In what follows and building upon the preceding discussion, this view will be rejected for three reasons. First, because accepting such view would mean to implicitly back the position that the main purpose of constitutionalism is the limitation of power. H ­ owever, as remarked earlier, while constitutionalism limits the power of the state, it simultaneously provides a tool for the maintenance of the status quo. Secondly, this view will be rejected because the current discussion approaches the constitutional challenge in different terms: as the need to reconstruct the conceptual framework of constitutionalism in a direction that favours the people. This cannot be achieved through a redefinition of its locus but rather through a holistic ­re-conceptualisation of what it means and of what it is capable of achieving. The third reason has to do with the very concepts of power and the state. The argument in favour of the expansion of constitutionalism beyond the nation state rests on the concept of power but fails to discuss what power is, where it is located, and how it functions. Equally, the nature of the state as a complex mechanism, a motor, in the words of Althusser, that reproduces power, is rarely examined. It therefore becomes indispensable to define both terms. The remainder of the discussion deals with the above questions, always drawing on the definitions and understandings presented in this first part. The following part (II) discusses constitutionalism in the European Union placing particular emphasis on issues of citizenship and consensus. The third and fourth parts ­discuss the concepts of power and the state. The third part examines the function of power at global level and the fourth part looks at the roots of power. The discussion on the roots of power brings us back to the nation state and its internal conflicts, thus closing the circle of the argument: if constitutionalism and social conflict are seen as inseparable then we must bring constitutionalism back to the only entity where social conflict and collective political subjects are viable: the nation state. The questions of power and the state will be reserved for later. The discussion now turns to how the ideas of antagonism, citizenship, democracy and constitutionalism materialise at the level of the European Union.

PART II

The Constitutional Failure of Europe: Citizenship, Democracy and Consensus

48 

Introduction of Part II The previous part discussed the concepts of constitutionalism, social conflict, democracy and citizenship understood as active and antagonistic processes of participation in the public life of the community. It suggested the indispensability of social conflict and the need for it to be accommodated for the sake of survival of political communities, while it put forward a link between constitutionalism and an antagonistic version of democracy. The current part discusses how the connection between constitutionalism, social conflict and democracy is translated at European level. Drawing on the previous discussion on constitutionalism, democracy and social conflict, this part explores the constitutional quality of the EU. The argument proposes that Europe is resistant to European-wide and cross-border social conflict and that, as a result, it presents a poor constitutional quality. The argument initially focuses on the notion of citizenship. Citizenship is chosen as a focal point, first because the ‘no demos’ thesis has always constituted a fundamental constitutional question at European level and secondly because citizenship is a key component of constitutionalism at large.1 The previous part described citizenship as the active participation of collective subjects in the political life of their community;2 as a process of collective management of social conflict channeled and controlled through the democratic institutions of the state. Can citizenship, understood as such, be extrapolated to the EU? How possible is it to delink citizenship from national belonging? Can there be any notion of community between inside foreigners, namely between EU citizens with different national identities? More crucially, can the Union be understood as a political community? The discussion does not assume that European constitutional questions are exhausted in the examination of EU citizenship and communal belonging. Part II is therefore divided into two chapters of which the first (chapter three) deals exclusively with the concept of citizenship and the second (chapter four) examines more general questions of European constitutionalism. In particular, chapter

1  For a thorough account on constitutionalism and citizenship in Europe, see, eg, D Castiglione and R Bellamy, ‘Constitutional Culture in Europe’ (1995) 1 RUSEL Comptes Rendus 15, 16; F Snyder, ‘The Unfinished Constitution of the European Union: Principles, Processes and Culture in J Weiler and M Wind (eds), European Constitutionalism Beyond the State (Cambridge, Cambridge University Press, 2003) 61. 2  See Pt I, ch 2, section II.2.

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Introduction of Part II

three discusses European citizenship in an abstract way. It argues that the Union is an entity that is citizenship-capable. Chapter four looks at the case law of the Court of Justice of the EU as well as at parts of the Union’s regulatory framework in order to explore the overall constitutional mindset of the EU. The discussion finds that Europe presents a poor constitutional quality. Chapter three starts with an examination of the ‘no demos’ thesis as expressed in the early 1990s by the German Constitutional Court (BVerG) and as discussed in the seminal work of Joseph Weiler. The no demos thesis employs an ethno-cultural conception of the demos asserting that the national form or ethnic affiliation of the community’s members with one another constitutes a prerequisite to democracy. The ethno-cultural reading of the concept of the demos is rejected as historically inaccurate. Subsequently, the discussion turns to the second suggestion of the BVerG, which sees in the national element an inescapable pre-­condition of collective belonging. In the course of this analysis, reference is made to Dominique ­Schnapper who, based on a universalist reading of the civic nation, seems to endorse the BVerG’s opinion. Schnapper’s suggestion is that the national form is the only one available and that citizenship can only be conceived in its national version, because it is grounded on the people’s common national identity. In order to challenge this position, chapter three turns to Etienne Balibar’s work on c­ itizenship and concludes, with him, that the modes of inclusion in and exclusion from citizenship are constantly changing. In light of this, following Balibar, citizenship is seen as a dialectics; namely as a concept with an inherent dynamism which evolves along with the rationality of the polity to which it applies. On this reading, citizenship does not necessarily require a pre-given national identity of the demos. On the flip side, however, it is suggested that a political-adversarial ­version of European citizenship will progressively constitute European people as collective subjects, which up to this day have only been available at nation state level. In other words, while lack of national identity can be overcome, triumph over a national identity necessitates that identity’s replacement by a new one. Based on the above analysis, Europe is understood as a citizenship-capable political entity. However, the dynamism inherent in citizenship does not suggest that the latter has no fixed structural tendencies. By contrast, the in-built relationship between citizenship and politics allows the former to evolve over time and revise its dividing lines of inclusion and exclusion. That is to say that citizenship must allow its beneficiaries to challenge the status quo of the polity to which they are subject. As a result, citizenship is seen, first, as a dynamic concept with boundaries changeable over time and a stable link to social and political conflict. It is seen, secondly, as a dynamic process, namely one that must allow challenge and change of the political state of affairs. This understanding of citizenship fits with and supplements the understanding of politics presented in the previous chapters; an understanding which sees politics as an antagonistic process fed with ­permanent conflict and struggle. Drawing on the interlinked concepts of citizenship and antagonistic politics chapter three finally introduces another quality inherent in the notion of c­ itizenship.

Introduction of Part II

 51

TH Marshall’s seminal work on social citizenship is relied upon to suggest that social entitlements or, at the minimum, the ability to strive for them are inscribed in the very idea of citizenship and can create ties akin to those of national belonging. In light of the above, the position that a common national identity constitutes a prerequisite to citizenship is rejected. Instead, citizenship is seen as a condition that can be constantly regenerated through political processes in a given polity. While that polity does not necessarily have to be the nation state, once the processes of active political citizenship create room for the construction of collective identities and collective subjects, this polity will not substantially differ from the nation state. Chapter four looks at European legal and political arrangements. It argues that, while the EU is a citizenship-capable entity, reliance on the market both on the part of the Court and on the part of the Union’s regulatory institutions effectively blocks the expression of social conflict that could lead to the creation of a ­European public space. The argument is grounded on a number of findings. First, the Court’s once progressive jurisprudence on European citizenship has been countered by a series of incoherent and confusing decisions that construe citizenship as an entitlement of wealthy mobile individuals. Secondly, the Court proffers a market-based understanding of the European public space manifested in the Court’s understanding of the balance between collective expressions of dissent and the economic freedoms of the Union. Based on the Court’s clear preference for the market and on judicial precedents against forms of collective disagreement, it is argued that Europe does not fulfil the political requirements of citizenship discussed in previous chapters. Chapter four next turns to the logic of other EU institutions that have promoted the idea of a citizen-consumer to the detriment of the idea of citizens as collective political subjects. Finally, the Union’s deliberative and consensual policy-making mechanisms exemplified, notably, through the processes of the Open Method of Coordination (OMC) and comitology are inconsistent with an understanding of democracy as a process of antagonism and conflictual politics. Part II closes by returning to the initial questions of the demos and citizenship. Calling on the discussion of the Union’s material practices, it is argued that Europe seems unwilling to allow the expression of social conflict and political dissent. It does not leave space for a collective struggle for social entitlements and, in this, it seems incapable of providing the means needed for the re-imagination of ­European people as collective subjects. Overall, this second part aims at exposing the poor constitutional quality of Europe. It also provides the basis for the extension of the discussion to the global level in the following part (III).

52 

3 The Dialectics of Citizenship: Europe as a Citizenship-Capable Entity I.  The No-Demos Thesis In 1995, Joseph Weiler opens the discussion on European constitutionalism in a way that was meant to be decisive for the subsequent shape and content of European legal and constitutional discourse.1 Weiler’s motivation to give the first elaborate account on the question of EU constitutionalism was the German Constitutional Court’s (BVerG) Maastricht decision.2 In the latter, the German BVerG is called upon to give judgment on the legitimacy of the Maastricht Treaty and, in particular, on the changing direction of the European Community and its ambition to transform into a fully-fledged political Union. The Court’s decision, Weiler observes, misses a historic opportunity. It fails to position itself over and above politics as the bearer of intellectual leadership and to put an end to ‘the tired old ideas of an ethno-culturally homogeneous Volk and the unholy Trinity of Volk-Staat-Staatsangehöriger as the exclusive basis for democratic authority and legitimate rule-making’.3 The idea of ethno-cultural homogeneity as a prerequisite for democracy and citizenship merits attention. In his opinion, the German Court’s Rapporteur adopts a traditional position on what constitutes a polity’s people. While the Court did not adopt the ­Rapporteur’s analysis in total or, at least, it did not seem to fully submit to his age-old language, it did not, in principle, disagree. Thus, both for the Court and for the Rapporteur, the Volk, the demos of a political entity, is imbued by a subjective ­socio-psychological element that is grounded on objective/organic and tangible conditions. The subjective component of the demos is manifested through a ­common sense of social cohesion, shared destiny and collective self-identity. These elements are said to stem from objective conditions, including not merely the use of common language, a common religion, culture and so forth, but rather

1  J Weiler, ‘Does Europe Need a Constitution? Demos, Telos and the German Maastricht Decision’ (1995) 1 European Law Journal 219. 2  Brunner v European Union Treaty BVerfG 89, 155, (12 October 1993) [Maastricht decision]. 3  Weiler, ‘Does Europe Need a Constitution?’ (n 1) 223.

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The Dialectics of Citizenship

also an appeal to ­spiritual or mystic virtues. In this view, the demos precedes the nation state, while the nation state provides the only viable political expression for the demos. A state, thus, exists, inter alia, as a result of pre-existing ethno-cultural bonds. Therefore, for the Court, citizenship is partly grounded on spiritual and mystic ethnic ties. The connotation of the Court’s account is that the demos is not in any way constituted, but rather exists almost naturally, if not metaphysically. This view further implies a link, which Weiler comes to see very critically, between the legitimacy of majoritarian governance on the one hand and the Court’s understanding of the national demos on the other. A minority, the Court’s view implies, is bound to accept the majority’s decision only on condition that both are parts of the same Volk. On this reading, and given that no demos, understood in the ethno-cultural sense, exists at European level, a democratic future would be virtually impossible within the Union, even if democracy were to be conceived narrowly as mere majoritarian rule. On the same reading, democracy would have no chance of success irrespective of possible steps taken towards enhancing the role and say of the European Parliament: since Europeans are not members of the same Volk a majority decision will never be able to legitimately bind European minorities. The above connotations go unnoticed by the BVerG which takes no account of the anti-democratic nuances of its judgment. The Court thus results in a selfcontradictory decision: it stresses the merits of the European Parliament’s representative and democratic power while, at the same time, it upholds a version of the demos that forecloses any possibility for the creation of a democratic European Union. The conceptual problems of the decision do not, however, stop there. Even if the ethno-cultural conception of a demos has some merit, Weiler objects, it should not be the only conception of a demos at our disposal. Similarly, if the democratic nation state provides the principal example of a democratic and legitimate polity, it should not be the only one. For Weiler, a democratically legitimate EU could, therefore, be conceived in non-statal terms. Nevertheless, the German Court’s decision effectively forecloses any such understanding. Weiler, in his critique, correctly compares the German Court’s decision with the most dangerous of nationalistic implications of past philosophical ideas. The brief reproduction of Weiler’s attack against the judgment sets out the framework for the following discussion. In what follows, the relationship between the nation and the demos is explored to open up the way for a discussion on ­European citizenship and constitutionalism.

II.  The Nation, the State and Europe The BVerG’s suggestion is that the nation necessarily precedes the state. As far as Europe is concerned, the great heterogeneity of the origins of ethnic groups within

The Nation, the State and Europe

 55

the continent and, notably, of its Eastern and Southeastern parts may render any discussion around European ethnic commonness redundant.4 Hobsbawm refers to groups which have lived in large or even dispersed territories and sometimes in the absence of a common polity, but which have, nevertheless, developed into bonds that he calls ‘proto-national.’5 Hobsbawm here refers to the existence, prior to the state, of common identities or a common sense of belonging. In this respect, proto-nationalism was the very result of the existence of the concept of ethnicity in its Herodotean sense.6 Such ethnicities, Hobsbawm notes, resisted their accumulation with other ethnicities through the formation of the nation state or other political entities. The case of Basques is indicative of such groups. This is not to deny that on the flip side, the recognition of ‘a people’ within a political body has always been able to cut across ethnic divides of the most manifest kind. Crucially, although proto-nationalism has made the rise of modern nationalism easier, it has not been sufficient to create nation states and nationalities, let alone national patriotism: [the] USA and Australia are obvious examples of nation-states all of whose specific national characteristics and criteria of nationhood have been established since the late eighteenth century, and indeed could not have existed before the foundation of the respective state and country.7

In light of this, the BVerG’s idea, which by implication, as Weiler notes, sees the state as the result of the existence of a nation, and which, thus, inevitably links citizenship to the national demos, while not completely inaccurate, cannot comprehensively account for every form of demos in history. The Court’s analysis of the nation and of national identity is historically unverifiable. The question whether a shared sense of national identity among the population precedes the creation of the nation state is important because an answer in the affirmative may indicate that a pre-existing national identity constitutes a prerequisite to democracy and democratic citizenship. Among those who support this position, Dominique Schnapper, without adopting any of the BVerG’s nationalistic tendencies, creates a theoretical scheme which explains why the democratisation and modernisation of European ­societies can only be accomplished through the national path.8 In Schnapper’s argument,

4  See E Hobsbawm, Nations and Nationalism Since 1780: Programme, Myth, Reality (Cambridge, Cambridge University Press, 1990) 63ff. 5  ibid 46. 6  ‘Ethnicity in the Herodotean sense’, Hobsbawm explains, ‘was, is and can be something that binds together populations living on large territories or even in dispersion and lacking a common polity, into something that can be called proto-nations’. Briefly, the reference is here made to ‘tribal ethnicities’. These are the cases of the Kurds or the Basques. These ‘tribal ethnicities’ have no historic relation to the basic tenets of nation-state formation. Quite the contrary, they have powerfully resisted the imposition of the modern state. See Hobsbawm, Nations and Nationalism Since 1780 (n 4) 64. 7  ibid 78. 8  D Schnapper, Community of Citizens: On the Modern Idea of Nationality (S Rosée, tr, New B ­ runswick, New Jersey, Transaction Publishers, 1998).

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the ‘national path’ is equated with the idea of the ‘civic nation’, a concept which she understands to be inherently universal.9 If Schnapper’s theory holds true the immediate implication would be that European citizenship or any effort at democratisation on European level is difficult, if not entirely hopeless. Should the absence of a common European national identity foreclose a ­European version of citizenship? If yes, then any appeal to constitutionalism at European level is bound to be unsuccessful. In trying to answer the above question the focus will be on the critique elaborated by Etienne Balibar in his endeavour to deconstruct Schnapper’s theoretical scheme. But, before moving to Balibar, Schnapper’s argument needs to be described in some more detail.

A.  The National Project as Universal Project Schnapper’s argument adopts many of the theses of the republican tradition. But, at the same time, it escapes many of the republican clichés and, in this respect, it cannot be explained simply by a general reference to the republican theory.10 Her theoretical scheme deserves careful consideration because once extended, it brings us to the essence of the problematics of the European political community. For Schnapper, the ‘national project’ is universal for two reasons. It is universal, first, because it encompasses every member of the nation. Secondly, the national project is capable of transcending particularities through political means (eg through common democratic institutions) which can apply to and be adopted by any society. According to Schnapper, liberty and equality, namely the foundations of democratic nations which find expression through national citizenship, have one long-term goal, namely universalism. At the same time, however, the democratic nation is particular. It is particular, so the argument goes, because it refers to one particular ethnic group. The tension between particularism and universalism is inherent in the national form; in fact, it is constitutive of it.

9  Schnapper elsewhere defines the nation as ‘a specific type of political unit characterized by the sovereignty exerted to integrate the nation’s populations at home and to play its role as a historical subject on the international level, the world order being based on the existence of states and the relationships between them. Its specific trait is the existence of a community of citizens legitimizing the policy of the state both at home and abroad. This type of political entity can be designated equally as “nation”, “democratic nation”, or “civic nation”’; see D Schnapper, ‘Beyond the Opposition: Civic Nation versus Ethnic Nation’ (1997) 22 Supp Canadian Journal of Philosophy 219, 219–20. For a comparison between the German and French concept of the nation, see UK Preuss, ‘Two Challenges to European Citizenship’ in R Bellamy and D Castiglione (eds), Constitutionalism in Transformation: European and Theoretical Perspectives (Oxford, Blackwell Publishers, 1996) 131. 10  In Balibar’s words, ‘she has the immense merit of not believing that the opposition between ethnic belonging and belonging to the civic nation is self-evident, that it is in some sense given by definition (or by the institutions whose goal is to impose it, notably the republican school). She shows that this opposition—if and where it exists—is rather the result of a labor within culture (in the double sense of Kultur and Bildung)’. See E Balibar, We the People of Europe? Reflections on Transnational Citizenship (Princeton, NJ, Princeton University Press, 2004) 52.

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 57

For Schnapper, particularism and universalism do not necessarily contradict each other. Rather, they co-exist in harmony.11 In Schnapper’s scheme, citizenship plays an integrative role which, nevertheless, appears to be insignificant. Citizenship, for all its ability to express the nation’s universalistic tendencies, is incapable of exceeding the nation’s particularism. This is so, because it constitutes an abstract idea unable to unite individuals around it. What such unity needs is, instead, a concrete reality, concrete values and tangible interests. For Schnapper, this concretisation is offered by the material and tangible concept of ethnicity. In other words, Schnapper asserts that individuals can achieve integration in so far as they feel bound by the same culture, history and past, ie by the same nation. Here, the survival of democracy depends on democracy’s ties to the ethnic dimension of collective life.12 As a result, for Schnapper, the existence of a political community can only be realised and maintained, at least in theory, through the national form. This is so, notwithstanding the latter’s possible exhaustion in practice: Schnapper acknowledges that the democratic nation may be close to its collapse. For her, there is no guarantee whatsoever that it will continue to control conflict and preserve the social bond as there is no guarantee that it will continue to control feelings of identification with ethnic minorities.13 Still, she insists that it is the only form that can preserve the political institution. In many ways, Schnapper sees the nation stripped of many of the definitive elements and of the contradictions that surround it, such as its multiple ethnic references. She conceives it in its ideal form; the form of an absolutely singular civic nation.14 Schnapper’s theory is constructed upon the notion of a national political community where the particular does not contradict the universal, but rather constitutes its prerequisite.15 The national political community might be built on the basis of the exclusion of the ‘other’ but this is not enough to negate the civic nation’s inherent universalism. This universalism seems to be the premise upon which Schnapper develops her hypothesis that a political community can only exist in the form of the civic nation. While Schnapper’s high level of abstraction is not a problem in methodological terms, there seems to be a historically ambivalent point in her assertion; one which Etienne Balibar attempts to expose and one which is important for the understanding of citizenship that will be defended later in this chapter. Universalism may indeed find expression in certain aspects of the Western nation state. A prominent one is, as Schnapper herself notes, the creation of national citizenship based on equality and liberty, a result of the revolutionary struggles of the nineteenth century. But it is precisely the fact that universalism

11 

Schnapper, ‘Beyond the Opposition’ (n 9).

12 ibid.

13 Schnapper, Community

of Citizens (n 8) 169. ibid 85. 15 Balibar We the People of Europe? (n 10) 52–55. 14 

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The Dialectics of Citizenship

finds expression through national citizenship that reveals the deepest contradictions between the nation state and the universal.

B.  The Imperialistic Nature of National Universalism Balibar recalls two instances of the nation state’s history in order to explain why the civic nation and the universal, instead of being coupled, actually contradict one another. First, the emergence of the nation state, Balibar notes, is associated with the processes of colonisation and decolonisation.16 The relationship between the nation state and colonialism presents itself as one of the incarnations of the nation state’s universalist aspirations. The nation state’s alleged universalism was first expressed in religious terms as a mission of christianisation of the rest of the world. Later, universalism took the form of a mission of civilisation of humanity, this time in secular terms, through the Enlightenment.17 Today, the same universalism characterises the justificatory rhetoric of Western expansionism: it is above all the need to expand freedom which lies behind Western imperialism.18 There are undeniably elements of a kind of universalism in the above movements. ­However, the imperialist quality of this universalism—expressed, notably, through the fact that colonised nations had the status of dominant nationalities but were, at the same time, excluded from citizenship rights—renders the universalism of the civic nation a contradiction in terms. There are a lot of historical examples, prior to the nation state, that exhibit the imperialist tendencies of that kind of universalism. From Alexander’s M ­ acedonian Empire to Cicero’s Roman Empire the claim to universalism seems to be indistinguishable from imperialism.19 As was remarked earlier, these imperialist tendencies were backed by a claim about the need to civilise the rest of the world. There are not many qualitative differences between the rhetoric of the ancient Empires and their humanising mission on the one hand and modern nation state colonialism on the other. This is the rhetoric of natural rights and of the unity of humanity which brings us to Balibar’s second point.20 The universalism of the nation state is grounded precisely on the idea of humanity’s unity rather than on an unfounded and groundless generalisation of a particular national or cultural model. The idea of humanity’s unity points to a natural and universal entitlement to equality and freedom that is inherent in all individuals and expressed in virtually all of the modern liberal constitutional

16 

ibid 56–61. See also the discussion in the previous chapters, and especially Pt I, ch 1, section II.2. 18 See, eg, M Hardt and A Negri, Empire (Cambridge, Mass, Harvard University Press, 2000) 166, 175. 19  C Douzinas, Human Rights and Empire: The Political Philosophy of Cosmopolitanism (Abingdon, Routledge, 2007) 157ff. 20  On this point, see also ch 2, section II.1. 17 

Citizenship and Community

 59

declarations. The appeal to liberty and equality reveals, or at the minimum opens up, the possibility for the nation state’s emancipatory potential. As has already been discussed, the emancipatory disposition of the nation state and, in particular, of national democracy exists and, indeed, constitutes the very core of democracy understood as an antagonistic process. At the same time, however, it defeats the universalist claims of the nation state. Emancipation does not occur in vacuum but rather comes as a result of antagonisms, conflicts and struggles unfolding within the confines of the nation state by those dominated and oppressed against those who dominate and vice versa. While the emancipatory claims of the former can be expressed in the universal language of freedom and equality so can the claims of the latter. Given that in national struggles, as in every struggle, there are losers and winners, this tension seems to suggest an absurd effect of universalism. That is, that the natural and universal truths of freedom and equality may apply differently to winners than to losers. It follows that the historical reality surrounding the nation state counters the suggestion that the civic nation is, notwithstanding its reliance on the ­inclusion/ exclusion dichotomy, inherently universalistic. While the above two points ­counter the idea that the universal civic nation provides the only available form of political community, they also provide a valuable insight into the modern idea of ­citizenship. This insight will be discussed in the following section.

III.  Citizenship and Community: Citizenship as a Dynamic Concept Accepting the unity of humanity as the basic foundation of the modern nation state means that national citizenship cannot be denied unless denial also extends to one’s human nature. If, in other words, citizenship is understood as a necessary accompaniment of being human then we are faced with the paradox that one cannot be excluded from citizenship unless they are denied their human nature. Yet, citizenship has historically been accompanied by a series of exclusions: nationals of colonised nations were denied citizenship rights, women were denied active political participation until relatively recently, convicted criminals and the ‘­abnormal’ are still regarded as non-citizens. It follows that either the civic nation and citizenship rights that go with it are not universal concepts or that those excluded from citizenship are in some way non-humans.21 21  Schmitt makes a similar observation, albeit in a different context. Commenting upon the use of the world ‘humanity’ by liberal ideology he says: ‘To confiscate the word humanity, to invoke and monopolize such a term probably has certain incalculable effects, such as denying the enemy the quality of being human and declaring him to be an outlaw of humanity; and a war can thereby be driven to the most extreme inhumanity’. See C Schmitt, The Concept of the Political (Chicago, University of Chicago Press, 1996) 54.

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Balibar believes the above examples of modern exclusions to be based on ‘invented anthropological differences’.22 The latter are the counterpart of other justifications of exclusions from citizenship that have applied in the course of history in all different kinds of social and political formations. Just as the Greek city state excluded mainly women and slaves by confining them in the household, modern liberal democracies exclude by ‘inventing anthropological alterity’.23 The above observations do not only expose the quality of citizenship as a nonnatural and non-universal condition. Rather, they also signify that the idea of citizenship cannot be thought of in the abstract. The forms of inclusion and exclusion are constantly reshaped depending on the rationality underlying each social and political community throughout history. As the shapes of inclusion and exclusion from citizenship change, so does the logic of citizenship itself. To understand citizenship in the above sense means to see it as a dialectics; as a dynamic concept capable of constantly transcending its own boundaries. In light of this understanding, Europe may be citizenship-capable. However, as will be explained in the following sections, that ability is not unconditional. At this juncture, it is important to distinguish between two different types of dynamism. There is sometimes talk about ‘citizenship as a dynamic principle of constitutional politics’.24 This type of dynamism is unrelated to the adaptability of the logic of citizenship proposed by Balibar. Instead, it seems to relate to the bearers of citizenship rights, who must be able to question the policies to which they are subject. Once combined, these two types of dynamism suggest that the logic of citizenship is subject to permanent reconstruction but that citizenship must also allow its beneficiaries to constantly reconstruct: when the constitution of a political entity fosters citizenship understood as a principle of constitutional reconstruction and thus as a dynamic principle of a political entity’s organization, in other words, when an entity is ‘owned’ by its citizens, that entity becomes a democratic regime.25 While a democratic regime does not necessarily have to be based on a pre-existing national identity, it needs to be, at least to some extent, local and to provide room for expression of collective consent or dissent.26 Provided that these conditions are met, citizenship is not implausible at European level. To sum up, citizenship is understood as a condition containing a double dynamism. On the one hand, there is the dynamic nature of citizenship, as described by Balibar. That is the subjection of the concept of citizenship to continuous construction and reconstruction, namely the understanding of citizenship as a ­dialectics.

22 

Balibar (n 10) 60. 65–73; Hannah Arendt refers to the ancient Greek household as the ‘centre of the strictest inequality’. See H Arendt, The Human Condition, 2nd edn (Chicago, University of Chicago Press, 1998) 32. 24  HR van Gusteren, A Theory of Citizenship: Organising Plurality in Contemporary Democracies (Boulder, CO, Westview Press, 1998) 6. 25  ibid 7. 26 ibid. 23  ibid

Political Citizenship

 61

On the other hand, there is the dynamic nature of citizenship understood as a mode of political conduct and as the ability of its bearers to use it as a vehicle for democratic political change. Thus, the logic of citizenship changes over time, but there seems to be one element that is inbuilt in it. That is, that it must allow for democratic challenge of given political structures. This primarily political understanding of citizenship will be further explored in what follows. In the course of the following discussion, a final answer is proposed to the question set at the beginning of this chapter, namely whether a pre-existing national identity is an inescapable prerequisite for democracy and democratic citizenship.

IV.  Political Citizenship: Citizenship as a Dynamic Process If citizenship is defined as the active participation in the political life of a community, the term political citizenship appears pleonastic. However, there are different ways to understand political life. Political life understood in its narrow sense could simply indicate a restriction of citizenship to the right to vote and stand as a candidate, the right to good administration and so forth.27 A broader understanding of politics as politics proper bestows upon political citizenship a different quality.28 Balibar cites Ranciere: The struggle between the rich and the poor is not social reality, which politics then has to deal with. It is the actual institution of politics itself.29 There is politics when there is a part of those who have no part, a part or party of the poor. Politics does not happen just because the poor oppose the rich. (…) Politics exists when the natural order of domination is interrupted by the institution of a part of those who have no part. This institution (…) defines the common of the community as a political community, in other words, as divided. Beyond this set-up there is no politics. There is only the order of domination or the disorder of revolt.30

Here, participation in the political life of the community reaches beyond citizens’ rights to the power of citizenship to institute ‘those who have no part’.31 This bestows a unique meaning upon the term political citizenship. If there can be no politics where there are no divisions, then political life emerges through the

27 

See Charter of Fundamental Rights of the European Union Ch V, 2010 OJ C 83/02. On the meaning of politics proper, see ch 1, section I.1. 29  The reference to ‘rich and poor’ is schematic and is taken to refer to the more general categories of oppressors and oppressed. 30  J Rancière, Disagreement: Politics and Philosophy, (J Rose, tr, Minneapolis, University of M ­ innesota Press, 1999) cited in Balibar (n 10) 73. 31  An obvious example is the naturalisation of immigrants to which Balibar (n 10) makes frequent references particularly with respect to their status in France. 28 

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The Dialectics of Citizenship

s­ truggle of divided forces to maintain or eradicate divisions. Ranciere’s description pushes towards a re-conceptualisation of political citizenship as a process fuelled by permanent conflict, which can transform both the boundaries of citizenship and the status quo of a polity. Political citizenship as a driver of change of the boundaries of inclusion and exclusion within a polity challenges the idea of the universal civic nation. Political citizenship is further at odds with any understanding of the demos as a pre-given body characterised by ‘social cohesion, shared destiny and collective ­self-identity’ stemming from the use of common language, from a common religion and ­culture or, even, from spiritual and mystic virtues.32 Despite the constitutive force of a pre-existing commonness, that commonness is not a necessary condition of establishment of a polity. To put in question all the ‘admitted representations of a common—historical and, even more so, natural—identity’ means to recognise that [the] question of the community of citizens (…) has no definite or ultimately definable solution. (…) Its domain (…) is a dialectics and not a constitution (…); A dialectic of ‘constituent’ and ‘constituted’ citizenship (…): it is a contradictory process, fed by permanent conflicts.33

In light of this understanding, national identity is no necessary prerequisite to citizenship.34 By contrast, political citizenship is a dynamic process transcending national identities and based on continuous political struggle. Political citizenship supports the idea of a citizenship-capable Europe. However, the treatment of European citizens by EU institutions seems to foreclose any prospect for conflict at the level of the European society. While citizenship was considered a significant element for the realisation of the Union’s political character in the drafting of the Maastricht Treaty, conflict remains restricted to the diplomatic level with citizens understood as collective agents of opposing interests being forced out of the picture.35 At the same time, European institutions and, in particular, the Court leave no room for change in the modes of inclusion and exclusion of European citizenship. Chapter four shall look at the European institutional and regulatory machinery and will examine the Union’s dominant understanding of politics, political citizenship and, ultimately, of constitutionalism. Before proceeding with chapter four, chapter three closes with a summary and the introduction of two additional points. These relate to the concept of equality and the idea of social citizenship.

32 The

Maastricht decision (n 2) refers to ‘mystic’ virtues at 37, 60. See also Weiler (n 1) 226. Weiler (n 1). 34  Balibar (n 10) 76. 35  Preuss, ‘Two Challenges to European Citizenship’ (n 9) 122. 33 

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V.  Social Citizenship and Equality Citizenship is seen as a form of dialectics, namely as a dynamic process through which the dividing line between those included and those excluded is subject to constant revision. The dynamic nature of citizenship does not, however, rule out the existence of structural tendencies. On the contrary, citizenship is a status that bestows upon political subjects the power to change, that is to claim and/ or improve, their entitlements. This power can be realised through the means of democratic struggle and should constitute the minimum substantive content of citizenship. Democracy understood as the means to continuous challenge of the established status quo is, thus, inextricably bound up with one’s status as a ­citizen. The bond between citizenship and democracy allows the former to be s­ ubject to adaptation of its boundaries. Citizenship entails the right to participate in the political life of a community, to wit the capacity to re-shape the community’s established contours.

A.  Citizenship and Equality It follows that citizenship should possess a structural tendency towards equality of rights and opportunities for participation in the political life of a given community. Meaningful participation can hardly be achieved in the absence of the citizen’s power to strive for equal citizenship. Seen as an essential structural tendency of citizenship, equality should signify the blindness of citizenship to natural or cultural circumstances and, most crucially, to one’s socio-economic status.36 This structural tendency is sometimes perceived as the result of citizenship’s ‘strong commitment to the universalist principle that each individual has an equal value (dignity) and merits equal respect irrespective of his or her particular attributes’.37 Certainly the idea of universality may be coupled with equality demands within a given society.38 However, to approach citizenship as an inherently universalist concept would mean to neglect all the historical exclusions from the c­ itizen’s ­status.39 A universalist reading seems to assume that equality is somehow already 36 UK Preuss, ‘Constitutionalism in Fragmented Societies: The Integrative Function of Liberal Constitutionalism and its Challenges’ in J Nergelius (ed), Constitutionalism: New Challenges­—European Law from a Nordic Perspective (Leiden/Boston, Martinus Nijhoff Publishers, 2008) 97. 37 ibid. 38  Palinurus, ‘Hegemony and Socialism: An Interview with Chantal Mouffe and Ernesto Laclau’ (1999) Palinurus . 39  Preuss himself mitigates the absoluteness of this statement later in the same article. ‘This does not mean that poverty and destitution are absent in those societies. On the contrary, there is now sufficient evidence that a growing portion of their populations—basically the losers of the globalization of the economy—are now excluded from the basic benefits of a civilized society. At present they are merely marginalized, without a voice in the political sphere’. See Preuss, ‘Constitutionalism in Fragmented Societies’ (n 36) 101.

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there instead of a demand to be achieved through political and democratic ­struggle.40 Therefore, equality can be better understood as a potential result of citizenship rather than as its pre-condition. The ‘terrain of equality’ can only be created as does equality itself.41 In addition, the structural tendency of citizenship towards equality cannot but refer to a diminished sense of equality: one that pertains to status but not necessarily to power. The relationship between citizenship and equality brings to light a number of ostensible tensions. The contemporaneous development of citizenship and capitalist liberal democracy mystifies the former’s structural tendencies towards equality and political participation. First, there is capitalism’s requirement for autonomous self-responsible subjects that go against the collective overtones of the citizen’s status.42 Secondly, capitalism, a system structurally inclined to perpetuate inequalities develops smoothly alongside citizenship. The co-existence and mutual support of the two opposing forces create a seemingly insurmountable conflict. However, as TH Marshall explains, the conflict is only outward. His seminal work on social citizenship is vital to penetrating the above contradictions.

B.  Social Citizenship The modern concept of the citizen relies on the idea of the free individual who enjoys civil and political rights. Seen from this angle, constitutionalism and citizenship are hardly distinguishable from one another, as the free and equal individual becomes the foundation upon which both institutions emerge in the eighteenth century. As already remarked in previous chapters, not only was their institutionalisation safe for the newly emerging capitalist societies. It was a prerequisite. The capitalist economy largely owes its maintenance and reproduction to the free contractual relation between equals, a relation bound to perpetuate inequalities. This is hardly disputed.43 The emergence of citizenship in the eighteenth ­century has been inseparable from civil rights, in general, and from formal contractual

40 ibid. 41 ibid.

42  See, eg, K Dean, Capitalism and Citizenship: The Impossible Partnership (Abingdon, Routledge, 2012) 121. 43  See, inter alia, MJ Trebilcock, The Limits of Freedom of Contract (Cambridge, Mass, Harvard University Press, 1997); OE Williamson, The Economic Institutions of Capitalism (New York, The Free Press, 1985); C Edwards, ‘Freedom of Contract and Fundamental Fairness for Individual Parties: The Tug of War Continues’ (2009) Faculty Publications Paper 281 http://scholarship.law.marquette.edu/ facpub/281; DD Barnhizer, ‘Inequality of Bargaining Power’ (2005) 76 University of Colorado Law Review 139. The words of Lord Denning are also indicative: ‘There are cases in our books in which the courts will set aside a contract, or a transfer of property, when the parties have not met on equal terms-when the one is so strong in bargaining power and the other so weak-that, as a matter of common fairness, it is not right that the strong should be allowed to push the weak to the wall’; see Lloyds Bank Ltd v Bundy [1975] QB 326, 336–37.

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 65

equality, in particular.44 Political rights were recognised to a much lesser extent and social rights were at the time beyond imagination. Inequalities thus remained overt and undisguised. As Marshall notes, persisting inequalities were not the result of any presumed defect of civil rights. Rather, they were the consequence of the lack of social rights. Indeed, as he further suggests, although the ­status of the free and equal individual may have bestowed upon the latter the capacity to struggle for material goods, it failed to confer the goods themselves.45 Marshall’s account points to the well-documented tension between provisions on the one hand and entitlements on the other. Ralf Dahrendorf explains: whereas provisions represent the widening of choices, entitlements offer ‘access to the many choices on offer’.46 Entitlements, thus, become an ‘entry ticket’.47 By the same token, D ­ ahrendorf continues, the former are a matter of economics and the latter a matter of politics. Even in the absence of social entitlements, provisions sufficed to foster integration within the societies of the nineteenth century. As citizenship created a terrain for advancement and enjoyment of one’s material goods, it also fostered a sense of membership in the political body.48 In this, citizenship further became a driver of a move away from individualism towards a collective sense of belonging and national consciousness. Still, Marshall goes on, national consciousness and the sense of community belonging were unable to disturb structural inequalities and so were the limited political rights conferred upon the working class.49 Political suffrage, even in its wider and more inclusive version of the end of the nineteenth century, had no meaningful effect in the absence of any experience and knowledge on the part of workers of how it were to be used.50 Even so, the above conditions gradually prepared the ground for the introduction of social rights as a necessary component of citizenship. Social rights were at the time inconceivable, requiring as they did departure from the idea of the individual as the prominent and starting point of reference. Indeed, unlike civil rights, social rights are not contingent upon individual contractual power, but rather constitute collective and absolute claims.51 For Marshall, the decisive point for the establishment of social rights was the recognition of collective rights and, notably,

44  TH Marshall, ‘Citizenship and Social Class’ in J Manza and M Sauder (eds), Inequality and Society (New York, Norton and Co, 2009) 150–51. 45  ibid 151. 46  R Dahrendorf, ‘The Changing Quality of Citizenship’ in B van Steenbergen (ed), The Condition of Citizenship (London, Sage, 1994) 12. 47 ibid. 48  ibid. Marshall, in fact, refers to ‘the struggle to win civil rights’ instead of material goods. It is assumed, however, that the difference between the two is insignificant, as the latter constituting the intended result of the former, at 150. 49  ibid 151, 152. 50  ibid 151–53. 51  The absoluteness of this assertion has been questioned. It has been claimed, eg, that Marshall might have ‘underscored the extent to which elements of modern nationalized social citizenship had already developed in nineteenth century continental Europe and in autocratic, not capitalist advanced regimes. Denmark, for example, had introduced compulsory primary education in the first few ­decades

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of trade unionism at the end of the nineteenth century. Collective bargaining was considered a safe option for capitalist relations. Its unperturbed recognition by capitalists confirms that social protection was at the time conceived as a matter of provisions rather than entitlements. Being a civil right, collective bargaining is predicated upon the use of contract in the open market without in fact providing any material form of social security.52 Nevertheless, trade unionism managed to create a vital and unforeseen anomaly within capitalism. The departure from the individual as the ultimate bearer of legal entitlements and the neutralisation of individual responsibility related to contracts gave rise to significant changes. The conflict between capitalists and labourers produces the collective subject of workers, and industrial citizenship becomes the counterpart of political citizenship. This came as a result, not merely of the recognition of collective civil rights, but also of a number of contemporaneous political and economic developments. The rise of money income, the establishment of direct taxation and the increase of mass production resulted in a decrease of material inequalities between lower and upper classes but, importantly, they also made social integration contingent upon material enjoyment.53 In Marshall’s own words, this ‘diminution of inequality strengthened the demand for its abolition at least with regard to the essentials of social welfare’.54 Through this process, social rights anchor themselves to the status of the citizen, notwithstanding considerable variations of levels of social protection throughout political entities.55 At the same time, pacification of social conflict through classabatement reaches its peak in the nation state of the post-World War II era and becomes equally inscribed in the notion of citizenship. Social rights are entitlements conditional not upon one’s class, but rather solely upon one’s status as a citizen while the converse is also true. One’s status as a citizen incorporates the claim for social entitlements or at least the power to demand them. In this respect, not any form of citizenship can claim a relationship with equality in power. Instead, it is only social citizenship that can occasion a connection between the two concepts. Equality in power and citizenship are not necessarily interwoven. Instead, equality in power remains an open question. Social citizenship, while opening up the possibility for equality in power, does not per se confer equal power upon citizens. The distance between social citizenship and the attainment of full equality is covered by political struggle. Social citizenship has been the result of collective political struggle, and conversely, collective political struggle has also been a of the nineteenth century, and autocratic Germany and Austria were the forerunners of social insurance development in the latter half ’; see S Bartolini, Restructuring Europe: Centre Formation, System Building and Political Structuring Between the Nation-State and the European Union (Oxford, Oxford University Press, 2005) 105. 52  53 

Marshall, ‘Citizenship and Social Class’ (n 44) 152. ibid 153.

54 ibid.

55  As will be explained in more detail in chs 8 and 9, the degree of social protection in different states depends on the balance of powers that is produced out of the outcome of the social conflict.

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­ rerequisite for social citizenship. Thus, citizenship, understood as participation p in the political life of a polity, requires that the polity confers upon its members social entitlements or, at the minimum, the opportunity to struggle for them. The similarities of citizenship with an understanding of constitutionalism as circumscribing the terrain for political and democratic conflict cannot go unnoticed. Constitutions foresee social rights and citizenship prescribes the subjects who are entitled to them. The constitution specifies the legal and enclosed space wherein citizenship rights apply. Most importantly, both constitutionalism and social citizenship become almost indistinguishable when thought of in terms of their ultimate purpose: the creation of consensus through pacification of social conflict and the levelling out of class distinctions. These similarities bring the two concepts in a relation of mutual dependence. The discussion of social citizenship shall conclude with two remarks and one question. First, if we are to understand social entitlements as a necessary component of citizenship and therefore of constitutionalism, then global constitutionalism is not easily attainable. The provision of social entitlements or, at least, of the means to achieve them cannot be easily sustained outside a closed political body constituted as a community of citizens.56 While the nation state provides the archetype of this type of community, a common sense of belonging or Marshall’s ‘national consciousness’ are not necessarily pre-existent. They are, rather, amenable to the constitutive force of citizenship. To assume that the European Union is citizenship-capable does not mean that Europe and citizenship are easily reconcilable. On the contrary, a European version of citizenship disrupts one of the basic features of the latter, namely its connection to the national form. But, as a matter of fact, European citizenship has been institutionalised as the ‘fundamental status of nationals of the Member States’.57 Therefore, its properties and qualities must be put under scrutiny. The second remark has to do with the properties and qualities of European citizenship. It was remarked that social citizenship is inscribed in the very essence of citizenship and that, therefore, citizenship has come to be about entitlements as much as about provisions. It would perhaps be unrealistic to expect the Union to fulfil the demands of social justice and equality on its own account. However, realisation of political and social citizenship as described in this chapter would at the minimum require the Union to offer opportunities for political struggle over entitlements. This process would open up space for the re-imagination of the people of Europe as collective subjects. Does Europe keep to the above understanding of citizenship? The next chapter shall discuss European citizenship through the lens of the Union’s regulatory arrangements and case law but, most importantly, through the lens of the constitutional mentality of the European apparatus. 56  This is true regardless of how desirable a vision of global/universal citizenship may be. However, see Dahrendorf, ‘The Changing Quality of Citizenship’ (n 46) 17–19 for the opposite view. 57  Case C-184/99 Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve [2001] ECR I-06193.

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4 What Kind of European Citizenship? I.  European Citizenship in Practice Citizenship rights in Europe have found institutional expression in the EU ­Treaties and, more recently, the Charter of Fundamental Rights. At the same time, they have been developing through the Union’s judicial mechanism in a sometimes surprisingly progressive direction.1 From the initial hesitant recognition of ­citizenship rights as part of the common market and the individual’s economic activity, the Court gradually progressed to a fundamental change of the regime. The Court has interpreted a wide array of EU provisions in light of citizenship rights thus expanding the scope of the latter considerably beyond economic considerations. In this way, citizenship provisions have shed a wholly different light on the EU legal order. The Court has recognised the autonomous right to reside in a host Member State irrespective of one’s economic activity.2 Equally, the right to residence has been granted to third country nationals who are carers of minor EU citizens.3 The abolition of the requirement to be economically active has covered entitlements to social benefits. Thus, EU nationals residing in host Member States have been declared eligible for social assistance on the basis of their EU citizenship status in conjunction with the principle of non-discrimination on the basis of nationality.4 What is more, rigid proportionality requirements have been placed upon restrictions to the above rights.5 1  Consolidated Version of the Treaty on the Functioning of the European Union, art 20, 2008 OJ C 115/47 (TFEU). 2  Case C-413/99 Baumbast and R v Secretary of State for the Home Department [2002] ECR I-7091. 3  Case C-200/02 Zhu & Chen v Secretary of State for the Home Department [2004] ECR I-9925; Case C-34/09 Gerardo Ruiz Zambrano v Office national de l’emploi (ONEm) [2011] ECR I-1177; see also the more recent C-304/14 Secretary of State for the Home Department v CS EU:C:2016:674, where the Court gives guidance on exceptions to a third country national’s derived right. Importantly, most third ­country national cases did not involve a cross-national element, something which is normally considered a necessary condition for a case to fall within the scope of EU law. 4 See Case C-85/96 Martinez Sala v Freistaat Bayern [1998] ECR 1-2691; Case C-184/99 Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve [2001] ECR I-06193; Case ­ C-456/02 Trojani v CPAS [2004] ECR I-7573. See also Case C–209/03 Bidar v London Borough of E ­ aling and Secretary of State for Education [2005] ECR I–2119, which is somewhat differentiated in that a requirement of sufficient integration in the host Member State was accepted by the Court. 5  See esp Baumbast (n 2). The principle was reiterated in Chen (n 3).

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The above is more than a list of judgments that broaden the scope of EU c­itizenship rights and bestow upon them a directly effective and autonomous ­status. More importantly, it is a list that largely resulted in the detachment of citizenship from its national ties.6 The list is long and reflects an avant-garde and pioneering side of the CJEU judges; a side that has not been put on display in other fields of EU jurisdiction. It is, indeed, a list that could possibly shake even the most suspicious of the progressiveness of the European endeavour. However, as a matter of fact, there is more to the CJEU citizenship jurisprudence than the above list of progressive judgments. Alongside the above decisions, a second list of comparable weight has been developing. This is the list of third country nationals who were denied the right to residence despite the EU nationality of their spouse.7 It is further the list of ­families who were denied the right to remain united in the EU, because abandoning Union territory would, in the words of the Advocate General, amount to nothing more and nothing less than a decision made on the ground of ‘the whims and vagaries of [a] mother’s married life’.8 It is, moreover, the list of cases in which the Court fastens the link between the right to social benefits and the individual’s economic activity.9 It is, above all, a list of cases that confirm the superior status of the economic individual to that of the European citizen.10 The Court’s treatment of citizenship rights has developed into an erratic and incoherent body of judgments. The CJEU’s rationale is not always clear and the chronology of judgments does not help to make sense of the volatile case law. The Court is undeniably faced with the sensitive task of reconciling supranational citizenship with the political agenda of twenty-eight Member States whose popular sentiment appears to be turning increasingly xenophobic.11 Nevertheless,

6  See A Albi, EU Enlargement and the Constitutions of Central and Eastern Europe (Cambridge, Cambridge University Press, 2005) 202. For further references see J Shaw, ‘Citizenship of the Union: Towards Post-national Membership?’ Jean Monnet Working Paper No 6/97 (1997) at 45, . 7  Case C-434/09 Shirley McCarthy v Secretary of State for the Home Department [2011] ECR I-00000. 8  See the AG’s opinion in Case C-356/11 O and S v Maahanmuuttovirasto and Maahanmuuttovirasto v L EU:C:2012:595 at para 52. See also Case C-256/11 Murat Dereci and Others v B ­ undesministerium für Inneres EU:C:2011:734. 9  Case C-480/08. Maria Teixeira v London Borough of Lambeth and Secretary of State for the Home Department [2010] ECR I-1107; Case C-310/08 London Borough of Harrow v Nimco HassanIbrahim, Secretary of State for the Home Department [2010] ECR I-1065. 10  Case C-287/05 DPW Hendrix v Raad van Bestuur van het Uitvoeringsinstituut ­Werknemersverzekeringen [2007] ECR I-6909; Case C-208/05 ITC Innovative Technology Center GmbH v B ­ undesagentur für Arbeit [2007] ECR I-181; see esp, the recent Case C-333/13 Elisabeta Dano and Florin Dano v ­Jobcenter L ­ eipzig EU:C:2014:23 (Dano) and Case C-67/14 Jobcenter Berlin Neukölln v Nazifa ­Alimanovic and Others EU:C:2015:597. For a comment on social solidarity and citizenship, see D Kochenov, ‘­Growing Apart Together: Social Solidarity and Citizenship in Europe’ (Social Science Research Network 2014) SSRN Scholarly Paper ID 2533522 . 11  Sometimes, xenophobia is attributed to EU interventionism. See, eg, B Schlipphak and O Treib, ‘Playing the Blame Game on Brussels: The Domestic Political Effects of EU Interventions against ­Democratic Backsliding’ (2017) 24 Journal of European Public Policy 352. Other times, it is attributed more explicitly to austerity. See, eg, C Voulgarelli-Christidou, ‘Dangers of an Urban Crisis within the

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the Court’s balancing responsibilities do not provide a satisfactory enough reason for a body of jurisprudence that resembles the methodology of ‘[lottery] rather than logic’.12 A possible explanation detects the cause of inconsistency in the Court’s impulsiveness. Indeed, the Court will often give opposing judgments depending on what will evoke the judges’ emotion and sensitivity. If the rights of an EU minor are at stake the third country national parent usually derives rights that ensure ­non-interference with the minor’s citizenship status. However, where the individual in need of protection is an adult, EU law will hardly grant protection.13 And hence, the criticism: ‘The nation and history of our traditional citizenship paradigms are discarded, not in a politically-constitutive moment, but are instead swept aside within the emotional response of European judges to individual ­circumstances and want. Facts and emotions matter’.14 They seem to matter indeed. However, the Court’s increasingly reactionary body of law cannot be simply attributed to intuition and sentiment. As the political balance tips in favour of a national regulatory autonomy allegedly able to better serve the interests of the national population, the Court does nothing to reiterate the break between nationalism and citizenship. The CJEU’s climbdown results in the re-establishment of the national element as integral to citizenship. The Court breaks the ties only in the case of wealthy, healthy and mobile citizen thus ‘positing the responsibility for the most vulnerable individuals in society firmly with [their] state of origin’.15 The Court’s responses culminate in a market-based version of European citizenship. The ‘market ethos’ of European citizenship is neither a new nor a radical proposition.16 Perhaps, it would be more precise to think of market-based citizenship as what best suits the fundamentally economic purposes of the Union. With the exception of the Court’s nearly charitable decisions regarding minors, ­ uropean Union: Fueling Xenophobia and Undermining Democracy’ (2016) 15 Perspectives on Global E Development and Technology 236. Some see xenophobia as a European rather than national phenomenon. However, this is not confirmed by recent developments, particularly the rise of far-right anti-EU parties. See, eg, S Borg and T Diez, ‘Postmodern EU? Integration between Alternative Horizons and Territorial Angst’ (2016) 54 Journal of Common Market Studies 136. While the issue of xenophobia struck a chord with the advent of Brexit not everyone agrees that nationalist tendencies were decisive for the outcome of the referendum. See, eg, J Butcher, ‘Talk of a Nonexistent “Tide of Hate” against EU Migrants Does Nothing to Help their Cause’ LSE Brexit (17 March 2017) . 12 

See AG Sharpston’s Opinion in Ruiz Zambrano (n 3) EU:C:2010:560 at para 88. See respectively Chen (n 3); Ruiz Zambrano (n 3) and McCarthy (n 7); Dereci (n 8). In fact, one does not need to look further than an EU Law textbook to understand the discrepancies between ­judgments and sometimes emotional responses of the judges. See, eg, P Craig and G de Búrca, EU Law: Text, Cases, and Materials, 5th edn (Oxford, Oxford University Press, 2011) 833. 14  M Everson and C Joerges, ‘Reconfiguring the Politics–Law Relationship in the Integration Project through Conflicts–Law Constitutionalism’ (2012) 18 European Law Journal 644, 657. 15  E Spaventa, ‘Earned Citizenship: Understanding Union Citizenship Through its Scope’ (Social Science Research Network, 2014) 2 . 16  See, eg, N Shuibhne, ‘The Resilience of EU Market Citizenship’ (2010) 47 Common Market Law Review 1597. 13 

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the purpose of citizenship in the Union appears to be limited to guaranteeing the undisturbed continuity of the common market.17 Market citizenship, so the argument sometimes goes, may be more of a natural corollary within a Union born and developed primarily as an economic entity.18 But, in point of fact, the EU is no longer a mere economic entity. Instead, it is an entity that aspires to be political, democratic, even constitutional. It would be overly optimistic to assume that there is potential for significant change in the EU model of citizenship so long as the latter remains captured in a market-based paradigm.19 The CJEU could possibly reorient its jurisprudence towards a version of market-based citizenship that is nevertheless receptive to principles of social solidarity and protection of the vulnerable. However, there would be critical limits in such an approach. These can be manifested empirically in the Court’s jurisprudence. The economically inactive,20 the non-European,21 the minority group,22 the unlucky jobseeker,23 she who, in Ranciere’s words, has no part, remains excluded in a Union willing to protect primarily those in no urgent need of protection. The limits in the Court’s approach are further manifested once exposed to reason and logic. When protection of the market is the Court’s underlying tendency, not much is to be expected when it exercises its jurisdiction on citizens’ rights. Next to the Court’s market-oriented logic there is the effort to protect the overall European endeavour in a Union where discontent is increasingly directed to the migrant other. The conundrum facing the Court is that protection of the ­European endeavour tends to pertain to an increasing denial of one of that endeavour’s very rationales: the creation of a Union of the people. Certainly, the Court is not the only mechanism to blame for the failure of that endeavour for it could never impose a pan-European constitutional mindset on its own accord. A Union

17  It has been argued that ‘[access] to welfare benefits in the state of employment (…) functions as a quid pro quo for the economic and functional engagement of migrant workers with [the host] society. It is this notion of structural interdependency and economic reciprocity between the migrant worker and the host state that underlies the unconditional right to equal treatment in accessing welfare entitlements for such workers and their family members’. See F De Witte, ‘Transnational Solidarity and the Mediation of Conflicts of Justice in Europe’ (2012) 18 European Law Journal 694, 705. 18  Shuibhne, ‘The Resilience of EU Market Citizenship’ (n 16). 19  cf Shuibhne (n 16). For a different view see M Dani, ‘Rehabilitating Social Conflicts in European Public Law’ (2012) 18 European Law Journal 621, esp at 634. He argues that ‘[the] market ethos and consensus culture remain enduring features of supranational law. Notwithstanding a certain relativisation of its importance, the common market remains a project that continues to absorb most of the Union regulatory and adjudicatory strategies, with an influence perceived far beyond its usual sphere of operation. In this regard, the elaboration of the concept of European citizenship is proof of the persisting entanglement of supranational law in the market ethos’. 20 C-299/14 Vestische Arbeit Jobcenter Kreis Recklinghausen v Jovanna García-Nieto and Others EU:C:2016:114. 21  See inter alia Dereci (n 8); Case C-86/12 Adzo Domenyo Alokpa and Others v Ministre du Travail, de l’Emploi et de l’Immigration EU:C:2013:645; Case C-218/14 Kuldip Singh and Others v Minister for Justice and Equality EU:C:2015:476. 22  Dano (n 10). 23  Alimanovic (n 10).

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of its people would require the re-imagination of the European public space as a space of collective struggle and conflict.24 As things currently stand, neither the CJEU nor the rest of the EU regulatory institutions seem to push in that direction. Quite the contrary, a look at the treatment of citizenship by the totality of European mechanisms reveals that Europe is far from developing into a genuine constitutional order.

II.  The European Public Space Three decades ago, Wolfgang Streeck wrote that the Treaty of Rome charged the Community with developing a new kind of social policy, one concerned with market-making rather than with market-correcting, aimed at treating a European labour market and enabling it to function efficiently, rather than correcting its outcomes in line with political standards of social justice.25

The Community’s social policy was thus primarily concerned with technical ­matters; it was limited to the technical decisions necessary to secure that individuals moved and settled freely within the customs union.26 The development of a ‘social conscience’ therefore seemed excluded from the Community’s social policy scope.27 The argument could be seen as tailoring Marshall’s reflections on social citizenship to the specificities of the European Community. In Streeck’s words, ‘a marketmaking social policy is not really one at all, as it is concerned only with the civil right to enter into contracts and not with industrial and social rights relating to their outcomes’.28 Many decades later and for all the evolution of the Community’s nature, Streeck’s seems an accurate description of the current state of affairs. The Union’s social policy seems to effectively lock demands for entitlements within national legal orders while pressure towards genuine redistributive politics is foreclosed at supranational level.

24  MA Wilkinson ‘Civil Society and the Re-Imagination of European Constitutionalism’ (2003) 9 European Law Journal 451. 25 W Streeck, ‘Neo-voluntarism’ in G Marks, FW Scharpf and PC Schmitter, Governance in the ­European Union (London, Sage, 1996) 71. 26  The market-making elements of the Community’s social policy are evident, eg, in the birth and development of the non-discrimination principles, initially established as vehicles for the elimination of competitive advantages between Member States and facilitators of interstate mobility. See, eg, S ­Besson, ‘Gender Discrimination under EU and ECHR Law: Never Shall the Twain Meet?’ (2008) 8 Human Rights Law Review 647. 27  J Lodge, ‘Social Europe: Fostering a People’s Europe?’ in J Lodge (ed), The European Community and the Challenge of the Future (London, Pinter, 1989) 310. 28  Streeck, ‘Neo-voluntarism’ (n 25) 72.

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An example can be found in the 1994 Directive on European Work Councils (DEWC), a piece of secondary legislation designed to protect labour rights through the establishment of European works councils.29 The latter are bodies informing and hearing the concerns of European employees in multinational companies. The DEWC could have evolved into a resourceful initiative for the democratisation of the workplace but more importantly for the building of supranational alliances of EU workers. However, the Directive did nothing to promote collective democratic practices within workplaces. Far from protecting labour rights, the DEWC resulted in further undermining workers both at EU and Member State level while advancing management and ownership.30 In fact, the Directive understood compliance with social regulation as a free choice and not an obligation of management. While the establishment of European works councils continues to be obligatory under certain circumstances, firms are free to choose whether or not to observe or, worse, whether or not to institute worker participation programs. Relevant practices, which are honoured as the triumph of ‘economic freedom of choice’,31 in fact undermine the creation of a European public space. The Court has advanced an even harsher logic when brought face to face with collective labour rights. While the Court has not been confronted with the question of supranational worker solidarity, it has produced an image of Europe as a space resistant to expression of social conflict. The landmark cases of Viking and Laval are indicative of the Court’s apathy towards traditional democratic struggle for workers’ rights.32 In both cases, the Court was called upon to balance national collective bargaining agreements against freedom of establishment. The balancing exercise was a delicate one. It required the CJEU, a transnational court, to weigh the foundational EU principles of free movement of workers and of freedom of establishment against diverse national labour law frameworks. In light of this, defence of market freedoms is not surprising. However, the Court’s methodology is alarming. The crux of the question before the CJEU was whether collective actions, including strike and blockade, were in breach of Community law despite them

29  Council Directive 94/45/EC of 22 September 1994 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees [1994] OJ L254/64 has now been replaced by Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees [2009] OJ L122/28. 30  W Streeck, ‘Citizenship under Regime Competition: The Case of the “European Works ­Councils”’ in K Eder and B Giesen (eds), European Citizenship: National Legacies and Transnational Projects (Oxford, Oxford University Press, 2001) 122–56. 31 JP McCormick, Weber, Habermas and Transformations of the European State: Constitutional, Social, and Supranational Democracy (Cambridge, Cambridge University Press, 2009) 259. 32  Case C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti [2008] IRLR 143 (Viking); Case C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet [2008] IRLR 160 (Laval).

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being lawful at national level.33 Interference of collective rights with the freedom of establishment of the companies involved was decisive for the Court’s decision. The exclusion of the right to strike from Community competences at the time when the cases were decided did not stop the Court from declaring that ‘­nothing in internal law should escape the primacy of economic freedom’ guaranteed by the Treaty.34 In the Court’s decisions, the subjugation of the collective rights of workers to the economic freedom of companies features prominently, despite the Court’s proclamation to the contrary.35 Most importantly, the judgments create a dismaying European precedent. Viking and Laval effectively shielded EU law from any collective political process that could henceforth disturb the smooth and uninterrupted function of the internal market. The repercussions for the Union’s idea of democracy are significant as the Union’s established economic order seems impossible to shake. Social conflict, if permitted, appears to have a predetermined winner: the market. As the winner is predetermined for good and all, European social conflict can hardly qualify as conflict at all. The Court’s methodology in the cases is also telling. The Court’s proportionality test at first sight seems to follow the conventional tactic of search for less restrictive means.36 Upon second reading, however, the unvarying application of proportionality to circumstances involving collective labour rights seems, at best, unfortunate and, at worst, suspicious. In the words of the Court, as regards the question of whether or not the collective action at issue in the main proceedings goes beyond what is necessary to achieve the objective pursued, it is for the

33  The right to strike is sometimes referred to as a social right; eg, C Barnard, ‘Social Dumping or Dumping Socialism?’ (2008) 67 Cambridge Law Journal 262, 263; A Supiot, ‘Europe Won Over to the “‘Communist Market Economy”’ (2008) . The original version of this article, in French, was published by ‘Revue Permanente du Mauss’ . See also Opinions of 23 May 2007 by Advocates General Mengozzi in Laval (n 32) and Poiares Maduro in Viking (n 32). It seems, however, more plausible to see the right to strike as a civil/negative right as it requires state abstention when exercised. That said, the line between social and civil rights is in this case blurred. Even if we accept that the right to strike is a civil—rather than a social—right it does facilitate/effectuate the struggle over social rights and redistribution. In this respect, while the distinction is neither clear-cut nor decisive for the present analysis it seems to me that it merits mentioning. 34  Supiot, ‘Europe Won Over to the “Communist Market Economy”’ (n 33). 35  Para 105 of Laval (n 32) provides:

Since the Community has thus not only an economic but also a social purpose, the rights under the provisions of the EC Treaty on the free movement of goods, persons, services and capital must be balanced against the objectives pursued by social policy, which include, as is clear from the first paragraph of Article 136 EC, inter alia, improved living and working conditions, so as to make possible their harmonisation while improvement is being maintained, proper social protection and dialogue between management and labour. Then the Court goes on to dismiss this statement by requiring strict tests of justification and proportionality. 36  On the basic principles of the mechanism of proportionality, see, eg, T Tridimas, General Principles of EU Law (Oxford, Oxford University Press, 2006), esp Ch 4.

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national court to examine, in particular, on the one hand, whether, under the national rules and collective agreement law applicable to that action, [the Finnish Seamen’s Union] did not have other means at its disposal which were less restrictive of freedom of establishment in order to bring to a successful conclusion the collective negotiations entered into with Viking, and, on the other, whether that trade union had exhausted those means before initiating such action.37

It is really hard to see how the ‘less restrictive means’ test could ever allow the CJEU to find in favour of collective action and particularly of the right to strike. As a matter of fact, it is not easy to see how there can ever be no less restrictive means that a trade union can exhaust before going on a strike. In this, the CJEU undermines the very essence of collective action, in general, and of the right to strike, in particular. It offers a balance ‘in name’ but ‘not in substance’.38 It applies a balancing test that allows domestic courts virtually no margin of appreciation in an effort to safeguard the future of cross-border trade. Finally, it puts proportionality at the service of European dominant economic structures. As one commentator puts it the point of a strike is precisely that it is never proportionate, and cannot be balanced against market forces. The withdrawal of labour is no more and no less than the assertion of political, collectively-established conceptions of justice above those offered by the market.39

What then remains of social citizenship in Europe? The cases of Viking and Laval do not constitute an unpremeditated or spur-of-the-moment preference for the internal market. Rather, they are manifestations of the Court’s firmly established ideology expressed through the political embracement of market freedoms at any cost. It is all the more so as the Treaties are silent on how the balance between the market and social rights is to be struck.40 The Court’s approach brings to mind

37 

Viking (n 32) para 87. Barnard, ‘Social Dumping or Dumping Socialism?’ (n 33) 264. 39  M Everson, ‘Je t’accuse—The Fault of (European) Law in (Economic) Political and Social Crisis’ in H Brunkhorst, C Gaitanides and G Grözinger (eds), Europe at a Crossroad: From Currency Union to Political and Economic Governance (Baden-Baden, Nomos, 2015) 109. If Everson’s argument is stretched it is reminiscent of Lenin’s criticism against opportunism, namely against those who sought democratic legitimacy for the revolution. One could here perhaps draw an analogy with Zizek’s argument that the point of a revolution is precisely that it is authorised by itself and cannot ground its legitimacy on, say, a democratic referendum. A revolution, like a strike, is never proportional. See S Zizek, Revolution at the Gates: Zizek on Lenin: The 1917 Writings (London, Verso, 2004) 8. 40  D Nicol, ‘Europe’s Lochner Moment’ (2011) 2 Public Law 307; See however, H-W Micklitz and S Weatherill, ‘Consumer Policy in the European Community: Before and After Maastricht’ in N Reich and G Woodroffe (eds), European Consumer Policy after Maastricht (Dordrecht, Springer, 1993) 3: ‘Although explicit reference to the consumer is largely absent from the Treaty of Rome the Treaty proceeds on the basis that the consumer is the ultimate beneficiary of its economic objectives’. As will be discussed in what follows, to the extent that the status of the individual consumer is elevated to the ultimate status of the European citizen the repercussions for our understandings of social justice are significant. 38 

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the words of American social scientist Howard Gillman when writing on the US judiciary of the late nineteenth century: [Labor] did occasionally convince sympathetic or frightened legislatures to offer them protection against powerful employers who disregarded their well-being. When that happened, labor experienced the power of constitutional ideology.41

Speaking about the judges’ aversion to class politics and their adherence to the principle of equality before the law, he later goes on: [When] the subject was labor legislation [state judges’] deference was much less apparent because arguably by its very nature it was assaultive of the dominant conception of political legitimacy shared by political elites-much like laws that use racial classifications would be today. (…) There was a much greater degree of consensus about how to treat laws designed to improve the status of labor vis-à-vis employers, especially laws that seemed to have their roots in the collective action of particularly influential unions.42

For the US Supreme Court, market economy designated principally ‘freedom from the corrupt use of public power by competing social groups’ and not necessarily the withdrawal of governmental restraints from the market.43 For the CJEU both grounds seem equally hostile to the market.44 However, it is primarily the Court’s predisposition against the ‘use of public power by competing social groups’ that forbids the development of social citizenship in the EU.45 Reference to the CJEU’s case law is not meant as a comment on the fairness of claims and merits of the parties involved, although this has been by implication unavoidable. The objective is much less to support the moral superiority of one right against the other. The law officially accords equal weight to economic ­freedoms and collective labour rights making moral considerations redundant and subjecting any weighing to one’s political disposition.46 The objective is, instead, to expose how the social forces that have historically played a prominent role in the institution of modern social and political citizenship are denied the means to shape or contest the policies to which they are subject. Collective rights and trade unionism provided the ground for what came to be an essential element of the citizen’s status, namely the ability to challenge established relations of domination

41 H Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers ­Jurisprudence (Durham NC, Duke University Press, 1995) 86. 42  ibid 8. 43  ibid 114. 44  Craig and de Burca, EU Law (n 13) 672ff. 45  The quote excludes the word corrupt, because it seems to me that Gillman uses it to express the judges’ side, perhaps with a tone of sarcasm, rather than his own view. 46  Art 28 of the Charter of Fundamental Rights of the European Union (n 27) on the right of ­collective bargaining and action lays down that: ‘Workers and employers, or their respective organisations, have, in accordance with Union law and national laws and practices, the right to negotiate and conclude ­collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action’.

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within the state. Collective bargaining, albeit not a social right itself, provided the means to strive for entitlements and social redistribution. Critically, the recognition of workers’ rights and later of social rights has been a stepping stone to the generation of collective identities and collective subjects. The CJEU seems unwilling to provide space for collective action and the expression of social conflict while it has unequivocally revealed its reluctance to put citizenship rights at the service of those excluded and marginalised. The Court thus preserves a Union of European foreigners, making the prospect of a pan-European public space more than uncertain. The Court’s treatment of the European public space is determined by criteria of allocative efficiency and cost-benefit analysis. As economic considerations inform the overall constitutional thinking of the Court, the efficient economy is elevated to a faithful indicator of social justice.47 This is not necessarily a peculiarity of the CJEU as there is no safe indicator that similar considerations do not pervade national judiciaries.48 What differentiates the European case is that there seems to be no social or political force in the Union able to counteract the Court’s hegemonic rhetoric and almost invincible authority. In the absence of collective social forces, European citizens are reduced to isolated individual economic actors. The individual citizen is a status that the Court has created both by default and by design. First, it has blocked any prospect of a coming together of European people by insulating the European space from the disruption of social conflict. Secondly, it has actively promoted the idea of the homo economicus.

A.  The Individual Citizen The Court’s mindset and methodology marks a move away from the recognition of the collective element as essential for citizenship towards the promotion of the individual to the sole bearer of citizenship rights. It equally marks a move away from social citizenship towards economic citizenship and from the sphere of politics towards that of the market. Within this context, collective political subjects are replaced by the individual homo economicus or citizen-consumer.49 If Europe

47  For the principle of proportionality as a principle of economic efficiency but also as a legal tool within which cost-benefit analysis is inscribed, see A Portuese, ‘Principle of Proportionality as Principle of Economic Efficiency’ (2013) 19 European Law Journal 613; see also the Opinion of AG Maduro (n 32) in Viking, esp para 33. 48  This is so especially in countries that have been hit more severely by the financial crisis. For a comparative account of relevant case law, see C Fasone, ‘Constitutional Courts Facing the Euro Crisis: Italy, Portugal and Spain in a Comparative Perspective’ EUI Working Papers (MWP 2014/15) . 49  As Everson and Joerges argue, it is somewhat peculiar to see the consumer as a status rather than simply as a role. See M Everson and C Joerges, ‘Consumer Citizenship in Postnational Constellations?’ [2006] European University Institute (EUI), Department of Law, EUI-LAW Working Paper No 2006/47.

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were to lay claim to citizenship, its public space should become the locus of social conflict and political contestation between social forces. Europe should, in other words, create a polity of collective political subjects that would take over from the individual consumer. However, the individual consumer has been the main actor shaping the contours of the European public space. The status is constantly reaffirmed in the Court’s jurisprudence.50 However, the infiltration into citizenship of consumerist and individualistic elements should not be exclusively attributed to the Court. The story of the citizen-consumer is complex and develops at two interconnected levels. It develops, first, at the level of the judiciary and, secondly, at the level of European regulation. The story predates the introduction of citizenship rights as it originates in the 1970s and the first Council Resolution on consumer protection.51 The latter was followed by a series of mainly soft law documents which conferred upon consumer protection a very distinct function: the consumer was placed at the centre of the internal market project and was considered the latter’s beneficiary.52 At that time, there was no intention and, perhaps, no capacity to encourage the re-imagination of European individuals as collective political subjects. However, the language of the Union stamped the transition from the individual consumer to the citizen both symbolically and materially. Following the official introduction of citizenship, the EU citizen continued to bear the stamp of the individual consumer. The language and mentality of the EU mechanism is indicative. The Council sees in the general public two distinctive features that seem to carry equal weight: European people are ‘both individual citizens and consumers’.53 The Commission, for its part, sees the European consumer as the key stakeholder of society whose active participation is required for the smooth functioning of the ­market.54 Importantly, however, for the Commission the role of the consumer brings with it responsibilities. The latter figure both as responsibilities of ‘empowered ­consumers’ ‘to manage their own affairs’ and as responsibilities of ‘confident consumers’ to protect the vulnerable and drive our economies.55 50  See Micklitz and Weatherill, ‘Consumer Policy in the European Community: Before and After Maastricht’ (n 40) 4ff. See also S Weatherill, EU Consumer Law and Policy (Cheltenham, Edward Elgar Publishing, 2005) for further references. 51  Council Resolution of 14 April 1975 on a preliminary programme of the European Economic Community for a consumer protection and information policy [1975] OJ C 92/1. 52  For further references on both soft law and hard law instruments, see S Weatherill, ‘Maximum versus Minimum Harmonisation: Choosing Between Unity and Diversity in the Search for the Soul of the Internal Market’ in NN Shuibhne and LV Gormley (eds), From Single Market to Economic Union: Essays in Memory of John A. Usher (Oxford, Oxford University Press, 2012) 177ff. 53  Council Resolution of 17 May 1993 on a Community programme of policy and action in relation to the environment and sustainable development [1993] OJ C 138/1. 54  Commission Communication of 15 June 1995, The Single Market in 1994 COM (1995) 238 final. 55 Commission Communication of 13 March 2007, EU Consumer Policy Strategy 2007–2013: Empowering consumers, enhancing their welfare, effectively protecting them COM (2007) 99 final, 3 [emphasis added].

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Europe seems to discover its own idea of the demos in the individual and responsible consumer. ‘Protection of the vulnerable’ ceases to be a political demand and a question resolved at the political level and becomes the charitable action of the individual confident consumer. The Commission’s almost ludicrous language promotes a peculiar understanding of the citizen, whose duty becomes ‘to manage his or her own affairs’. The Commission, innovatively, sees the management of one’s own affairs as the citizen’s responsibility when citizenship is precisely about the opposite: collective participation in a polity’s political life. The Court abides by the rhetoric of the Commission and the Council and gives to it material expression. The ‘reasonably well-informed and reasonably observant and circumspect’ average consumer becomes a leitmotif in the jurisprudence of the Court.56 For the Court, citizenship becomes a ‘matter of consumption rather than of political rights and duties’.57 The European mechanism, thus, constructs European identity around the notion of individual, responsible and reasonable consumption. The lack of any reference to the citizen as a political subject renders it difficult for the European version of citizenship to qualify as citizenship at all. There is an obvious and perhaps deliberate displacement of politics in the Union that is not limited to issues related to the citizen consumer. The displacement of politics features prominently in the Court’s ‘economic technology’ in consumer protection cases.58 However, it is further exposed and reinforced through the turn to ‘deliberative governance’ on the part of the Union’s regulatory machinery. Deliberative governance was initially pursued, amongst other things, in order to bring consumer policy within the high political priorities of the Union.59 It represents a consensual mode of policy-making that has prevailed in many areas of EU competence. The new model of governance is contemporaneous with the emergence of bodies of independent experts in the Community. These bodies are fragments of the central administration operating independently or semi-independently from the Commission. There is nothing particularly controversial about bodies of independent experts for these have been operative for decades at both national and supranational level.60 The logic behind the introduction of independent experts is 56  See, eg, Case C-210/96, Gut Springenheide GmbH, Rudolf Tusky v Oberkreisdirektor des Kreises Steinfurt—Amt für Lebensmittelüberwachung [1998] ECR I-4657 para 31. While the average consumer is a recurring indicator in national cases too, the Court often seems to blend the status of the citizen with that of the consumer. For a different approach and for further references to EU documents and CJEU case law, see J Davies, ‘Entrenchment of New Governance in Consumer Policy Formulation: A Platform for European Consumer Citizenship Practice?’ (2009) 32 Journal of Consumer Policy 245. 57  I have borrowed this phrase from Urry who uses it in the context of tourism and its implications on the European identity. See J Urry, Consuming Places (Abingdon, Routledge 1995) 165. On the expected objection that the notion of the citizen-consumer is also prevalent at state level, see R Beiner, What’s the Matter with Liberalism? (Berkeley, CA, University of California Press, 1992). 58  Technology is here taken to mean mode of action. See Everson and Joerges, ‘Reconfiguring the Politics–Law Relationship in the Integration Project through Conflicts–Law Constitutionalism’ (n 14). 59  Everson and Joerges, ‘Consumer Citizenship in Postnational Constellations?’ (n 49). 60  For early contributions on the Community’s independent experts, see vol 4(2) of the Journal of European Public Policy of 1997. More specifically, see M Shapiro, ‘The Problems of Independent

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also straightforward. The threefold rationale has been summarised as, first, a turn to technical independent regulation free from the burdens of central administrative channels; secondly, an alternative more flexible and convenient route for integration; and, thirdly, the replacement of politics by technocracy.61 The analysis of the workings of independent experts, their insulation from external political influence and their extensive references to a neutrality that is only assumed but never proven may lack excitement, for these issues have been exhaustively discussed, in particular within the context of the Union’s democratic deficit.62 However, new governance pervades almost the entirety of EU policy-making.63 Its technocratic logic, the consensual mode of policy-making, the shields against forms of control and the construal of the general interest as a market-related issue produce a cumulative effect.64 New governance further protects the Union from forms of collective political expression and blocks the creation of a public space that would provide room for the construction of collective subjects through social and political citizenship. The next chapter takes a closer look at the effect of new modes of governance on political citizenship in Europe.

III.  Deliberative Europe At theoretical level, deliberative processes are defended on two distinct grounds. One view sees deliberative processes as a novel way to promote a radical and direct version of democracy.65 The second approach focuses on the problem-solving

Agencies in the United States and the European Union’ (1997) 4 Journal of European Public Policy 276; R Dehousse, ‘Regulation by Networks in the European Community: The Role of European Agencies’ (1997) 4 Journal of European Public Policy 246; A Kreher, ‘Agencies in the European Community—a Step towards Administrative Integration in Europe’ (1997) 4 Journal of European Public Policy 225; G Majone, ‘The New European Agencies: Regulation by Information’ (1997) 4 Journal of European Public Policy 262. 61  See Shapiro, ‘The Problems of Independent Agencies in the United States and the European Union’ (n 60) for further comments on each of these rationales. 62  See, eg, R Bellamy, ‘Still in Deficit: Rights, Regulation, and Democracy in the EU’ (2006) 12 ­European Law Journal 725; G Majone, ‘Europe’s “Democratic Deficit”: The Question of Standards’ (1998) 4 European Law Journal 5; M Tsakatika, ‘Governance vs. Politics: The European Union’s Constitutive “Democratic Deficit”’ (2007) 14 Journal of European Public Policy 867. 63 J Scott and J Holder, ‘Law and New Environmental Governance in the European Union’ in G de Burca and J Scott (eds), Law and New Governance in the EU and the US (Oxford, Hart Publishing, 2006) 211. 64 On the public interest, see Joerges and Everson (n 49) and further Regulation 178/2002 of 28 ­January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety [2002] OJ L 31/16, art 50. 65  See J Cohen and C Sabel, ‘Directly-Deliberative Polyarchy’ (1997) 3 European Law Journal 313. For a defence of the above position, see also O Gerstenberg, ‘Law’s Polyarchy: A Comment on Cohen and Sabel’ (1997) 3 European Law Journal 343.

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capacity of deliberative democracy. It praises the ability of deliberative methods to provide effective answers to policy issues by circumventing the rigid processes of hard law. Here, the emphasis is usually placed upon policy issues which require scientific expertise and are, thus, unable to be handled by the standard representative mechanisms of democracy.66 In this second view, the question seems to take the form of a dilemma between democratic representation on the one hand and technical/scientific expertise on the other. What both of the above points of view have in common is scepticism as to the ability of traditional political democratic institutions to provide effective answers to the problems of a community. Surely, institutional failures and the need to respond to them through ‘democratic experimentalism’ is aggravated within the context of supranational governance, where the standard models of democratic representation are more contestable than in the context of the state.67 Deliberative modes of governance assume different institutional concretisations. In the context of the Union, two among the most common processes based on the deliberative model are the comitology procedure and the Open Method of Coordination (OMC). The two institutions are distinct both with respect to the policy fields they cover and with respect to the actors involved. The official language of the Union describes committees as ‘forums for discussion’ composed of Member State representatives and chaired by the Commission. The main task is to ‘establish dialogue’ between the Commission and the national administrations before the adoption of implementing measures.68 In short, comitology is a mechanism of implementing and delegating legislation. Despite significant changes brought about to the system by the Lisbon Treaty, the prevailing consensual logic of the comitology process continues to exist. The OMC is a procedure limited to the implementation of social policies within the Member States. As is the case with comitology, the OMC is part of the Union’s implementation process. It provides a forum wherein Member States cooperate horizontally, set common targets and aim at the achievement of common objectives.69 66  See, inter alia, M Hajer, ‘Policy without Polity? Policy Analysis and the Institutional Void’ (2003) 36 Policy Sciences 17; M Tallacchini, ‘Governing by Values. EU Ethics: Soft Tool, Hard Effects’ (2009) 47 Minerva 28; R Dehousse, ‘Beyond Representative Democracy: Constitutionalism in a Polycentric ­Polity’ in J Weiler and M Wind (eds), European Constitutionalism beyond the State (Cambridge, ­Cambridge University Press, 2003) 143ff. For a conceptual clarification of soft law modes of governance, see SB ­ orrás and T Conzelmann, ‘Democracy, Legitimacy and Soft Modes of Governance in the EU: The Empirical Turn’ (2007) 29 Journal of European Integration 531. For the related concept of ‘responsible research and innovation’, see R Owen, P Macnaghten and J Stilgoe, ‘Responsible Research and Innovation: From Science in Society to Science for Society, with Society’ (2012) 39 Science and Public Policy 751. 67  C Sabel and J Cohen, ‘Democratic Experimentalism’ (1998) 98 Columbia Law Review 267; C Joerges, ‘The European Economic Constitution and Its Transformation Through the Financial Crisis’ (Social Science Research, Network, 2012) . 68  The primary legal foundation of the process is today laid down in Art 291 of the TFEU in conjunction with TEU, Arts 24 and 26. See also . 69 Commission Communication of 2 July 2008, ‘A Renewed Commitment to Social Europe: ­Reinforcing the Open Method of Coordination for Social Protection and Social Inclusion’ COM (2008) 418 final.

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There is no individual feature that differentiates these mechanisms from traditional modes of governance. The new governance framework within which they operate can be better described as a set of features. An early but comprehensive list of new governance components refers to ‘participation and power-sharing’, ‘multi-level integration’, ‘diversity and decentralization’, ‘deliberation’, ‘flexibility and revisability’, ‘experimentation and knowledge-creation’.70 Participation refers to opportunities for involvement of civil society organisations and private parties within the processes. The term ‘power-sharing’ describes a process which, unlike traditional legislative procedures, entails informal cooperation between governments and the private sector and aims at policy-making through ‘mutual problem-solving.’71 Multi-level integration is once again about dialogue and coordination between different levels of governance. Diversity and decentralisation are employed in policy fields where complete harmonisation is not required. In such cases, there is simple coordination of Member State action. Deliberation requires no further elaboration. It refers to the dialogue between different stakeholders. Flexibility and revisability reflect the abandonment of hard law methods and the increasing use of soft law, namely of non-binding guidelines that are flexible and easily revisable. Finally, experimentation and ­knowledge-creation refer to the capacity of the above techniques to generate new knowledge.72 It is not always easy to tell the difference between some of the above techniques. It is for example hard to see what differentiates participation from multi-level integration and deliberation. Be that as it may, taken together ‘new governance’ features appear to be underlined by the same rationality. That is, an idealistic conception of politics as impartial and equitable deliberation within the p ­ ublic sphere.73 Deliberative processes, the argument goes, amount to ‘collaborative problem-solving on equal terms.’74 This would suggest that policy decisions can be reached not by bargaining, log-rolling, and compromising among the differing fixed interests of the various players at the table, but instead by a discussion at the table that can result in transcending interest aggregation to arrive at an unselfish achievement of truly good conclusions. (…) The vogue in deliberation is a reassertion of faith in the public interest—one that cleverly substitutes a procedural definition for a substantive definition that is impossible to obtain. If there is enough talk, some take it as a matter of fact that the public interest will emerge.75

70  J Scott and DM Trubek, ‘Mind the Gap: Law and New Approaches to Governance in the European Union’ (2002) 8 European Law Journal 1, 5–6. 71  ibid 5. 72 ibid. 73  H Arendt, The Human Condition, 2nd edn (Chicago, University of Chicago Press, 1998) 178ff. 74  J Cohen and C Sabel, ‘Sovereignty and Solidarity in the EU’ in J Zeitlin and DM Trubek (eds), Governing Work and Welfare in a New Economy: European and American Experiments (Oxford, Oxford University Press, 2003) 363. 75  M Shapiro, ‘“Deliberative”, “Independent” Technocracy v Democratic Politics: Will the Globe Echo the EU?’ (2005) 68 Law and Contemporary Problems 341, 350.

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The preoccupation with deliberation and dialogue and the firm belief that talk is per se sufficient to produce good policy has triggered the re-labelling of ‘new governance’ techniques as deliberative processes. Comitology, the OMC as well as other types of governance, including private-public partnerships at Union level, promote the idea that the public interest is, at the most, a concept whose substance can be discovered by means of neutral and equitable dialogue between experts and technocrats. This triggers the question of the public interest and requires that the latter be tested against deliberative processes between technocrats reportedly able to subordinate their individual interests to it.76

A.  A Note on the European Public Interest From the outset, the public interest can take on as many definitions as there are world views in a Union of twenty-eight states. This chapter shall therefore abstain from an effort to define the public interest, in recognition of the fact that its substance in democratic societies has always been determined by politically dominant forces but has at the same time been open to public negotiation. In the face of this, it appears that the crux of deliberative processes is the substitution of substance with process. Upon closer inspection, this substitution does not merely suggest that the public interest is realised through deliberation but, worse, that public interest is somehow embodied in deliberation. That said, deliberative processes may make references to high levels of employment, the general welfare or a fair distributive policy as constituent elements of the public interest.77 Yet, a definition at such level of abstraction is not likely to provoke disagreement of any kind for it hardly touches on the question of s­ ubstance.78 The question should instead be what ‘fair’ stands for in fair redistributive policies and how welfare is understood. These are questions that deliberative processes fail not only to address but also to pose, thus shielding the public interest from the constant negotiation that a truly public constitutional space should be able to reckon with. The following section discusses examples of deliberative processes and links it back to the question of citizenship and constitutionalism.

B.  Comitology and the OMC The literature on deliberative processes is characterised by a somewhat paradoxical division between scholars, as one is presented with two diametrically ­opposite 76 See M Walker, ‘The Idea of Constitutional Pluralism’ (European University Institute, 2002) ­Working Paper . 77  See, eg, F Scharpf, Governing in Europe: Effective and Democratic? (Oxford, Oxford University Press, 1999) 121. 78  The point is made by A Moravcsik and A Sangiovanni, ‘On Democracy and the “Public ­Interest” in the European Union’ CES Working Paper, No 93, 2003’ (2003) Working Paper .

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positions. One line of argument holds that deliberative processes represent an opaque, non-participatory and undemocratic form of decision-making.79 The opposite line of argument sees deliberative processes as new innovative forms of participatory and inclusive governance that take democracy to unprecedented ­levels, even when measured against the administrative practices of the state.80 The division necessitates a closer look into processes of deliberation. In what follows, this section shall return to the processes of comitology and the OMC. The aim is not to examine whether and how the processes relate to Europe’s democratic deficit. Instead, the aim is to draw attention to the striking absence of prospects of social conflict in the Union. Briefly, comitology stands for a process in which Member State officials and experts reach decisions of a technical/scientific nature in order to assist in the policy-making tasks of the Commission. The latter assumes a supervisory role in the process. Within the context of comitology, the relevant technical decisions are believed to require no democratic input.81 On the contrary, democratic input is sometimes considered an impediment to effective and efficient decision-making. Technical decisions, so the argument goes, must remain out of the realm of politics, as they are concerned with scientific technicalities or economic and technical efficiency, namely neutral and objective technical matters that are out of reach for the average citizen.82 Efficiency and effectiveness here compensate for whatever input legitimacy is lacking from the process.83 The above is an idealised description of comitology. In fact, committees are not preoccupied with purely technical matters, but have become directly and i­ ndirectly involved in policy-making in fields as central as the allocation of risk and resources or distribution.84 Even if one accepts that technical/scientific decisions are inherently objective and unprejudiced, the non-adversarial mode of decision-making

79 K St Clair Bradley, ‘The European Parliament and Comitology: On the Road to Nowhere’ (1997) 3 European Law Journal 230; C Harlow, Accountability in the European Union (Oxford, Oxford ­University Press, 2002); AE Toeller and HCH Hofmann, ‘Democracy and the Reform of Comitology’ in M Andenas and G Türk (eds), Delegated Legislation and the Role of Committees in the EC (Alphen aan den Rijn, Kluwer, 2000). 80  See, eg, G De Burca, ‘The Constitutional Challenge of New Governance in the European Union’ (2003) 28 European Law Review 814; C Joerges and J Neyer, ‘Transforming Strategic Interaction into Deliberative Problem-Solving: European Comitology in the Foodstuffs Sector’ (1997) 4 Journal of European Public Policy 609. 81  See, eg, C Joerges and E Vos (eds), EU Committees: Social Regulation, Law and Politics (Oxford, Hart Publishing, 1999). 82 Joerges and Neyer, ‘Transforming Strategic Interaction into Deliberative Problem-Solving: ­European Comitology in the Foodstuffs Sector’ (n 80). 83 See, eg, the discussion in JR Grote and B Gbikpi (eds), Participatory Governance. Political and ­Societal Implications (Wiesbaden, Springer, 2002), esp K Wolf, ‘Governance: Concepts’ 35–69; J ­Koolman, ‘Govemance: A Social-Political Perspective’ 71–94; H Heinelt, ‘Civic Perspectives on a Democratic Transformation of the EU’ 97–120; see also R Schmalz-Bruns, ‘The Normative Desirability of Participatory Governance’ in H Heinelt, P Getimis, G Kafkalas, R Smith and E Swyngedouw (eds), Participatory Governance in Multi-Level Context (Wiesbaden, Springer, 2002) 59–74. 84  J Weiler, The Constitution of Europe: ‘Do the New Clothes Have an Emperor?’ And Other Essays on European Integration (Cambridge, Cambridge University Press, 1999) 278.

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in the comitology process is problematic. The Commission soon became well aware of legitimacy problems and sought to mitigate complaints through various procedural amendments to the system. However, even in the aftermath of these amendments the system remained inappropriate to the gravity of the decisions that it made.85 The Commission’s effort was concentrated on enhancement of transparency and accountability in the comitology system. The 2001 White Paper on Governance, a document well known to the European lawyer, states that the C ­ ommission will enhance openness and transparency through, inter alia, allowing and promoting civil society participation with a view to ‘connecting Europe with its citizens’.86 Despite fulfilment of the White Paper’s promise, comitology did not significantly deviate from the pre-2001 closed system of technocrats and scientific experts. While civil society participation brought NGOs and interested private parties into the system, the Commission fell short of engaging European citizens in a meaningful process of political citizenship. A reason for this might relate to the way in which participation is understood by the institutions of the EU. As will be explained shortly, the prevailing understanding of participation is circular, if not hypocritical. Advocates of the deliberative model sometimes argue that the relevant processes are particularly suitable to transnational governance as they require neither preexisting bonds between interlocutors nor allegiance to the polity to which they apply.87 Instead of representation of conflicting interests deliberative processes, the argument goes, aim at reaching a rational consensus between ­participants.88 Thus, deliberative processes reportedly soothe the Union’s democratic deficit especially when seen as tools of adjustment of participatory democracy to the field of scientific/technical expertise where traditional representative democratic institutions lack the skills required for decision-making.89 Here, rational consensus appears as the other extreme of accommodation of conflicting interests. The resulting demonisation of social conflict is, however, not the monopoly of advocates of deliberative processes. Rather, it is endemic in the Commission’s actual practice. 85 ibid.

86  Commission Communication of 25 July 2001, ‘European Governance—A White Paper’ COM (2001) 428 final, 1; see also EO Erikse and JE Fossum, ‘Europe at a Crossroads: Government or Transnational Governance?’ in C Joerges, I-J Sand and G Teubner, Transnational Governance and Constitutionalism (Oxford, Hart Publishing, 2004) 128. 87  C Joerges, ‘“Deliberative Supranationalism”—Two Defences’ (2002) 8 European Law Journal 133. 88  In this respect, the discussion is often presented as a dilemma between deliberative processes on the one hand and traditional representative mechanisms (notably parliamentary democracy) on the other. See, eg, N Walker, ‘EU Constitutionalism and New Governance’ in de Burca and Scott, Law and New Governance in the EU and the US (n 63), who examines the categorical distinction of new governance from old governance, 21; SS Anderse and TR Burns, ‘The European Union and the E ­ rosion of ­Parliamentary Democracy: A Study of Post-Parliamentary Governance’ in SS Andersen and KA E ­ liassen (eds), The European Union: How Democratic Is It? (London, Sage, 1995), 227ff. 89  See, eg, the discussion in Eriksen and Fossum, ‘Europe at a Crossroads’ (n 86) 126; see also A Herwig, ‘Transnational Governance Regimes for Foods Derived from Bio-technology and Their Legitimacy’ in Joerges, Sand and Teubner, Transnational Governance and Constitutionalism (n 86) 202–03.

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For example, the width and quality of participation in the process has prompted critics to speak of an ‘assumed’ rather than ‘earned’ legitimacy.90 Criticism about privileged access ‘of the rich over the poor’91 or about the ‘complex network of middle-level national administrators, Community administrators and an array of private bodies with unequal and unfair access to a process with huge social and economic consequences to everyday life’ are in surplus in the literature.92 This is indicative of the Commission’s priorities as the latter appears unfettered by a genuine concern as to the involvement of the Union’s citizens. However, comitology also suffers from structural inefficiencies that prevent it from embedding social conflict within the process. To the extent that comitology can be seen a process of self-regulation, involving as it does epistemic communities or private industrial actors next to administrative bodies, it suffers from the same biases as ­self-regulatory processes do. As two authors remark, In contrast to all forms of public regulation, it is the very point of self-regulation to closely involve those affected by the regulation; but in practice, this has come at the risk of turning ‘due process’ on its head. Only to the extent that all those affected by the regulation (or non-regulation) in the relevant problem area are represented in the selfregulatory process, such ‘private governance’ meets due process standards. The proverbial characteristic of self-regulation is its industrial bias, however, constraining the input of the general public, the consumers, the residents etc. This bias is related to the desire to form a coherent group, sharing similar problems and pressures, in order to arrive at a solution before the dog—in the form of the EU regulator—bites.93

This suggests, first, that comitology has structural limits that prohibit the involvement of the wider public. More importantly, it exposes the flaws in the Union’s understanding of participation. Participation understood as involvement in decision-making processes already puts forward a limited understanding of engagement in the life of a community. However, even this limited understanding appears permeated by a circular chain of reasoning. The standards of p ­ articipation or, more broadly, of due process are met when those affected have input in the process. Importantly, however, those affected are deemed to be only those who happen to participate.94 The European citizen is here once again ostracised.95

90  M O’Neill, The Struggle for the European Constitution: A Past and Future History (Abingdon, Routledge, 2008) 444. 91 J Weiler, ‘Epilogue: “Comitology” as Revolution: Infranationalism, Constitutionalism and Democracy’ in Joerges and Vos, EU Committees (n 81) 346. 92 Weiler, The Constitution of Europe (n 84) 284. 93 C Knill and A Lenschow, ‘Modes of Regulation in the Governance of the European Union: Towards a Comprehensive Evaluation’ (2003) 7 European Integration Online Papers 12. 94 McCormick, Weber, Habermas and Transformations of the European State (n 31) 271. 95  This is recognised by Union institutions themselves. Direct citizen participation is indeed not set as a goal in this context. See, eg, Council of the European Union, ‘The on-going experience of the open method of co-ordination’, Presidency Note, No 9088/00, (13 June 2000), where it is submitted that citizen participation is mediated through the involvement of civil society and social partners.

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The language of due process in the context of the Open Method of Coordination is even more acute. The OMC was instituted precisely in order to respond to concerns about transparency and participation as well as in order ‘to organise a learning process at European level [so as] to stimulate exchange and the emulation of best practices’.96 To recall its basic characteristics, the OMC is best understood in the context of the Union’s socio-economic policy. When institutionalised in the early 1990s, its purpose was partly to unchain the social and political domain, which were then still in their infancy, from the legal rigidity of the Community pillar processes and partly to remedy the Community’s democratic deficit.97 In light of this, the OMC can be seen as an invitation on the part of the Community to set certain policy fields free from the inflexibility of hard law as well as to design new flexible and consensual forms of participatory democracy.98 In essence, there is not much that differentiates OMC from comitology at least from the point of view of their underlying logic.99 OMC is a consensual process where participants are invited to learn from each other through equitable deliberation, benchmarking and knowledge-creation in order to reach decisions in fields as crucial as pensions and employment. The next section shall test OMC and comitology against the need to settle the public interest at the political level. The discussion will then return to the question of collective European subjects and to the prospects of European citizenship.

C.  Testing the Deliberative Model against the Public Interest A frequent criticism against comitology, the OMC and comparable processes focuses on the bias of expert and technocratic decision-making.100 There are certainly patent flaws in the assumption that expert-based problem-solving is wellinformed, neutral, objective and carried out by disinterested and unprejudiced individuals. However, it would be absurd to suggest that there exist processes of

96 

ibid 6–7. S Borrás and K Jacobsson, ‘The Open Method of Co-Ordination and New Governance ­Patterns in the EU’ (2004) 11 Journal of European Public Policy 185. 98 ibid; see also C de la Porte and P Nanz, ‘The OMC—a Deliberative-Democratic Mode of ­Governance? The Cases of Employment and Pensions’ (2004) 11 Journal of European Public Policy 267. 99  cf Joerges, ‘The European Economic Constitution and Its Transformation Through the Financial Crisis’ (n 67). Joerges formulates his view as follows: ‘Why the OMC should be a democratically superior mode of governance than comitology is difficult to understand. Comitology operates in much narrower and better defined realms. Its social and legal embeddedness is more intense. Its successful “constitutionalization” is imperfect but seems at least conceivable’ 31 at fn 114. 100  Shapiro, ‘“Deliberative”, “Independent” Technocracy v Democratic Politics: Will the Globe Echo the EU?’ (n 75); Dehousse, ‘Beyond Representative Democracy: Constitutionalism in a ­Polycentric ­Polity’ (n 66) 145; Walker, ‘The Idea of Constitutional Pluralism’ (n 76); Herwig, ‘Transnational ­Governance Regimes for Foods Derived from Bio-technology and Their Legitimacy’ (n 89) 201ff. See also G Schäfer, ‘Linking Member State and European Administrations—The Role of Committees and Comitology’ in M Andenas and A Turk (eds), Delegated Legislation and the Role of the Committees in the EC (Alphen aan den Rijn, Kluwer, 2000) 3–24. 97  See

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policy-making that do not involve biases of all kinds. The problem of deliberative process is not so much bias as such, but rather that they seek to establish faith in the rationality and objectivity of the technical expert. In this way, when the technical expert makes decisions involving the public interest, the latter becomes non-negotiable. Non-negotiability of the public interest is further sealed through the properties and logic of deliberation. That logic implies that deliberation is in and of itself sufficient to realise the public interest. In fact, deliberation emerges as the demarcating line of the public interest. The latter somehow appears encoded in the gene of the former and nothing seems to exist beyond the confines of rational and equitable dialogue.101 The assumption is that the public interest will inevitably emerge once it becomes the subject of proper and due process. The institutional rhetoric and practice of the Union confirms this. The example of transparency is suggestive. Although transparency is not strictly connected to deliberative processes, it is part of the wider framework of new governance. One of most celebrated practices in the context of the project of democratic governance for the people, transparency is indicative of the risk inherent in the Union’s strong preoccupation with process.102 Access to documents, in particular, is presented by the Union as part of the remedy to the democratic deficit.103 Sometimes, the Union uses the elusive language of ‘openness’: Openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system. Openness contributes to strengthening the principles of democracy and respect for fundamental rights.104

The Union uses the language of openness at large but in fact refers to the limited opportunities offered by access to documents. This is symptomatic of an overly narrow understanding of democracy. Democracy is here seen as the bare means to control power by gaining access only at the close of a decision-making process.105 Control over the content of decisions ceases to be important so long as these

101  This is sometimes referred to as the ‘epistemic quality’ of deliberation. The latter means that it is the very procedure of decision-making that is decisive for selecting the right outcome. See AJ Menendez, ‘No Legitimacy Without Politics: Comments on Jens Steffek’ in Joerges, Sand and ­Teubner (n 86) 106–07. 102  For an empirical account and a discussion on comitology’s public register, see GJ Brandsma DC, ‘How Transparent Are EU “Comitology” Committees in Practice?’ (2008) 14 European Law Journal 819. 103  See, eg, the Commission’s White Paper (n 86); see also, EC Regulation 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents [2001] OJ.L 145/43, esp Preamble. 104  See also, EC Regulation 1049/2001 (n 103) recital 2. 105  It seems to me that Weiler suggests something similar when he says that making information available does not necessarily mean that citizens will become engaged in a critical assessment of it or even know what to look for. See Weiler (n 84) 348. For an empirical comment, see PA Kraus, A Union of Diversity: Language, Identity and Polity-Building in Europe (Cambridge, Cambridge University Press, 2008) 162ff.

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become publicly available. In this way, transparency comes to occupy the space of politics and democratic conflict resolution. The public interest is satisfied through transparent processes regardless of these processes’ substantive outcome.106 Similar concerns apply to the overall logic of deliberative processes. Rational consensus, the kernel of the deliberative ideal, contradicts the very essence of democracy and political citizenship seen as ‘the struggle between those who set themselves as able to manage social interests and those who are supposed to be only able to reproduce their life’.107 When the public interest becomes subject to rational consensus, ie to a ‘common’ sense that can never be common enough to include those who ‘have no part’,108 a polity’s prospect of political citizenship becomes no less than uncertain. ‘For parties to opt for discussion rather than a fight, they must first exist as parties’.109 The inadequacy of new governance and deliberative processes lies in their concealed bias and false premises but, above all, it lies in their disintegrative force. The mechanisms, rather than giving voice to the European people as the Council and Commission proudly proclaim in their documents, interrupt any process of generation of European collective political subjects. The European people becomes no more than individual consumers who either feel safe as the European public interest is served by those who know or feel frustrated but can do nothing about it. Perhaps, a European public space of the kind envisaged above is i­mpracticable. Adversarial politics may be difficult, if at all possible, in a region divided by national cleavages and in which a demos is and will continue to be absent in the foreseeable future.110 Or, perhaps, such public space is in the making thanks to such practices as OMC which acknowledge the absence of a European demos and compensate for it through their openness and deliberative properties.111 There is, however, a manifest misconception in the above assumptions. The absence of a demos is taken as a given which deliberative practices can later compensate for. A reverse reading of the Union mechanism would, however, suggest that deliberative practices are amongst the very causes of the absence of a demos.

106  P Rosanvallon and A Goldhammer, Counter-Democracy: Politics in an Age of Distrust (­Cambridge, Cambridge University Press, 2008) 258–59. 107  J Rancière, ‘The Thinking of Dissensus: Politics and Aesthetics’ in P Bowman and R Stamp (eds), Reading Rancière (London, Continuum, 2011) 2. On the same page, Rancière also notes that ‘[political] dissensus is not a discussion between speaking people who would confront their interests and values. It is a conflict about who speaks and who does not speak, about what has to be heard as the voice of pain and what has to be heard as an argument on justice’. 108  On the idea of political citizenship as the institution of those who have no part, see previous chapter (3). 109  J Rancière, Disagreement: Politics and Philosophy (Minneapolis, University of Minnesota Press, 2004) 102. 110  PG Kielmansegg, ‘Integration und Demokratie’ in M Jachtenfuchs and B Kohler-Koch (eds), Europäische Integration (Leske & Budrich, 1996) 47. Already in 1996 the question of how differently the (then) 360 million citizens of the Community could look upon integration was manifest and pressing. 111  Knill and Lenschow, ‘Modes of Regulation in the Governance of the European Union’ (n 93).

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The conclusion of this second part shall examine the above possibility linking the discussion of EU mechanisms, from the Court to deliberative processes, back to the question of citizenship and the demos. In what follows, chapters three and four are brought together and the prospects of European citizenship are revisited in the light of the preceding discussion.

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Conclusion of Part II: European Citizenship Revisited The question of the demos can be broken down into three separate questions. These are what the people is, what makes the people and what holds the people together. The first question has already been answered. Rather than an undifferentiated multitude, the people must be understood as collective subjects constituted on the basis of common interests.1 This compels reformulation of the remaining two questions: What makes collective subjects and what holds clashing collective subjects together in a polity? In his work on social citizenship, Marshall finds that the state of the nineteenth century saw workers develop a common sense of belonging as well as national consciousness through the exercise of collective labour rights that in turn enabled them to claim entitlements. The turning point in this process was the departure from the idea of the individual as the sole rights bearer. The finding is crucial insofar as it treats collective interests as constitutive elements of collective subjects. Pre-existing common identities are neither necessary nor sufficient within this process. On the contrary, a common identity may be understood as the product, rather than the cause, of a process of coming together. At the same time, however, collective interests do not exist in the abstract but rather surface through their conflict with other collective interests. Not any interest can constitute the people as a collective subject but rather only common interests projected against the common interests of other social forces. This reading, first, puts across the idea of social conflict as a collective process that may not always be visible or conscious but which is constitutive of collective subjects and decisive for the quality of citizenship in a polity. Secondly, it depicts polities as unavoidably divided. At this juncture, a contradiction arises as the demos takes the form of a body that is both divided on the basis of clashing collective interests and held together on the basis of a common identity. While pre-existing national identities do not take priority over social conflict as constitutive elements of collective subjects, they certainly assist in both bringing and holding a polity together because the ideological glue of common nationality is powerful enough to supersede and conceal conflicting social interests. However, the nation and the demos constitute distinct representations of the people. The former stands for a community sharing the same history and origin, religion or language and the latter stands for the

1 

See ch 2 for a more comprehensive discussion of the issue of collective subjects.

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people as a body that can be collectively represented, make collective decisions and be granted rights and entitlements.2 Nevertheless, the two representations are interwoven, not least because the benefits of belonging to the demos, including ­universal suffrage or social protection, have historically been made available mainly on condition of belonging to the nation. It may therefore seem that Europe is confronted with the insurmountable difficulty of lack of a common national identity. The difficulty is, however, only ostensible. As already remarked, common identities may be the product, not the prerequisite for the coming together of people. A common identity may, in other words, be generated by virtue of the constitutive process of collective subjects, which comprises the simultaneous processes of division of the people on the basis of conflicting interests and of their coming together through the generation of a common identity. The question of a European demos thus becomes partly a question of collective interests and partly one of the prospects of a common European identity. It is, in other words, a question of collective invention of a new relationship between historical belonging in communities on the one hand and the continuous re-creation of citizenship on the other.3 There are significant practical obstacles in the process of collective European reinvention and recreation, with national heterogeneity usually understood as the most significant one. In response to this, many ideas on alternative paths of coming together have been put on the table. Jean Claude Milner, for example, invents the idea of paradoxical classes.4 Paradoxical classes are groups created on the basis of what distinguishes their members rather than on the basis of what they share. The paradoxical meeting may occur irrespective of social status, gender or ­nationality. Perhaps, such paradoxical groupings may be able to produce the dynamics and become the leading force of a common European identity. They may be what, in the final analysis, will bring about a re-foundation of citizenship at European level. However, the overcoming of national heterogeneity should not be treated as a possible contingency but rather as a matter of political practice. If Europe is to replace national identities with a common European one, it is required to engage in the tenuous effort to build a terrain of social conflict. This means that the test of a European identity and in turn of a European demos is, in fact, the pursuit of a

2  E Balibar, We the People of Europe? Reflections on Transnational Citizenship (Princeton, NJ, P ­ rinceton University Press, 2004) 8; see also J Rancière, ‘The Thinking of Dissensus: Politics and Aesthetics’ in P Bowman and R Stamp (eds), Reading Rancière (London, Continuum, 2011) 5. 3 Balibar, We the People of Europe? (n 2) 9. 4  J-C Milner, Les Noms Indistincts (Paris, Seuil, 1983) cited in Balibar (n 2) 240. Milner produces this theory in a different context as a reformulation of a Lacanian theory the philosophical connotations of which are beyond the scope of the present discussion. His idea is, however, significant as it helps to expose that the question of a European identity is not a matter of chance but a matter of political practice. Thomas Franck has drawn attention to a trend to ‘personal self-determination’ through which a ‘growing part of humanity is seeking community with others based on commonalities that are neither genetic nor territorial’. See T Franck, ‘Clan and Superclan: Loyalty, Identity and Community in Law and Practice’ (1996) 90 Amsterdam Journal of International Law 359, 382.

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political project that will allow European collective subjects to emerge through the quest of realisation of their collective interests. More practical obstacles arise at this stage. One may be found in the absence of a closed community, where closure is seen as a pre-condition ‘for the development of an ethos of social solidarity and redistributive arrangements within [a] geographical territory’.5 However, the territorial problem is in fact not a problem at all for the Union is a territorially enclosed community. Lack of an ethos of social solidarity and redistributive arrangements is better understood as the result, first, of lack of legal harmonisation in a number of fields that are decisive for the generation of collective subjects. The diversity in a number of key areas, including tax legislation, social rights, collective labour rights or national budgets, is indeed a serious impediment to a collective coming together on the basis of common interests. Secondly, the situation is significantly exacerbated by the policies and rhetoric of the Union’s institutions. The Court refuses to offer a chance to those excluded and renders the market the permanently conquering party in the battle between dominant economic interests and collective labour rights. The Council and Commission praise the individual citizen consumer who is expected, at best, to treat vulnerable fellow citizen consumers charitably and, at worst, to manage his/ her own affairs. New governance rediscovers democracy in the right to access ­decisions but not to affect their content. Deliberative processes place the public interest in the hands of rational consensus between stakeholders, whose stakes are, however, never clearly defined. The absence of a European demos is thus not the result of national heterogeneity. Instead, it is the result of material practices that have divested European people of the power to identify with one another. The Union’s responsibility lies in the obstinate denial of social conflict. In light of this, it should cause no surprise that in the absence of European collective subjects and the re-imagination of Europe as a common public space, gaps are filled in by what is already there: the national identity. Here, conflict between collective subjects is replaced by the conflict of nation against nation. There is no reason or safe indicator to prove that this has been the intended outcome of the process of European integration. However, it is the result of a misinterpretation on the part of the Union mechanism of both the meaning and the significance of the citizen and the demos. In light of the above, two conclusions emerge. First, while there seems to be nothing in the way of structural barriers to European citizenship, the Union has failed to become a constitutional order. European citizens are citizens in name but not in substance. Secondly, while citizenship does not necessitate a pre-existing national identity, once a polity develops into a terrain of social conflict where collective subjects are divided but simultaneously held together on the basis of

5 M Ferrera, ‘The JCMS Annual Lecture: National Welfare States and European Integration: In Search of a “Virtuous Nesting”’ (2009) 47 Journal of Common Market Studies 219.

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a ­reinvented commonness, that polity will be no more differentiated from the ­modern state, a suggestion that shall be spelled out in chapters eight and nine. Part II has extended Part I on constitutionalism while serving as an introduction to Part III and its discussion of the global space. The next part deals with dominant discourses and their influence on the prospects of generation of global collective subjects. However, the question of citizenship is approached through a different angle. Part II has clearly implied that global citizenship is unattainable as the possibility for global collective subjects seems unrealistic. Part III leaves this argument aside and attempts a fresh supplementary look at citizenship and constitutionalism through the lens of the concept of power function as understood in the seminal work of Michel Foucault. Parts II and III are knitted together in Part IV, which deals with the state, the sources of power and the importance of the common (national) identity for the creation of collective subjects.

PART III

Global Governance: Discourse and Truth, Power and Resistance

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Introduction of Part III The previous part concluded that the Union presents a poor constitutional quality. This finding was based on an understanding of citizenship as a dialectical process that permits the inclusion of the most vulnerable parts of society, their emancipation and ultimately their empowerment to challenge a given political state of affairs. It was argued that the Union has, so far, abstained from any effort to fill citizenship with a substantial meaning. Based on deliberative processes and seeking to remedy its democratic deficit through increased transparency and other marginal amendments to the procedural framework, the Union seems bound to remain tied to a version of citizenship that is void of content. Still, the concealment of social conflict, the promotion of the citizen-consumer and the general r­ eluctance of the EU to give voice to those excluded does not foreclose the possibility of emergence of a ‘European people’. Gathered together under an increasingly harmonised legal regime and represented, however marginally, by a formal representative and elected organ, European people can, over the long haul, identify with each other, build collective allegiances and struggle for their common interests. Europe does, in the final analysis, possess the credentials and potential to become a constitutional space. This process will necessitate social conflict; it will entail antagonisms, opposition and rivalries. The global space cannot easily fit in the above picture. The present part expands on the discussion of European citizenship and constitutionalism, shifting the focus to the global level. The discussion, this time, revolves around the concept of global governance. This third part approaches global governance as a process of global policy-making. The analysis and description of global governance processes by the mainstream discourse are not contested. Quite the contrary, the mainstream discourse on global governance offers an accurate description: systems of rule where coercion and authority are replaced by persuasion and control. The discourse often chooses to focus on peaceful cooperation, on an image of the world as a peaceful place where the global demos, united around their common interest, discuss and eventually attain their shared objectives. What is more, in the context of global governance discourse the authoritative coercive state is demonised. Somehow it seems that global governance will save the world from the woes of the state and emancipate people from the exercise of sovereign powers. The concept of global governance is not unproblematic. Global governance is a widely disputed term with scholars from a range of disciplines arguing that it offers nothing but confusion and that it means everything and nothing at the same time. Indeed, global governance is an umbrella term for any imaginable formal

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or informal regulatory process taking place at global level. As such, its use should perhaps be avoided in favour of the traditional language of international relations. However, in the face of the term’s controversial meaning, the present part focuses on the concept of global governance deliberately. This choice is based on two grounds. First, the study of global governance emphasises the decline of the state brought about by the involvement of myriads of transnational actors in the processes of global regulation and, in consequence, it brings into focus the increasingly broad diffusion of authority across multiple transnational centres of power. This narrative is relied on by champions of global constitutionalism who argue that globally diffused authority needs to be limited by way of a global constitutional arrangement. Secondly, the present analysis, unlike many polemics of global governance, does not dispute the truth of the descriptive accounts of the global governance discourse. As will be seen in chapter five, global governance is described as a system of rule which, freed from the forces of coercion and command, operates on the basis of mutual persuasion and maintenance of control dragging myriads of actors into the global regulatory order. This is a description of the world order as a cooperative, consensual and non-adversarial space where global players strive together for their common interests. The absence of conflict that is on display in this descriptive account does not concern the intergovernmental or diplomatic level but, instead, the level of global society at large. The discourse does not in any way deny the existence of interstate conflict, armed conflict or political conflict between states and international organisations, but rather the way in which the people are involved in politics at global level. The above description offered by the mainstream global governance discourse is not disputed as such. Quite the contrary, chapter five argues that this approach to the global order creates a particular discursive field on the basis of which individuals make sense of their role and place in the world. It is therefore fruitless to attempt a separation of the mainstream global governance discourse from reality because discourse and reality mix up as the former becomes socially embedded. Indeed, global governance discourse has reached a level of significant social embeddedness. The term is widely used by global institutions, international organisations and transnational players, including the so-called ‘global civil society’. Based on the above, chapter five proceeds with a discussion of the substance of the dominant global governance discourse. The chapter reviews the main themes of global governance discourse and concludes by presenting the discourse’s main deficiencies. It is argued that, while the descriptions of global governance offered by the mainstream discourse are not in themselves inaccurate, they construct a discursive field that serves as an apologia for global neoliberal arrangements. This is not the result of the way in which the discourse describes global developments but, instead, of what it chooses to conceal. As this third part will be arguing, the study of global governance takes the question of power out of the equation. It focuses on describing processes as well as on emphasising the impressively wide involvement of transnational actors in the global regulatory machinery. And, while diffusion of authority away from the state is repeatedly noted, nowhere does

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global governance discourse take the question of power seriously. Instead, power is presented as a measurable quantity able to be exchanged between global actors. The picture conveyed is one in which, whatever power is lost by the state, the same amount is gained by transnational actors. This narrative remains uncontested by accounts of global constitutionalism which see the alleged demise of the state as the source of decline of state constitutionalism and call for the latter’s reinstatement at global level. Chapter five concludes that global governance discourse, by keeping away from a number of questions, presents global arrangements as an almost natural result of the decrease in the power of the state. It sees no political agenda behind this development and, in this, it only presents a superficial account of the global political space. Chapter six takes up the task of presenting an alternative account of global governance by introducing the question of power into the discourse. This chapter draws heavily on the work of Michel Foucault. With Foucault, it is argued that power determines everything, from our relationships to ourselves to the ways in which the sovereign manages the body of the population it controls. Importantly, for Foucault, power is not the same as domination. In Foucauldian thinking, while domination is based on coercion, power operates on the basis of freedom. In light of this, this chapter does not question the global governance discourse’s descriptions of the world as a place free from coercion. By contrast, it argues that the lack of coercive mechanisms provides a most typical example of how power functions. Chapter six further draws on Foucault’s analysis of the ability of power to create subjectivities, namely to influence the way in which the subject constitutes and understands itself. The concept of subjectivity is used to show how power reproduces itself by insinuating itself into the subject who finally becomes its bearer and re-producer. Based on this remark, it is argued that global governance actors, by being both bearers and (re-)producers of power, are embedded in what Foucault calls neoliberal governmentality. Through a number of examples chapter seven undertakes to explain how global actors, notably global civil society, end up reproducing the very regime that they are claiming to contest. Here is where questions of citizenship and of constitutionalism are brought back into the analysis. Global civil society is treated by the dominant discourse as a body akin to a global demos or as a form of global citizenship in the m ­ aking able to democratise the global landscape and to tame its diffused centres of power. ­Chapter seven rejects such a perception of global civil society. It argues that a global version of citizenship understood as a dialectical process of inclusion and emancipation is not easily foreseeable at the global level. At this stage, however, a paradox emerges. Neoliberal governmentality and the reproduction of power through subjectivities are not a peculiarity of the global space. Equally, the idea of common interests able to be attained in an amicable way is dominant both at global and at state level. On top of the above, there is Foucault’s assertion that wherever there is power there is resistance. What is it then that makes state citizenship viable and global citizenship unattainable? Part of the answer is provided in chapters five and six which discuss the consequences

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of the absence of the question of power from the dominant global governance discourse. Nevertheless, the search for a comprehensive answer should reach beyond dominant discourses, however tangible the results that these produce. In light of this, chapter seven reviews recent trends in the non-mainstream discourse, which either focus on global contestatory politics or detect the emergence of transnational social classes. Even these accounts are, however, unable to corroborate the existence of global unified social forces that could challenge global arrangements. For this reason, chapter seven identifies a further critical difference between the state and the global order in that the latter may not offer a realistic opportunity for the creation of a collective political subject that will be able to become the opposite pole in the Foucauldian bipole of power and resistance. As a result, global social conflict seems open to question and the prospects for global constitutionalism also become uncertain.

5 Global Governance as Discourse— Global Governance as Truth I.  Truth and Discourse: An Invented Dilemma There is a certain paradox surrounding the concept of global governance. The term is often used without further clarification as to its connotations, even though it lacks a clear definition or precise meaning. Critics often reflect on how the term ‘governance’ has become a buzzword, sometimes used so thoughtlessly that it could mean everything and nothing at the same time.1 Nevertheless, global governance has today occupied such large space in academic thinking that it is close to forming a distinct discipline.2 At first reading, this is only understandable as theory struggles to grapple with the changing boundaries of state sovereignty, an incontestable reality that can no longer be neglected. Indeed, global governance could be seen as a distinct field of study running parallel to the complex phenomena summarised under the term ‘globalisation’. Thus, as a distinct discipline global governance studies the form and processes of global regulation under circumstances of globalisation. Global governance is not merely a distinct field of study. It is also a descriptive term. At the risk of oversimplifying, the term denotes a global web of consensusoriented processes and ‘flexible, non-standardized mechanisms (…) of joint regulation’ operating on the basis of trust and reciprocity between the actors involved in them.3 Authority is here exercised through ‘informal get-togethers’ taking all possible forms.4 The lack of a formal centralised authority coupled with the absence of coercive mechanisms is one of the basic factors that differentiate governance from traditional government. Global governance, both as a term and as

1  LS Finkelstein, ‘What Is Global Governance?’ (1995) 1 Global Governance 368; B Jessop, ‘The Rise of Governance and the Risks of Failure: The Case of Economic Development’ (1998) 50 International Social Science Journal 29. 2  For example, a journal with the title ‘Global Governance’ was first published in 1995. 3  MC Smouts, ‘The Proper Use of Governance in International Relations’ (1998) 50 International Social Science Journal 81. 4  J Klabbers, ‘Setting the Scene’ in J Klabbers, A Peters and G Ulfstein, The Constitutionalization of International Law (Oxford, Oxford University Press, 2009) 12.

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a discipline, is confronted with a challenging task: the description of the chaotic processes of global regulation. The proliferation in the use of the term across a wide range of disciplines should not come as a surprise. Political and social sciences, economics, public and ­public international law have relied on the term ‘global governance’ to bring their respective fields of knowledge in line with the new forms of global regulation. For example, political and social sciences will habitually focus on analysing the ways in which authority becomes diffused on the global space,5 while public law will be concerned with possible ways to tame globally diffused power.6 Economists speak of economic global governance7 and international lawyers face challenges posed to the structure of the international legal order by the disorderly processes of global governance.8 Perceptions and analyses differ depending on the analyst’s political perspective. To the extent that global governance is seen as a liberal process of rule-making, liberals or liberal cosmopolitans have no apparent reason to adopt a critical stance against it.9 From a Marxist point of view, on the other hand, global governance is understood as a product of capitalist relations and analysed through the lens of class struggle. Foucauldians approach global governance as an extension of biopower to the global level, and feminists understand global governance primarily as a process which aligns itself with the patriarchal bias of international ­institutions.10

5  See, eg, RB Hall and TJ Biersteker, The Emergence of Private Authority in Global Governance (­Cambridge, Cambridge University Press, 2002); P Nanz and J Steffek, ‘Global Governance, Participation and the Public Sphere’ (2004) 39 Government and Opposition 314; MR Duffield, Global ­Governance and the New Wars: The Merging of Development and Security (London, Zed Books, 2001); WA Knight (ed), A Changing United Nations: Multilateral Evolution and the Quest for Global Governance (­Basingstoke, Palgrave Macmillan, 2001); DR Black, PTM Shaw and DSJ MacLean, A Decade of Human ­Security: Global Governance and New Multilateralisms (Aldershot, Ashgate Publishing, 2013). 6  See, eg, D Kennedy, ‘Challenging Expert Rule: The Politics of Global Governance’ (2005) 27 ­Sydney Law Review 5; G Palombella, ‘The Rule of Law in Global Governance: Its Normative Construction, Function and Import’ (Social Science Research Network 2010) SSRN Scholarly Paper ID 1561289 http://papers.ssrn.com/abstract=1561289. 7  See, eg, R Eccleston, The Dynamics of Global Economic Governance: The Financial Crisis, the OECD, and the Politics of International Tax Cooperation (Cheltenham, Edward Elgar Publishing, 2012). 8 See, eg, N Krisch and B Kingsbury, ‘Introduction: Global Governance and Global Administrative Law in the International Legal Order’ (2006) 17 European Journal of International Law 1; A von Bogdandy, P Dann and M Goldmann, ‘Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities’ in A von Bogdandy, R Wolfrum and J von ­Bernstorff (eds), The Exercise of Public Authority by International Institutions (Berlin/Heidelberg, Springer, 2010); AL Taylor, ‘Global Governance, International Health Law and WHO: Looking towards the Future’ (2002) 80 Bulletin of the World Health Organization 975. 9  This is perhaps a generalisation given that critical voices do exist in the liberal tradition. In my view, however, their demands and suggestions for further democratisation of the global governance regime cannot but produce marginal changes as will be shown later in this chapter. As a result, I take these voices to be largely in line with the currently dominant processes of global governance. For an excellent social-democratic account which, however, does not escape the limits of the liberal tradition, see, eg, D Held, Cosmopolitanism: Ideals and Realities (Cambridge, Polity, 2010). 10  See, eg, M Porter and ER Judd (eds), Feminists Doing Development: A Practical Critique (London, Zed Books, 2000); C Wichterich, The Globalized Woman: Reports from a Future of Inequality (London, Zed Books, 2000).

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Not all of the above positions are equally dominant. Critical perspectives are rather rare with a more liberal point of view dominating global governance language and discourse. In its mainstream version, global governance discourse presents global governance as consensual forms of interaction between many actors who deliberate with a view to achieving common goals and objectives based on shared ­interests. Within the context of this discourse, the global public interest is promoted by a global civil society composed primarily of NGOs which reportedly struggle to democratise processes and make global policy-making more inclusive. Despite the absence of a clear and precise definition, the mainstream liberal understanding of global governance has acquired a more or less dominant status. While definitions of global governance may still vary, there is considerable agreement regarding a number of features deemed fundamental. These points of concurrence have not merely formed the basis of the discourse. Rather, they have also mediated our understanding of global governance as an actual process. It is so much so, that it is sometimes difficult to discern whether global governance, as described above, is a mere academic construct or a reality. Thus, one of the major difficulties one is confronted with, when speaking about global governance, is that it is not always clear whether the term merely reflects the mainstream version of an academic discourse or whether it depicts processes of global regulation that are actually in operation. The dilemma between discourse and reality is not a simple one. Is global governance merely a buzzword used in academic language? Or is it, rather, a way to refer to a new global paradigm and a new taxonomy of powers that actually exist? It is important to resolve this problem from the outset. The Foucauldian and Marxist traditions would object that the question, as articulated above, is poorly posed. As both traditions teach us, there can be no clear-cut distinction between discourses and reality. Discourses, the argument goes, mediate reality. In Foucault’s words, discourses should be treated as practices which ‘form the objects of which they speak’.11 Following the Foucauldian and Marxist approaches, this chapter is based on the premise that reality materialises through discourses and discourses have tangible effects on reality, once they become socially embedded. In this sense, global governance discourse and global governance reality are not separate. Quite the opposite, they are entangled.

A. Discourses, Dominant Ideologies and Historically Organic Ideologies The immediate implication is that global governance operates both as a discourse and as a reality. As a discourse, global governance has ceased to be purely a­ cademic.

11 

M Foucault, The Archaeology of Knowledge (New York, Harper & Row, 1972) 49.

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Through the sayings of international actors and institutions, global governance has been introduced into everyday political language as a term denoting [the] sum of the many ways individuals and institutions, public and private, manage their common affairs [and as] (…) a continuing process through which conflicting or diverse interests may be accommodated and cooperative action may be taken. It includes formal institutions and regimes empowered to enforce compliance, as well as informal arrangements that people and institutions either have agreed to or perceive to be in their interests.12

The quoted definition of the Commission on Global Governance (CGG) summarises all of the characteristics that are habitually treated as constitutive of the concept: heterarchical cooperation of a series of public and private actors; the neutralisation of conflict through cooperation; the promotion of common interests. The description is interesting, not solely because of what it says but mainly because of what it chooses to conceal. The definition attempts a comprehensive description of global processes of regulation but includes no reference whatsoever to the inequalities and exclusions that characterise the global order. What is more, the definition offers a somewhat mystifying remark about common interests. It conveys the impression that common interests are pursued almost mechanically through informal cooperation between equal actors.13 The blindness of the CGG’s definition to the historical juncture and political context that forms the background of described developments characterises global governance discourse almost in its entirety. Worse even, such blindness is sometimes considered a constitutive element of global governance discourse: unlike the conventional concept of international relations that is as a rule linked to power relations and political forces beyond the state, global governance is about describing the myriad forms of governance that exist next to each other and that make it hard, if not impossible, to conceive of any hierarchical relation between them.14 In other words, mainstream global governance discourse is by definition oblivious to the power relations that shape it. Not unexpectedly, critics object that global governance discourse offers no historical insight into the relations that comprise its structure.15 In turn, the obliteration of the concept of power from the equation triggers criticism against the discourse’s a-political nature.16 The way in which the discourse mixes up with our understanding of reality is complex. We could certainly reject at the outset the truthfulness of the discourse’s implied suggestion that global regulation is largely immune from inequalities, 12 Commission on Global Governance (CGG), Our Global Neighborhood (Oxford, Oxford ­University Press, 1995) 2. 13  See ch 4 in Pt II on European constitutionalism. 14  K Dingwerth and P Pattberg, ‘Global Governance as a Perspective on World Politics’ (2006) 12 Global Governance185, 192. 15 S Soederberg, Global Governance in Question: Empire, Class and the New Common Sense in ­Managing North-South Relations (London, Pluto Press, 2006) 2. 16  H Overbeek, ‘Global Governance: From Radical Transformation to Neo-Liberal Management’ (2010) 12 International Studies Review 697, 698.

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hierarchies and power relations. Still, in the face of the obvious misrepresentation of the world as a place clear of inequalities and power relations, the suggestion does not merely construe reality in a certain way. It also constructs it. At this stage, it would be helpful to recall Foucault. ‘In every society’, Foucault notes, the production of discourse is at once controlled, selected, organized and redistributed by certain of procedures the role of which is to ward off its powers and dangers, to gain mastery over its chance events, to evade its ponderous formidable materiality.17

Discourse, he goes on, is not merely our way to translate struggles or systems of domination. Discourse is itself a struggle, ‘it is the power which is to be seized’.18 Thus, power forms knowledge and produces discourse and, as a result, it is also able not solely to become embedded but also to reproduce itself.19 This is so, because discourse protects power by constructing regimes of truth or by maintaining, in the words of Foucault, ‘general politics of truth’.20 General politics of truth are the types and mechanisms of discourse that a society ‘harbours and causes to function as true’.21 The Marxist tradition uses the term ‘dominant ideology’ to make a similar point. As discussed in earlier chapters, the dominant ideology surfaces as a selfevident truth which can be found everywhere. It draws confirmation from its references to self-evident truths but, crucially, it also imposes itself on individuals through a series of institutions, notably through education (or, perhaps preferably, ‘­pedagogy’).22 Thus, dominant ideology is neither distinct from structure nor incapable of preserving it. Antonio Gramsci invents the notion of ‘­historically organic ideologies’ to refer to ideologies that are historically necessary for the maintenance of a given structure and which have the capacity to organise the crowd behind them.23 Following Marx, Gramsci contends that a popular conviction is often not less powerful than a material force. Put differently, the historically organic ideology is powerful enough to provide the basis on which ‘humans move, become conscious of their position, struggle etc’.24 In this, an ideology or discourse is not in isolation from reality. Quite the contrary, it has the capacity to become one of reality’s constructive forces. 17  M Foucault, ‘The Order of Discourse’ in RJ Young, Untying the Text: A Post-Structuralist Reader (Abingdon, Routledge, 1981) 52 [emphasis added]. 18  ibid 53. 19  M Foucault, ‘Truth and Power’ in C Gordon (ed), Power/Knowledge. Selected Interviews and other Writings 1972–1977 (New York, Pantheon Books, 1980) 119. 20  M Foucault, ‘The Political Function of the Intellectual’ (1977) 17 Radical Philosophy 112, 112. 21 ibid. 22  L Althusser, E Balibar and J Bidet, On the Reproduction of Capitalism: Ideology And Ideological State Apparatuses (GM Goshgarian tr, London, Verso, 2014) 224. ‘Pedagogy’ is a term used by Foucault and not by Althusser who prefers the terms ‘school’ or ‘education’ (see, eg, at 51, 79). I choose the term pedagogy because it is broader. See Foucault, ‘The Order of Discourse’ (n 17) 55. 23  A Gramsci, Prison Notebooks, vol III (JA Buttigieg tr, New York, Columbia University Press, 1975) 171. 24  ibid 171, 172.

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Thus, discourses form realities by constructing ‘general politics of truth’ embraced by societies. These truths impose themselves on individuals; they form the basis on which individuals ‘become conscious of their position’. In light of the above, a discourse that chooses to exclude power and social relations from the framework of its analysis may be achieving precisely this: to maintain power by concealing its very existence; by organising humans behind the ‘self-evident truth’ that global governance is all about peaceful cooperation between equal actors who will, in the end, succeed in pursuing their common interests. At this juncture a clarification is necessary. The criticism of the mainstream global governance discourse as ahistorical or a-contextual is directed at the discourse’s general tendency to overlook the question of power. This is not to imply the absence of global governance studies that escape the confines of mainstream discourse. Non-mainstream discourse looks at global governance as a form of political contestation able to affect the balance of global power dynamics.25 The discussion will return to these accounts in Chapter 7. For the purposes of this chapter, suffice it to say that these accounts have not decisively changed the terms of the mainstream discourse, as the latter continues to shape dominant understandings of global governance.26 Dominant understandings may sometimes involve the question of power, albeit in an incidental manner. The main focus is, instead, on a series of other features that are seen as more essential to global governance arrangements than the question of power. These features will be the focus of what follows. The next section does not aspire to provide a fully-fledged and detailed description of every approach to global governance. The aim is rather to focus on the elements that have dominated and become established principles of the relevant discourse. With this in mind, the next section initially discusses governance as opposed to government and next examines the related concept of global governance as this has been established both in the mainstream literature and through declarations and reports of global political actors.

II.  Global Governance Discourse A.  Describing the Basic Precepts of Governance Rosenau and Czempiel’s seminal contribution to the study of governance in 1992 was meant to establish the fundamentals of global governance discourse.27 It is so

25  For a review of the literature, see J Wolff and L Zimmermann, ‘Between Banyans and Battle Scenes: Liberal Norms, Contestation, and the Limits of Critique’ (2016) 42 Review of International Studies 513. 26 ibid. 27  JN Rosenau and E-O Czempiel, Governance Without Government: Order and Change in World Politics (Cambridge, Cambridge University Press, 1992).

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much so that, twenty years ahead, contributions to the study of governance continue to borrow or, at the minimum, refer to the authors’ understanding of the term.28 In their initial contribution, Rosenau and Czempiel defined governance primarily in negative terms as a process distinguished from government. ­Governance was described as a system of rule characterised by lack of a formal centralised authority and often unbacked by coercive powers to achieve compliance.29 In a later contribution, Rosenau explains the term ‘system of rule’ in more detail.30 Rosenau understands systems of rule as patterns of interaction between controllers and controlees. Controllers seek to influence the behaviour or preferences of controlees. If controllers are successful and achieve compliance by those who are subject to their control, then a system of rule has evolved. In other words, a system of rule is unsustainable in the absence of control. At the same time, a ­system of rule cannot exist in the absence of compliance by controlees. In Rosenau’s words ‘[rule] systems and control mechanisms’ are founded on ‘a form of recurrent behavior that systematically links the efforts of controllers to the c­ ompliance of controlees through either formal or informal channels’.31 For Rosenau, a control mechanism stands in opposition to command. It is precisely the absence of coercion that makes systems of rule effective. In this context, ­controlees are not forced into compliance but rather persuaded by other means. Governance, understood as a system of rule, may sometimes be the result of legally/formally prescribed responsibilities. Crucially, however, governance differs from government in that its control mechanisms surface notably in the absence of such formal responsibilities. Controllers and controlees are not necessarily in a hierarchical relationship to one another. Given the absence of hierarchies, control mechanisms create intersubjective consensuses by invoking the common fates and histories of the various actors. Here, governance, far from being based on coercion, emerges as a result of widespread consensus formed on the basis of the shared past and future of a given system’s actors.32 Thus, while a system of governance may entail governmental institutions, its reach is much broader. It also ‘subsumes informal non-governmental mechanisms, whereby those persons and organisations within its purview move ahead, satisfy their needs, and fulfil their wants’.33 In other words, what differentiates a system of governance from traditional government is that it is sustainable in the absence of

28  See, inter alia, J Klabbers, The Concept of Treaty in International Law (Leiden/Boston, Martinus Nijhoff Publishers, 1996) 26; von Bogdandy, Dann and Goldmann, ‘Developing the Publicness of Public International Law (n 8); AM Slaughter, A New World Order (Princeton, NJ, Princeton ­University Press, 2004) 42; Smouts, ‘The Proper Use of Governance in International Relations’ (n 3); P De ­Senarclens, ‘Governance and the Crisis in the International Mechanisms of Regulation’ (1998) 50 International Social Science Journal 91; Jessop, ‘The Rise of Governance and the Risks of Failure’ (n 1). 29  Rosenau and Czempiel, Governance Without Government (n 27) 7, 8. 30  JN Rosenau, ‘Governance in the Twenty-First Century’ (1995) 1 Global Governance 13, 14. 31  ibid 15. 32 ibid. 33  Rosenau and Czempiel (n 27) 4.

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coercion and hierarchies. Governance is about ‘the framing of goals, the issuing of directives, and the pursuit of policies’ which are neither commanded nor supervised by a centralised authority.34 This is the quintessential feature of governance without government. In sum, governance describes a shift from traditional governmental institutions to forms of heterarchical and cooperative interaction capable of forming goals and pursuing objectives through non-coercive control mechanisms. Participants in systems of rule are indefinite as are the m ­ ethods through which they cooperate. While governmental goals are attainable even in the face of widespread political opposition, governance is viable only when goals are accepted by the ­majority.35 This is so, because governance entails systems of coordination of numberless actors who operate in the absence of hierarchies. Within a system of governance goals cannot be imposed but rather only agreed upon. As such, consensus becomes inscribed within the very definition of governance. There is no governance without consensus. Thus, although governance may entail some traditional governmental functions, its crux appears to be the ability to overcome the rigidity inherent in traditional government. This is achieved by virtue of the n ­ on-hierarchical and flexible nature of governance which allows the generation of widespread consensus. Despite the countless forms that governance may take, the term has provided a particularly convenient tool for the description of the politics of global order.36 The widespread use of the term appears to be justifiable. Governance gained prominence as a descriptive term partly because it managed to ease the increasing discomfort of analysts about a number of dualisms that had for a long time dominated legal, political and economic thinking: the public and private, the national and international, state and non-state actors. It is beyond question that traditional modes of regulation are undergoing transformations that the orthodox language of command and control cannot easily capture.37 At state level, these transformations are evident in the shift from the welfare state to neoliberal models of ­regulation.38 The latter include the proliferation of privatisations and a concomitant increase in new forms of rule-making through, inter alia, public-private partnerships, voluntary governance and private self-regulation. These rearrangements have contributed to the obfuscation of boundaries implied by the above dualisms. The new paradigm called for the invention of a term that would prevail over strict dichotomies and that would be able to capture new forms of political authority. This is precisely the reason why governance is habitually described as rule-making with the horizontal participation of a wide range of private and public as well as 34 

Rosenau, ‘Governance in the Twenty-First Century’ (n 30) 14.

35 ibid.

36  It is indicative that, as remarked earlier, an academic journal with the title ‘Global Governance’ has long been in circulation. See n 2. 37  A Barry, T Osborne and N Rose (eds), Foucault and Political Reason: Liberalism, Neo-Liberalism, and Rationalities of Government, 2nd edn (Chicago, University of Chicago Press, 1996) 2. 38 See, eg, TG Weiss, ‘Governance, Good Governance and Global Governance: Conceptual and Actual Challenges’ (2000) 21 Third World Quarterly 795.

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of national and non-national or transnational actors including the market and civil society.39 Thus, governance becomes a fashionable term, partly, because it incorporates into its essence the blurred boundaries between the public and private and between the national and international. Governance, with its focus on n ­ on-hierarchical systems of rule, is partly about denoting the reduction of the nation state to one among many equal actors. As a result, it may seem superfluous to present governance and global governance as two separate discourses as they both refer to the same type of arrangements. Nevertheless, global governance is presented separately as a discourse that focuses on the extrapolation of governance to the global level. This version of the discourse revolves around the alleged decline of the nation state as a result of globalisation.

B.  The Extension of Governance Rhetoric: Global Governance Global governance can be described as the operation of systems of governance at the global level. Based on the twin processes of globalisation and localisation, the term denotes changes in patterns and locations of authority.40 Global governance is about control mechanisms that transcend the boundaries of the nation state and evolve both beyond and below state level. Subnational governments provide an example of global governance below the state. Forms of governance below the state are gaining increasing prominence in the field of environmental regulation. The centralised state, the argument goes, is increasingly less able to cope with local environmental and, notably, climate change challenges.41 Subnational governments are believed to be more suitable for implementing climate adaptation and mitigation policies, especially when they assemble as transnational networks of cooperation.42 Despite the absence of legally binding obligations, transnational networks of local authorities reportedly engage in a common effort to tackle climate change and other forms of environmental degradation.43 The example of environmental subnational and 39  See, eg, E Swyngedouw, ‘Governance Innovation and the Citizen: The Janus Face of Governancebeyond-the-State’ (2005) 42 Urban Studies 1991; JG Ruggie, ‘Reconstituting the Global Public Domain — Issues, Actors, and Practices’ (2004) 10 European Journal of International Relations 499; P Pattberg and J Stripple, ‘Beyond the Public and Private Divide: Remapping Transnational Climate Governance in the 21st Century’ (2008) 8 International Environmental Agreements: Politics, Law and Economics 367; K Bäckstrand, ‘Multi-Stakeholder Partnerships for Sustainable Development: Rethinking Legitimacy, Accountability and Effectiveness’ (2006) 16 European Environment 290; C Scott, F Cafaggi and L Senden, ‘The Conceptual and Constitutional Challenge of Transnational Private Regulation’ (2011) 38 Journal of Law and Society 1. 40  Rosenau (n 30). 41  See, eg, S Happaerts, ‘Are You Talking to Us? How Subnational Governments Respond to Global Sustainable Development Governance’ (2012) 22 Environmental Policy and Governance 127. 42  T Lee, Global Cities and Climate Change: The Translocal Relations of Environmental Governance (Abingdon, Routledge, 2014). 43 ibid.

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transnational governance may be proof of the explanatory and analytical power of global governance, which fills in the lacunae left by the diminution of centralised state power. However, within the context of global environmental governance discourse in particular, two issues remain inadequately addressed. Regarding subnational environmental governance, it seems logical that a local authority is in a much better position to tackle local environmental challenges. Recognition of increased competence of local authorities in this field should not necessarily point to decrease of state power or to the emergence of new sites of authority. It is, therefore, surprising that local treatment of environmental problems is presented by the global governance discourse as a change and indeed a recent one.44 As regards transnational environmental networks, the voluntary nature of their commitments often renders ‘orchestrated’ transnational efforts largely futile in the absence of legally binding obligations.45 This is a sign that the explanatory power of the term global governance may not be as strong as its advocates believe it to be. Be that as it may, the task undertaken by global governance discourse is as challenging as it is necessary. It is a discourse that seeks to understand and describe the changing dynamics in a world where the nation state has ceased to be the single locus of authority. Accordingly, it should come as no surprise that the emergence of the term is coupled with the expansion of the globalisation discourse which gained prominence after the Cold War era and which has now come to acquire the status of an established descriptive model for global patterns of ­interconnectedness. These patterns of interconnectedness and interdependence have brought about new forms of authority and rule.46 It is precisely at this point where global governance and globalisation meet. Like global governance, globalisation is a fashionable term rarely defined with clarity.47 For present purposes, it is used to denote a ‘shift [significant both in magnitude and in intensity] in the spatial reach of (…) organization towards the interregional or intercontinental scale’ which does not necessarily challenge the primacy of the local or national but which, certainly, places it ‘within more expansive sets of interregional relations and networks of power’.48 This development is typically associated with the intensification of a number of problems of a

44  For an early reference to subnational regimes see, eg, JD Singer, ‘Man and World Politics: The Psycho-Cultural Interface’ (1968) 24 Journal of Social Issues 127. 45  See, eg, T Hale and C Roger, ‘Orchestration and Transnational Climate Governance’ (2013) 9 Review of International Organizations 59, esp 60. 46  J Vogler, ‘Regimes and the Global Commons: Space, Atmosphere and Oceans in A McGrew and P Lewis, Global Politics: An Introduction: Globalization and the Nation State (Cambridge, Polity Press, 1992) 118. 47  Susan Strange observes that ‘“globalisation” [is] a term which can refer to anything from the Internet to a hamburger [and that all] too often, it is a polite euphemism for the continuing ­Americanisation of consumer tastes and cultural practices’; see S Strange, The Retreat of the State: The Diffusion of Power in the World Economy (Cambridge, Cambridge University Press, 1996) xiii. 48 D Held and A McGrew, ‘The Great Globalization Debate: An Introduction’ in D Held and A McGrew (eds), The Global Transformations Reader: An Introduction to the Globalization Debate, 2nd edn (Cambridge, Polity Press, 2003) 3.

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transboundary nature, ranging from international terrorism to hunger and poverty and from the need to control global financial flows to global environmental degradation.49 The globalisation discourse is partly based on the assumption that the nation state fails to cope with issues transcending its territorial scope. As a result, the relevance of the Westphalian system, a synonym for the equal allocation of political power among sovereign nation states, is increasingly challenged.50 This is only logical, as the state continuously passes on extra competences to the international arena, sharing the corresponding portions of its sovereignty. The new arrangements also mark a shift away from pure interstate negotiation towards more complex forms of horizontal cooperation including private transnational actors, notably the market and civil society.51 The Ford Foundation or the Carnegie Corporation provide examples. Both non-state organisations have since the middle of the previous century engaged in public activities that originally constituted duties of the state. These included advancing human welfare and tackling the problems of humankind, financing other institutions and, most importantly, undertaking a prominent political role both in states’ domestic affairs and in their foreign policy.52 In these schemes of horizontal cooperation, the state often abolishes its political primacy to acquire the status of one among many public and private, national and transnational ­players who stand on hierarchically equal terms. The shifts in patterns and sites of political authority together with the ensuing heterarchies are the main themes of global governance. Global governance is depicted as a continuum which, in the words of Rosenau, entails ­institutionalised/ hierarchical mechanisms at one end and nascent/heterarchical interaction patterns at the other.53 The nascent patterns unintentionally evolve into control mechanisms as a result of interactions between the actors who are involved therein. Examples of such patterns include, first and foremost, NGOs and transnational business corporations but they may also include social movements and sub-state entities (cities). NGOs, whether national or international, and irrespective of their field of activity, can constitute nascent forms of transnational governance by generating crucial decisions and even by allocating resources in disaster situations (eg in post-conflict societies). Similarly, transnational business corporations generate private norms which regulate trade relationships. They are sometimes

49  See, eg, P Pattberg, ‘The Institutionalization of Private Governance: How Business and NonProfit Organizations Agree on Transnational Rules’ (2005) 18 Governance: An International Journal of Policy, Administration and Institutions 589. 50  See, eg, S Strange, ‘The Westfailure System’ (1999) 25 Review of International Studies 345. 51 J Tallberg J and C Jönsson, ‘Transnational Actor Participation on International Institutions: Where, Why, and with What Consequences?’ in C Jönsson and J Tallberg (eds), Transnational Actors in Global Governance: Patterns, Explanations and Implications (Basingstoke, Palgrave MacMillan, 2010) 1. 52  I Parmar, ‘The Carnegie Corporation and the Mobilisation of Opinion in the United States’ Rise to Globalism, 1939–1945’ (2000) 37 Minerva 355. 53  Rosenau (n 30) 20ff.

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described as non-state market-driven governance systems that have emerged as private alternatives to national and intergovernmental regulation.54 Their alleged goal is to generate a politically legitimate regime wherein firms, social actors and other stakeholders ‘are united into a community that accepts “shared rule as appropriate and justified”’.55 In both cases, NGOs and business corporations engage in the operations of relevant control mechanisms and in the deliberations taking place therein.56 The state is in both cases sidestepped because it is either unable or unwilling to become involved in the activities of the respective systems of rule. Urban centres pushing for autonomy are similarly at the nascent end of the global governance continuum. Cities demanding autonomy attract investment and enjoy prosperity which ends up in intensified autonomy demands.57 Once again, the nation state proves fragile as urban centres gradually transform the state-centred Westphalian landscape. At the institutionalised end of the continuum, Rosenau places institutions ranging from credit rating agencies to the United Nations system and the EU. Credit rating agencies, including international financial institutions, form control mechanisms by insulating national and transnational economies from politics. They form systems of rule for the global capital market wherein social forces are selfregulated with risk and credit-worthiness being assessed without the involvement of the nation state. At the institutionalised end, one also finds state-sponsored institutions, such as the UN and the EU that form their own control mechanisms in their respective fields of activity. Taken together, the above systems of rule and the control mechanisms that sustain them shape the global governance system. We are, thus, confronted with a global system of rule wherein countless transnational actors, both public and private, create a complex regulatory apparatus through interactions in their separate fields of activity. Within these systems of rule, the prevailing form of interaction is deliberation aiming at generating consensus while the prevailing methods of norm-generation are self-regulation and private regulation. Importantly, Rosenau’s continuum is not static as nascent actors frequently move within

54  S Bernstein and B Cashore, ‘Can Non-State Global Governance Be Legitimate? An Analytical Framework’ (2007) 1 Regulation & Governance 347. 55  ibid 347. 56  Especially as regards NGOs, while I acknowledge that there can be massive divergences regarding their legal status, objectives, profit-orientation, accountability demands and so forth, I am not concerned with each organisation’s particular characteristics but rather with the fact that they have intruded in the public domain undertaking to a larger or lesser extent tasks that have originally been the responsibility of the state. See also the previous remarks on the Ford Foundation and Carnegie Corporation. 57 Rosenau refers to Lyon, Stuttgart, Barcelona and Milan. Citing William Drozdiak, Rosenau explains that ‘a resurrection of “city states” and regions is quietly transforming Europe’s political and economic landscape, diminishing the influence of national governments and redrawing the continental map of power for the 21st century’. All four cities ‘are attracting huge investment and enjoying a prosperity that has led to new demands for greater autonomy’. See Rosenau (n 30) 26, citing W Drozdiak, ‘Revving Up Europe’s “Four Motors”’ Washington Post (27 March 1994) at C3.

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the continuum towards the institutionalised end. At the same time, systems of rule remain distinct but are not isolated from one another. On the contrary, the global governance landscape is sometimes depicted as involving actors who struggle for democratic legitimacy in the face of increasing technocratic rule.58 This antagonism spreads through the global governance continuum. It involves nascent ­systems of rule, notably NGOs, which are directed against institutionalised ones, such as, for example, technocratic credit rating agencies. Still, this only represents a small fraction of patterns of interactions. Global governance is anything but a coherent system. Hierarchies are difficult, if even possible, to discern and centres of authority are diffused. Within this context, the state is not absent but assumes a secondary role. In global governance discourse, states have failed to keep to their role as enforcers of rule and as dominant centres of authority and proliferation of global governance mechanisms emerged as states ceased to be effective. This reading presents global governance as a neutral process and an urgently needed attempt at bringing ‘more orderly and reliable responses to social and political issues that go beyond capacities of states to address individually’.59 Despite its neutral-descriptive façade, global governance discourse did not emerge in political vacuum. As already remarked, the discourse is more important with respect to what it chooses to conceal rather than with respect to what it openly describes.

C.  The Political Bias of Global Governance Discourse A global paradigm shift is long underway and nation state sovereignty has undergone noticeable transformations. So much is agreed by everyone. However, ­narratives differ. Global governance discourse approaches these shifts in a way that merits attention. The description of the discourse offered above is based almost exclusively on the writings of Rosenau. This is so for two reasons. First, Rosenau is the architect of the concept of global governance understood as a n ­ on-hierarchical system of rule wherein multiple actors work together to achieve shared goals and objectives. Secondly, his understanding has become dominant both among ­scholars and among institutions.60 It could be argued that different versions of this understanding have established the new image of the global order.

58 See, eg, JA Scholte, ‘Civil Society and Democracy in Global Governance’ (2002) 8 Global ­Governance 281. 59  TG Weiss and L Gordenker, ‘Pluralizing Global Governance: Analytical Approaches and Dimensions’ in TG Weiss and L Gordenker (eds), NGOs, the UN, and Global Governance (Boulder, CO, Lynne Rienner, 1996) 17. 60  See, eg, W Sandholtz, ‘Globalization and the Evolution of Rules’ in A Prakash and JA Hart (eds), Globalization and Governance (Abingdon, Routledge, 1999) 79; J Pierre and GB Peters, Governance, Politics and the State (London, Macmillan Press, 2000) 196; D Held and A McGrew (eds), Governing Globalization: Power, Authority and Global Governance (Cambridge, Polity Press, 2002).

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This is not unjustifiable. The contribution of the discourse to our understanding of changes in global patterns of regulatory rule is important. Further, the proliferation of global governance language largely results from the term’s power as a means of description. By offering an umbrella term for the sum of the abovedescribed arrangements, global governance has become a convenient title used to denote developments ranging from new patterns of transnational cooperation for the achievement of common goals to the diffusion of authority across multiple centres in the global landscape. However, the discourse, as outlined above, and, as developed in the literature and in everyday language, suffers from a number of deficiencies. Global governance discourse is phrased mainly in negative terms. This may, at first sight, seem unproblematic. Indeed, it is sometimes argued that, while global governance is something new and real, it is impossible to understand it in purely positive terms.61 Instead, the process can only be conceived in terms of its difference from the statist hierarchical system. On this reading, global governance is understood as a non-hierarchical system of rule, or as a system which, unlike the state, operates in non-adversarial terms. It is also a concept the spread of which owes to the dissatisfaction of scholars with certain dualisms typical of the statist hierarchical paradigm that are believed to be analytically inadequate. A negative reading of global governance invites an understanding of described processes as the result of the inadequacy of the nation state. Global governance discourse may not always be articulated in explicitly negative terms. Indeed, neither Rosenau’s conventional description nor, for example, the definition offered by the CGG are purely negative. However, focus on nation state demise, the underlying premise of this discourse, can be seen as actively overshadowing positive descriptions. Here is why: Central to global governance discourse is a concern with non-state actors and with the ways and extent to which they challenge the sovereign authority of the state. The role of non-state actors in minimising the responsibilities and power of the state and in substituting many of its functions has become a common theme in global governance discourse.62 The preoccupation with non-state actors and with the repercussions of their actions for state authority reinforces a negative understanding of global governance.63 It conveys the impression that global governance 61  P Rosanvallon and A Goldhammer, Counter-Democracy: Politics in an Age of Distrust (Cambridge, Cambridge University Press, 2008) 261. 62  See, eg, A An-Na’im, ‘Religion and Global Civil Society: Inherent Incompatibility or Synergy and Interdependence?’ in M Glasius, M Kaldor and H Anheier (eds), Global Civil Society Yearbook 2002 (Oxford, Oxford University Press, 2002) 56; P Odell and C Willet (eds), Global Governance and the Quest for Justice vol 3 (Oxford, Hart Publishing, 2008) esp v–vi; M Howlett, ‘Managing the “Hollow State”: Procedural Policy Instruments and Modern Governance’ (2000) 43 Canadian Public ­Administration 412. 63  It is indicative that global governance actors are themselves defined negatively as non-state actors. Even the very term civil society is rarely described in positive terms. Far from being a synonym to NGOs the term has become so broad and vague as to include virtually everything ‘that is not the state’. See J Keane, Global Civil Society? (Cambridge, Cambridge University Press, 2003) 9.

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is about filling the ‘authority vacuum’ that results from the decline of the nation state.64 On this reading, the role of non-state actors is to take over the authority that the state has lost or relinquished.65 Thus, descriptive accounts of global governance arrangements, even when articulated in positive terms, rely on a negative premise: the inability or decreased power of the state;66 a negative premise, which importantly remains unexamined. There are three basic problems arising from the negative direction that the discourse assumes. First, framing a discussion in negative terms may render a discourse not merely flawed but also deceptive. Hardt and Negri see in the dominant understanding of global governance as a mere product (and/or facilitator) of the decline of the state an implied suggestion that the proliferation of global governance processes is all but incidental.67 In turn this implies lacunae, if not anarchy, in the function of the global governance system. But, as they contend, this is not the case. In fact, [power]—and Michel Foucault was not the only one to teach us this—fears and despises a vacuum. The new paradigm functions already in completely positive terms—and it could not be otherwise.68

The second, and related, problem has to do with the approach of global governance discourse to authority and power. Conventional global governance accounts suggest that increase in the power of non-state actors is the unintended result of decrease in the power of the state.69 Implicit in this suggestion is the idea that the amount of power gained by non-state actors is automatically relinquished by the state.70 This idea of power as a given and measurable quantity or as a substance able to be exchanged among different actors does not only fail to provide a sound account of power structures underpinning global governance.71 As will 64  JN Rosenau, Along the Domestic-Foreign Frontier: Exploring Governance in a Turbulent World (Cambridge, Cambridge University Press, 1997) 295. 65  Held and McGrew, The Global Transformations Reader (n 48) 10. 66 For similar arguments, see, inter alia, Weiss and Gordenker, Pluralizing Global Governance’ (n 59); AM Florini (ed), The Third Force: The Rise of Transnational Civil Society (Washington DC, Carnegie Endowment for International Peace, 2000); H Anheier, M Glasius and M Kaldor (eds) Global Civil Society 2001 (Oxford, Oxford University Press, 2001); N Woods, ‘Global Governance and the Role of Institutions’ in Held and McGrew (n 48); Scholte, ‘Civil Society and Democracy in Global Governance’ (n 58); A Bieler, R Higgott and G Underhill (eds), Non-State Actors and Authority in the Global System (Abingdon, Routledge, 2011); M Koenig-Archibugi and D Held (eds) , Global Governance and Public Accountability (Oxford, Blackwell Publishing, 2005). 67  M Hardt and A Negri, Empire (Cambridge, Mass, Harvard University Press, 2000) 13. 68 ibid. 69  OJ Sending and IB Neumann, ‘Governance to Governmentality: Analyzing NGOs, States, and Power’ (2006) 50 International Studies Quarterly 651; see also S Kalm, ‘Limits to Transnational Participation: The Global Governance of Migration’ in Jönsson and Tallberg, Transnational Actors in Global Governance (n 51) 144. See also M Kaldor, Global Civil Society: An Answer to War (Cambridge, Polity Press, 2003), esp Ch 5. 70  For a critique of this thesis and in particular of the way it is applied in the relationship between nation states and ‘cities’, see C Salomon, ‘The Great Transformation of the Poulantzasian Modern ­Capitalist State Under Globalization’ (2011) 4 Journal of Political Inquiry 1, esp 22ff. 71  For a critique against the understanding of power as a zero-sum game, see N Poulantzas, State, Power, Socialism (London, Verso, 2000) 147.

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be d ­ iscussed later, it conveys a false understanding of the function of power in more general terms. And, while the mainstream discourse sometimes discusses power more thoroughly, it never approaches it as a structural component of global governance. Rather, it understands it in its institutional form, namely as a form of exercise of control by certain powerful states over institutions, which they design to their advantage and to the disadvantage of other states.72 Problems go beyond the depiction of power as a zero-sum game or as a relation limited to the diplomatic level. The discourse further suffers from an excessive focus on the idea of multiplicity of actors. The insistence on the importance of involvement of a ‘myriad of actors’ is hardly ever accompanied by a clarification as to each actor’s exact position and relative influence within global ­governance ­processes.73 This is especially evident in the focus on heterarchies and ­horizontality. All actors appear able to ‘make contributions with a view to utilitarian and consensual ­outcomes’.74 In turn, a world is depicted where everyone will have the chance to be represented.75 As a result, participation seems to be a sufficient condition for the resolution of disputes even though the terms of participation are hardly ever made clear.76 Drawing on this last remark, it becomes evident that global governance, apart from its descriptive function, also reflects a certain normative dimension. To repeat a remark already made in the context of European regulation and regulatory mechanisms, processes in the context of global governance appear to be

72 For an institutional approach to power, see, eg, FO Hampson and P Heinbecker, ‘The New ­ ultilateralism in the Twenty-First Century’ (2011) 17 Global Governance 299. For a definition of instiM tutional powers, M Barnett and R Duvall (eds), Power in Global Governance (Cambridge, ­Cambridge University Press, 2004) 3; see also Overbeek, Global Governance’ (n 16). Another author notes that ‘[like] much of the literature on this subject, the respected Global Governance journal largely conceives of its subject matter in power-neutral terms; identifies its core elements as institutional in nature; and has little to say about global governance in ideological and ideational terms’; see D Roberts, Global Governance and Biopolitics: Regulating Human Security (London, Zed Books, 2010) 29. 73  de Senarclens, ‘Governance and the Crisis in the International Mechanisms of Regulation’ (n 28). As regards the phrase ‘myriad of actors’ it is a very commonly used term both in global governance academic literature and in policy documents. See, inter alia, European Environmental Agency, ‘Global Governance—The Rise of Non-State Actors: A Background Report for the SOER 2010 Assessment of Global Megatrends’ EEA Technical Report, No 4/2011 (Copenhagen 2011) 7 http://static1.squarespace. com/static/538a0f32e4b0e9ab915750a1/t/538db68be4b0eeadcdab03c4/1401796235291/EEA_2011_ GlobalGovernance.pdf; H Zafarullah and AS Huque, Managing Development in a Globalized World: Concepts, Processes, Institutions (New York, CRC Press, 2012) 165; J d’ Aspremont and E De Brabandere, ‘The Complementary Faces of Legitimacy in International Law: The Legitimacy of Origin and the Legitimacy of Exercise’ in M Happold, International Law in a Multipolar World (Abingdon, Routledge, 2013) 179. 74  de Senarclens (n 28). 75 For this view, see, eg, D Held, Democracy and the Global Order: From the Modern State to ­Cosmopolitan Governance (Cambridge, Polity and Stanford University Press, 1995) 267ff. 76  Smouts (n 3). For similar views about participation see also C Harlow, ‘Global Administrative Law: The Quest for Principles and Values’ (2006) 17 European Journal International Law 187; A Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge, Cambridge University Press, 2004) 248.

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elevated to the ultimate essence of things. Outcomes do not seem to matter so long as procedures are followed.77 This third weakness is related both to the absence of a discussion of power structures and to the discourse’s emphasis on actors. Where processes and actors carry the most weight, the question of substance and, by implication, of power receives reduced attention. Even in studies on civil society’s struggle for democratic legitimacy, focus is placed more on changing processes of decision-making and less on challenging the substance of what is decided.78 Remarkably the question of substance remains outside the ambit of the analysis even though global governance discourse often invokes the idea of common goals and shared interests. The meaning of these concepts is rarely further discussed.79 The discourse is silent on the substance or definition of common goals or interests and, crucially, on those responsible for determining how these are to be defined. In defence, one could argue that global governance discourse serves a primarily descriptive purpose.80 Its aim is to describe a process without taking interest in matters of substance. It is true that global governance processes are there and require an analytical framework. However, seemingly neutral descriptions are not always politically unbiased too.

i.  Global Governance as a Natural Development To this point, it has been argued that global governance discourse has evolved into a broad discursive field characterised by two features. First, there is a tendency to exclude questions of power and substance from the framework of the discourse. Secondly, the discourse relies on the premise of decreased state authority but stops short of offering a positive account of how and why global governance emerged. Instead, global governance is presented as a product of globalisation and of the state’s incompetence to deal with problems of a global nature. The analysis portrays global governance as a natural development rather than as a human construction.81 An alternative reading would link the proliferation of global governance processes, including, eg, new forms of informal rule-making through public-private partnerships, voluntary governance and private self-regulation, to a number of

77  H Overbeek, ‘Global Governance, Class, Hegemony: A Historical Materialism Perspective’ in AD Ba and MJ Hoffmann (eds), Contending Perspectives on Global Governance: Coherence, Contestation and World Order (Abingdon, Routledge, 2005) 39; see also Smouts (n 3). 78  See, eg, J Gronau and H Schmidtke, ‘The Quest for Legitimacy in World Politics—International Institutions’ Legitimation Strategies’ (2016) 42 Review of International Studies 535. 79  An example of excessive vagueness can be found in JM Boughton and CI Bradford CI, ‘Global Governance: New Players, New Rules’ (2007) 44 Finance and Development www.imf.org/external/pubs/ ft/fandd/2007/12/boughton.htm. 80  Cornelia Beyer, eg, argues that ‘the concept remains empirical, is not normative or prescriptive and provides a description of real processes of change in the international system’; see C Beyer, Violent Globalisms: Conflict in Response to Empire (Aldershot, Ashgate Publishing, 2008) 23. 81 Soederberg, Global Governance in Question (n 15) 21, 26.

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structural rearrangements at both state and international level. These include the widespread wave of trade liberalisation, privatisation and deregulation which occurred and expanded in the post-Cold war era. This approach would recognise the relationship between global governance, neoliberalism and the latter’s focus on international competition.82 While there is nothing particularly original in this finding, it is noteworthy that mainstream discourse takes no interest in discussing global governance against this background.83 The state’s decreased power is not seen as the product of international competitiveness, economic efficiency and the development of the free market.84 Instead, the decline of the nation state is taken as a given. The decrease of its regulatory power is implicitly seen as an almost unintended consequence of globalisation processes. The latter are not discussed in terms of their causes. What seems to merit more attention is the treatment of their consequences. The common assumption in global governance discourse is that globalisation creates global problems which need to be dealt with effectively and efficiently. In the words of a former Director-General of the WTO, it is not globalisation which ‘­creates a feeling of anxiety’ but instead it is ‘the absence of the means to tackle it appropriately’.85 Global governance allegedly serves this purpose. Its proponents contend that ‘[to] address global questions, problems, threats, fears, at the appropriate level, we need more governance at the global level responsive to emerging global challenges’.86 Thus, global governance is about providing effective solutions to common problems; about achieving common goals on the basis of ‘collective values, regional or universal’.87 Thus, next to focusing on process rather than substance, global governance also focuses on results rather than causes. For that reason, globalisation forces, the decline of the nation state and neoliberal politics are not seen as coupled developments that have both produced and facilitated the proliferation of global governance processes. They are seen as mere events which, for whatever reason, gave rise to a global space of heterarchies and diffused authority. In focusing on processes and results rather than on substance and causes, global governance discourse goes beyond the limits of description and comes to serve an ideological purpose: The inability to explain how globalization came about, aside from the advent of certain technical advances, leads to a fatalistic belief that new occurrences on the world stage,

82  It should be kept in mind that the shift from government to governance is identifiable not merely at the macro-level of the global order but rather also at the micro-level of the nation state. 83  See, eg, R Higgot and E Erman, ‘Deliberative Global Governance and the Question of Legitimacy: What Can We Learn from the WTO?’ GARNET Working Paper No 53/08, August 2008, esp 1–2. 84  U Brand, ‘Order and Regulation: Global Governance as a Hegemonic Discourse of International Politics?’ (2005) 12 Review of International Political Economy 155. 85  P Lamy P, ‘Humanising Globalisation’ Speech at the WTO (Chile, 2006) www.wto.org/english/ news_e/sppl_e/sppl16_e.htm. 86 ibid. 87 ibid.

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which eventually lead to great transformations of social, political and economic life, are not constructed by human beings, but rather simply h ­ appen to them. This view leads to another: globalization is perceived as an inevitable and unstoppable process. It follows that the only option available to governments, NGOs, and societies in general, is to work together and thereby construct global economic governance in order to achieve a more just, democratic, and equitable world shaped by the uncontrollable forces of globalization.88

The shift from government to governance did not simply happen, as the mainstream discourse would have it. It is the product of social transformations that took place within the statist context. Such transformations include the legitimisation of private interests in fields that had traditionally been public, as well as the delegitimisation of welfare services, corrective state interventions and so forth.89 By steering clear of the analysis of these events, global governance discourse grants privilege to a certain political agenda.90 Whether intentionally or not, the discourse’s withdrawal from a discussion of capitalism as the driver of a global paradigm shift, means that transformations are treated as incidental, inevitable and neutral. Seen in this light, it is not a coincidence that governance language has provided a convenient tool for the WTO or Bretton Woods Institutions.91 The World Bank has introduced governance in a non-academic context by framing it as a purely technical question in order to pursue its well-known ‘good governance’ project which has set in motion neoliberal management practices in the developing world.92 The Bank has presented ‘good governance’ as a strategic plan focusing on,

88 

Soederberg (n 15) 26. ‘Order and Regulation: Global Governance as a Hegemonic Discourse of International Politics?’ (n 84). 90 This classification draws on a tripartite classification made by FD Cochrane, R Duffy and J Selby (eds), Global Governance, Conflict and Resistance (Basingstoke, Palgrave Macmillan, 2004) 4. The authors identify 3 developments: (i) the blurring of boundaries between the private and public, national and international and between the state, market and civil society; (ii) a number of social shifts in the structure of capitalism including big waves of privatisation, the proliferation of publicprivate partnerships and so forth; and finally, (iii) the promotion of a neoliberal agenda through the language of governance. I take the first 2 developments to be virtually identical. It is precisely the social shifts that the authors refer to which have brought about a blurring in the public-private or ­national-international boundaries. The third development is also very closely connected with the other two. Still, it is distinct from them as it refers to governance rhetoric instead of the political arrangements that have necessitated its invention as a term. 91  For the term’s use by the IMF see N Shafik, ‘Smart Governance: Solutions for Today’s Global Economy’ (December 2013) www.imf.org/external/np/speeches/2013/120513.htm. 92  See, inter alia, B Jessop, ‘Liberalism, Neoliberalism, and Urban Governance: A State-Theoretical Perspective’ (2002) 34 Antipode 452 A Leftwich, ‘Governance, Democracy and Development in the Third World’ (1993) 14 Third World Quarterly 605; G Harrison, The World Bank and Africa: The Construction of Governance States (Abingdon, Routledge, 2004); F Owusu, ‘Pragmatism and the Gradual Shift from Dependency to Neoliberalism: The World Bank, African Leaders and Development Policy in Africa’ (2003) 31 World Development 1655; P Cammack, ‘What the World Bank Means by Poverty Reduction, and Why It Matters’ (2004) 9 New Political Economy 189; Weiss, Governance, Good Governance and Global Governance (n 38); D Boas and D McNeill, Global Institutions and Development: Framing the World? (Abingdon, Routledge, 2004). 89  Brand,

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inter alia, accountability, effectiveness, the elimination of regulatory burdens and the rule of law, including, especially, protection of property rights.93 The Bank’s language has drawn on the mainstream functional understanding of governance which it has presented as a synonym to effectiveness, efficiency and development. Effectiveness and efficiency in particular have been associated with global governance to such an extent that they have become absorbed into the very definition of the term.94 It should, however, be recalled that effectiveness, economic efficiency and the elimination of regulatory barriers to trade associated with development are not technical matters without political implications. Still, they are presented as neutral and a-political concepts.95 Accordingly, in governance rhetoric, ‘governing is reduced to technical expertise (…) in which fundamental ideological and value conflicts have been all but resolved’.96 In sum, the discourse takes two basic shapes. On the one hand, it presents globalisation and the decline of the state as an almost natural development. On the other hand, it encourages an understanding of global governance as a question of process that is result-oriented and stripped of any substantive implications. This has not merely facilitated the promotion of goals of international financial institutions as politically neutral. More importantly, this understanding has assimilated into the mainstream the idea that global governance is all about loyalty to effectiveness and to the achievement of results.97 Everything that is associated to statism, from political and social conflict to legitimate enforcement, become more or less superfluous: outcomes can be achieved peacefully, serving both the market and the public interest in equal terms. What we are left with is a non-political and non-adversarial version of global regulation. This idea is becoming enmeshed in reality and shapes the way in which we are to make sense of the global landscape. How does such a perception of the world impact upon a theory that sees an antagonistic version of democracy as part and parcel of constitutionalism? Can constitutionalism, understood as such, be extrapolated to the global level? How does the dominant discourse affect notions of global citizenship? With a view to answering these questions, the next chapter

93  D Kaufmann, A Kraay and P Zoido-Lobaton, ‘Governance Matters’ World Bank, Policy Research Working Paper 2196 (Washington, 1999). 94  See, eg, R Thakur, ‘The United Nations in Global Governance: Rebalancing Organized Multilateralism for Current and Future Challenges’ (2012) ; H Clark H ‘Improving Global Governance: Making Global Institutions Fit-For-Purpose in the 21st Century’ (2012) Speech at Victoria University Institute for Governance and Policy Studies ; General Assembly of the United Nations, 65th Session: Thematic Debate on the United Nations in Global Governance (2011) . 95  A Pagden, ‘The Genesis of “Governance” and Enlightenment Conceptions of the Cosmopolitan World Order’ (1998) 50 International Social Science Journal 7. 96  Cochrane, Duffy and Selby, Global Governance, Conflict and Resistance (n 90) 5. 97  See, eg, M Wolf, ‘The Dilemma of Global Governance’ Financial Times (24 January 2007) 7.

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will focus on a positive description of global governance by focusing on the ways in which both global governance practices and global governance discourse influence the subjectivity of the global actor; the way in which she makes sense of ­herself, her duties and capabilities as a political subject of the global order. In what follows, the focus shifts to substantive issues drawing on the F ­ oucauldian understanding of power. It will be shown that a description of global governance beyond discourse conveys a wholly different understanding of the relevant processes, an understanding which has significant consequences for the prospects of global citizenship and, thus, of constitutionalism.

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6 Foucault and Power: Global Governance beyond Discourse I.  Global Governance beyond Discourse: The Terms of the New Paradigm To speak of global governance beyond discourse means to introduce in the analysis the elements that the mainstream discourse excludes from its analysis as a ­matter of definition. The previous chapter argued that global governance discourse ­represents an attempt to explain a chaotic global system of rule which drags myriads of actors into ‘the order of the whole’.1 However, global governance language only marginally refers to the question of power. In fact, it sometimes appears as though its point is partly to indicate that the global system of rule is so chaotic and disorderly that anything akin to conventional political analysis of the kind undertaken by, eg, international relations is no anymore relevant or perhaps no more possible. This is not necessarily a false assumption. The transition from the 1980s to the 1990s demonstrated, as Hobsbawm notes, that the world crisis was universal, not just in the domain of the economy but, crucially also, in the domain of politics.2 The collapse of the communist states destabilised international relations by bringing chaos into the international system. Within this context, [the] basic units of politics themselves, the territorial, sovereign and independent ‘nationstates’, including the oldest and stablest, found themselves pulled apart by the forces of a supranational or transnational economy, and by the infranational forces of secessionist regions and ethnic groups. (…) The future of politics was obscure, but its crisis at the end of the Short Twentieth Century was patent.3

It may not be possible to explain the world through disciplines such as international relations, which have as their main point of departure a world order that does not anymore exist. We have to make sense of new rationalities and to grasp 1  The expression has been borrowed from M Hardt and A Negri, Empire (Cambridge MA, Harvard University Press, 2000) 14. 2  E Hobsbawm, Age of Extremes: The Short Twentieth Century 1914–1991 (London, Abacus, 1995) 10. 3  ibid 10–11.

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the increasing complexity of the global order. We also need to invent new terms. But, inventing new terms is different from ignoring the analytical tools that have been used for centuries to explain the world. This is the paradox of the global governance discourse. It seeks to give an account of the new world, of its chaos, complexity and power structures, without examining questions of power and ­substance. Instead, it explains the world by presenting it as a collection of heterarchies wherein everything is directed to the achievement of common interests; a task that the hierarchical, coercive and centralised unit of the nation state is allegedly no longer capable of fulfilling. Instead of this narrative, it may be interesting to see how the discourse would be transformed, once the question of power is introduced.

II.  An Introduction to the Discussion on Power The mainstream global governance discourse mainly refers to authority rather than to power as such. It is not entirely clear what authority means in this context. It can be assumed, however, that given the absence of coercion authority generally refers to the power of decision-making or, more broadly, of shaping the global regulatory framework. Power is thus understood in a relatively narrow sense. That said, the mainstream discourse is correct in rejecting a vision of power as a central global authority concerned with governing. Instead, what prevails is an understanding in which authority is diffused across a multiplicity of institutions, networks, state and non-state actors, and so forth. This assumption is, for example, evident in Rosenau’s assertion that ‘the organizing perspective [of global governance] is that of governance in the world rather than of the world’.4 While the diffusion of power/authority is a recurring theme in global governance discourse, the latter stops short of examining both the sources and functions of power. The questions of source and function are linked or may even be ‘analytically ­indistinguishable’.5 Their complexity necessitates an examination in stages. This chapter will take up the question of how power functions. The aim is to provide an analytical basis upon which to test the quality and nature of global citizenship as exercised through the workings of global civil society.6 This will enable

4  See Rosenau as cited in R Wilkinson, ‘Introduction’ in R Wilkinson (ed), The Global Governance Reader (Abingdon, Routledge, 2005) 7. 5  F Berenskoetter, ‘Thinking About Power’ in F Berenskoetter and MJ Williams (eds), Power in World Politics (Abingdon, Routledge, 2007) 13. 6  The term refers primarily, albeit not exclusively, to global NGOs. I will discuss it more thoroughly later in this chapter. For a complete overview of this topic, see, inter alia, JD Clark, Worlds Apart: Civil Society and the Battle for Ethical Globalization (Abingdon, Routledge, 2014); R Falk, ‘On the Political Relevance of Global Civil Society’ in JH Dunning, Making Globalization Good: The Moral Challenges of Global Capitalism (Oxford, Oxford University Press, 2004); T Böhmelt, V Koubi and T Bernauer,

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an examination of the potential for an agonistic version of democracy and, in turn, for constitutionalism at the global level. The discussion will then turn to the ­second stage, namely the question of material foundation of power. This second stage of the discussion on power leads back to the nation state and shall be discussed in the next part (IV).

III.  Foucault and the Function of Power Foucault teaches that it is analytically inadequate to study the function of power without recourse to the political rationalities that support it. This ‘semantic ­linking’ between political rationalities, on the one hand, and the function or ‘­technologies’ of power, on the other, is implied in Foucault’s concept of governmentality or governmental rationality.7 Governmentality is a complex concept which Foucault himself may have at times used inconsistently.8 Before looking into ­governmentality, the Foucauldian use of the term government and the concept of rationality need clarification. Foucault uses the term ‘government’ broadly, as the latter was understood in the sixteenth century and up until the eighteenth century. The meaning of government for Foucault is not limited to political government, namely to the exercise of power by a sovereign authority. Government, in the Foucauldian sense, includes the ways in which individuals conduct themselves. It entails modes of conduct ranging from government at the micro-level of the individual, of their souls and lives or of the household to government at the macro-level of the state.9 Government is the conduct of conduct: a continuum that connects the governing of oneself to government by the sovereign, and vice versa.10 While this may seem irrelevant to the study of power in global governance, it teaches something

‘Civil Society Participation in Global Governance: Insights from Climate Politics’ (2014) 53 European Journal of Political Research 18; K Kumar, ‘Global Civil Society’ (2007) 48 European Journal of Sociology 413; A Kavada, ‘Transnational Civil Society and Social Movements’ in KG Wilkins, T Tufte and R Obregon (eds), The Handbook of Development Communication and Social Change (Chichester, WileyBlackwell, 2014); J Smith, ‘Global Civil Society? Transnational Social Movement Organizations and Social Capital’ in B Edwards, MW Foley and M Diani, Beyond Tocqueville: Civil Society and the Social Capital Debate in Comparative Perspective (Lebanon, NH, University Press of New England, 2001); M Walzer, Toward a Global Civil Society (New York, Berghahn Books, 1997); M Griffiths, ‘The Affective Spaces of Global Civil Society and Why They Matter’ (2014) 11 Emotion, Space and Society 89. 7 

T Lemke, ‘Foucault, Governmentality, and Critique’ (2002) 14 Rethinking Marxism 49. G Burchell, ‘Liberal Government and Techniques of the Self ’ in A Barry, T Osborne and N Rose (eds), Foucault and Political Reason: Liberalism, Neo-Liberalism, and Rationalities of Government, 2nd edn (Chicago, University of Chicago Press, 1996) 35. 9  M Foucault, ‘Governmentality’ in JD Rabinow (ed), Power. Essential Works of Foucault 1954–1984 (New York, The New Press, 1994) 202. 10  ibid 206–07. 8 

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i­mportant once examined in more depth. Commenting on government in the above sense, Foucault writes: Government did not refer only to political structures or to the management of states; rather, it designates the way in which the conduct of individuals or of groups might be directed. (…) It did not only cover the legitimately constituted forms of political or economic subjection but also modes of action, more or less considered or calculated, which were destined to act upon the possibilities of action of other people. To govern, in this sense, is to structure the possible field of action of others.11

Foucault’s ‘conduct’ serves to highlight precisely this aspect of government. The term, at least in its French version (conduire), expresses not merely one’s ability to ‘lead’ others through coercive means. Importantly, it also means ‘a way of behaving within a more or less open field of possibilities’.12 This is, for Foucault, the essence of power relations: one’s ability to guide conduct in such way as to put it in the service of a desired outcome. Power is action upon the action of others. The function of power, understood as such, does not require the exercise of coercion. In contrast, power requires freedom of those subjected to power because one’s ability to act necessitates that one is free.13 Similarly, power is not the product of consensus. Coercion and consensus are at best instruments of power rather than sources of it. Accordingly, one must look for the source of power in the conditions of consensus and the prerequisites for acquiescence.14 What facilitates the production of conditions of consensus is the processes of subjectivation. Foucault defines subjectivation as ‘the way in which the individual establishes his relation to rule and recognizes himself as obligated to put it into practice’.15 Subjectivation signifies the different ways in which humans generate knowledge about themselves.16 The process of subjectivation relates to what ­Foucault calls ‘technologies of the self ’ and their relationship to ‘technologies of domination’, a relationship originating in Foucault’s study of the experience of sexuality. The interaction between the two technologies is important for the understanding of the function of power: [One] has to take into account the points where the technologies of domination of individuals over one another have recourse to processes by which the individual acts upon himself. And conversely, he has to take into account the points where the techniques of the self are integrated into structures of coercion or domination. The contact point, where the individuals are driven by others is tied to the way they conduct themselves, is

11  12 

M Foucault, ‘The Subject and Power’ (1982) 8 Critical Inquiry 777, 790 [emphasis added]. ibid 776. See also the translator’s note footnoted on the same page.

13 ibid. 14 ibid.

15  M Foucault, The History of Sexuality: The Use of Pleasure: The Use of Pleasure. vol 2 (R Hurley tr, 2nd edn, London, Penguin, 1998) 27; on this concept, see also M Foucault, ‘The Battle for Chastity’ and ‘Technologies of the Self ’, both in P Rabinow (ed), Ethics: Subjectivity and Truth. Essential Works of Foucault 1954–1984 (New York, The New Press, 1994) esp 195, 238. 16  Foucault, ‘Technologies of the Self ’ (n 15) 224.

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what we can call, I think, government. Governing people (…) is not a way to force people to do what the governor wants; it is always a versatile equilibrium, with complementarity and conflicts between techniques which assure coercion and processes through which the self is constructed or modified by himself.17

Power should not be conflated with domination. Domination may convey the conventional or ordinary sense in which we understand power, yet power is not about domination or not solely about it.18 Power, Foucault suggests, is about strategic games which can potentially, though not necessarily, result in states of domination as they are mediated by ‘technologies of government’.19 Before explaining the precise meaning of technologies of government, let us recall the description of systems of rule as mechanisms of control based on persuasion rather than coercion. A Foucauldian reading of this description indicates that Rosenau’s global governance scheme is an archetypical system of exercise of power. And, importantly, given that power is rarely exercised through domination, there is nothing in Rosenau’s system that differentiates the exercise/function of power in the global governance landscape from the exercise/function of power in the context of the sovereign state. Power is, thus, a strategic game in whichever context it is exercised. Technologies or techniques of government are the mechanisms through which government, broadly understood, acquires a pragmatic form. When applied to the narrow sense of political government these practical mechanisms do not merely involve political rhetoric. They rather take the form of devices, calculations, professional vocabularies or documents that govern the conduct of the individual. These mechanisms normalise and instrumentalise conduct in such way as to guide it towards the achievement of particular objectives.20 Technologies of government also shape the discursive field within which (­political) power is both conceptualised and rationalised. Through these mechanisms a language is established which claims to depict reality or to grasp ­reality’s nature. That language claims ‘to represent [reality] in a form amenable to p ­ olitical deliberation, argument and scheming’.21 As a result, government, in the F ­ oucauldian sense, does not simply mean unplanned or impulsive action upon the action. Rather, the shaping of conduct is linked to rational reasoning, or, for our purposes, to a political rationality. 17  M Foucault and M Blasius, ‘About the Beginning of the Hermeneutics of the Self: Two Lectures at Dartmouth’ (1993) 21 Political Theory 198, 203–04 [emphasis added]. The terms ‘technique’ and ‘technology’ are often used by Foucault interchangeably. They are taken to mean ‘modes’ or ‘ways of ’. 18  R Fornet-Betancourt, H Becker and A Gomez-Müller, ‘The Ethic of Care for the Self as a Practice of Freedom: An Interview with Michel Foucault on January 20, 1984’ (JD Gauldier tr) (1987) 12 ­Philosophy and Social Criticism 112. 19  ibid 130. 20  P Miller and N Rose, ‘Governing Economic Life’ (1990) 19 Economy and Society 1; see also JX Inda, ‘Analytics of the Modern: An Introduction’ in JX Inda (ed), Anthropologies of Modernity: Foucault, Governmentality, and Life Politics (Malden, MA, Blackwell, 2005) 7ff. 21  Miller and Rose, ‘Governing Economic Life’ (n 20) 6; see also P Miller and N Rose, ‘Political Power beyond the State: Problematics of Government’ (1992) 43 British Journal of Sociology 173, 179.

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Rationality thus becomes the second constituent of governmentality. Foucault does not understand political rationalities as neutral knowledge. A rationality is part of the very notion of government which, through its technologies/­mechanisms, construes the discursive field wherein the exercise of power is conceptualised as rational and normal. What emerges is the essence of (political) governmentality as technologies of (political) government/technologies of power backed by a specific ­rationality. Governmentality suggests that power is not a negative force. It is not a force simply demarcating the field of what is allowed and what is forbidden. Power is, instead, a productive force. Productive power is a form of power which has been described as being able to ‘to produce—demarcate, circulate, differentiate—the bodies it ­controls’.22 In other words, productive power shapes the behaviour and constructs the identity of the social body. The latter is free but, nevertheless, constrained by this very identity; an identity shaped according to what technologies of power, including science and the law, have construed as ‘normal’.23 Here, becomes visible a nexus of power and knowledge. Expert knowledge accumulated through ‘­methods of observation, techniques of registration, procedures for investigation and research, apparatuses of control’ is reproduced and constructs individual identities through dictating what is normal.24

A.  Liberal and Neoliberal Governmentalities Foucault uses the notion of political governmentality in his effort to interpret the relationship between the modern individual and the power of the sovereign.25 ­Liberal governmentality suggests that power is diffused—it is capillary—and spreads through the social body by means of decentralised organs and instruments of the state which seek to modulate the life of the population in accordance with the values of the sovereign. In light of this, governmentality suggests that individual liberty may not be reflecting an actual or natural liberty, but rather a liberty that is a governmental product. ‘That is, [a liberty which is] the effect of 22  J Butler, Bodies That Matter: On the Discursive Limits of Sex (Abingdon, Routledge, 2011) 1; ­ utler’s quote also describes what Foucault has called ‘biopolitics of the population’ or biopower (the B two being used interchangeably) in the first volume of the History of Sexuality and especially in Society Must Be Defended. See respectively M Foucault, The History of Sexuality: The Will to Knowledge: The Will to Knowledge, vol 1 (R Hurley tr, London, Penguin, 1998) 139 and M Foucault, ‘Society Must Be Defended’: Lectures at the Collège de France, 1975–1976 (D Macey tr, New York, Picador, 2003) 242–43. 23  MM Dean, Governmentality: Power and Rule in Modern Society (London, Sage, 1999) 172. 24  M Foucault, ‘Truth and Power’ in C Gordon (ed), Power/Knowledge. Selected Interviews and other Writings 1972–1977 (New York, Pantheon Books, 1980) 102. Note that in this as well as in various other writings, Foucault contrasts juridical and productive technologies of power. While his observations on the matter are beyond the scope of the present discussion it is worth noting, with Judith Butler, that such distinction in not very straightforward as the 2 forms may actually reinforce, rather than preclude, each other. See Butler, Bodies that Matter (n 22) 244. 25  See, eg, M Foucault, ‘Security, Territory and Population’ in Rabinow, Ethics: Subjectivity and Truth. Essential Works of Foucault 1954–1984 (n 15) 69.

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a multiplicity of interventions concerned with the promotion of a specific “form of life”’.26 Once extended, this reading suggests that neoliberalism is not about ­nonintervention by the state on the market and society. When seen as a certain governmentality, neoliberalism is a form of government which conveys the ­ impression that it is not governing. As Foucault puts it, this is achieved as neoliberalism consumes the very freedom it creates: neoliberalism exists insofar as freedom exists. Freedom of the market, the free exercise of property rights, freedom of expression and so forth are freedoms produced and organised in the context of liberalism for the sake of liberalism’s survival. Production of freedom, however, contains an antithetical force. The very act of production ‘entails the establishment of limitations, controls, forms of coercion, and obligations relying on threats’.27 Thus, governmentality describes the ways in which the individual becomes part of the exercise of power by a sovereign authority. However, viewed broadly, governmentality analyses power as socio-biological management and ‘as a domain of strategic relations focusing on the behaviour of the other or others, and employing various procedures and techniques according to the case, the institutional frameworks, social groups, and historical periods in which they develop’.28 Understood as such, governmentality can be seen as a concept applicable in broader contexts than the sovereign state.29 To summarise, power for Foucault is connected to the concepts of knowledge and control or rather to the control of knowledge and through knowledge; to the control of meanings of normality; and, ultimately, to the control over the body and over the very constitution of life. Power is not merely about direct discipline through coercive means. It is rather principally about the discipline of the social body through indirect techniques of control. Non-disciplinary power is directed to people understood not as individual bodies but rather as a multiplicity, as a collective body affected by the processes of birth, death, production and so forth.30 Within this context, ‘man-as-species’ as opposed to the individual ‘man-as-body’ is a product of power trained and manipulated and, if necessary, punished.31 In this sense, power as understood in the context of governmentality is conceptually tied to what Foucault terms biopolitics: the endeavour, characteristic of

26 M Dean, The Constitution of Poverty: Toward a Genealogy of Liberal Governance (Abingdon, ­Routledge, 1991) 3. 27  M Foucault, Birth of Biopolitics: Lectures at the College de France 1978—79 (Basingstoke, ­Palgrave Macmillan, 2008) 63–64; see also N Rose, ‘Governing Advanced Liberal Democracies’ in Barry, Osborne and Rose, Foucault and Political Reason: Liberalism, Neo-Liberalism, and Rationalities of Government (n 8) 53. 28  M Foucault, ‘Subjectivity and Truth’ in Rabinow (n 15) 88. 29  See, eg, B Hindess, ‘Government and Discipline’ (2008) 2 International Political Sociology 268. For a critique of different applications of the term to the global level, see MGE Kelly, ‘International Biopolitics Foucault, Globalisation and Imperialism’ (2010) 57 Theoria 1. 30 Foucault, Society Must Be Defended (n 22) 242–43. 31 ibid.

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liberal governmentality, to rationalise the problems which occur when a group of human beings is organised as a population.32 Health, sanitation, death, race, all constitute problems regulated and rationalised through governmental strategies and tactics. In this context, manipulated knowledge creates discursive fields in which power is presented as rational and morally legitimate and through which a ‘common sense’ is produced. Foucault takes power to be accompanied by ideology but, at the same time, to represent both more and less than ideological manipulation.33 This is so, because the mechanisms that produce and spread knowledge, namely the mechanisms through which power is exercised, are more than just ideological constructs; they are material apparatuses of knowledge: ‘methods of observation, techniques of registration, procedures for investigation and research, apparatuses of control’.34 This understanding of power resembles the Gramscian concept of hegemony. Hegemony sees power as a relationship based on the construction of acquiescence and consent through which domination is maintained without the need for recourse to violence and force. Instead of coercion, maintenance of the status quo is based on the production and control of knowledge.35 Again, power appears to be both material and ideological. It employs material and ideological mechanisms and manipulates reality in order to make leadership seem consensual, even though it may be based on force.36 The Foucauldian approach to power opens up the way for a fundamentally different description of global governance. Not only does the concept of (neo-) ­liberal governmentality allow for a description of global governance as a biopolitical process; it also provides us with the conceptual means to shed a different light on the role of global civil society. With Foucault, rather than seeking to explain where power is located, the following section discusses how power becomes embodied in different global institutions through techniques of government that shape actors’ subjectivities. In other words, the focus will be on the actual apparatuses of power.37

B. Global Governmentality: Global Governance as a Hegemonic Biopolitical Process It was earlier argued that discourses produce and maintain ‘politics of truth’. If discourse is hard to separate from reality and if power does not express itself merely 32 

Foucault, ‘The Birth of Biopolitics’ in Rabinow (n 15) 74. Foucault (n 22) 102. 34 ibid. 35 R Cox, ‘Gramsci, Hegemony and International Relations’ in S Gill (ed), Gramsci, Historical ­Materialism and International Relations (Cambridge, Cambridge University Press, 1993) 42. 36  C Beyer, Violent Globalisms: Conflict in Response to Empire (Aldershot, Ashgate Publishing, 2008) 17. 37  Foucault makes the same point on the power to punish and the apparatuses of punishment in Society Must Be Defended (n 22) 28. 33 

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through ideas, but rather also through material apparatuses, it would be unfruitful to investigate whether global governance discourse is satisfactory in its representation of reality. It would, instead, be more useful to examine how global governance discourse constructs politics of truth by producing new ways of conceiving the world and our role within it. To understand global governance as global neoliberal governmentality means to reject an understanding of it as a product and/or facilitator of the retreat of the state or as an indicator of the retreat of politics that is evident in the consensual nature of the relevant processes. The concept of global neoliberal governmentality sheds a new light on global governance by allowing a positive reflection on it. It has been remarked that governmentality interprets the retreat of politics and of the state themselves as a political programme.38 According to this reading, there is no decrease in the power of the state to deal with global problems. What we are witnessing is instead the development of new neoliberal technologies of government, both formal and informal, which reform power relations. Such technologies develop discursive fields within which ‘global problems’ are identified and defined. In light of this, the appearance of new actors allegedly capable of dealing with global problems should be seen as an integral part of government ­techniques. The field of action of global governance actors is constructed and defined by technologies of government. These actors can, therefore, be examined from the point of view of the new modes of subjectivity constructed by global neoliberal governmentality.

IV.  A Positive Reflection on Global Governance: The Example of the Problematics of Global Poverty A positive reflection drawing on Foucault means, first, that one is to understand the discursive field of global governance as a discourse putting forward a certain problematic of global needs which it presents as a self-evident truth. It means, secondly, that within this biopolitical context of constructed needs, the productive power within the context of global governance constructs subjectivities. Thirdly, it follows that global governance is far more than just a discourse. It is a reality within which populations understand and make sense of their needs, role and place in the world. Global governance discourse creates a problematic of global needs. The discourse is largely based on the assumption that problems once tackled within the statist context have now escaped the state’s borders and have become global in nature. In turn, global governance rationality develops around these particular problematics: the environment, ‘health, wealth, security, poverty, esteem, culture 38 

Lemke, ‘Foucault, Governmentality, and Critique’ (n 7).

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or migration’ are among the basic global problems around which global governance discourse revolves and on the basis of which it defends the necessity of global governance processes.39 The question is not so much whether these problematics really exist but rather how they are defined and treated as matters of global governance. In what follows, the discussion focuses on the question of poverty to illustrate the tendency of global governance governmentality to assume that ‘­neoliberal rationality’ will resolve humanity’s problems.40 Foucault spoke of government techniques which encompass not just political rhetoric but also devices and calculations, professional vocabularies and documents. Such techniques, Foucault argued, shape discursive fields which produce and rationalise a certain version of reality. It is not difficult to grasp how technologies of government materialise at global level. One recent example of such devices, calculations and documents is discussed below with a view to looking into how a global technology of government can produce and rationalise a certain version of what constitutes (global) poverty. The United Nations Millennium Development Goals (MDG) project is a ‘pledge to uphold the principles of human dignity, equality and equity, and free the world from extreme poverty’.41 The project’s 2014 report presents data regarding the ­latest progress made with respect to the reduction of global poverty. It ‘is based on a master set of data’ assessing progress towards the goals of MDG through a series of statistical indicators.42 The project focuses on developing countries. Global poverty is measured by reference to the developing or least developed world, with developed countries being mentioned mainly, if not exclusively, as comparators against which the progress of developing countries is measured.43 This discourse seems to suggest that global poverty is a problem relevant to certain countries, in particular to the developing world. No alternative understanding is presented. The assumption that global poverty is a country-specific contingency has reached the status of an incontestable self-evident truth. The term global poverty enters the political vocabulary of the twenty-first century and there is no apparent reason to treat it with suspicion. However, the link between poverty and underdeveloped countries suggests, first, that poverty is not a problem present in each and every society but, instead, that it is specific to those countries or regions that are not developed. When whole countries are presented as poor then poverty emerges as a problem not of specific social groups in each and every corner of the 39 M Dillon and J Reid, ‘Global Liberal Governance: Biopolitics, Security and War’ (2001) 30 ­Millennium: Journal of International Studies 41, 48. 40 ‘Neoliberal rationality’ here means neoliberal rationality of government, ie neoliberal governmentality (see this chapter, section III.1). On a relevant discussion around issues of security, see, eg, D Roberts, Global Governance and Biopolitics: Regulating Human Security (London, Zed Books, 2009). For a study on self-esteem and governmentality, see B Cruikshank, The Will to Empower: Democratic Citizens and other Subjects (Ithaca, NY, Cornell University Press, 1999). 41 United Nations ‘Millennium Development Goals Report’ (New York, 2014) 3 . 42  ibid 1 (opposite coverpage). 43  ibid, esp 8, 25, 29.

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world but rather as a problem solely relevant to the South. This reading suggests, secondly, that what immediately emerges as the obvious solution to global poverty is development. Thirdly, and relevant to Foucault’s knowledge/power nexus and ‘men-as-species’ analysis, the creation of a category of ‘the poor’, which moreover is calculable, suggests that policy responses seeking to eliminate poverty are all but a matter for experts applying objective, neutral and rationale ‘instruments for promoting efficiency and effectiveness’ in the reduction of ­poverty.44 Massed under the category of ‘poor’, entire populations are treated as uniform, unvaried collections of individuals. On the flip side, the developed world, regarding itself as ‘prosperous’ will act according to the standards of normality of a rich population: it will engage in charitable assistance camouflaging the ubiquity and class-specific nature of poverty, however generous such assistance may be. Within this context, the role of the ‘poor’ is limited to the anticipation of development aid.45 This entails both a confirmation and a reproduction of a dominant narrative about what is to be considered as normal and expected. In turn, it indicates how populations seemingly divested of any power, in fact become power’s bearers and reproducers. Here, Foucault’s technologies of government and their link to technologies of the self prove to be more than just philosophical artefacts. They provide a valuable tool that exposes how constructed subjectivities become enmeshed in the exercise of power. The articulation of a problem in a particular way tends to also determine, if not to dictate, the possible field of solutions. The framing of a problem as a technical matter caused by technical mismanagement cannot but trigger a technical and, thus, seemingly politically neutral response: development and transfer of technology. As development and technology are technical matters pursued by experts, knowledge comes to acquire a specific meaning: [The] knowledge of some groups of development actors [becomes] fundamentally more valid than the knowledge of others. As a result, the ‘subjects’ of development [are] ­frequently rendered invisible and mute in the pursuit of technically adequate solutions.46

44  See C Shore and S Wright, ‘Introduction-Policy: A New Field of Anthropology’ in C Shore and S Wright (eds), Anthropology of Policy: Critical Perspectives on Governance and Power (Abingdon, ­Routledge, 1997) 7; see also F Manji, ‘Social Policy and Rights in Africa From Social Contract to Loss of Self-Determination’ (2000) 31 IDS Bulletin 11; K Brock, A Cornwall, J Gaventa, ‘Power, Knowledge and Political Spaces in the Framing of Poverty Policy’ (2001) IDS Working Paper 143 . 45  Here is an indicative quote from the 2014 report (n 41) 48:

Developed countries’ net official development assistance (ODA) to developing countries in 2013 rose by 6.1 per cent in real terms compared to 2012, after two years of falling volumes. Net ODA from the members of the group of countries belonging to the Development ­Assistance Committee (DAC) of the Organisation for Economic Co-operation and Development reached $134.8 billion, the highest level ever recorded. This represented 0.3 per cent of developed countries’ combined gross national income. Bilateral aid (excluding debt-relief grants and humanitarian aid) rose by 2.3 per cent in real terms and core contributions to multilateral organizations increased by 6.9 per cent. 46  Brock, Cornwall, Gaventa, ‘Power, Knowledge and Political Spaces in the Framing of Poverty Policy’ (n 44) 10–11.

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The consequences of neoliberal rationality in the South are more or less known. Multilateral lending agencies have been granted the legitimate entitlement to intervene directly in decision-making processes of borrower countries and lending has been made conditional on the requirements established by the donors. These requirements determine the extent of state involvement in the social ­sector.47 If the conditions are not met, development assistance is withdrawn. This rationality has been extending to other parts of the world. One does not have to go as far as the developing world to see the international financial institutions engaging in relevant practices. The IMF has been pursuing its conditionality policies in the European South with comparable intensity. In the above scheme, the essence of biopolitics emerges in its most fundamental form: populations are disciplined, and if need be, punished. The neoliberal governmentality puts forward its own seemingly neutral values. Technologies of ­government operate at every imaginable level, from the local to the global to produce a specific version of knowledge. In turn, knowledge reproduces power. Importantly, knowledge also produces subjectivities. It influences and shapes the ways in which the subject historically constitutes itself. Subjectivities shaped in accordance with a knowledge/power nexus also work for the production and reproduction of power. The great industrial and financial powers (…) produce not only commodities but also subjectivities. They produce agentic subjectivities within the biopolitical context: they produce needs, social relations, bodies, and minds—which is to say, they produce producers. In the biopolitical sphere, life is made to work for production and production is made to work for life.48

Today, this is what constitutes the sum and substance of normality. It is what ­Foucault would have called the essence of global neoliberal governmentality and what Gramsci would see as a manifestation of global hegemony.

V.  The Possibility for Resistance at the Global Level The Foucauldian reading of power and its display at the global level may convey a pessimistic view of the world. If we are both the products and bearers of power, that is if we are integrated into the very function of power, it appears as though our sense of what constitutes normality cannot be reshaped. This reading of power could possibly suggest that the potential for active political participation and ultimately for political resistance is a priori foreclosed or that the only p ­ ossible

47  ibid; Manji, ‘Social Policy and Rights in Africa From Social Contract to Loss of S ­ elf-Determination’ (n 44) 14. 48  Hardt and Negri, Empire (n 1) 32.

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r­ esistance is that of self against self.49 However, Foucault nowhere proposes that power is unchallengeable. Conversely, he argues that wherever there is power, there is resistance or at least the possibility of resistance.50 It is precisely owing to this possibility that power exists. For Foucault, resistance and power are co-extensive. The two are not in a relationship of externality to each other. ­However, their internal connection does not suggest a situation of ‘entrapment’ of the self within power.51 Instead, it proposes that, although one can never be free from all power relations, one certainly has the ability to change them. Here becomes visible a very delicate conceptual balance between the notions of entrapment within power and freedom from it. But, once power is seen as a relationship based on freedom, it becomes clear that there can be no such dilemma. Individuals are bearers of power because they are free and not because they are trapped. It is within the context of power’s relationship to freedom that one is to make sense of what Foucault really suggests when he argues that ‘there is no other principal and useful point of resistance to political power than in the relationship of self to self ’.52 The point is not that the only valuable resistance is that of the individual against itself. Rather, if the relationship of self to self is seen within the context of governmentality, useful resistance is directed against the ‘totality of practices’ that both build this relationship and result from it.53 The above observations describe resistance as a situation surfacing from the dynamic of freedom and of the relationship of self to self. What is yet to be examined is the question of how resistance is expressed. Without rejecting the potential importance of simple negation under certain circumstances, Foucault understands resistance primarily as an active and creative process.54 This active and creative exercise entails, among other things, a process of challenging dominant discourses. In other words, it is a process of creation of an alternative discursive field. This leads to the question of resistance at global level. If meaningful citizenship is ultimately tied to the ability to resist, challenge and potentially change the status quo and if constitutionalism is incomplete in the absence of such a robust version of citizenship, what are the prospects for global constitutionalism? The body generally linked to forms of resistance at global level is global civil society. The next chapter will turn to the practices and forms of struggle of global civil society with a view to working out an answer to the question of global constitutionalism.

49 

See Fornet-Betancourt et al, ‘The Ethic of Care for the Self as a Practice of Freedom (n 18). A Fontana and M Bertani, ‘Situating the Lectures’ in Foucault, Society Must be Defended (n 22) 280. 51  M Foucault, ‘Sex, Power, and the Politics of Identity’ in Rabinow (n 15) 167. 52  Fornet-Betancourt et al (n 18) 130. 53  ibid 130–31. 54  Foucault (n 51) 167. 50 

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7 The Unviability of Global Citizenship: Looking into the Deeds of Global Civil Society I.  Global Civil Society: Back to the Dialectics of Citizenship In 1989, Fukuyama predicted the ‘End of History’.1 He spoke of the world’s ­liberal moment, the point in history where the common marketisation of world p ­ olitics would culminate in the end of politics and in the liberal world’s preoccupation with economics. Fukuyama’s prediction about the end of politics, made at the peak of the world’s liberal moment, can provide a useful starting point for a ­positive description of the political process of global governance as well as of global civil society. Global civil society is often seen as a movement dedicated to the promotion of global structural change based on values such as peace, well-being, democratisation and so forth; as a ‘democratizing project that extends beyond the borders of states and derives its political identity from its primary association with the human predicament at this historical juncture’.2 Sometimes, global civil society is seen as a form of global citizenship in the making that can potentially impose bottom-down political values of solidarity, peace and democracy.3 Desirable as it may be, the depiction of global civil society as a grassroots political project that can bring about structural change is contestable. Critics argue that global civil society engages in an a-political type of activity that points to the marketisation of world politics. This argument is grounded, amongst other things, on global civil society’s choice of methods of resistance that seek to trigger change in the global market by using the market’s own ­mechanisms.4

1 

F Fukuyama, The End of History and the Last Man (London, Penguin, 2012). RA Falk, ‘The Pathways of Global Constitutionalism’ in RA Falk, RC Johansen and SS Kim (eds), The Constitutional Foundations of World Peace: Logic and Tinkering (Albany NY, SUNY Press, 1993) 13, 14. 3  DL Sheth, ‘Politics of Social Transformation: Grassroots Movements in India’ in Falk, Johansen and Kim, The Constitutional Foundations of World Peace (n 2) 286. 4  See R Lipschutz and JK Rowe, Globalization, Governmentality and Global Politics: Regulation for the Rest of Us? (Abingdon, Routledge, 2005). 2 

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This is the case where, for example, global civil society actors make use of boycotts to demand change in working conditions within multinational companies. This reflects, so the argument goes, an a-political type of action, not merely because the change it precipitates is restricted to the particular market sector or company, unlike a change in state legislation which would be more permanent and more inclusive, but rather also because it relies on private regulatory efforts based on consumer behaviour, instead of resulting from public political processes.5 The employment of market mechanisms may or may not be effective as a trigger of political change. This is beyond the scope of the discussion. What is more important for the purposes of this chapter is to reflect on the characterisation of global marketisation of politics as a-political. Such characterisation would resonate with Fukuyama’s prediction about the end of history and of politics. ­However, the marketisation of politics, much like Fukuyama’s predictions, can be seen as political agendas themselves. Returning to Foucault, such agendas propose a form of life which, by insinuating itself into subjects, transforms them into its bearers and reproducers. This further means that the distinction between state on the one hand and (civil) society on the other should not be seen as a withdrawal of government from the allegedly untouchable core of society, but rather as the result of a particular rationality of liberal government.6 Thus, liberal government, far from representing a retreat of political government from certain fields, including civil society, can be conceived as a series of technologies through which civil society is brought into play, not as a body immune from political intervention, but rather as a controllable promoter of liberal government’s political plan.7 To return to a point previously made, this conceptualisation of civil society simply repeats the idea that technologies of government can only be operative if those on whom they are exercised are free: free to act, free to express themselves and so forth. It is within this conceptual framework that global civil society will be discussed. In global governance discourse, global civil society comes near to a global version of citizenship. ‘What is new’ about global governance, the Commission of Global Governance (CGG) informs us, ‘is the role of people and the shift of focus from states to people. An aspect of this change is the growth of international civil society’.8 The CGG is very quick to confirm a paradigm shift from the state to the international civil society. However, the CGG fails to identify the actors that make up civil society. It is rather unclear, for example, whether market forces are included in the CGG’s definition of civil society or whether the latter is limited to non-profit

5 

ibid 15, 66. Berenskoetter, ‘Thinking About Power’ in F Berenskoetter and MJ Williams (eds), Power in World Politics (Abingdon, Routledge, 2007) 9. 7  M Foucault, ‘An Ethics of Pleasure’ in S Lotringer (ed), Foucault Live (New York, Semiotext(e), 1989) 261. 8  Commission on Global Governance (CGG), Our Global Neighborhood (Oxford, Oxford University Press, 1995) xiv [emphasis added]. 6  F

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actors.9 It appears, however, that civil society is understood as a body of private actors varying from NGOs, advocacy networks and philanthropists to networks of trade unions and social movements.10 Businesses and industry often remain out of the scope of definitions of civil society even though strategies like corporate social responsibility are typically associated with civil society practices.11 ­Leaving aside definitional issues, global governance discourse usually associates, and sometimes even equates, global civil society with NGOs.12 Like global civil society, NGOs appear to operate in the margin between the public and the private. They are described as private actors ‘acting for public purposes’.13 However, the exact content of said purposes remains unclear. Global civil society seems to refer to a sphere of human relations separate from the state, albeit neither exactly public nor exactly private.14 Rather than trying to define civil society in terms of actors, it would perhaps be more accurate to see it in more abstract terms as a series of global interactions and more specifically as ‘a network of distinctly economic relations, the sphere of the market-place, the arena of production, distribution, and exchange’.15

9 ibid, Ch 4: ‘there is what might loosely be called international civil society including n ­ ongovernmental organizations (NGOs), international humanitarian agencies such as the Red Cross and Red Crescent, voluntary rule-making bodies such as the International Standards Organisation, and groups of scientific professionals such as the International Council of Scientific Unions’. We are told what civil society ‘includes’ but not what it excludes. 10  See, eg, J Tallberg and C Jönsson, ‘Transnational Actor Participation on International Institutions: Where, Why, and with What Consequences?’ in C Jönsson and J Tallberg (eds), Transnational Actors in Global Governance: Patterns, Explanations and Implications (Basingstoke, Palgrave M ­ acMillan, 2010) 4; see also the description by the United Nations Environmental Programme (UNEP) which operates a ‘Civil Society Forum’ currently renamed as ‘Global Major Groups and Stakeholders Forum’, including business and industry, to ‘provide a platform for exchange and consultation’. See, eg, the description of the Forum’s eleventh global meeting. . 11  As Lipschutz explains we need to distinguish between an (early) Marxist and Smithian conceptualisation of civil society on the one hand and a Gramscian/Hegelian conceptualisation on the other. Whereas the former conceptualisations include the market in civil society, albeit each on different grounds, the latter see civil society as associated with the public sphere thus excluding market-based actors. See Lipschutz and Rowe, Globalization, Governmentality and Global Politics (n 4) 48–50. 12  See, eg, AM Clark, EJ Friedman and K Hochstetler, ‘The Sovereign Limits of Global Civil Society: A Comparison of NGO Participation in UN World Conferences on the Environment, Human Rights, and Women’ (1998) 51 World Politics 1; PJ Taylor, ‘The New Geography of Global Civil Society: NGOs in the World City Network’ (2004) 1 Globalizations 265; R Krut, ‘Globalization and Civil Society: NGO Influence in International Decision-Making’ (1997) . 13  J Tallberg J ‘Transnational Access to International Institutions: Three Approaches’ in Tallberg and Jönsson, Transnational Actors in Global Governance (n 10) 31. 14 EM Wood, ‘The Uses and Abuses of “Civil Society”’ (1990) 26 Socialist Register 60, 61; For ­further remarks on the relation of civil society and the autonomous economy, see R Axtmann, Liberal Democracy into the Twenty-First Century: Globalization, Integration and the Nation-State (Manchester, ­Manchester University Press, 1996) 66. 15  ibid; let us note that this description may not be relevant to England where from the early days civil society and the state have been conflated rather than distinguished. As one author remarks, this conflation can be explained by reference to the subordination of the English state to the community of property holders; see L Patriquin, The Ellen Meiksins Wood Reader (Leiden, Brill, 2012) 212.

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This description is in congruence with a Foucauldian understanding of neoliberal rationality. The latter signifies a withdrawal from government as much as it signifies the active construction of the conditions, be they legal, institutional or cultural, that enable the rise and development of the individual’s entrepreneurial conduct. Here, personal autonomy is not antithetical to political power but rather a prerequisite for its exercise. In this light, global civil society can be seen as a facilitator of power. It can be seen as a body which is free and autonomous and, yet, at the same time, indirectly administered, programmed and shaped towards desired directions through the technologies of global governance.16 Civil society has assumed many forms in the course of transition from early liberalism to liberalism. In neoliberal rationality, the conduct of civil society is distinctly imbued by a culture of ‘enterprise’.17 That is to say, a culture that emphasises, if it does not aggrandise, the notions of both economic and political efficiency and effectiveness. Here, the relationship of self to self and to the government is, to borrow the words of Jacques Donzelot, characterised by a process of exchange or of ‘contractual implication’.18 The term is associated with the notions of ‘selfregulation’ or self-responsibilisation. In essence, it describes a practice of governmentality or a practice of shaping ‘the other’s’ possible field of action: the offer to individuals of a seat at the table on issues formerly belonging to the domain of government in exchange for a desirable/approvable shaping of their conduct in line with neoliberal rationality.19 Entrepreneurial conduct, the enterprise culture and contractual implication are more than theoretical constructs regarding the conduct of the autonomous and private domain of civil society. They are the epitome of the action of global civil society. This could be confirmed by focusing, as many authors have, on the market-based strategies of NGOs in their effort to promote their idea of the common good.20 However, the following section will discuss two different practices of global civil society. Public private partnerships and focus on due process rights will be reviewed in light of the theory of governmentality.

A.  PPPs as a Technology of Government It is not the purpose of the present section to provide an extensive description of how global civil society becomes engaged in global policy-making through

16  N Rose and P Miller, ‘Political Power beyond the State: Problematics of Government’ (1992) 43 The British Journal of Sociology 173. 17  G Burchell, ‘Liberal Government and Techniques of the Self ’ in A Barry, T Osborne and N Rose (eds), Foucault and Political Reason: Liberalism, Neo-Liberalism, and Rationalities of Government, 2nd edn (Chicago, University of Chicago Press, 1996) 28–29. 18  J Donzelot (ed), Face A L’Exclusion (Paris, Esprit, 1991) as cited in Burchell, ‘Liberal Government and Techniques of the Self ’ (n 17) 29. 19 ibid. 20  See, eg, Lipschutz and Rowe (n 4).

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public-private partnerships (PPPs). The aim is instead to demonstrate how PPPs work as a technology of government, namely as a technique that builds subjectivities in the direction of neoliberal rationality. Briefly, PPPs are a widespread method of cooperation between global civil society actors, international organisations and states in fields ranging from agenda-setting21 to implementation and ­monitoring.22 The partnerships take different forms, including from advocacy PPPs to PPPs on resource mobilisation and provision of technical expertise.23 In its report, the Commission of Global Governance refers to these processes as ­market-based mechanisms which, together with the cooperation of civil society organisations, may at times be of increased significance to the governance ­project.24 In the Commission’s view, effective global decision-making necessitates these partnerships because they ‘enable global actors to pool information, knowledge, and capacities and to develop joint policies and practices on issues of ­common concern’.25 The practice clearly embodies the cooperative, non-adversarial, ­non-hierarchical mechanisms of governance described as the crux of the global governance project. The state is here of decreased importance as its role is at best limited to a position equal to that of other private and public players and at worst non-existent. PPPs represent the elimination of command and control mechanisms in favour of a scheme of reportedly increased participation and openness. The earlier discussion of the global governance discourse called attention to Rosenau’s description of relevant processes as systems of controllers and controlees. Rosenau’s reference to systems of control describes precisely this: the absence of command which manifests the ability of society to regulate, take responsibility of and assume control over itself.

21  The UN, eg, has developed accreditation procedures with ‘NGOs (…) consulted on UN policy and programme matters. The UN organizes and hosts, on a regular basis, briefings, meetings and conferences for NGO representatives who are accredited to UN offices, programmes and agencies’. See www.un.org/en/civilsociety/index.shtml. 22  Both methods are about collaboration between international organisations and private actors who undertake to provide services in different fields. Collaboration is typically formalised through contracts. In both cases international organisations draw on the private actors’ technical expertise and/ or financial supplies to receive assistance in fields where they themselves lack the relevant resources. It is thus in specific policy domains, notably the human rights and sustainable development areas, where these methods are put into force. In the case of human rights, for the most part, local NGOs are employed to monitor and report state human rights violations in view of many governments’ reluctance to report violations themselves but also in light of international organisations’ incapacity to engage with the particularities of each separate member state. In the sustainable development area on the other hand international organisations are in need of both technical environmental expertise provided by specialised NGOs and financial assets provided by the market sector. See J Steffek, ‘Explaining Patterns of Transnational Participation: The Role of Policy Fields’ in Tallberg and Jönsson (n 10) 73. 23  M Bexell and U Mörth, ‘Introduction: Partnerships, Democracy and Governance’ in M Bexell and U Mörth (eds), Democracy and Public-Private Partnerships in Global Governance (Basingstoke, Palgrave Macmillan, 2010) 6. 24  ibid 15. 25 ibid.

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Within the context of global civil society action, commands are replaced by the processes of NGO monitoring and reporting of, eg, human rights violations and of NGO provision of technical expertise or financial supplies to states and international organisations. Interestingly, in this scheme the function of control operates in a reverse manner. It is not the state, with its hierarchical mechanisms, which controls society but, instead, it is society which assumes control over the state, through, eg, providing financial assistance to the state or monitoring and reporting its wrongdoings. According to this narrative, authoritative and hierarchical regulation by the state is contested, while new forms of global politics emerge ‘involving governments, intergovernmental organizations (IGOs) and a wide variety of transnational pressure groups and international non-governmental organizations (INGOs)’.26 The use of the notions of control and authority in the discourse is interesting. It suggests an understanding of power radically different from power as a pervasive relation and force. The UN’s preferred definition of PPPs is enlightening in this respect. The UN sees PPPs as voluntary and collaborative relationships between various parties, both State and nonState, in which all participants agree to work together to achieve a common purpose or undertake a specific task and to share risks, responsibilities, resources, competencies and benefits.27

The UN draws attention to the fact that PPPs call present hierarchical structures into question by operating horizontally and challenging established institutional arrangements. PPPs represent, the UN continues, the reconciliation between operational flexibility and established hierarchies, thus giving rise to invaluable opportunities for institutional renewal and change.28 Elsewhere, the UN refers to the principles of ‘consultation, collaboration, mutual accommodation, shared decision-making and orientation toward the market among public and private actors’ as the fundamentals of private actor/civil society engagement in global politics through PPPs.29 The description presents global civil society as an alternative to established power hierarchies. This is achieved owing to global civil society’s engagement in horizontal cooperation through PPPs which offer opportunities for increased

26  D Held and A McGrew (eds), The Global Transformations Reader: An Introduction to the Globalization Debate, 2nd edn (Cambridge, Polity Press, 2003) 11–12. 27  UN Doc A/58/227 of 18 August 2003, ‘Towards Global Partnerships—Enhanced Cooperation Between the United Nations and all Relevant Partners, in Particular the Private Sector’ Report of the Secretary-General 4. 28  ibid 16. 29  A CONF. 199/20 A/CONF.199/20/ ‘Report of the World Summit on Sustainable Development Johannesburg, South Africa 26 August–4 September 2002; see also P Glasbergen, ‘Setting the Scene: The Partnership Paradigm in the Making’ in P Glasbergen, F Bierman and APJ Mol (eds), Partnerships, Governance and Sustainable Development: Reflections on Theory and Practice (Cheltenham, Edward Elgar Publishing, 2007) 4.

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­ articipation of non-state actors in policy-making. Focus on horizontality sugp gests a narrow understanding of power as domination overlooking power’s productive and capillary nature. Similarly, focus on the absence of hierarchies fails to notice the construction of subjectivities through technologies of government and ignores how PPPs may work as a technique of contractual implication. That is, as a technique which offers NGOs a role in the game of global governance to eliminate the possibility for what might otherwise be regarded as potentially dangerous political involvement. The concept and practice of PPPs involves the absence of adversarial elements. Indeed, PPPs are based on the principles of voluntarism, dialogue, cooperation and consensus, non-hierarchical relations, generation of mutual trust, reliance on the market for the provision of public goods, and ultimately on the idea of winwin situations manifested by the belief that collaboration can serve both public and private interests in equal terms.30 The underlying assumption is that through the suppression of political conflict all participants, namely the public sector, the market and civil society, will find doing business for the public interest profitable for themselves. While businesses search for maximisation or protection of their profits, non-profit actors may seek funding, increase of their influence or achievement of their social purposes. The UN confirms that it is the convergence of interests that defines the common basis for cooperative endeavour. For-profit enterprises are usually not in the business of philanthropy. They need a clear case as to why partnerships in support of United Nations goals make good business sense.31

Notwithstanding potentially legitimate objectives, this type of self-regulation has a noticeable effect. That is not so much that self-regulation divests the public sector of its responsibility to promote the well-being of the general public but, perhaps more importantly, that the discourse surrounding PPPs presents a nonadversarial, watered-down version of interaction as democratisation of the world order.32 Such version of democracy disregards the ubiquitous existence of conflicting interests and portrays market-based instruments as capable of simultaneously correcting the failures of both the state and the market.33 Within this context, one comes face to face with the dominance of neoliberal governmentality. Here power is embodied, not just in the structures that global civil society seeks to change, but rather also in global civil society actors themselves.34 PPPs emerge as a manifestation of the absorption of global civil society in the very system that it strives to challenge. It also exemplifies how a governmental

30 

Bexell and Mörth, ‘Introduction: Partnerships, Democracy and Governance’ (n 23) 8. UN Doc A/58/227 (n 27) 15. 32  Glasbergen, ‘Setting the Scene’ (n 29) 4. 33  See B Jessop, ‘The Rise of Governance and the Risks of Failure: The Case of Economic Development’ (1998) 50 International Social Science Journal 29. 34  R Lipschutz R ‘On the Transformational Potential of Global Civil Society’ in Berenskoetter and Williams, Power in World Politics (n 6) 235. 31 

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rationality may structure possible fields of action. The reliance on market-based instruments in order to change existing structures manifests the trust of global civil society in the naturally efficient and effective market and technical expertise. Instead of the creation of an alternative discursive field, global civil society confirms the mainstream discourse. Its actors can only bring about marginal changes, or according to the UN, ‘institutional renewal and change’, leaving power structures intact. In the case of PPPs, global civil society actors do their duty as citizens of the world by participating in policy-making through the provision of expertise and resources within a general framework of cooperative, non-conflictual and entrepreneurial relationships. As a result, not only does neoliberal ­governmentality remain unchallenged. It is also effectively reproduced.

B.  Due Process Rights as a Technology of Government The reproduction of neoliberal governmentality can be further seen in the demand of global civil society for increased openness, transparency and participation in the processes of international organisations. The argument has been already made in the context of European citizenship. This section repeats points made in previous chapters and tailors the discussion to the activities and nature of global civil society. In what follows, the focus will be on advocacy NGOs. Advocacy NGOs are bodies interested in gaining formal accreditation to processes of international organisations, negotiation procedures or informal arrangements in international conferences. The mission of advocacy NGOs has met with some success. Some of the most reluctant and inaccessible international organisations have long institutionalised consultation procedures in response to the demands of civil society actors. The NGO-World Bank committee is an autonomous working group through which NGOs have been engaging in dialogue with the World Bank since the 1980s, while the WTO has granted informal consultative status to interested NGOs since 1996.35 The UN has institutionalised the most robust accreditation procedures, organising and hosting on a regular basis special consultation meetings with NGO representatives.36 Comparable arrangements have occurred as a response to global civil society’s transparency and informationsharing demands as well as to its calls for accountability. Accordingly, the International Financial Institutions and even NATO have established public information accessibility practices, involving access to policy documents or budgetary issues. The efforts of global civil society have certainly been successful. Today, the IMF communicates its Civil Society Newsletter to subscribed recipients and the World Bank maintains public information centres across the planet.37 35  General Council Guidelines for Arrangements on Relations with Non-Governmental Organisations, WT/L/162, 23 July 1996. 36  On these meetings see the UN’s website www.un.org/en/civilsociety/index.shtml. 37  JA Scholte, ‘Civil Society and Democratically Accountable Global Governance’ (2004) 39 Government and Opposition 211.

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In its quest for a legitimate global regulatory space, global civil society has evidently achieved a lot in terms of procedural openness. But do the relevant actions justify a comparison, even equiparation, of global civil society with the global ­representatives of the people or with a global version of citizenship? It seems that the response should be negative. Focus on process instead of substance turns global civil society into an apologist of the very regime it is seeking to change. Central within this context is the function of due process rights. As demands are limited to the propriety of process, the remedy sought against global regulation is restricted within the confines of the existing power and distribution fabric. These legal claims can be seen as a result of the construction of subjectivities within a global biopolitical regime. Due process rights emerge as institutions of normalisation. The outcome dictated through such claims is an abated version of resistance which locks demands in a set up system of legal-individual remedies and transforms what would otherwise be a deeply conflictual relation into a consensual way of resisting; a way of resisting which counteracts resistance itself.38 In other words, the ruled become preoccupied with the distribution of due process rights but not with shifting the overall balance of powers. Accordingly, they concur with the role of normality ascribed to them through techniques of government. What we are left with is the transformation of resistance into a managerial consensual enterprise if not into a process of de-politicisation of resistance.39 Like in the EU context, due process rights, and especially participation, are often considered to have an intrinsic value in global governance discourse. Yet, there is no further investigation as to what participation may entail in terms of the participant’s ability to influence the political process.40 In other words, the substantive basis on which the weighing of global interests takes place is not debatable. What matters, instead, is who is granted the entitlement to participate in the processes of an almost entirely predetermined weighing.41 The preoccupation of mainstream global governance discourse with process and non-state actor involvement concurs with the discourse’s silence on questions of power, resistance and politics at the global level. The way in which participation materialises is of no less significance in this regard. The emphasis of the mainstream discourse on consensual processes and the non-adversarial conduct of politics, which also permeates the discussion of the Commission on Global Governance, provides an accurate description of the workings of global civil s­ ociety.

38  C Douzinas, Human Rights and Empire: The Political Philosophy of Cosmopolitanism (Abingdon, Routledge-Cavendish, 2007) 107–08. 39  ibid 102–03; see also D Chandler, ‘Deconstructing Sovereignty-Constructing Global Civil Society’ in C Bickerton, P Cunliffe and A Gourevitch, Politics Without Sovereignty: A Critique of Contemporary International Relations (Abingdon, Routledge, 2006) 151ff. 40  L Tribe, American Constitutional Law, 2nd edn (New York, Foundation Press, 1988) 666, cited in C Harlow, ‘Global Administrative Law: The Quest for Principles and Values’ (2006) 17 European Journal International Law 187. 41  M Koskenniemi, ‘The Effects of Rights on Political Culture’ in P Alston, MR Bustelo and J Heenan, The EU and Human Rights (Oxford, Oxford University Press, 1999).

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Global civil society engages in cooperation and dialogue framed within the boundaries of a set of taken-for-granted neoliberal interests.42 A managerial-style cooperation is effectuated which is unable to redefine the ‘politics of the globe’, limited as it is to a mere reform of their management.43 Resistance is, thus, restricted to reform of procedures within the designated territory of the global market and with global civil society acting as a ‘rationally driven pursuer’ of common interests.44 As remarked earlier, the content of these common interests is not the outcome of political struggle and confrontation. Instead, it is shaped through the spread within the social body of certain technologies constructing particular versions of problematics that build the subjectivities of global civil society and that bind it to the existing structure of global powers so as to reproduce them.45 Central to the activities of global civil society are the notions of entrepreneurialism and contractual relations which construe civil society actors as individual ‘civil partners’ of government rather than as collective political subjects. As one author puts it [government] increasingly impinges upon individuals in their very individuality, in their practical relationships to themselves in the conduct of their lives; it concerns them at the very heart of themselves by making its rationality the condition of their active freedom.46

Global civil society seems to be entirely absorbed within, and reproductive of, the very system it seeks and claims to contest.47 As a result, neoliberal governmentality remains unchallenged, not just in the context of the mainstream discourse, but crucially also in reality. If the dialectics of citizenship discussed in previous chapters necessitates that ‘a part is earned’ by those who ‘have no part’, it becomes very difficult to see how global civil society can ever live up to such a demand. It is difficult to see how the structure of global powers can ever be met with resistance, if the only available ‘­citizens’ we have at global level are civil society actors. It is difficult to see how, in the final analysis, a notion of agonistic democracy, so vital for the present understanding of constitutionalism, can materialise at global level, given the discursive field which neutralises neoliberal practices and builds subjectivities through

42 

Lipschutz and Rowe (n 4) 47. D Kennedy, ‘Challenging Expert Rule: The Politics of Global Governance’ (2005) 27 Sydney Law Review 5, 66. 44 Douzinas, Human Rights and Empire (n 38) 104. 45 A Gramsci, Selection from the Prison Notebooks (New York, International Publishers, 1971) 181–82, as cited in H Overbeek, ‘Global Governance, Class, Hegemony: A Historical Materialism Perspective’ in AD Ba and MJ Hoffmann (eds), Contending Perspectives on Global Governance: Coherence, Contestation and World Order (Abingdon, Routledge, 2005) 42. 46  G Burchell, ‘Liberal Government and Techniques of the Self ’ in A Barry, T Osborne and N Rose (eds), Foucault and Political Reason: Liberalism, Neo-Liberalism, and Rationalities of Government, 2nd edn (Chicago, University of Chicago Press, 1996) 28–29. 47  Lipschutz and Rowe (n 4) 14. 43 

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conveying the impression that global civil society is a sufficient other-extreme to global ­neoliberal hegemony.

II.  The Prospects of Global Citizenship The Foucauldian co-existence of power and resistance triggers the question why attempts at global resistance have failed to produce results. The reading of global civil society in the light of the Foucauldian understanding of subjectivities and assimilation into a global biopolitical regime only provides a partial answer to this question. The discussion of global citizenship must therefore look beyond the question of discourses and subjectivities into the material conditions of resistance. At a very basic level, resistance requires that outward expression of conflict and, in fact, the idea of contestation in global governance has come to prominence in a large number of non-mainstream accounts that have taken issue with global patterns of conflict and contestatory politics.

A. Global Contestatory Politics: Global Social Movements and the Prospects of Global Social Conflict The anti-globalisation movement of the 1990s and early 2000s has been characterised as the world society that achieved to trigger the restructuring of a number of international institutions.48 Perhaps the anti-globalisation movement of that era was the closest that the world has witnessed to a global type of citizenship. This is so, because the anti-globalisation was a grassroots movement whose members challenged and sought to overturn the global status quo with a vigour and determination that cannot easily be found in other global movements. Unlike other global civil society groupings in which members seem to assemble in a more or less random way,49 the anti-globalisation movement was a more orchestrated

48  See I Clark, International Legitimacy and World Society (Oxford, Oxford University Press, 2007); J Steffek, ‘Legitimacy in International Relations: From State Compliance to Citizen Consensus’ in A Hurrelmann, S Schneider S and J Steffek (eds), Legitimacy in an Age of Global Politics (Basingstoke, Palgrave Macmillan, 2007) 188–89; LK Dellmuth and J Tallberg, ‘The Social Legitimacy of International Organizations: Interest Representation, Institutional Performance, and Confidence Extrapolation in the United Nations’ (2014) 41 Review of International Studies 451. 49  Chandhoke, eg, in an effort to deconstruct a common perception that global civil society is ­unaffected by statist and other power structures and that it provides the antidote to the coercive statist order, refers to various mainstream definitions of global civil society. While the author’s focus is primarily on the concept of power, the definitions cited bring forth a picture of global civil society as a process, the main goal of which is to transcend the restrictive boundaries of state politics. Whether an intended goal or an unintended result, transcendence of state politics does not in itself constitute a political project concrete enough to assemble members of a common social fate, features and t­ herefore

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effort grounded upon its members’ common political orientation and position.50 This movement was, moreover, a clear expression of political dissent situated, in spatial terms, at the centre of what was perceived, at least in symbolic terms, as global political power. The movement acted on the margins of global summits, including the G7, G20 and WTO.51 Despite its vigour, this movement only achieved borderline changes in the structure of global governance. The inability of the movement to bring about more thorough change is sometimes attributed to the mutually reinforcing tendency between power and resistance.52 This takes us back to Foucauldian thought and the subjectivity of the global protester who contests but at the same time reproduces power. It has been argued, for example, that global protests, instead of challenging state powers, in fact reinforced them by creating the opportunity for increased and violent coercion against protestors.53 This argument appears to conflate the notion of subjectivities and power reproduction with the unintended result of any given attempt to challenge the status quo, namely coercion. It would be safer to argue, as some authors have done, that members of the a­ nti-globalisation movement mainly sought to reassert ‘autonomy, identity and agency’ at the global level.54 In this way, political change assumed a secondary role. However, what would be a more plausible explanation of the movement’s relative failure is that unlike the national level where power, while diffused, seems concentrated in government, the global level lacks an identifiable actor that can be understood as the power incarnate. This is so, notwithstanding the fact that global summits functioned at

common interests and a specific common pursuit. See N Chandhoke, ‘The Limits of Global Civil ­Society’ in H Anheier, M Glasius, and M Kaldor, Global Civil Society 2001 (Oxford, Oxford U ­ niversity Press, 2001) 36. 50  Hardt and Negri, eg, characterised the Seattle demonstration as ‘a chorus that spoke in common against the global system’; M Hardt and A Negri, Empire (Cambridge Mass, Harvard University Press, 2000) 288. 51  It is not a coincidence that global social movements demanding radical change have been treated as marginal voices both by international institutions and by the mainstream discourse. See, esp, D Chandler, ‘Building Global Civil Society `From Below’?’ (2004) 33 Millennium: Journal of International Studies 313; see also Chandler, ‘Deconstructing Sovereignty-Constructing Global Civil Society’ (n 39) 151ff, where the same author argues that even the more radical voices are wholly absorbed by the a-political and elitist mentality of global civil society. The discussions refer, inter alia, to the World Social Forum which has been an active force in the anti-globalisation movement and has often been violently repulsed. The ‘abnormal’ other is here silenced, even punished, while the ‘normality’ embodied in marginal claims, such as increased due process rights, has been honoured and rewarded. For instances of police violence against more radical global civil society voices, see, eg, J Smith, ‘Globalizing Resistance: The Battle of Seattle and the Future of Social Movements’ (2001) 6 Mobilization: An International Quarterly 1; J Smith, ‘The World Social Forum and the Challenges of Global Democracy’ (2004) 4 Global Networks 413; JS Juris, ‘Networked Social Movements: Global Movements for Global Justice’ in M Castells (ed), The Network Society: A Cross-Cultural Perspective (Cheltenham, Edward Elgar Publishing, 2005) 341ff. 52 C Death, ‘Counter-Conducts: A Foucauldian Analytics of Protest’ (2010) 9 Social Movement ­Studies 235. 53 ibid. 54  I Blühdorn, ‘Self-experience in the Theme Park of Radical Action? Social Movements and P ­ olitical Articulation in the Late-Modern Condition’ (2006) 9 European Journal of Social Theory 23, 36.

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the symbolic level as the centre of political power. It may therefore be inferred that the bipole of power and resistance is not easily replicated beyond the level of the state.55 Thus, while there is a wealth of practices of global political contestation, these have not translated into a generalised global social conflict understood as the process in which global collective subjects would involve themselves in political struggle for the furtherance of their interests at global level. In the face of the above assertion, analysts in the Neo-Gramscian school of thought argue that social conflict can and, in fact, does materialise at global level. This line of thinking poses a serious challenge to the argument defended here. It suggests that power and resistance of the type that can be found in the state is shifting to the global arena. In particular, Neo-Gramscians see in extra-state accumulation of capital and transnational profit maximisation the source of formation of global dominant and subordinate classes, namely of global collective subjects:56 There is a ruling subclass which links up national power blocs across the globe (some are linked up better than others) and subjects them to a new pattern of hegemony, that of global governance. ‘The new popularity of the term “global governance” suggests control and orientation in the absence of formally legitimated coercive power. This is something that could be called a nascent global historic bloc consisting of the most powerful corporate economic forces, their allies in government and the variety of networks that evolve policy guidelines and propagate the ideology of globalization’.57

It is suggested, in other words, that transformed social relations of production give rise to new collective global social forces. This process, so the argument goes, modifies patterns of social conflict by transferring it beyond the state and re-establishing it ‘within a specific world order’.58 Social conflict is, in this way, able to be re-imagined at global level. It must be noted, that this line of argument does neither reject the primacy of the state nor the importance of the national element as the point of departure for the formation of collective political subjects acting on the basis of common interests. Quite the opposite, this argument explicitly accepts

55  At this juncture, a note on the state is necessary. The last argument is not grounded on an understanding of the state as a unified body nor does it turn a blind eye to the fact that the state is under a process of continuous restructuring to adapt to global governance processes and to the diffusion of authority across many centres. As the final part (IV) of the discussion shall explain in more detail, the state is seen as the condensation of power that results out of social relations within the state’s territory rather than as a unitary actor that almost metaphysically holds power of its own. Thus, the idea that centralised power within the statist context facilitates resistance should not be misinterpreted as implying the personification of the state. 56 See A Demirovic, ‘NGOs, the State, and Civil Society: The Transformation of Hegemony’ (2003) 15 Rethinking Marxism 213; K van der Pijl, Transnational Classes and International Relations (­Abingdon, Routledge, 1998); R Cox, ‘Civil Society at the Turn of the Millennium: Prospects for an Alternative World Order (1999) 25 Review of International Studies 3. 57  Demirovic, ‘NGOs, the State, and Civil Society’ (n 56) 229–30 cites Cox, ‘Civil Society at the Turn of the Millennium’ (n 56) 12. See also U Brand, A Brunnengräber, L Schrader, C Stock and P Wahl, Global Governance: Alternative zur neoliberalen Globalisierung? (Münster, Westfälisches Dampfboot, 2000). 58  AD Morton, ‘Social Forces in the Struggle over Hegemony: Neo-Gramscian Perspectives in International Political Economy’ (2003) 15 Rethinking Marxism 153, 155.

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that hegemony of a leading class will first be consolidated at the national level before instituting itself within the world order.59 The argument does, however, assert the existence of a world order or of an ‘internationalised state’: Nation-states not only reproduce dependent relationships within themselves; they also become a part of the internationalized state—along with individual institutions and political processes. The internationalized state does not take the form of an independent, autonomous institution. It is a reproductive system which is supported both by parts of the nation-state and by international organizations such as the United Nations and its agencies, the North Atlantic Treaty Organization, the Organization for Economic ­Cooperation and Development, the World Trade Organization, the World Bank, the International Monetary Fund, the European Union, and so on. The apparatus of the nation-state and individual parts of it are linked up at various levels with suprastate institutions to form a network. And together with these suprastate institutions, the apparatus of the nation-state reproduces itself as state at a higher level.60

This reading approaches global governance as a global hegemonic process where power is diffused throughout networks but which simultaneously acquires characteristics akin to those of the state. In other words, the global level provides the locus for condensation of power that springs out of the social conflict between a transnational or ‘internationalised’ ruling class and transnational or ‘internationalised’ subordinate classes. This valuable insight into the workings of global governance suggests that there may indeed be a power incarnate at global level. The latter is found in the existence of an internationalised ruling class or an internationalised state. This interpretation of the world order is at odds with the argument that the failure of the anti-globalisation movement can be partly attributed to the absence of a more or less identifiable centre of condensation of global power. The ‘internationalised state’ argument raises two separate but interconnected issues. First, it necessitates a close look into the state, its nature, social forces and other components. These questions will be reserved for the following and final part of the discussion (Part IV). The next section will primarily focus on the ­second issue raised, namely the potential implications of the ‘internationalised state’ theory for global citizenship or a ‘world society’.61

B. New Old Constitutionalism, the Internationalised State and Global Democracy The ideas of global citizenship and the world society are grounded on a similar assumption and suggest a similar condition. The assumption is that there is

59 R Cox, ‘Gramsci, Hegemony and International Relations: An Essay in Method’ (1983) 12 ­Millennium: Journal of International Studies 162. 60  Demirovic (n 56) 230. 61  The term used, amongst others, by Clark, International Legitimacy and World Society (n 48).

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s­ omething akin to a global state, which is at the minimum able to create conditions of collective belonging. This should further hint at the possibility for democracy at global level. That is to say, a possibility not merely for increased procedural rights but rather also for social conflict and its resolution through, inter alia, political contestation. The question of social conflict as the possible source of contestatory politics at global level thus needs to be revisited. This time, however, the question shall be explicitly linked to the alleged internationalisation of the state as well as to the possibility for global democracy and global citizenship. In an early but seminal contribution to the study of global governance, Stephen Gill rejects any possibility for democracy at global level.62 Gill develops the concept of new constitutionalism, a type of global arrangement that shields neoliberalism from democratic forces. Democracy is here channelled through ‘safe areas’ thus shutting out the possibility for political challenge at global level.63 While Gill articulates a well thought through argument, it must be noted that constitutionalism creates safety channels for political dissent in all of its possible versions. In this respect, it is not clear what the term ‘new’ denotes in Gill’s ‘new constitutionalism’ and why this type of constitutionalism is distinctly global.64 The answer to this could be that Gill seems to understand the term ‘global’ in different terms than the global governance discourse. Gill’s analysis suggests not merely that the state retains the primary role and continues to constitute the basic source of power. Rather, his reading seems to extend beyond recognition of the primacy of the state to an understanding of global governance as nothing more and nothing less than reliance of global actors upon the state to ‘institutionalise market forces, support economic liberalisation, promote public-private partnerships in service provision, enforce contracts and prevent corruption’.65 Here, it seems that global governance is not a self-standing arrangement but instead a set of policies that can only be fulfilled through the mediation of the state and its mechansims. The latter thus becomes a sine qua non or even a driver of global governance. As a result, Gill’s ‘new constitutionalism’ would be better understood as a national, rather than global, phenomenon. For Gill, global governance in the end relies on state mechanisms to implement the policies of global capitalism. ‘The new constitutionalism of the 1980s and 1990s is associated’, Gill argues, with growth in the power of transnational corporations. The new context coincides with the collapse of communist-ruled states and, at least formally, the end of bipolar worldorder structures associated with the Cold War. This new situation involves a return to governance of a truly global capitalism. What is now occurring is the extension of legal protections for property rights in the former eastern bloc and other emerging capitalist economies.66 62  S Gill, ‘New Constitutionalism, Democratisation and Global Political Economy’ (1998) 10 Pacifica Review: Peace, Security & Global Change 23. 63  ibid 27. 64  Gill sees the source of this type of constitutionalism in US constitutionalism. 65  ibid 31. 66  ibid 30.

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Where does this leave us with regards to global citizenship and democracy? Gill is quick to foreclose any possibility for global democracy and he is careful to make no reference to a global or internationalised state. His argument is mainly based on the global institutional lock-in of democratic disagreement. However, as remarked above, such lock-in is also visible in state constitutionalism. Therefore, endorsement of this part of Gill’s argument would amount to an implicit acceptance that democracy and constitutionalism are by definition incompatible at every level. It might, therefore, be more helpful to look into Gill’s spelling out of his idea of global institutional lock-in. Global institutional lock-in takes the form of calls by international institutions for participation in decisions related to prioritisation of a given institution’s goals.67 Calls target primarily NGOs. Participation is limited at best to a reshuffle and at worst to approval of a given institution’s goals, but never to the goals themselves. This process is synopsised in the idea of empowerment. This accords with the earlier discussion on global actors. However, a reverse reading of Gill’s account would, perhaps, suggest that global democracy would be possible once the institutional lock-ins disappear. This possibility is in need of closer inspection. Interestingly, even authors who are more eager than Gill to accept the existence of an internationalised state, are reluctant to endorse the idea of global democracy. ‘[We] will [not] eventually find ourselves living as world citizens in a global democracy’, Demirovic argues, without however denying the ‘democratising influence’ of global actors, like NGOs.68 It is not clearly explained why, despite the alleged existence of transnational dominant and subordinate classes in an internationalised state, we will not ‘eventually find ourselves living as world citizens in a global democracy’. Transnational social classes clearly point towards the possibility of global social conflict, political contestation and therefore democratic antagonism, even in the face of global institutional lock-ins. Such lock-ins, as already argued, are not monopolised by global governance. They also exist at the national level. Why, then, is social conflict and democracy absent at global level? The question points to a possible contradiction in Neo-Gramscian thought, which despite acknowledging the internationalisation of state structures is reluctant to acknowledge a prospect of internationalisation of democratic processes. The Neo-Gramscian thesis shall be explored in more detail in the next and final part of the discussion which will look into the nature of the state and into the reasons why the statist condition may not be replicable globally. For current purposes and given the absence of clear answers to questions connecting democratic contestatory politics with the existence of unified internationalised social forces and social conflict, it may be more fruitful to abandon the question of state and class internationalisation altogether.

67  68 

Gill here refers mainly to the World Bank. ibid 231.

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C. Global Contestatory Politics in the Absence of Internationalised Classes: Global Contestation, Local Contestation Indeed, the question of internationalisation attracts no interest in many studies of global contestatory politics. There has been a recent wave of analysts that focus on global sites of contestation ranging from liberal peace-building and democracy promotion to contestation of the legitimacy of global norms.69 The common denominator of these accounts is that they acknowledge the democratic merits of political contestation as well as the importance of power and resistance for the study of global governance. Democracy promotion, for example, is approached, at least in part, from the point of view of the international power dynamics it creates.70 Democracy promotion analysts often use critical perspectives, including Gramscian and Foucauldian, to challenge the global dominance of the Western liberal democratic model.71 These are beneficial approaches, not least because they act as a critical injection in the largely eulogising global governance discourse.72 However, the concept and practice of democracy promotion is largely differentiated from the idea of global governance as a web of supranational actors acting over and beyond the state. This is so because, democracy promotion will always involve a competition of claims between donors and recipient states.73 This essentially renders democracy promotion a statist matter. Political contestation will here materialise within the confines of the state and in defence of sovereignty and self-determination of a given population. Certainly, there is always the prospect of a more generalised ‘dispute [of] the very legitimacy of international efforts at promoting democracy (contestation of the extent and means of just external interference)’ at global level.74 There is, however, no sign of a global force organised around the promotion of alternative

69  See J Wolff and L Zimmermann, ‘Between Banyans and Battle Scenes: Liberal Norms, Contestation, and the Limits of Critique’ (2016) 42 Review of International Studies 513 for a critical review of the literature. 70 M Kurki (ed), Democratic Futures: Revisioning Democracy Promotion (Abingdon, Routledge, 2013); see also same author’s similar analysis drawing partly on Zizek and Marcuse in ‘Democracy Promotion and Crisis of Democracy in the West’ OpenDemocracy (January 2012) www.opendemocracy. net/milja-kurki/democracy-promotion-and-crisis-of-democracy-in-west. 71  See, eg, Pt III of Kurki’s Democratic Futures (n 70), esp 221ff. 72  This view is not shared by everyone. Wolff and Zimmermann eg argue that these accounts are in fact assimilated in the liberal mainstream discourse. They support this on the basis that ‘[contestation] is largely seen as a means to enable dialogue (…). Fundamental conflicts over liberal norms (…) are either not considered or seen as normatively undesirable’; see Wolff and Zimmermann, ‘Between Banyans and Battle Scenes’ (n 69) 513. While the authors make a valid point, the accounts do probably make a difference in the global governance discourse by at least taking the question of power and conflict more seriously than is usually the case. 73  C Daase and C Humrich, ‘Just Peace Governance’ Research Program of the Peace Research Institute Frankfurt (2011) PRIF Working Paper 1, available at . 74  AE Poppe and J Wolff, ‘The Normative Challenge of Interaction: Justice Conflicts in Democracy Promotion’ (2013) 2 Global Constitutionalism 373, 375.

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understandings of democracy. Despite voices arguing that liberal democracy no longer enjoys the status of an uncontested global hegemonic project,75 contestation usually comes from within, rather than outside, the state. On the other hand, critical approaches to peace-building sometimes refer to a need for renegotiation of the terms of liberal peace-building that will involve voices from the ‘local to the global’, including ‘global elites, officials and states’.76 Once again, conflict undoubtedly extends beyond the state, as it involves a clash between local populations and, at least partly, extra-state actors. However, as far as the terms of the global renegotiation are concerned, there seems to be no distinguishable agent that could take up this task at global level. Instead, resistance appears to be not only mediated through but to a large extent also limited to the local level. The tendency to label as global contestatory politics a conflict that contains international features but which is in fact rooted and confined within the state is equally evident in discussions about the contestation of global norms: a new conceptual tool to study norm dynamics in world politics [is termed] norm ­subsidiarity [and] concerns the process whereby local actors create rules with a view to preserve their autonomy from dominance, neglect, violation, or abuse by more powerful central actors.77

What emerges from these accounts is the incontestability of global conflict and forms of political contestation at every possible level, from the local to the global. However, there seems to be no sign of an emerging global citizen. In other words, there seem to be no global social forces set up on the basis of common interests that contest, resist or otherwise challenge power and get involved in global social conflict as collective subjects. Perhaps, it would be helpful at this stage to repeat the difference between, on the one hand, global social conflict that would require globally organised collective political subjects and, on the other, political contestation that occurs from the diplomatic level to the level of grassroots global social movements but does not necessarily translate into the coming together of global citizens. The matter is complicated by the fact that global citizenship is equally absent from accounts supporting the existence of internationalised classes. To recall the previous discussion, this appears to be a paradox, as internationalisation of classes implies precisely the existence of global social forces constituted on the basis of common characteristics and interests. Inevitably then, the question re-emerges, why global citizenship does not appear to be an option.

75  See, eg, Z Öniş, ‘The Age of Anxiety: The Crisis of Liberal Democracy in a Post-Hegemonic Global Order’ (2017) 52 The International Spectator 18; W Bello, ‘The Global Crisis of Legitimacy of Liberal Democracy’ (2005) Global Policy Forum, ; C Weber, International Relations Theory: A Critical Introduction (Abingdon, Routledge, 2005) 104. 76  OP Richmond, A Post-Liberal Peace (Abingdon, Routledge, 2011) 107. 77  A Acharya, ‘Norm Subsidiarity and Regional Orders: Sovereignty, Regionalism, and Rule-Making in the Third World1’ (2011) 55 International Studies Quarterly 95.

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The question is not simple. There is no doubt that power, dominant understandings, hegemonic concepts and conflict move beyond the state. There is, ­nevertheless, no indication of contestation and resistance collectively organised at global level. Thus, while it cannot be categorically argued that conflict and contestation do not escape state borders, the type of conflict and contestation found in the global space do not fit with the understanding of citizenship supported in this analysis. Such understanding would require global social forces constituted as collective forces on the basis of common characteristics and interests and able to act as the opposite pole of power in the magnetic field of power and resistance. There are a few possible answers to the questions opened up in this c­ hapter. One would be that power is absent from the global level. This possibility has, ­however, already been foreclosed. Another possible answer would be that the idea of ­internationalised classes constitutes a misrepresentation of global society, a possibility that will be further examined in the next part (IV) of the discussion. A final answer could be that power is ubiquitous, but can only be resisted at its source. This answer opens up a further question, namely the question of the source of power. This will be the main theme of discussion in the remaining chapters.

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Conclusion of Part III What is problematic about mainstream descriptions of global regulatory arrangements is that, what they describe is not a process of emancipation, as is often implied, but rather the quintessence of the exercise of power. If, with Foucault, one understands power not as domination but as a productive force spreading in societies in a capillary way, building subjectivities and eventually reproducing itself, then one is confronted with a completely new understanding of global governance. This understanding provides an image of global governance ‘beyond discourse’. To speak of global governance beyond discourse does not mean to challenge the claims of the dominant understanding, but rather to treat this understanding as itself a product and generator of power. By choosing to conceal the question of power, global governance discourse has built its own discursive field, one which has become so embedded in reality, that it is no longer easy to reject it. The idea that there is a global common interest able to be achieved through peaceful cooperation is not an innocent claim. It is a depiction of the world; a depiction which builds subjectivities, which makes us who we are and which influences our understanding of our position towards ourselves and towards others. The ­neoliberal governmentality, uncontested as it remains by the dominant discursive field, is reflected in the market-driven, entrepreneurial and individualistic framework within which global civil society, the alleged representative of the world’s people, operates. Yet, if the point of departure is the individual and the market, we cannot speak of citizenship. And, in consequence, we cannot speak of ‘global’ constitutionalism as understood in the present analysis. At this juncture, the objection is expected that, if power operates in a capillary way turning individuals into its bearers, then state citizenship is equally unable to meet the requirements of (ant)agonistic democracy. The reaction is legitimate and reasonable. A partial answer previously offered suggests that the difference between the global and the local may lie in the absence of global collective political subjects. The final part of the thesis will take the opportunity to examine this suggestion more closely. The discussion shall now focus on the material foundation of power and its relation to constitutionalism, understood as a potential driver of democratic social conflict.

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PART IV

The Foundation of Power: Bringing Constitutionalism back to the State

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Introduction of Part IV The previous part reviewed global governance discourse through the lens of Foucauldian theory. The work of Foucault on governmentality, techniques of government and on the ability of power to build subjectivities was used to demonstrate different functions of power at global level. The discussion, which was about a critique of global governance discourse as much as it was about the concept of power in more general terms, concluded that citizenship and constitutionalism are not easily replicable at global level. The absence of global collective subjects able to resist different forms of global power coupled with a largely consensual and non-adversarial mode of conducting politics hinders global social conflict, which is vital for the current understanding of constitutionalism and citizenship. In light of this, the current part discusses whether and how the nation state is differentiated in terms of creation of collective subjects able to constitute the opposite pole in the two extremes of power and resistance. The study of power has so far followed Foucault’s descriptive work on power as a relation present in every aspect of human life, from techniques of government to a force with effects on the human body. The study is inconclusive focusing as it does solely on the functions of power. A comprehensive understanding of power further necessitates a discussion of power’s roots, namely of the relations out of which power is produced as well as of the primary sites in which it is located. The discussion is vital for the study of constitutionalism, regardless of how the latter is understood. Whether understood as an instrument that structurally tends towards the creation of social consensus and demarcation of the framework and conditions under which social conflict unfolds or more conventionally as a constraint to sovereign power, the study of constitutionalism involves the question of power.1 The existence of conflict within societies presupposes a competition for power between social forces. Equally, the link between constitutionalism and limitation of sovereign power requires an examination of the concept of power. If the position holds true that power resides primarily outside of the nation state, then a re-examination, and perhaps even rejection, of state constitutionalism is not only

1  On this view, see Pt I. While the current understanding does not reject this view, limitation of state powers is not seen as the primary quality of constitutionalism. It is rather seen as part of constitutionalism’s main purpose which, according to Pt I, revolves around the creation of social consensus through mediation of social conflict.

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indispensable but also urgent. But, has ‘the exclusive link between territory and political power (…) been broken’?2 The last part of the discussion answers this question in the negative, arguing that power continues to reside primarily in the nation state. This argument partly answers the question why, despite the similar function of power at both global and national level, the nation state is the ultimate terrain where conflicts stemming from unequal power relations are expressed and resolved: the nation state is the locus where these relations stem from and are located. According to this analysis, the nation state is not understood as synonymous with power but rather as the primary locus in which power is organised and exercised. The question of power is examined through a Marxist lens, without however assuming that the Marxist tradition can offer a comprehensive and uncontroversial account of each and every aspect of power and of the state. The discussion draws on the work of Marxist ­philosophers Althusser and Poulantzas, both of whom have shown a special interest in the concepts and foundations of power and of the state. Their understanding of both concepts is particularly illuminating when considering constitutionalism as a condition strongly related to social conflict. This part revolves around the concept of the capitalist mode of production which is understood as the cause and root of power relations in contemporary capitalist societies. Foucault never sought to establish the foundation of power on existing social factors and relations and would perhaps object to any interpretation of the materiality of power as rooted in the relations of production and the social division of labour. Nevertheless, this is merely because he never attempted to link the concept of power to any socio-economic structure.3 Althusser and P ­ oulantzas, by contrast, have a clearly defined idea of the roots, foundations and sites of power. Drawing on the Marxist tradition, this part argues that the capitalist mode of production creates an asymmetric relation, ie a power relation between those in control of the means of production on the one hand and free labourers on the other. This asymmetry divides societies in opposing forces. This primarily economic relation constitutes the root of power relations within social formations. As with every power relation, those in possession of economic power are concerned with its reproduction. The reproduction of the capitalist relation can, in turn, materialise by virtue of ideological apparatuses and political power that can be organised and exercised primarily within the framework of the state. The latter thus becomes the primary site of exercise of power. At the outset, the idea and analysis of the capitalist mode of production does not seek to correspond to any actually existing society. By contrast, the capitalist mode of production is used as a ‘thought object’ that can never describe an actual

2 D Held and A McGrew, ‘The Great Globalization Debate: An Introduction’ in D Held and A McGrew (eds), The Global Transformations Reader: An Introduction to the Globalization Debate, 2nd edn (Cambridge, Polity Press, 2003) 11. 3 See N Poulantzas, State, Power, Socialism (London, Verso Books, 2001) 67, who argues that ­Foucault is not only compatible with Marxism but rather also enriches the Marxist tradition.

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capitalist society in a precise or comprehensive way.4 ‘The only thing that really exists’, Poulantzas remarks, is a historically determined social formation, i.e. a social whole in the widest sense, at a given moment in its historical existence. (…) A social formation (…) presents a particular combination and a specific overlapping of several modes of production.5

This means that the capitalist mode of production cannot explain every capitalist society with the same level of accuracy. ‘[Different] social formations are always unique, because they are concrete and singular real objects’.6 Therefore, the description and analysis of the capitalist mode of production is based on a high level of abstraction which is, nevertheless, scientifically valid: it may be impossible to ‘touch with one’s hands’ or ‘see with one’s eyes’7 but ‘it is the condition of knowledge of real-concrete objects’.8 The current part embarks on the study of the root and foundation of power by explaining the Marxist conception of the mode of production in chapter eight. In section I of chapter eight, the mode of production is seen as a solid basis for the study and comprehension of societies throughout history. The concept of the mode of production is then concretised and located in the context of contemporary capitalist societies (section I.1): The capitalist mode of production may be a primarily economic concept but has an important political and ideological resonance as it is tied to the ideological and political conditions that are necessary for its reproduction. These conditions can materialise mainly, if not exclusively, at state level (section I.2). The next section argues that not every form of state permits the perpetuation of the capitalist relation but rather only the nation state. The nation state assembles the elements that create unity, which it defends and perpetuates. Within the nation state, a divided society is presented as a unified natural order. The ‘nation’ is thus the expression of an ideological and politicoinstitutional cohesion that only the state can impose (section I.3). It may be useful to clarify at this early stage that the above finding contains no normative assessment. Nationalism is not in any way defended as a political movement or ­ideology. Instead, recourse to the nation is made in the context of a purely descriptive account that explains how power and the state are understood for the purposes of the present discussion. The following sections examine whether the capitalist relation can be conceived in global terms (II.1). The discussion revolves around the prospects of global ­collective subjects. A widespread argument supports the idea that capital, being an

4 

L Althusser and E Balibar, Reading Capital (London, Verso, 1979) 40–41. N Poulantzas, Political Power and Social Classes (London, Verso, 1978) 13. 6  N Poulantzas, Classes in Contemporary Capitalism (D Fernbach tr, London, New Left Books, 1976) 22; See also A Anievas, Marxism and World Politics: Contesting Global Capitalism (Abingdon, Routledge 2010) 193. 7  L Althusser, Lenin and Philosophy and Other Essays (London, New Left Books, 1971) 15; see also R Keat and J Urry, Social Theory as Science (Abingdon, Routledge, 2011) 100. 8 Poulantzas, Political Power and Social Classes (n 5) 13. 5 

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economic concept, tends to globalise while states pursue their own territorial logic of power (II.2). This disentanglement of the economic and territorial l­ogics of power, based on a Weberian conception of autonomy of the state from the economy, is rejected on the basis of the Marxist theory of social capital. The theory of social capital conceives capital as a social relation and argues that individual capitals (and capitalists) cannot operate autonomously from the overall economic system in which they are embedded. Social capital embodies the sum of social relations within a capitalist economy and, therefore, bears a national stamp. As a result, the capitalist classes are tied to their respective nation states (II.2.i). Following the explanation of the basic functions of the capitalist mode of production and the role of the nation state within this context, the relation between state and power is articulated in clearer terms in chapter nine. In the first section, the chapter draws on the work of Poulantzas to argue that the economy and the capitalist nation state cannot be studied separately despite the fact they retain relative autonomy from one another (I). The state/economy nexus is supported by Althusser’s theory of ideological state apparatuses. As repression is not sufficient for the reproduction of the capitalist relation, the latter’s reproduction is highly dependent upon the homogenisation, consent and acquiescence of populations. This is achieved through the function of the dominant ideology understood as a necessary tool for the reproduction of a society’s economic relations. Ideology for Althusser has practical results. Anchored as it is in the state’s institutions, it presents itself as a natural truth. The role of the state is necessary for the materialisation of ideology through institutions and apparatuses. State apparatuses and state power are not synonymous, although those in possession of the former can, as a rule, avail themselves of the latter. But, who possesses state power and to what effect is it utilised (II)? By answering this question, chapter nine goes to the heart of the discussion by arguing that power comes down to the ability of social forces to realise their objectives against one another, a process that builds collective subjects within the state. The latter thus becomes the primary site of organisation and exercise of power (III). In light of this, power is ultimately understood as a relation that is expressed, at bottom, through the conflict between social forces: the class struggle. The final section argues that the state is not merely the locus of class struggle but is, moreover, fully permeated by it (IV). The discussion concludes by placing the state, understood as the primary site of power, at the centre of both constitutionalism and agonistic citizenship.

8 The Capitalist Mode of Production: The Economic Relation as the Primary Relation of the Nation State I.  The Mode of Production in Marxist Thought A. The Historical Juncture and the Mode of Production as the Basis for Understanding Societies According to Marxist theory, societies are constituted on the basis of a complex web of social relations. The exact shape of social relations in each different social formation ultimately depends on the historical evolution and historical characteristics of a given society. As a result, not only may individual social formations be essentially dissimilar; they may also be characterised by divergent degrees of social cohesion. Fundamental to Marxist thinking and methodology is the belief that social phenomena exist in relation to a particular historical context. In this respect, the comprehension of social phenomena can only be achieved through the study of the historical juncture surrounding them. Marxist theory rejects as invalid any ‘trans-historical generalisation’ that treats different societies in equal terms.1 A social formation, along with its internal structure, limits and contradictions can be best comprehended when it is studied in relation to its specific historical context. The principal characteristic that differentiates social formations from one another throughout history is, according to Marx, their respective mode of production. Nevertheless, in his study of modern capitalist social formations, Marx extracts the common general features of the capitalist mode of production which bestow upon social formations a universal quality. This suggests that there is a permanent or perpetual core, an ‘ideal average’, of capitalist social formations which remains independent of the concrete historical manifestations that these formations may assume.2

1  2 

B Fine and A Saad-Filho, Marx’s Capital (London, Pluto Press, 2003) 5. K Marx, Capital: Critique of Political Economy Vol 3 (London, Penguin Classics, 1991) 970.

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When applied to different social formations, the concept of the capitalist mode of production can provide the basis for the study and comprehension of a specific society. The next sections discuss common general features of capitalist societies as an introduction to the nature of the state and its relation to power, a relation vital to constitutionalism and citizenship, understood as tools that can be used to legitimately challenge unequal power relations.

B. The Capitalist Mode of Production: An Economic, Political and Ideological Relation The capitalist mode of production is a predominantly economic concept. ­However, its function and reproduction are dependent on certain political and ideological relations which, in turn, it reproduces and perpetuates. On this reading, the ­capitalist mode of production provides the basis/cause for the entirety of social relations within the state. It is for this reason that the nature of the modern state and its relationship to the concept of power cannot be fully comprehended ­without a discussion of the meaning and effects of the capitalist mode of production. Despite the fact that the capitalist mode of production is a predominantly economic relation, it carries an important political and ideological resonance. At the economic level, the capitalist mode of production is based on ownership/control of the means of production by the capitalist and on the ensuing detachment of the worker from the means of production. This relationship, which has been exhaustively analysed in classic Marxist thinking, is exclusive to the capitalist mode of production.3 In pre-capitalist societies, producers were both ‘tied’ to the means of production and they preserved ‘relative mastery of the process without direct intervention of the landlord’.4 According to Marx, these pre-capitalist relations resulted from the interweaving of state and economy. Here is why: as pre-capitalist producers retained, at least in part, control over the labour process and over the means of production, their surplus product had to be extracted from them with the use of forms of violence. Violence was, therefore, inherent in the very processes of production.5 Legitimate violence and the labour process were, thus, inextricably linked. Within this mode of production, the labourer could never be free.

3  See, eg, J Milios, D Dimoulis and G Economakis, Karl Marx and the Classics: An Essay on Value Crises and the Capitalist Mode of Production (Aldershot, Ashgate Publishing, 2002); R Stuart, Marxism at Work: Ideology, Class and French Socialism During the Third Republic (Cambridge, Cambridge University Press, 1992) esp Ch 4 (‘The Capitalist Mode of Production and Proletarianisation’). For Asian and African perspectives, see, eg, J Banaji, Theory and History: Essays on Modes of Production and Exploitation (Leiden, Brill, 2010); WMJV Binsbergen and PL Geschiere, Old Modes of Production and Capitalist Encroachment: Anthropological Explorations in Africa (London/Boston, Kegan Paul International, 1985). 4  N Poulantzas, State, Power, Socialism (London, Verso Books, 2001) 18. 5  K Marx, Pre-Capitalist Economic Formations (New York, International Publishers, 1964) 55.

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This state of affairs changes dramatically in capitalism. Here, the labourer only possesses his/her labour power, with the means of production remaining in the exclusive possession of the capitalist.6 Although this may convey the impression of a purely economic relationship, in fact, the capital-labourer relation in the capitalist mode of production has important juridico-political and ideological consequences. The political repercussion of this relationship is that the individual must be free, in the sense that (s)he disposes of ‘his labour power as his own ­commodity’.7 The power of the owner to set in motion the means of production is juridically stamped by a contractual relationship between owner and labourer which both of them must be free to conclude. The contractual relationship based on freedom marks the succession of the feudal relationship by the constitutional state. In order to be maintained and reproduced, the capitalist mode of production must be accompanied by a particular political and ideological framework. This is the juridical and politico-ideological framework that favours the free and equal individual, and assumes an ostensibly classless state.8 As will be argued in more detail in the following section, the nation state is elemental in creating the political and ideological conditions needed for the perpetuation of the capitalist relation. Indeed, it is indispensable, in that the nation state is an entity wherein capitalist domination may be understood as a natural order. This is achieved, inter alia, through the homogenisation of the social body

6  It could possibly be objected that not every form of exploitation is exhausted in the possession/ non-possession paradigm. It could be objected, eg, that the employee-shareholder scheme in the UK proves this theory wrong. Employee-shareholder schemes are programmes which provide workers with thousands of pounds’ worth of shares in the companies which employ them. It seems, however, that this objection at most relativises the truth of exclusive possession by the capitalist. It is indicative that workers who participate in this scheme acquire shares in exchange for certain crucial employment rights, such as redundancy pay, unfair dismissal protection and so forth. It seems, therefore, that participation in possession of the means of production is countervailed by relinquishment of critical labour rights which protect against exploitation. In effect, the result is the same: exploitation partly concealed by means of a fiction of equality. See, eg, P Scott and S Williams, ‘The Coalition Government and Employment Relations: Accelerated Neo-Liberalism and the Rise of Employer-Dominated Voluntarism’ (2014) Observatoire de la Société Britannique 145. The same is the case with pension funds or property-owning societies. In fact, this is, according to some authors, another innovative way to conceal exploitation. ‘Pension-fund savings did fuel a stock market run-up from the 1960s onward. In the process, they provided corporate raiders and other financial managers with funds to use against labor—and against industrial capital itself. Pension fund managers played a large role in the junk bonding of industry in the 1980s. And finding themselves graded on their performance every three months, fund managers back raiders who seek to gain by downsizing and outsourcing labor’. See M Hudson, ‘From Marx to Goldman Sachs: The Fictions of Fictitious Capital’ (July 2010) . Accordingly, ‘possession’ of the means of production should not be taken as denoting physical possession. The freelancer owns her computer but has no right over what would otherwise be her own intellectual property: her thoughts, ideas, and in the final analysis the overall work she produces. See also P Ryan, ‘Factor Shares and Inequality in the UK’ (1996) 12 Oxford Review of Economic Policy 106; A Gamble and G Kelly, ‘The New Politics of Ownership’ (1996) New Left Review 62. 7  K Marx, Capital: Critique of Political Economy vol 1 (B Fowkes tr, London, Penguin Classics, 1990) 272. 8  Class is discussed more thoroughly in the next chapter. On the classless state, see also Pt I, ch 2.

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on the basis of the nation which, in the face of social inequalities, perpetuates a fiction of common interests and of capitalism as normality.9

C. The Role of the National Element in the Capitalist Mode of Production Machiavelli argues that ‘when (…) a country acquires a state that differs from it in language, customs, or laws, there are difficulties, and holding on to the new acquisition requires good fortune and great energy’.10 Machiavelli puts forwards the almost self-explanatory idea that unification of a people under one single authority is easier when they share the same language, customs, religions or laws. These are important material conditions which may demarcate the limits of feasibility or implausibility of the creation of a nation. These are, moreover, conditions which may be random, in the sense that they largely depend upon geographical and historical factors. This last characteristic, namely randomness, may convey the impression that a nation is built in a more or less spontaneous moment of a coming-together of the relevant population(s). However, we are correctly reminded that these pre-existing conditions are not in and of themselves sufficient to create a nation. Althusser is enlightening on this point. According to the philosopher, unity has to be initially forged and then defended and, within the context of unity creation, the nation state acts as a ­catalyst.11 This is so, because the nation state can perform the functions that are necessary both for assembling the elements that create unity and for defending and perpetuating them. These functions are found in the political, economic, ­ideological and juridical role of the state, while they simultaneously constitute preconditions for the state’s military functions of unification, defence and conquest.12 The political, economic and ideological conditions of nation-building match the prerequisites for the perpetuation of the capitalist relation. This is so, because it is the same conditions that are indispensable both for producing consensus and for construing societies as natural orders. The nation serves the need for creation ‘of [the] material—and thus social—market zones where the industrial and commercial activity (…) can be conducted and developed in a process of expanded reproduction’.13 The precise function and content of these politico-ideological

9  Homogenisation here refers more to a tendency and does not claim to be a faithful representation of each and every nation state. The process of homogenisation is almost never complete and is full of contradictions. Northern Ireland or Belgium provide examples which prove the incompleteness of the ‘homogenised nation’. It is, however, beyond current purposes to offer an accurate idea of each and every nation state. The current discussion is, as explained in the introduction, an abstract deductive exercise. 10  N Machiavelli, The Prince (W Marriott tr, Rockville, MD, Arc Manor, 2007) 17. 11  L Althusser, Machiavelli and Us (G Elliott tr, London, Verso, 1972) 12. 12 ibid. 13  ibid 11.

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conditions will be reserved for later. In the meantime, suffice it to say that these prerequisites, bound as they are to the national element, cannot produce results in the abstract but rather primarily within the boundaries of the nation state. At this juncture, an important clarification is needed. The nation and the state do not only correspond with each other in the sense that, as a rule, the former comes into existence by means of the latter. Rather, their relation also functions vice versa: a state can only be national. In order to grasp this, Althusser recalls Gramsci’s understanding of the absolutist state as the historically proven appropriate form for the creation of national unity. What enabled the absolutist state to perform this function was, according to Gramsci, the fact that while absolutist, the monarch’s power was not arbitrary. In the absolutist state, violence and coercion were accompanied by consent.14 And consent could only be built on the basis of unity; a unity which, as history proves, is reflected in, and reinforced through, the concept of the nation. In other words, consent requires national unity and therefore the modern state cannot but be national. ‘The modern capitalist state thus presents itself as embodying the general interest of the whole of society, i.e. as substantiating the will of [the general public] which is the “nation”’.15 Indeed, what is special about the capitalist state is that, unlike other state forms, within the framework of the capitalist mode of production, the identity of subjects is not determined by their position in the production process as were, eg, feudal lords and peasants. Rather, in the capitalist state subjects assume the identity of individuals, citizens, non-citizens and so forth. In the capitalist state we are ‘­political persons’.16 As Poulantzas notes, it is precisely this feature, namely the foundation of the capitalist state on the aggregate of formally free and equal individual citizens-political persons, which lends legitimacy to it.17 Instead of the divine will of the monarch, the capitalist state is based on the popular sovereignty of the people, a body not composed of agents of production but, rather, of the sum of free and equal citizens who through universal suffrage express what takes the form of a general will, the will of the nation.18 In the capitalist mode of production, the state thus appears to be the political product of the nation when, in fact, as explained above, the nation too cannot come into existence in the absence of the state. The above reading suggests that, in the final analysis, the nation functions as the expression of an ideological, politicalinstitutional but also juridical cohesion that only the state can impose. At the 14 

ibid 13. The nation has been discussed in Pt I, ch 1 in the context of the post-French Revolution period of emergence of modern constitutionalism, the nation state, national capitalist markets etc and in Pt II in the context of the discussion about the ‘national’ as a pre-condition for the creation of a European demos (ch 3). 16  N Poulantzas, Classes in Contemporary Capitalism (D Fernbach tr, London, New Left Books, 1976) 123. 17 ibid. 18  This corresponds with the argument in ch 4 that a European process of constitutionalisation may not require pre-existing national bonds but will necessarily result in assimilating Europe to the nation state. 15  ibid.

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level of ideology, the state imposes this ostensible cohesion through the notion of individual freedoms. At the politico-institutional level, the representative system embodies the general will of the nation. This general will or interest is expressed at the juridical level through abstract and universal laws. The juridical level of abstract and universal laws brings us back to the political-institutional domain which produces the bureaucratic mechanisms of the capitalist state in order to constantly re-individualise general and universal rules. The political-institutional/juridical and ideological functions of the state do not merely serve to build national unity but they also perpetuate it. Importantly, ­however, in perpetuating national unity, these functions conceal in the most effective way the state’s internal conflicts. Through the representative system, the interest of dominant social groups appears as the incarnation of the general will. It is precisely for this reason that the national element renders capitalist social formations viable and coherent. Nations are, therefore, not merely fictitious communities. They have material roots and material consequences. The idea of national unity construes our understanding of the world as a world of nations, thus pushing internal conflict to a secondary role or, worse, forcing it out of the picture.19 Thus, the national unity that is characteristic of the capitalist state presents dominant interests as national interests and, thereby, lends coherence to dominant social forces while at the same time it pacifies, or even extinguishes, internal ­conflicts. In this respect, it seems logical to assume that the capitalist state cannot but be a national state.

II.  The Detachment of the Capitalist Mode of Production from the Nation State: An Implausible Suggestion A. The Global/National Dilemma and its Relevance to Constitutionalism The mutual relation between the state and the nation indicates that the national element plays a key role in the smooth and unchallenged perpetuation of the capitalist mode of production. That said, mere recognition of this relation and of its results does not necessarily lead to any safe conclusion about the root of power, which is the main question guiding this chapter. Before moving to this question, it seems pertinent to engage with one of the dominant positions of the global governance discourse and, in particular, the question of the relation between the

19  J Milios and DP Sotiropoulos, Rethinking Imperialism: A Study of Capitalist Rule (Basingstoke, Palgrave Macmillan, 2009) 107.

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national and the global. To recall the earlier discussion, global governance discourse suggests that the state has not merely become part of a large and complex global political structure but, also, that it has been subordinated to it.20 This often becomes the basic premise upon which part of constitutional scholarship relies in order to support the case for global constitutionalism.21 The idea that the state has become subservient to global power centres is not exclusive to the mainstream discourse. In the mainstream discourse, the state is approached as a player standing on an equal footing with other global actors. However, the exact terms of this development are not spelled out in detail in the mainstream discourse. There is of course Rosenau’s understanding of the world as divided into systems of rule, but this description does not adequately explain how and why the state merges with non-state systems of rule. In other words, mainstream global governance discourse gives shape to the empirical observation that authority is globally diffused without clearly explaining the fine points of this diffusion. What is lacking from this account is a coherently posited theory of the state. The story of diffusion is narrated in a lot more detail by the non-mainstream discourse. The latter sometimes accepts the primacy of the state and other times rejects it.22 However, there seems to be widespread agreement that some form of internationalisation of the state and of its social powers is underway.23 ‘Global

20  For an analysis of relevant views and for further references see, eg, R Robertson, Globalization: The Nation-State and International Relations (Abingdon, Taylor & Francis, 2003) esp 143ff; see also M Hardt and A Negri, ‘Globalization and Democracy’ in S Aronowitz (ed), Implicating Empire (New York, Basic Books, 2009) 109ff; MR Duffield, ‘The New Security-Development Terrain’ in R Little and M Smith (eds), Perspectives on World Politics (Abingdon, Routledge, 2006); R Cox, Production Power and World Order (New York, Columbia University Press, 1987) 253. 21  See, eg, A Peters, ‘The Merits of Global Constitutionalism’ (2009) 16 Indiana Journal of Global Legal Studies 397. I cite this article not so much because it argues in favour of global constitutionalism but rather because it suggests the demise of the nation state. However, it must be stated that Peters’ account has the merit of advocating more in favour of a constitutionalist reading of international law and less in favour of constitutionalism as a mode of global organisation in general. For a very interesting summary of the numerous approaches to global constitutionalism, see A Wiener, AF Lang Jr, J Tully, MP Maduro, M Kumm, ‘Global Constitutionalism: Human Rights, Democracy and the Rule of Law’ (2012) 1 Global Constitutionalism 1; for an International Relations approach which sees a global public in the making, see H Brunkhorst, ‘Globalising Democracy Without a State: Weak Public, Strong Public, Global Constitutionalism’ (2002) 31 Millennium: Journal of International Studies 675. See also P Zumbassen, ‘Comparative Global and Transnational Constitutionalism: The Emergence of a Transnational Legal-Pluralist Order’ (2012) 1 Global Constitutionalism 16. 22  cf, eg, S Gill, ‘New Constitutionalism, Democratisation and Global Political Economy (1998) 10 Pacifica Review: Peace, Security & Global Change 23 on the one hand and A Demirovic, ‘NGOs, the State, and Civil Society: The Transformation of Hegemony’ (2003) 15 Rethinking Marxism 213 and K van der Pijl, Transnational Classes and International Relations (Abingdon, Routledge, 1998) on the other. 23  See mainly authors in the Neo-Gramscian tradition: Demirovic, ‘NGOs, the State, and Civil ­Society: The Transformation of Hegemony’ (n 22); van der Pijl, Transnational Classes and International Relations (n 22); see also R Cox, ‘Civil Society at the Turn of the Millennium: Prospects for an Alternative World Order (1999) 25 Review of International Studies 3. For further references, see discussion in ch 7, section II.1.

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production and global finance’, the argument goes, ‘constitute distinct spheres of power relations which constrain the state system at least as much as they are influenced by it. They are bringing about a new social structure of production relations superseding the nation-centered labor-capital relations of the past’.24 Within this context, globalising elites located in strategic positions that range from ­transnational companies, banks and universities to financial international organisations have rendered transnational capital a class in itself. This global/transnational capitalist class is composed of segments of national bourgeoisies who have vested interests in the relatively free global flow of capital.25 Here, the idea that authority is diffused among global centres of power is partly based on Marxist methodological instruments: the global order comprises transnational social classes among which there is a dominant transnational elite. The latter has managed to create a global sphere which is organised autonomously in political terms, while it has acquired its own autonomous production relations. Despite its obviously different focus, this position shares a similar problematic with the dominant global governance discourse. At bottom, there is the idea of a global space wherein nation states retreat in favour of a global market and of decentralised centres of global governance. The difference is that this version of the discourse takes the question of the state more seriously and, by suggesting the internationalisation of production and of capital, incorporates into the analysis the concept of mode of production. This is important for the present discussion, where at the beginning of the chapter it was posited that the mode of production is the basis upon which social formations can be studied and understood. On these grounds the question should be formulated as follows: is there a global capitalist mode of production that would allow us to suggest the existence of globally integrated social formations or, in other words, of global collective political subjects of some kind, and therefore of global social conflict? If yes, constitutionalism should be viable, or indeed necessary, at global level. However, in what follows, this question will be answered negatively. It will be argued that the capitalist relation cannot be conceived as a global relation. This is so because, as has been remarked above, the capitalist mode of production relies on economic, political and ideological conditions that can best evolve at the national level and have been crystallised through the historical evolution of a nation.

B.  Ruling out the Existence of Global Collective Subjects To argue that the nation state provides the most convenient site for the reproduction of the capitalist relation is not to deny the tendency of the capitalist relation

24 

R Cox, Approaches to World Order (Cambridge, Cambridge University Press, 1999) 515. eg, S Gill, Power and Resistance in the New World Order, 2nd edn (Basingstoke, Palgrave Macmillan, 2008) esp Ch 6. For further references, see discussion in ch 7, section II. 25  See,

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to expand beyond the level of the state. It is, however, necessary to establish a relation of hierarchy, namely to resolve whether it is the global or the national which retains the primary role in the reproduction of the capitalist relation. A widespread view grounds this expanding tendency of the capitalist relation on a perceived dualism between the economic and the political. This argument posits that capital, being an economic concept, tends to globalise, while states, reflecting a purely political relation pursue their own territorial logic of power.26 This understanding of the relation between the economic and the political supposedly discloses a dialectic correlation between the economic and the political logics of power. However, a true dialectical approach would suggest an understanding of each logic of power as a conditio sine qua non of the other or as mutually constitutive of one another.27 Contrary to this, the understanding of capital as a purely economic concept seems to be suggesting the independence of the economic from the political. The position is familiar in that it resembles, if it does not actually build on, Weber’s functional separation of the territorial and capitalist logics of power.28 According to this view, the capitalist (economic) relation is distinct or independent from national (territorial/political) relations. The two correspond respectively to the economic and political structures of society which, in turn, are autonomous from one another.29 Here, the state is depicted as following its own logic of territorial/political power; a power which is considered as independent and separate from the economic relations articulated within the state’s territory. This understanding of power may lead to two conclusions that are relevant for present purposes. If the state pursues its own territorial logic, which is autonomous from the capitalist relation, then capital mobility should increasingly ignore state borders. This would allow the creation of a ‘transnational capitalist class’ comprised, for example, of multinational CEOs and financiers.30 Thus, the first conclusion would be that the global takes precedence over the national. The second conclusion that would follow from the above theory is that the state does not constitute the primary site of the exercise of power but rather an instrument in the hands of individual members of the capitalist class as they look at certain states ‘to protect its asset values and the rights of property and ownership across the globe’.31 This view suggests the existence of a kind of collective global capitalist class, a finding that would compel an affirmative answer to the question set at the beginning of this section: constitutionalism must turn global because it is at global space where power is located and can therefore be actively challenged. This finding

26 

D Harvey, The New Imperialism (Oxford, Oxford University Press, 2003) 29–30. WI Robinson, Global Capitalism and the Crisis of Humanity (Cambridge, Cambridge University Press, 2014) 104–05. 28  M Weber, Economy and Society, vols 1 and 2 (Berkeley, CA, University of California Press, 1978) 354ff. 29  B Teschke and H Lacher, ‘The Changing “Logics” of Capitalist Competition’ (2007) 20 Cambridge Review of International Affairs 565. 30 Harvey, The New Imperialism (n 26) 185–86. 31  ibid 186. 27 

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is questioned in the following sections, where the theory of ‘social capital’ is put forward with a view to opening up the way for a coherent analysis of the relation between constitutionalism, power and the state in chapter nine.

i. The Notion of Social Capital: Back to the Indispensability of the National Element The notion of social capital provides the theoretical basis upon which Marx calls into question, albeit never explicitly, the idea that separate individual capitalist enterprises constitute entities that operate autonomously from the overall economic, social, political and juridical system in which they are embedded. For Marx, capital is much more than a measurable economic quantity. It is a social relation. The notion of social capital incorporates all the relations inherent in the capitalist mode of production. This is not merely a theoretical abstraction with no practical relevance. Quite the opposite, the causal relationships within the capitalist economy locate individual capitals within a larger economic, social, political and juridical framework. That framework in turn exercises a decisive influence on individual capitals. In other words, individual capitals are conditioned by the historically specific social relations of the larger economic system. The notion of social capital thus constitutes more than just the aggregate of individual capitals. It incorporates all the causal relations of the particular capitalist mode of production which, in turn, determine the specific function and characteristics of the aggregate of individual capitals. The individual capitalist, embedded as he/she is within the structure of social capital, becomes nothing more than ‘a bearer of capital in the production process’.32 As such, the individual capitalist becomes ‘subjected to the laws of evolution and change of social capital’ [which are imposed on his/her consciousness] ‘as [his/her own] incentives’.33 More crucially, however, within this context, individual capitalists are constituted themselves as a social class, a collective subject, that operates as a distinct and homogeneous social group within the capitalist mode of production. According to Marx, the driving force for this development is free competition through which individual capitalists are enmeshed in a relation of structural i­nterdependence.34 The need for equalisation of the rate of profit imposed by free competition brings individual capitals into a reciprocal relation which allows them to organism as a uniform social group.35 This ‘collective capitalist’ personifies social capital. Critically, the unity of the capitalist class cannot be conceived at global level precisely because the social capital (ie the sum of social relations within a ­capitalist ­economy)

32  K Marx, Capital: Critique of Political Economy, vol 2 (D Fernbach tr, London, Penguin Classics, 1991) 958. 33  Milios and Sotiropoulos, Rethinking Imperialism (n 19) 115. 34  DP Sotiropoulos, J Milios and S Lapatsioras, A Political Economy of Contemporary Capitalism and Its Crisis: Demystifying Finance (Abingdon, Routledge, 2013) 36. 35 Marx, Capital (n 32) 91.

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bears a national stamp. The rate of profit is not determined in the abstract. The rate is rather contingent upon a number of factors, including labour law, national budgets, social provisions, national prices etc, ergo a series of specific characteristics that determine the capitalist relation within the territory of a given state.36 To better understand this, an individual capital may be best conceived as itself a relation between production agents rather than as a measurable tangible quantity or a sum of money. Once individual capital is understood as a relation, the notion of social capital may also be better comprehended. A very simplified version of this relation would be seen where an individual capitalist invests a certain amount of money in building a school for which there is need for equipment, payment of taxes, wages and so forth. If the operation is successful, the capital invested will seem to be increasing in a natural way once the capitalist starts producing what now becomes the commodity of educational services. This increase in value involves the teacher-labourer and the surplus value extracted from him or her. Here the individual capital emerges as a value which is self-valorising but importantly also incorporates a relation of production: that of capitalist-labourer. The result of this relation reflects circumstances that are fundamentally national, including taxation, minimum wages or the existence and effectiveness of collective labour rights and other rights that are often constitutionally entrenched. At the same time, once another capitalist emerges who manages to produce more profit by investing the same capital in building another school nearby, the former capitalist will be pushed to adapt or will eventually be levelled by the competitor. Adaptation will more often than not be based on suppression of wages. This is the essence of competition. Competition is structurally inclined towards wage suppression thus allowing capitals to be profitable. This constitutes the capitalist class as a collective subject structurally predisposed to suppress wages. In light of the above, it is easy to understand how capitalists constitute themselves as a collective social force on the basis of common (national) rules, not merely of competition law, but rather also of taxation and employment law, national ­budgets and so forth. Within this context it is also logical to assume that once a foreign capital arrives in a state, it is the rules of the national game that it will have to comply with in order to be able to produce profit. Drawing from the above, one may arrive at two conclusions. First, the individual capitalist is not a person or group of people acting autonomously. Rather, capitalists are constituted as a social class on the basis of capital understood as a social relation. In other words, they are constituted on the basis of a relation created and operating within the confines of a particular capitalist mode of production which cannot but be tied to a specific nation state. Secondly, following from this, the conditions needed to constitute an internationalised collective subject or a transnational capitalist class seem to be lacking. Indeed, a unified capitalist class would require the disentanglement of the individual capitalists from the

36 

ibid 297.

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r­ espective social capitals within which they operate. The plausibility of this is not easy to prove. This finding does not in any way suggest that capital lacks the tendency to internationalise. Quite the opposite, this tendency has been observed and analysed exhaustively after the Second World War, albeit not always with the same persuasive force.37 Equally, it cannot be denied that governments in pursuit of alternative economic policies have found themselves destabilised, if not outright coerced, mainly through the threat of financial discipline by international financial ­institutions.38 The idea of social capital does not dismiss the reality of an international system undergoing transformations including the internationalising tendency of capital and trade or the existence of an international capitalist system that disciplines those who tend to deviate. It does however interpret these ­phenomena differently in terms of causes and effects. There is a general inclination to look at phenomena of internationalisation of the market as the cause rather than effect of transformations in the international and state system. This inclination is evident both in the mainstream global governance discourse examined in previous chapters and in many accounts on constitutionalism that partly rely on processes of internationalisation to support the case for global constitutionalism.39 What appears to be lacking from these accounts is a solid theory of the state, especially as the latter is one of the main themes of the relevant discussions. Focus on the concept of social capital and the rate profit as a preliminary step towards grasping the essence of the state and of formation of collective subjects might suggest a different interpretation to internationalisation of capital and the market. Even with the undeniable existence of a global market and of international prices, a uniform international rate of profit is lacking. This, it is suggested, results from the fact that ‘the national composition of capitals (as national-social capitals) modifies the functioning of capital competition in the global market and so preserves and reproduces international differences in the productivity of labour and national rates of profit’.40 We are here presented with the reversal of the causality between internationalisation of the market and transformations of the state. Without intending to reduce what is a complex economic argument into a rushed conclusion on the nature of the state, the above version of the causality suggests that social capital understood

37  The developments have been documented many a time, especially within the broader left tradition, from classical Marxists to Neo-Gramscians. For early contributions, see, eg, J Holloway and S Picciotto, ‘Capital, the State and European Integration’ (1980) 3 Research in Political Economy 123; H Radice, ‘The National Economy: A Keynesian Myth?’ (1984) 8 Capital & Class 111; W Andreff, ‘The International Centralization of Capital and the Re-ordering of World Capitalism’ (1984) 8 Capital & Class 58; B Fine and L Harris, Rereading Capital (London, Macmillan, 1979). 38  For a general discussion and further references, see H Radice, ‘Neoliberalism in Crisis? Money and the State in Contemporary Capitalism’ (2009)1 Spectrum: Journal of Global Studies 89, esp 104ff. 39  See nn 1 and 2 in General Conclusion of Pt 4. 40  Milios and Sotiropoulos (n 19) 155 [emphasis in original].

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as a complex web of relations, occurring within rather than outside the state, takes priority over the international market. The absence of global rates of profit equally suggests that the prospects of creation of a collective global subject are, as things currently stand, uncertain. That said, the question remains of how exactly the role of the state is articulated within the equation. It was argued above that the capitalist mode of production requires a state and that a state cannot but be national. This discussion, while explaining the role of the nation state in the capitalist economy, is not particularly enlightening when it comes to the question of the root of power. The next chapter discusses the reason why the state and the economy must be studied in relation with each other. This discussion will also clarify the reasons for this fourth part’s focus on the capitalist mode of production. The following discussion will in the end arrive at the notion that is at the heart of the state and, ultimately, of constitutionalism: the class struggle.

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9 State, Ideology and the Class Struggle I.  State and the Economy: A Dialectical Relationship If the economic and political are in a state of constant interaction whereby one level determines the other, the capitalist relation cannot survive without the state. Equally, the social capital, a relation that constitutes dominant social forces as collective subject, cannot be conceived at a level other than the state. At this stage, the above is no more than an assumption. It is therefore necessary to examine how the state intervenes in the perpetuation of the economic relation. This is an important exercise in order to get to the bottom of the relationship between power and the state and its relevance to constitutionalism. The previous chapter explained that the state (the political) is necessary not only for the reproduction of relations of production (the economic) in capitalist societies but also for their creation. The assertion necessitates an understanding of the state as a mechanism with great significance and an active role in the shape that relations of production assume in a given capitalist formation. This understanding of the state in turn invites a perception of the economy as a sphere that cannot remain unchanged irrespective of the specific nature of the mode of production. In the words of Poulantzas, the economy cannot be seen as a sphere possessing an almost ‘Aristotelian essence’ which would enable it to reproduce itself mechanically or quasi-automatically.1 Such an interpretation would depict the state as a mere reflection of the economic sphere and as an entity occupying no active role in the economy.2 An immediate result of such an assumption would be that the state is exterior to the economy while the economy is capable of reproducing itself without the active involvement of the state. It was earlier argued that pre-capitalist societies were characterised by an almost complete overlap between the state and the economy. Legitimate violence was an element inherent in the very relations of production. The peasant, tied as he was to the means of production, had to be subjected to the extraction of his surplus value by means of legitimate coercion. Within this framework, intervention of

1 

N Poulantzas, State, Power, Socialism (London, Verso Books, 2001) 15. Poulantzas calls this the ‘rebound action of the state on an economic sphere considered as essentially self-sufficient’. 2  ibid.

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the state mechanism in the productive process was both active and obvious. This relation changes dramatically in the capitalist economy where the direct producer becomes divested from the means of production. Here, the pre-capitalist overlap between the state and the economy gives way to a separation of the two spheres. This separation is, however, only relative or outward.3 As will be discussed later, while this relative separation does not imply the externality of the state towards the economy, it shows that the relation between the political and the economic is contingent upon the particular nature of the mode of production. The relative or outward separation of the state from the economy must be understood as a feature peculiar to the capitalist mode of production. Under conditions of prevalence of the capitalist relation, neither the state nor the economy can be studied autonomously from one another because none of the two objects has a constant or autonomous essence. This is why a general theory of just the economy or just the state would be misleading, as opposed to the study of the ‘capitalist state’ which is the only one that can comprehensively explore the nature of both spheres.4 The following section discusses particular modes of interaction between the state and the economy. The focus is on the role of ideology as explained by Louis Althusser. The discussion of ideology serves a double function. On the one hand, it illustrates the connection of the economic and political in capitalist formations. On the other, it brings the analysis one step closer to the question of the root and foundation of power.

II.  The Intervention of Ideological State Apparatuses in the Economic Relation In his seminal work on ideological state apparatuses, Althusser discusses the relation between the ideological and political levels with the economic sphere.5 The starting point is the function of the state as the guarantor of the reproduction of relations of production, a function which, according to Althusser, is not exclusive to capitalist formations. Every society involves itself in the task of its perpetuation or else it fails to survive. The capitalist society reproduces itself through two processes running simultaneously with the production process. First comes the need for reproduction of production forces, a straightforward process involving the constant reproduction of the means of production ranging from raw materials to the physical labour force. The second process involves the more complicated need for reproduction of relations of production. Here is where ideology becomes actively involved. 3 ibid. 4 

ibid 19. L Althusser, E Balibar and J Bidet, On the Reproduction of Capitalism: Ideology and Ideological State Apparatuses (GM Goshgarian tr, London, Verso, 2014) 1. 5 

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The turning point is that, contrary to pre-capitalist formations, the capitalist mode of production necessitates that the workforce is not educated in the workspace but rather outside of it. The state mechanism through its public and private educational institutions becomes responsible for this task. Importantly, it is not technical knowledge that carries the most weight in the educational process but, instead, the ideological beliefs that educational institutions are able to transmit.6 That is, ‘the attitude that should be observed by every agent in the division of labour, according to the job he is “destined” for’.7 Here, the mechanisms of the state, far from being limited to guaranteeing the state’s coercive function, become actively involved in the production and reproduction of a dominant ideology. The mechanisms directed towards the (re-)production of dominant i­deology are not necessarily public. Ideological state apparatuses are located from the Church to the educational system and from the narrow confines of the family to the broader political or legal system.8 The state becomes a repressive mechanism using physical violence when required, but also avails itself of a ‘symbolic’ form of violence through the ideological state apparatuses.9 The co-existence of physical and symbolic forms of violence is key to comprehending the state’s function and to avoiding the instrumentalist conception that sees the state solely as a repressive mechanism. Such misconception would imply the ability of a state’s dominant forces to use the state as a tool of domination and repression in order to serve ‘their conscious will’.10 However, as Althusser explains, the reality is more complex. The state is more than the aggregate of its mechanisms because it embodies ideology into its very function. Ideology is never simply transmitted through the state’s ideological apparatuses. Instead, ideology permeates the function of state institutions and it is that permeation that renders ideology effective. To be effective, ideology cannot remain restricted to the intangible level of ideas. It must instead be construed as reality and materialise through practice. Previous chapters have discussed that ideology never acknowledges its ideological nature because its point is precisely to avoid presenting itself as a biased representation of reality.11

6 

ibid 235–36. ibid 236. is, eg, reflected in the institutions of representative democracy, the electoral system and so on as far as political institutions are concerned and in the focus on individual rights which corresponds to a conception of societies as the sum of individuals as far as the legal system is concerned. See section I.3 of the previous chapter and for the link to constitutionalism, see n 36 of this chapter. 9  For Althusser, it is Machiavelli who first grasps this double function of the state. See L Althusser, Machiavelli and Us (G Elliott tr, London, Verso, 1972) 83. Also, this should certainly not imply that the repressive mechanisms of the state (eg the police or army) lack an ideological basis. 10 Althusser et al, On the Reproduction of Capitalism: Ideology and Ideological State Apparatuses (n 5) 72 [emphasis in original]. 11  Surely this is true of Marxist ideology itself. It has been noted that our view is always distorted by our desire. If we look at an object from a disinterested point of view we see nothing but a formless spot. See S Žižek, Looking Awry: An Introduction to Jacques Lacan Through Popular Culture (Cambridge, Mass, MIT Press, 1992) 11–12. If, however, he notes elsewhere, we look at it from a certain interested (as opposed to disinterested or point-of-fact) angle we are necessarily confronted with a biased and self-referential truth. The latter should be assessed not on the basis of whether or not it describes facts 7 

8  Ideology

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This may be better understood if state ideological apparatuses are conceived broadly as a combination of ‘institutions, organizations, and the corresponding practices’.12 As was remarked earlier, an ideological state apparatus does not necessarily need to be public. This is true not just of private schools or the Church, where it is separated from the state, but rather also of political parties, trade unions, private media and so forth.13 The word ‘state’ in the term ‘ideological state apparatuses’ does not necessarily point to an institution’s or organisation’s legal ­personality. The latter can be private or public.14 Legal personality is here of ­secondary importance because what really matters is the system that these apparatuses form. This includes systems the existence and nature of which ‘owe nothing to law’: the religious system, the educational system, the political system and so forth.15 Thus, to grasp the function of ideological apparatuses, it is important to abandon a legalistic conception of the state that would suggest that ideology is localised in sites exclusively controlled by the state. For example, a political party whose constitution and principles are in conflict with the dominant ideology

accurately (this can never be the case) but rather on the basis of whether it is in agreement with the observer’s subjective position. See S Žižek, Less Than Nothing: Hegel and the Shadow of Dialectical Materialism (London, Verso Books, 2012) esp Pt I, Ch 3. Žižek’s theory is much more complicated than this, drawing as it does on Lacan and revolving around psychoanalytical issues which for practical reasons cannot be examined in the present analysis. However, it seems that it gives a sufficient explanation of the ubiquitous existence of ideology and bias, something that I am not denying about my own analysis. In our case, this subjective position is, as explained in Pt I, the point of view of the most vulnerable members of society and accordingly the effort to articulate a theory of constitutionalism which serves their interests. 12 

ibid 77. regards the issue of the Church in particular, Althusser has been criticised on the basis that he ‘generously disregards the differences between modern states and pre-modern communities’ in his analysis of the religious system as an ideological state apparatus. See, FO Wolf, ‘The Problem of Reproduction: Probing the Lacunae of Althusser’s Theoretical Investigations of Ideology and Ideological State Apparatusses’ in K Diefenbach, SR Farris, G Kirn, P Thomas (eds), Encountering Althusser: ­Politics and Materialism in Contemporary Radical Thought (London, Bloomsbury Publishing, 2013) 253. I believe that this is accusation is unfair. It is unfair first, because as will be explained in the following paragraphs Althusser does not take the institution of the Church as such to be an ideological state apparatus, Instead he refers to the religious system in general on which he notes that it reproduces the dominant ideology ‘by recalling in sermons and the other great ceremonies of Birth, Marriage and Death, that man is only ashes, unless he loves his neighbour to the extent of turning the other cheek to whoever strikes first’: Althusser et al (n 5) 250–51. It is unfair secondly, because Althusser seems to be perfectly aware of the differences in the role of the Church in modern and pre-modern communities. For example, he notes that while in the pre-capitalist period the Church was the dominant ideological apparatus (because it concentrated not just the religious role but also the educational one as well as to a great extent the cultural and communicational ones) this is not anymore the case since these roles have largely been taken on by the educational system, the school. This, he continues, is evident once we look at the period from the 16th to the 18th century when the ideological struggle manifested itself as anti-clerical and anti-religious because the bourgeoisie sought to wrest the ideological function away from the Church: Althusser et al (n 5) 143. For an interesting account on, inter alia, the Althusserian approach to the Church and ideology, see also AS-M Jones, ‘What the Doing Does: Religious Practice and the Problem of Meaning’ (2004) 6 Journal of Culture and Religious Theory 86. 14  Althusser et al (n 5) 81. 15  ibid 81, 85. 13  As

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will still function within the ideological framework that permeates and spreads through the political system. In other words, it will function in agreement with the very principles it may wish to disturb, for example the principles of liberal ­democracy.16 While institutions certainly produce their own ‘internal’ ideology, they cannot escape the systemic function of dominant ideology. By contrast, dominant ideology will be realised through and embedded in the very practices of these institutions. The systemic nature of the dominant ideology means that the latter does not merely become embedded in practices of public and private institutions and organisations. Instead, it also becomes embedded in individuals, regardless of political disposition. The individual will eventually be subjected to the ideology of the system in which he/she becomes involved through a process wherein the effects of one’s involvement and practice within a system retroactively produce the cause of this involvement. Ideology is, therefore, anchored in actual practices which can never be simply reduced to the ideological level. This is precisely why implying the existence of a conscious will (of both the dominant forces and the dominated ones) presents a simplified understanding of a complex reality.17 Althusser’s account of the function of ideology at state level brings to mind the Foucauldian subjectivity through which power is reproduced with the individual as its intermediary. At an abstract level, the reproductive function of power may appear undifferentiated regardless of the site in which it takes place. If the state’s dominant ideology renders reproduction of power inescapable, state constitutionalism may be as futile as its global counterpart. It is at this point that discussion of the true relevance of the state becomes unavoidable. Before proceeding with this discussion in the next sections, some final remarks on Althusser’s ideological state apparatuses are necessary. For Althusser, the absence of conscious will is necessary for the reproduction of relations of production. Althusser here turns to the thought of M ­ achiavelli. Capitalist societies present a paradox: a minority in possession of the means of production is politically dominating the rest of the society, namely the working population. Machiavelli is important here as he reminds that dominance has always been exercised primarily through social groups other than the ­dominant one.18 For a group to be able to dominate, it must build alliances with its potential opponents. Dominant ideology plays a key role here, as it e­ nables the dominant group to retain its hegemony and win over potential rivals. ­Repressive mechanisms are, therefore, insufficient for maintenance of state power.

16 

ibid 104. ibid 157. Althusser writes: ‘It is because the dominant class’s ideology thus attains individuals themselves in their most inward “consciousness” [conscience] and their most private or public “­conduct” that Ideological State Apparatuses can ensure the reproduction of the relations of production down to the most “secret” levels of individual consciousness/ conscience (professional, moral, paternal, ­maternal, religious, political, philosophical, and so on and so forth)’. 18  L Althusser, ‘What Must Change in the Party’ (1978) I New Left Review 109. 17 

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Dominant political forces must also dominate at the ideological level.19 This is the only ­viable way through which the economic relation can be not only imposed but also sustained. The scheme gives rise to the interplay between political power, economic relations and ideology. While retaining a relative autonomy, the three fields are closely interconnected. The state plays a crucial role in this web of relations, as it constitutes the medium that ensures dominance at the political level. It is important, however, to avoid conflation of the ideas of state as medium and state as instrument. Unlike the instrumentalist theory, which presents the state as a neutral tool, the idea of state as medium sees the state as the site through which dominant social forces unfold their action. It is equally important to distinguish between state power and state apparatuses. The possession of state power, ie of political power, opens up the way for utilisation of state apparatuses, namely of the state’s repressive and ideological mechanisms.20 However, changes in the possession of state power do not necessarily bring with them modifications in the embedded and systemic nature of the ideological sphere.21 They do, however, bring with them the ability to exercise control over the state apparatuses. The question that emerges is who possesses state power and to what effect that power is utilised. The question cannot be answered without reference to an element key to all power relations: the class struggle.

III.  The Foundation of Power: The State is Permeated by Class Struggle As the capitalist economic relation produces a series of repercussions at the political and ideological level, the three levels cannot be examined in isolation from one another. The economic level is marked by an asymmetric relation reflected in the shapes of division of labour: production is organised by those in possession of the means of production and is put into operation by free labourers. At the ideological level, the state tends to produce and perpetuate a dominant ideology through a number of mechanisms, including the school, the Church, political parties or, as was remarked in previous chapters, law in general and constitutional law in ­particular.22 At the political level, the representative bureaucratic state symbolises the unity of the respective nation. The asymmetric economic relation around which capitalist systems are organised is in fact itself a relation of power. What allows the capitalist relation to

19 Althusser, Machiavelli

and Us (n 9) 84–86. Althusser et al (n 5) 73–74, 80. 21  ibid 75. 22  On the ideological function of the constitution, see ch 2. 20 

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s­ urvive by producing profit is precisely the asymmetry that lies at that relation’s core. Here, power emerges at its purest form, as domination and exploitation to simultaneously transform into more subtle forms of acquaintance, consensus and, in the end, outright acceptance. The capitalist relation cannot survive unless those dominated and exploited accept the domination and exploitation to which they are subject; unless, in other words, they see the asymmetric capitalist relation as the natural order of things. It is through this transformation of power in its pure form to power as acceptance and consensus that the state emerges as the key player in the global game of power relations and structures. If the economic relation cannot be sustained in the absence of interaction with the ideological and political levels and if, in turn, the ideological and political levels produce results first and foremost in the nation state, then the latter becomes the primary site of power. The state therefore is also structurally predisposed towards the reproduction of the economic and political system. To this could be objected that the capitalist relation has been subject to fluctuations across historical periods and across different states. Why, for example, was the capitalist state significantly less aggressive in the 1970s than it is in the 2010s? Why do some states encounter less aggressive models of capitalism than others? Without rejecting the significance of international developments, the answer to the above questions lies in the state itself. Temporal and especially spatial fluctuations of the capitalist relation point to a condition that must be internal to the state, rather than external to it. It seems logical to assume that this condition relates to the relative power possessed by opposite social forces within the state. The particular characteristics of the economy or different degrees of social protection in different countries have been the outcome of prolonged political confrontation within the state. Regardless of whether the balance tipped in favour of political elites or working classes, the conditions of an economy always carry the imprint of that internal confrontation.23 At the same time, temporal fluctuations in the nature of the state certainly suggest a more or less global tendency towards more aggressive forms of capitalism. This comes as a result of global market pressures and global competition of internationalised capital. Despite the force of these pressures, however, capitals competing in the global market are not autonomous from their state of ­origin. As explained in the previous chapter, individual capitals reflect the sum of national economic relations and conditions, which are in turn reflected in the internationalised market. Once again, therefore, internal conditions maintain the primary role. The specific conditions of the capitalist relation within a state do not occur randomly but are, instead, the product of internal conflict. If a relation of exploitation

23 See, eg, Esping-Andersen who argues against exaggerating the idea that global competition ­ arrows the fields of domestic policy choices. See G Esping-Andersen (ed), Welfare States in Transition: n National Adaptations in Global Economies (London, Sage, 1996) 2.

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and domination has been imposed and normalised, this is, amongst other things, because concessions have been made.24 What remains to be identified is the agents of that internal conflict. Social capital establishes those in possession of the means of production as a collective subject sharing common interests. H ­ owever, ­common interests cannot exist in the abstract. They necessarily surface in opposition to the common interests of others. Thus, with the coming together of the capitalist class that personifies social capital, a rival collective subject, that of ­workers, simultaneously comes into existence.25 Here power comes to take a very specific form. It appears coupled with the positions occupied in the division of labour and comes down to the ability of one collective subject to realise its objectives against the other. This conflict is not always conscious and it is not always active. However, it is ubiquitous and enduring and determines the specific features of the internal capitalist relation. The conflict between the capitalist and the worker, which appears to be the ground zero of power relations, constitutes the class struggle. Power here re-emerges, not as a measurable quantity, but rather as a relation resulting from the asymmetries inherent in the division of labour and amounting to the overall ability of one social class to have mastery over other social classes. As the economic relation is unsustainable in the absence of political and ideological support, the class struggle becomes tied with the set of political and i­deological mechanisms that constitute the state. The state here manifests itself not as an autonomous living organism or as an instrument in the hands of a ruling class, but rather in the main, as the primary site of power relations. The relation between class struggle, power and the state must be however articulated with caution. Class has been attacked as a theoretical construct unable to reflect existing social groups.26 The linkage between class and possession of means of production has also been accused as an inadequate depiction of reality because it fails to adequately explain categories such as the middle class.27 However, it would be wrong to assume that the concept of class aspires to explain the entirety of facts and circumstances that surround us. The analytical value of class instead lies in the fact that it identifies domination and exploitation as m ­ echanisms with

24  To be sure, these concessions did not call into question the dominance of the ruling classes. Rather ‘[the] basic motive behind the guarantee of certain economic interest to “the lower orders” (dominated classes) is one of their political disorganization. It is indeed often the most effective way of securing the hegemony of the dominant classes’; J Milios and DP Sotiropoulos, Rethinking Imperialism: A Study of Capitalist Rule (Basingstoke, Palgrave Macmillan, 2009) 134. 25  I use the word ‘simultaneously’ to indicate the lack of chronological priority in the creation of collective subjects. As will be explained more in detail in section IV both classes emerge at the same time as a result of the class struggle. 26  For further references, see DB Grusky and G Galescu, ‘Foundations of a Neo-Durkheimian Class Analysis’ in EO Wright (ed), Approaches to Class Analysis (Cambridge, Cambridge University Press, 2005) 51. 27  For a discussion of relevant issues, see EO Wright, ‘Class Analysis’ in RF Levine, Social Class and Stratification: Classic Statements and Theoretical Debates (Oxford, Rowman & Littlefield, 2006) esp 147ff.

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‘causal force in the lives of people, regardless of whether the actors themselves recognize that causal force or [whether] legal categories draw boundaries around those mechanisms’.28 Equally, the relation between class divisions and power should not lead to a misconception of relations of power as exhausted in class relations. For example, patriarchal relations do not arise solely from social class divisions, despite close linkages.29 As regards, in turn, the relation between power and the state, there should be no inference that the former is either reducible to or identifiable with the latter.30 The state does maintain a constitutive role in power relations as it is ever-present both in the formation and in the reproduction of economic relations and, thus, of class divisions. However, the state represents more than the mere result or the aggregate of social relations.31 In fact, wherever there are class divisions, the state already exists, not necessarily in chronological terms, but rather as a logical prerequisite: Even if there was a social reality before the emergence of the State, once the State is posited every social [phenomenon, including relations of power, knowledge or language] must be conceived as maintaining constitutive relations with it.32

Thus, for instance, in order to be intelligible, ideology must be expressed exclusively through a uniform national language. The state creates that language and uses it in a neutral way (‘anonymously’). This is indispensable, first for the smooth function of the national market, but above all, for the very exercise of political power: the anonymous writing of the capitalist State does not repeat a discourse, but plots a certain path, recording the bureaucratic sites and mechanisms and representing the hierarchically centralized space of the State. It both locates and creates linear and reversible spacings in the consecutive and segmented chain of bureaucratization. The massive accumulation of paper in the modem state organization is not merely a picturesque detail but a material feature essential to its existence and functioning—the internal cement of its intellectuals-functionaries that embodies the relationship between State and intellectual labour. Unlike the pre-capitalist States or the Church, this State does not retain a monopoly of writing: it spreads it (in schools) in response to the highly concrete necessity of training labour-power. But it thereby reduplicates writing, the more so as the spoken word of the State must itself be heard and understood. In the capitalist State, with its exoteric speech and unified national language, it is exactly as if secrecy and the

28 M Beggs, ‘Interview with Erik Olin Wright: Why Class Matters’ (Jacobin Magazine 2015) . 29  For a radical feminist view which sees gender hierarchies as part of the capitalist mode of production and of a social architecture which promotes exploitation through unpaid labour, see MD Costa and S James, Power of Women and the Subversion of the Community, 3rd edn (Falling Wall Press, 1975); S Federici, Caliban and the Witch: Women, the Body and Primitive Accumulation (New York, ­Autonomedia, 2004). 30 Poulantzas, State, Power, Socialism (n 1) 35. 31  ibid 38. 32  ibid 40.

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crystallization of knowledge-power had passed into state writing, whose hermetic insulation from the popular masses is well—known.33

The state is not only the site wherein power relations are constituted and unfolded. It intervenes in all domains of the social, utilising through its mechanisms all other forms of power and entangling them in the nexus of class power. The state can translate every power relation into a class relation. Although logically prior to power and class relations, the state is, in fact, founded upon them.34 We may summarise the above findings by concluding that, in capitalist social formations, power comes down to class power (a) and that the state, by concentrating and realising this power, is the primary site of its exercise (b).

IV.  Power as a Relation and State as its Primary Locus—the Role and Symbolisms of the National Constitution As power asymmetry is an element built into the economic relation, social conflict, whether conscious or not, becomes an organic feature of the capitalist mode of production. In fact, it is by virtue of power asymmetries and the ensuing conflict that collective subjects are constituted as such. Classes are thus not self-created social groups but rather formed as a consequence of clash of social interests and asymmetric power relations. This condition, which may be summarised under the term class struggle, determines the overall correlation of power within a capitalist society that in turn shapes the specific forms as well as the extent and intensity of domination within a given social formation. This explains why different capitalist societies are not identical, despite the fact that the capitalist mode of production has a structurally stable core that cannot easily be transformed. In Poulantzas’ ‘anonymous writing of the State’, the state functions as a bureaucratic mechanism that organises and represents the interests of a dominant class. The organisation and representation of dominant interests becomes a structural tendency of the mechanism that is the state, as its institutional framework always seeks to guarantee social peace and the smooth reproduction of the economy. The state thus reflects a relation of power. The terms of that relation are never identical in capitalist formations because they depend on the extent and intensity of domination, which are in turn determined by the balance of power between those dominated and those who dominate. Here the state emerges as the ‘material condensation of the social relationship of forces’ and as the central location wherein power is orchestrated.35 To reiterate, the terms of the social relationship of forces 33 

ibid 60. ibid 40. 35  ibid 128. 34 

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is in turn shaped by the outcome of the often invisible social battle that determines the specific conditions of a capitalist formation. Collective subjects, on their part, surface as a result of that social battle, the class struggle that materialises within and not beyond the confines of the state. On this reading, social conflict becomes as a matter of definition a state-specific condition. If constitutionalism is tied to the notion of social conflict, the constitutional arrangement reflects the tensions inherent in the class struggle, expresses them and seeks to pacify them. Constitutionalism, as described in chapters one and two, can now be seen as a legal and ideological middle ground in a battle that can only be state-specific. The place that constitutionalism assumes within the political, legal, ideological and economic configuration of the state binds it with the national legal order that it aspires to regulate. Let us recall an extract from Part I that binds this narrative together: it is suggested that constitutionalism is directed at maintenance and reproduction of political structures; the slowing down of the pace of any possible ideological, and therefore political, change. Crucial in the process of consensus-generation is the concept of the undivided nation, the demarcation of the ‘inside’ from the ‘outside’. Indeed, the distinction between the ‘internal’ and ‘external’ is essential to constitutionalism. It is essential, first because it is on the basis of this internal ‘commonness’ that the particularities of one’s social position are blocked out when compared to the common good of the nation. It is essential, secondly, because it is on the basis of this cover-up of social asymmetries that social consensus is created.36

A decisive question set out at the beginning of this part was how state constitutionalism can be upheld and global constitutionalism rejected if power is capillary, driving individuals to its reproduction globally as much as nationally. Why is it within the confines of the state that the constitution can promote and support the active non-consensual expressions of citizenship that accompany its existence? The condition that sets constitutionalism and citizenship apart from the global sphere is class struggle: the root and primary expression of power relations and a power relation itself. If constitutionalism is about concealing the class struggle by creating consensus, it can only do this by acknowledging that struggle’s existence. This acknowledgement, expressed, for example, in the constitutional legitimisation of forms of social conflict, is, in and of itself, fundamental. It is fundamental, first because it reveals the political and ideological quality of the constitution. It is fundamental, secondly, because it can release the emancipatory potential of constitutionalism and citizenship, an emancipatory potential which will necessarily take the form of class against class and, therefore, of a democratic and legitimate but, crucially, also national social conflict.

36 

See ch 2, p 34.

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Conclusion of Part IV: Revisiting State Constitutionalism The capitalist mode of production is an abstract concept entailing in it an ­economic, political and ideological dimension. The three dimensions are interwoven but retain a relative autonomy. The economic relation, expressed through the principle of free labour, produces specific results at the political level, including the form of the state as a bureaucratic entity which represents the unity of the nation. At the ideological level, this is expressed through the dominant ideology of individual freedoms. The coalescence of the three levels builds up the capitalist mode of production. In Marxist thought, the capitalist mode of production is the causal factor of social relations. Production is first planned by those in possession of the means of production and is subsequently executed by free labourers. This process generates a social relation of dominance and exploitation. In other words, the social division of labour creates an asymmetry between different social groups, while it also constitutes them as opposing social forces. This asymmetry in economic relations is the source and the origin of power. On this reading, power is not merely unlikely to escape the class pertinence of economic relations; it is founded upon them. Within this context, the role of the state is indispensable. The state provides the locus of organisation of the production process, of political power and of ideology. The national element lends the state coherence by incarnating a common will and interest. The concealment of class conflicts, which arises therefrom, is indispensable for the maintenance of political power by the dominant capitalist class. The nation state is, thus, neither autonomous nor separate from the social relations articulated within its territory. The Marxist theory of social capital confirms this thesis. According to the theory of social capital, capital is understood as a social relation that incorporates all social relations of a (nation-)specific capitalist mode of production. It constitutes capitalists as a social group that cannot but bear a national stamp. In this way, the state metamorphoses into a ‘collective capitalist’. Herein lies the need to reconsider the relationship between power, the state and constitutionalism. A dominant global constitutionalist rhetoric argues that the globalisation of economic, military and political relationships as well as of power structures has led, inter alia, to the extraterritoriality of state activities which affect populations in different states, thus, overall reducing the democratic

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input of c­ itizens into policy formation.1 Equally, the transnational mobility of firms, individuals and institutions renders the nation state less powerful to tackle problems by itself.2 This discourse, which, somewhat contradictorily, comes down both to the demise of the nation state and to the expansion of its power beyond its ­borders, is hardly a monopoly of constitutional theorists. When it is not integrated in the global governance discourse it parallels this discourse by adopting a similar worldview.3 At the same time, the discourse is also reflected in the writings of scholars who belong to the broader Marxist tradition. Globalised capitalism, the emergence of a global market exercising power over states, the transformation of the nation state and generally the increase of decentralised forms of global

1  The discourse has many variations as, eg, some of the accounts refer to a multi-layered international system, others to a version of global constitutionalism that would not necessitate a single global governance authority, and so forth. See, eg, A Peters, ‘Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures’ (2006) 19 Leiden Journal of International Law 579; S Kadelbach and T Kleinlein, ‘International Law – A Constitution for M ­ ankind? An Attempt at a Re-appraisal with an Analysis of Constitutional Principles’ (2007) 50 German Yearbook of International Law 337; MP Maduro, ‘From Constitutions to Constitutionalism: A Constitutional Approach for Global Governance’ in D Lewis (ed), Global Governance and the Quest for Justice: Volume I: International and Regional Organisations: International and Regional Organisations (Oxford, Hart Publishing, 2006) 227. There are also analyses which see the UN Charter as the formal world constitutional document. See, eg, RSJ Macdonald and DM Johnston, ‘The International Community as a Legal Community’ in RSJ Macdonald and DM Johnston (eds), Towards World Constitutionalism (Leiden/Boston, Brill Academic Publishers, 2005) 879 and certainly the pioneering work of Fassbender, on which see, for a recent account B Fassbender, The United Nations Charter as the Constitution of the International Community (Leiden/Boston, Brill, 2009). On other versions of global constitutionalism, see, eg, Cass and Petersmann re the constitutionalisation of the WTO: DZ Cass, The Constitutionalization of the World Trade Organization: Legitimacy, Democracy, and Community in the International Trading System (Oxford, Oxford University Press, 2005); E-U Petersmann, ‘The WTO Constitution and Human Rights’ (2000) 3 Journal of International Economic Law 19. There has also been a vast amount of German literature on the subject. eg, A Emmerich-Fritsche, Vom Völkerrecht zum Weltrecht (Berlin, Duncker & Humblot Gmbh, 2007); K Dicke, S Hobe, K-U Meyn, E Riedel and H-J Schütz (eds), Die Konstitution des Friedens als Rechtsordnung: Zum Verständnis Rechtlicher und Politischer Bedingungen der Friedenssicherung im Internationalen System der Gegenwart (Berlin, Duncker & Humblot, 1996). The list is very long. See for further references, CE Schwöbel, Global Constitutionalism in International Legal Perspective (Leiden/Boston, Martinus Nijhoff Publishers, 2011) esp Ch 1. 2  See, eg, CM O’Brien, ‘Reframing Deliberative Cosmopolitanism: Perspectives on Transnationalisation and Post-National Democracy from Labor Law’ (2008) 9 German Law Journal 1007; B-O Bryde, ‘International Democratic Constitutionalism’ in MacDonald and Johnston, Towards World Constitutionalism (n 37) 104ff. An extremely interesting point is raised by Joanne Scott in the context of aviation regulation, a field which is by definition characterised by the ‘intensity of global flows in the form of people and cargo’. Despite this fact and in contrast to the usual claim that ‘the territorial jurisdiction of the modern state over economic life is increasingly constrained by the globalization of economic and social relations’ (she quotes Jayasuriya) global flows can, according to Scott, serve to enhance rather than undermine a state or polity’s global regulatory power. See J Scott, ‘Territorial Sovereignty and ­Territorial Extension’ in R Rawlings, P Leyland and A Young (eds), Sovereignty and the Law: Domestic, European and International Perspectives (Oxford, Oxford University Press, 2013) 277. For the quoted extract, see K Jayasuriya, ‘Globalization, Law, and the Transformation of Sovereignty: The Emergence of Global Regulatory Governance’ (1999) 6 Indiana Journal of Global Legal Studies 425, 434. 3  Only a look at the titles in the preceding two footnotes shows that many analyses are integrated in the global governance discourse. See, inter alia, D Lewis (ed), Global Governance and the Quest for Justice: Volume I: International and Regional Organisations: International and Regional Organisations (Oxford, Hart Publishing, 2006).

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governance are recurring themes in the above disciplines.4 While all of the above is accurate, these tendencies are neither new nor decisive for the case of constitutionalism and democracy. The global constitutionalism argument boils down to a concern about the global expansion of authority which only a global or transnational form of constitutionalism can keep track of. Within this context, the constitutionalist is faced with the problem of dependency of poorer countries which can never be rendered truly independent from the capitalist world economy;5 the denationalisation of capital investment which brings about ‘forms of power and social organisation’ [escaping] ‘the template of the state’;6 the changing nature of the political community due to ‘global economic processes, especially growth in trade, production, and financial transactions, organized in part by rapidly expanding multinational ­companies’;7 or, in the final analysis, with the shaping of choices through a global basic structure ‘be it concerning the economy, or trade rules that shape negotiations between multinationals and host governments, or the impact on global markets by agricultural subsidies in rich countries, or the rules for global capital mobility’.8 Despite the positive contribution of these accounts, they often fail to provide the understanding of the state upon which they are grounded. The often ­a-contextual references to multinationals, the global market and internationalisation processes convey the impression that a capitalist world economy emerges almost spontaneously out of the autonomous activity of economic and political actors and the transnational movement of capital. But, as has been noted, ‘[this] argumentation fails entirely (…) to grasp that capital is a social relationship that is reproduced in a complex way (politically and ideologically overdetermined) in the framework of a specific (national) social formation’.9 The accounts perceive the state and the economy as autonomous entities and fail to see the former as a set of mechanisms that reflect ‘the political condensation of class relations of domination, [ie as] the factor that underwrites the cohesion of capitalist society’.10 This assumes

4  M Hardt and A Negri, Empire (Cambridge, Mass, Harvard University Press, 2000); R Cox, Civil Society at the Turn of the Millennium: Prospects for an Alternative World Order (1999) 25 Review of International Studies 3; H Overbeek, ‘Global Governance: From Radical Transformation to Neo-Liberal Management’ (2010) 12 International Studies Review 697. 5  S Strange, The Retreat of the State: The Diffusion of Power in the World Economy (Cambridge, Cambridge University Press, 1996) 49. 6  N Walker, ‘The Idea of Constitutional Pluralism’ (European University Institute 2002) Working Paper 6-7, http://cadmus.eui.eu/handle/1814/179. 7  D Held, ‘The Transformation of Political Community: Rethinking Democracy in the Context of Globalization’ in I Shapiro and C Hacker-Cordón (eds), Democracy’s Edges (Cambridge, Cambridge University Press, 1999) 96. 8 A Follesdal, ‘Global Distributive Justice? State Boundaries as a Normative Problem’ (2012) 1 Global Constitutionalism 261, 269. 9  J Milios and DP Sotiropoulos, Rethinking Imperialism: A Study of Capitalist Rule (Basingstoke, Palgrave Macmillan, 2009) 193. 10  ibid [emphasis in original].

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that the capitalist relation may be reproduced globally in the absence of the economic, political and ideological conditions that the state sets in motion. Further, the extraterritorial expansion of capital is treated as the result of autonomous decisions of individual capitalists. Here the impersonal nature of capital and the national dimension of the capitalist relation are entirely disregarded. The socio-economic structure of nation states develops at different rates depending on the results of class struggle taking place within their borders.11 This does not imply that the autonomy of the state is not relativised at the international level. The contradiction between capital and labour is specified by both internal and external ‘historically concrete forms and circumstances in which it is exercised’.12 It is determined both as a function of the national past and as a function of the existing world context.13 Yet, on the one hand, this has been the case throughout the history of the modern nation state and, on the other, this does not necessarily imply precedence of the international over the national. Quite the opposite, the [international conjuncture] is incorporated—and exerts its influence—as a ­secondary contradiction (in the sense that it does not have priority over class struggle) within the social formations, meaning that the position (in terms of power) of every state (…) and the margins of opportunity for its imperialist action are determined by the overall internal class correlations, which are in turn already overdetermined by the international conjuncture.14

This reading of the state and of class struggle as the root of power relations compels us to prioritise the internal conjuncture. It is not the global which intervenes decisively into the local but vice versa. Paraphrasing Althusser, we may conclude that it is the local which constitutes the basis of the global, ‘up to and including the effects that [the global] has within social formations’.15 The global sphere thus emerges as the constellation of nation states and the different class and political

11  Other forms of struggles exist which determine the socio-economic structure of a state, eg religious or racial. For a comprehensive account on the interrelation between class and race, see E Balibar and IM Wallerstein, Race, Nation, Class: Ambiguous Identities (London, Verso, 1991). See also n 5 in Pt 1, ch 1 and n 13 (on religion as an ideological mechanism) and 29 (on feminism as a classrelated issue) of ch 9. Re religion and its correlation with class struggle, see J Rieger, ‘Introduction’ in J Rieger (ed), Religion, Theology, and Class: Fresh Engagements After Long Silence (Basingstoke, ­Palgrave Macmillan, 2013) 5–8. The book approaches religion as a tradition which does not develop in a vacuum but rather is the outcome of, inter alia, tensions between classes. The macro level (ie the economic and political constellation), it is argued, also shapes the micro level including people’s deepest emotions and beliefs. A more tangible observation in the same book argues that religion, like class, cannot be defined in the abstract. Instead, it can only be studied in particular historical contexts and in correlation to other relationships, and, crucially also, to the flow of power. Besides, it is not a coincidence that ‘[in] times of economic inequality religious prosperity movements are on the rise promising social mobility that is illusionary’, at 8. 12  L Althusser, For Marx (London, Verso, 2005) 106. 13 ibid. 14  Milios and Sotiropoulos, Rethinking Imperialism (n 9) 197. 15 Althusser, For Marx (n 12) 212.

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 197

correlations that occur therein. While the global sphere is not the sum of individual states but rather the site of extended reproduction of the capitalist relation it is, at the same time, a sphere always determined by the results of the class struggle within each individual social formation. Drawing on this understanding of interaction between the global and the local and the primacy of the latter over the former, the decentralisation of political authority expressed through the internationalisation of capital or the influence of international institutions and of military expansion may be cast in a different light. The specific forms of international organisations in each historical period reflect and reproduce the correlation of powers within and between individual social formations. Equally, geopolitical conflicts do not reflect a centralised global political authority of some kind but rather the result of the class antagonisms, already overdetermined by the international sphere, within each social formation. This leaves us with a significant conclusion: if the state is the site wherein power is organised and reproduced; and, if power is ultimately rooted in the class struggle, it is the task of constitutionalism to define the conditions and framework within which that struggle materialises. This framework is the nation state.

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Conclusion: State, Power, Constitutionalism Traditionally, liberal legal and political thinking has approached constitutionalism and citizenship as concepts tied to the nation state. Amid changing academic perceptions pointing towards the need to expand the limits of both concepts beyond nation state borders, the preceding discussion has asserted that constitutional discourse would benefit from reclaiming the value of state constitutionalism. The argument has sought to escape the precepts of liberal legal and political theory and to approach constitutionalism and citizenship through a Marxist and Foucauldian prism. While the merits of other theoretical approaches to constitutionalism are acknowledged, the Marxist and Foucauldian traditions have been chosen as an appropriate fresh look into notably issues around power, ideology, social conflict and the state, all of which are considered vital for the study of constitutionalism but at the same time remain underdeveloped in the context of constitutional discourse. Certainly, the contemporary state takes on many forms, often more complex than assumed in the preceding discussion. However, as remarked in both the Introduction and Part IV, the discussion has not aspired to offer a faithful representation of arrangements of each and every state legal order but rather to extract common characteristics and produce a theory of constitutionalism that draws on common features of liberal democratic nation states. Despite their considerable differences, nation states, by and large, culminate in a similar arrangement: the exercise of control and power by a dominant social class. A unique feature of the above arrangement, which is moreover exclusive to the nation state, is the ability to rule not by means of coercion but rather by means of a wide national consensus, grounded upon shared perceptions among the population of common or shared interests and identities. The national element plays a crucial role here, creating as it does a fiction of unity among the people. Without by any means making any normative assessment about the propriety of national identities or nationalism, the discussion has argued that, although the national element is not a prerequisite for either citizenship or constitutionalism, national affiliation constitutes the strongest driver of common belonging that the liberal world has at its disposal. Indeed, while politics proper, as defined in chapter one, require the people to build alliances on the basis of common non-national interests (Part I), the national element facilitates identification between people, thus building a sense of commonality of interests where there may be none. This sense of commonality is reflected in the national consensus. Constitutionalism plays a crucial role in this context not

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merely in the form of constitutional practice but, perhaps more importantly, in the form of constitutional ideology. Constitutionalism here emerges as a material ideology, viz one grounded in practice. Despite its tendency to conceal inequalities and preserve a given regime, constitutionalism may also work towards redressing asymmetries and towards the emancipation of dominated social forces. To turn constitutionalism into an instrument of freedom and liberation we must focus on its peculiar nature inscribed in its history, and kept alive in many of the constitutional documents that accompany it until the present day. Constitutionalism as a set of legal doctrines is not only a material ideology. It also provides a battlefield for ideologies: a field where the clash between the opposing forces of society is more evident than in any other legal field. Unlike legal fields that focus, for instance, on private wrongs, the reduction of private harm or on the resolution of individual private disputes, constitutionalism was born and has developed around the notion of social conflict. A recurring theme in the preceding discussion is that the concept of social conflict, in tandem with the need to pacify it, are inscribed in the essence of constitutionalism. Yet, pacification of social conflict presupposes first the existence of collective political subjects that become its agents. Secondly, it presupposes that social conflict is acknowledged by the constitution. It is precisely this acknowledgement which bestows upon constitutionalism its special power: the legal and political power that enables people to turn the constitution against the very configuration that it seeks to both establish and legitimise, ie against the prevailing consensus and maintenance of existing political power. The ability to legitimately challenge given political structures through constitutionalism is also what determines citizenship as understood in the preceding discussion, namely as an agonistic process which enables citizens to organise into collective subjects on the basis of non-national interests and to question dominant oppressive values and arrangements. Social conflict is relevant to the prospects for European constitutionalism too. Europe is not developing into a state nor do the changes in the nature of ­sovereignty triggered by Europe carry with them the dynamics of a post-national sovereign Union. At the same time, European citizenship has failed to replace national identities and to defeat the assumptions about human kind that the latter brings with it. Europe has not managed to disentangle European citizens from their national ties and to embed a sense of European commonness. Quite the opposite, in the absence of social conflict at supranational/European level, the Union has effectively prevented European citizens from forming alliances based on interests different from, or irrelevant to, their national interest. As a conclusion, while constitutionalism is in theoretical terms a viable option for the Union, this possibility seems foreclosed as a result of the Union’s practices (Part II). The global space is even less promising in terms of its constitutional prospects. For all the global diffusion of political power that has taken place in recent decades, there seems to be no potential for the generation of global collective subjects and therefore of social conflict, citizenship and constitutionalism. In the context

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of global governance discourse, diffusion of political authority creates a space in which both political power and citizen action are situated beyond state borders and yet have the ability to affect the lives of those living therein. However, a discourse that focuses on diffusion of power per se does not necessarily say much about power’s function, nature, roots and sources (Parts III and IV). A study of the above features reveals that power may be globally diffused but remains rooted in the nation state, rendering the latter into the site where power can also be actively opposed. In other words, the nation state remains the primary site in which social conflict can be expressed, despite arguments positing the internationalisation of the state and social classes, an argument challenged by the reality of persisting strong national identities and of the absence of outlets for global social conflict and its accommodation. Be that is it may, global constitutional discourse remains a valuable project, focused as it is on the demand for establishment of limitations to global power. However, despite the emphasis on limitations to global power, the theory of global constitutionalism lacks a clear narrative about both power and the state. Yet, the two concepts are vital for the study of constitutionalism. However one approaches the constitutional system, whether as a mechanism focused on the limitation and control of state power or as a tool that demarcates the field of social conflict, the questions of power and its roots remain steadfastly in need of answers. In other words, a constitutional theory may be premised on this or the other assumption about how constitutionalism is or should be defined. But either way the questions of power and the state cannot be left unresolved. The final two parts of the discussion have demonstrated that a Foucauldian and Marxist reading of power and the state forecloses the extension of constitutionalism beyond state borders. Certainly, a Marxist reading of power and the state is not easily compatible with a theory that insists on the value of state constitutionalism. There is an apparent element of contradiction here as for Marxism, the constitution is a tool of domination and any effort to uphold its usefulness for disadvantaged parts of society would be condemned as reformist or counterrevolutionary. At the same time, insistence on the continuing relevance of the nation state is at odds with the Marxist approach that has always been internationalist in its dimension. Yet, the preceding discussion has not sought to produce a Marxist constitutional theory, but rather a theory of constitutionalism that seeks to build a different constitutional narrative by employing Marxist conceptual and analytical tools. The discussion has described constitutionalism as tied to the state but has avoided value judgements on the desirability of these ties. Nevertheless, with the result of that descriptive exercise being the continuing relevance of state constitutionalism, it makes sense to focus on how we can make the latter work. Part of the task of the constitutional scholar should therefore be to redirect the constitutional discourse towards a novel idea of constitutionalism as a ­potentially emancipatory process that can open up ways for the articulation and democratic and political resolution of social conflicts and perhaps, in the end, for the challenge of the very power structures that the constitution seeks to protect.

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INDEX

Althusser’s writings foundations of power and of the state  164 ideological and political levels within the economic sphere  182–186 law and morality  15–17, 33 nation and the state  170 America market economy  77 Republican constitutionalism  43 US Constitution  26, 30, 43 US judiciary  77 American Revolution causes of  26 essence of constitutionalism  30 US Constitution  26, 30, 43 Anti-globalisation movement  149–151 Aristotelian constitutional thinking  19 Balibar, Etienne nation state and universalism  57–60 political citizenship  61 Basques ethnic groups  55 Bretton-Woods Institutions  121 British constitution  29, 30 Capitalist mode of production Althusser’s theory  164, 166, 171 basis for understanding societies  167, 168 classless state  169 collective global capitalist class  175 competition  176–178 conclusions  193–197 constitutionalism and the relation between the national and global  172–174 contractual relationship between owner and labourer  169 diffusion of authority  173, 174 dualism between the economic and the political  175 economic concept  168–170, 175 global collective subjects, ruling out existence of  174–179 global governance and the national element  172–174 global/transnational capitalist class  173, 174 ideological conditions  168–170

identity of subjects  171 individual capitalists  176, 177 internationalisation of the market  178 internationalisation of the state  173, 178 juridical level  172 labour power  169 national element global governance and relation with  172–174 role of  170–172 social capital, theory of  176–179 national unity  171, 172 overview  164–166 political conditions  168–170 political-institutional level  172 Poulantzas’s work on  164, 166, 171 pre-capitalist societies  168 rate of profit  177–179 separation of the territorial and capitalist logics of power  175 social capital, theory of  176–179, 193 social formations, historical context  167, 168 state as political product of the nation  171, 172 transnational capitalist class  173, 174, 177 unification  170 violence and the labour process  168 wage suppression  177 Capitalist society—see Capitalist mode of production Carnegie Corporation  113 Central and Eastern Europe ethnic identity  41 Christianisation universalism  58 Cicero’s constitutional ideals idea of universalism  25 pre-constitutional thinking  19, 20 Citizenship antagonistic version  44 capitalism  64 concept of  59–61 consensus—see Consensus constituent power—see Constituent power creation  24, 35 crucial task of  39 dynamism, types of  59–61

204 

Index

equality  63, 64 Europe—see European Union exclusions  59, 60 global citizenship—see Global citizenship global civil society—see Global civil society industrial citizenship  66 meaningful political participation  38 political citizenship—see Political citizenship social citizenship—see Social citizenship understanding  42 values of freedom and self-determination  39 Citizenship rights in the European Union autonomous status  69, 70 Charter of Fundamental Rights  69 consumer citizenship Commission’s view  79, 80 Council’s view  79 Court of Justice of the European Union (CJEU)  80 deliberate governance  80 development  79 displacement of politics  80 independent experts  80, 81 status  78, 79 Court of Justice of the European Union (CJEU)  69–73 market-based citizenship  71, 72 minors’ citizenship status  71, 72 national element  71 protection of the European endeavour  72 residence  69 social benefits, entitlement to  69 third country nationals  70, 71 workers’ rights, protection  74 balancing test  76 collective rights  74, 77, 78 proportionality test  75, 76 right to strike  74–76 trade unionism  73, 77 works councils  74 Civil rights  64–66 Class analytical value of  188, 189 anonymity  41 divisions, relation between power and  189 dominant and subordinate  151, 152, 154 internationalisation  155–157 material inequalities  66 paradoxical grouping  94 transnational social classes  102, 154 Class struggle  186–197 Climate adaption and mitigation policies  111 Colonialism nation state and  58, 59 Comitology procedure in EU governance defences  80

deliberation  83 diversity and decentralisation  83 experimentation and knowledge-creation  83 flexibility and revisability  83 mechanism for implementing and delegating legislation  82, 85 multi-level integration  83 participation  83, 87 policy making  85 power-sharing  83 transparency and accountability  86 Commission on Global Governance (CGG)  106, 116, 140, 147 Concept of constitutionalism consensus—see Consensus constitution, outline of  29–33 democracy  10–12 dissensus—see Dissensus history of constitutionalism—see Historical background to constitutionalism politics proper  8–12 pre-constitutional thinking  18–20 separation of law from morality  12–17 social conflict  8–12 Consensus constitutionalism and  33–35, 45 generation  3, 4, 33–35 governance  110 moral and legal ideology  33 undivided nation, concept of  34, 35 Constituent power collective entity as  36, 38 conceptions  36 interests represented  39 Negri’s definition of  37 process of creation/re-creation by the citizens  36–39 re-conceptualisation  45, 46 reflexive theory of  36–38 social conflict  38 two-contract theory  36, 37 Constitutions binding force  32, 33 constituent power—see Constituent power essence of  30 goals  34 outline  29–33 politico-ideological function  38 written and unwritten  29, 30 Constitutionalism capitalist mode of production—see Capitalist mode of production citizenship—see Citizenship conclusions  199–201 consensus—see Consensus constituent power—see Constituent power description of  31, 32 dissensus—see Disssensus

Index essential quality of  20 European Union—see European Union foundation of power—see Power history of—see Historical background to constitutionalism identification with being together in a public community  31 ethos and telos of provisions  31 power or social decision-making  30 self-given legal and political commitments  31 liberal democracy and  32, 33 meaning  3, 30–32 origins of  18 politics of consensus positive tool as  39 public sovereignty and citizenship  32 question of the nation state  45, 46 roots of power—see Power symbolism  32 understanding of  30–33, 38 written constitution and  29, 30 Contestatory politics  155–157 Court of Justice of the European Union (CJEU) citizenship rights  69–73 consumer citizenship  78–81 workers’ rights  74–78 Credit rating agencies  114 Dahrendorf, R citizenship  65 Democracy antagonistic version  38, 42, 44, 45, 49 citizenship—see Citizenship political concept  10–12 promotion of, political contestation  155–157 social conflict  10–12 de Seyssel, Claude model for government in sixteenth century France  21 Dissensus constitutionalism and  39–44 enforced homogeneity  40, 41 ethnic identity  41 Machiavelli’s proposals for constitutional system for Florence  39, 40 multi-national constitutional systems  41, 42 political trade-offs  42 post-communist countries  41 republican constitutionalism  43 secessionist tendencies  42 social conflict  42, 44 Economy capitalist economy  15, 16, 64, 166, 168, 176, 179

 205

interaction between the state and  181, 182 Althusser’s writings  182–186 dominant ideology  184–186 educational process  183 ideological state apparatuses  182–186 ideology  183 legal personality  184 production process  182, 183 state power and state apparatuses, distinction between  186 violence, physical and symbolic  183 Educational process  182–186 Emancipation  59 Enforced homogeneity  41 Enlightenment philosophy of  21–23 universalism  58 Environmental regulation  111, 112 Equality social citizenship and  64–67 Ethnic communities Central and Eastern Europe  41 collective national identities  35 European Union  55 Ethno-cultural homogeneity  53 European Parliament role and powers  54 European Union Charter of Fundamental Rights  69 citizenship-capable entity dynamism  59–61 imperialistic nature of national universalism  58–60 national project as universal project  56–58 no-demos thesis  53, 54, 93–96 political citizenship  61, 62 social citizenship  63–67 citizenship rights autonomous status  69, 70 Charter of Fundamental Rights  69 Court of Justice of the European Union (CJEU)  69–73 market-based citizenship  71, 72 minor’s citizenship status  71, 72 national element  71 protection of the European endeavour  72 residence  69 social benefits, entitlement to  69 third country nationals  70, 71 comitology system of governance  82, 84–88 conclusions on European citizenship  93–96 constitutional quality of, overview  49–51 ethnicity  55 German Constitutional Court’s Maastricht decision  53, 54

206 

Index

governance deliberative processes comitology system  82, 84–88 criticisms of  88–91 defences  80 deliberation  83, 89 diversity and decentralisation  83 experimentation and knowledge-creation  83 flexibility and revisability  83 multi-level integration  83 open method of coordination  82, 88 participation  83 power-sharing  83 public interest  84, 88–91 transparency  89 individual citizens  78–81 labour rights protection  74, 75 Lisbon Treaty  82 nation necessarily preceding the state  54–56 national identity  50, 51, 55, 56 open method of coordination  82, 84–88 public space, Court’s treatment of  73–78 Schnapper’s idea of nationality  56, 57 concept of ethnicity  57 national political community  57 republican theory  56 role of citizenship  57 universalism  56, 57 social policy  73 workers’ rights, protection  74 balancing test  76 collective rights  74, 77, 78 less restrictive means test  76 proportionality test  75 right to strike  74–76 trade unionism  73, 77 works councils  74 European works councils  74 Florence Machiavelli’s proposals for constitutional system of  39, 40 Ford Foundation  113 Foucault, M democracy promotion  155 global governance  104, 105, 107, 163 neoliberal rationality  142 power, function of  101, 102, 127–132, 136, 201 subjectivities  149, 150, 185 France de Seyssel’s model for government in the sixteenth century  21 Enlightenment, philosophy of  21–23 political conflicts of the sixteenth century  21 Revolution—see French Revolution Rousseau’s principal of popular sovereignty  22, 23

French Declaration of Rights of Man and Citizen  24, 25 French Revolution causes of  23 declarations  24, 25 effect of the philosophy of the Enlightenment  23 nationalism  25 naturalisation of property and contractual rights  25 success of  23, 24 universalism  25 Fukuyama, F end of history  139, 140 Function of power—see Power Gill, Stephen institutional lock-in  154 new constitutionalism  153, 154 Gilman, Howard US judiciary  77 Global citizenship anti-globalisation movement  149–151 contestation, global and local  155–157 democracy and  153, 154 Foucauldian thought  150 global civil society—see Global civil society global contestatory politics  149–152 hegemony  151, 152 institutional lock-in  154 internationalised classes  156, 157 internationalised state  152–154 Neo-Gramscian thought  151, 154 new constitutionalism  152–154 political contestation  155–157 social conflict at global level  151 world order, existence of  152 Global civil society advocacy NGOs accreditation procedures  146 consultation procedures  146 due process rights, function of  147, 148 international financial institutions  146 International Monetary Fund  146 meaning  146 World Bank  146 World Trade Organisation  146 United Nations  146 Commission of Global Governance (CGG)  140 contractual relations  142, 148 depictions of  139 due process rights  146–149 enterprise culture  142 entrepreneurialism  142, 148 facilitator of power, as  142 marketisation of politics  140 methods of resistance  139–142

Index neoliberal rationality  142 non-government organisations (NGOs)  141, 142 overview  139–142 public private partnerships collaboration, methods of  143 Commission of Global Governance  143 concept and practice of  145 control and authority  144 forms of  143 horizontality, focus on  144, 145 international non-government organisations (INGOs)  144 joint policies and practices  143 limited role of the state  143 non-government organisations (NGOs)  144 self-regulation  145 technology of government, working as  142–146 United Nations, view of  144–146 resistance  148 Global governance authority  103 basic precepts of governance consensus  110 controllers and controlees  109 framing goals  110 governance as a descriptive term  110, 111 heterarchical and cooperative interaction  110 issuing directives  110 politics of global order  110 pursuit of policies  110 Rosenau and Czempiel’s study of governance  108, 109 system of rule explained  109 cities/urban centres demands for autonomy  113, 114 climate adaption and mitigation policies  111 Commission on Global Governance, quoted definition of  106, 116, 140 concept of  99, 100 conclusions  158 continuum, depiction as  113 control mechanisms  111–115 credit rating agencies  114 critical analysis and perspectives  104–107 descriptive term  103, 111 discourse and political bias authority and power  117, 118 changes in patterns of regulatory rule  116 flawed and deceptive  117 natural development rather than human construction  119–123 negative direction  116, 117 non-adversarial terms  116

 207 non-hierarchical system of rule  116 non-state actors, role of  116, 117 participation  118 power, function of  117, 118, 119 substance, question of  119 discourse and reality definition of global governance  106 dilemma between  103–105 dominant ideology  107 general politics of truth  107, 108 historically organic ideologies  107 systems of domination  107 decrease in state authority  119–123 distinct field of study  103 environmental regulation  111, 112 European Union  114 Foucauldian approach  104, 105, 107 globalisation discourse  112, 113 governance as a descriptive term  110, 111 horizontal cooperation, schemes of  113 institutionalised/hierarchical mechanisms  113, 114 Marxist point of view  104, 105, 107 meaning  99, 100, 103, 105, 106 nascent/heterarchical interaction patterns  113, 114 natural development rather than human construction  119–123 achievement of results  122 decrease in state authority  119, 120 loyalty to effectiveness  122 non-political and non-adversarial version of global regulation  122, 123 private and public boundaries, blurring of  121 processes rather than substance, focus on  119, 120 results rather than causes, focus on  120 social transformations  121 World Bank good governance  121, 122 neoliberalism  130–133 non-government organisations (NGOs)  105, 113–115 overview  99–102 poverty and global needs  133, 134 biopolitics  136 developing countries  134, 135 government techniques/ technologies  134–136 International Monetary Fund conditionality policies  136 lending and borrowing practices  136 ‘poor’, category of/role of  135 possible solutions  135 United Nations Millennium Development Goals project  134

208  power—see Power  129 proliferation in use of term  104 subnational governments  111, 112 systems of rule  109, 111–115 transnational business corporations  113, 114 United Nations  114 Globalisation process discourse  112, 113 state’s decreased power  119, 120 Westphalian system  113 Global poverty—see Poverty Global resistance—see Resistance Governance EU—see Governance in the EU global governance—see Global governance Governance in the EU deliberative processes  81–84 comitology procedure  82, 84–87 criticism of  88–91 deliberation  83, 89 diversity and decentralisation  83 experimentation and knowledge-creation  83 flexibility and revisability  83 inadequacy of  90 language of openness  89 multi-level integration  83 open method of coordination (OMC)  82, 88 participation  83 power-sharing  83 public interest  84, 88–91 transparency  89 Governmentality concept of  127 liberalism  130–132 neoliberalism  130–132 rationality  130 Gramsci, A hegemony  132 historically organic ideology  107 Hardt, M global governance  117 Hegemony  16, 132, 136, 149–152, 185 Historical background to constitutionalism American Revolution—see American Revolution antiquity to mid-eighteenth century  18–27 birth of the nation state  18 constitutional expansion  29 constitutional settlements  26, 27 Enlightenment, philosophy of  21–23 France—see France; French Revolution Hobbesian theory  21, 22 Locke’s philosophy  22

Index pre-constitutional thinking Aristotle’s philosophy  19 Cicero’s constitutional ideal  20 Roman Empire  19, 20 seeds of constitutional thought  18 Rousseau’s principal of popular sovereignty  22 Hobbesian theory natural right to liberty and sovereign rule  9, 21, 22 Hobsbawm, E European ethnicity  55 French Revolution and philosophy of Enlightenment  23, 26 global governance  125 Ideological state apparatuses  182–186 Imperialism  58, 59 International Monetary Fund (IMF)  136, 146, 152 Internationalisation of classes  156, 157 Internationalisation of the state  152–154 Islamic democracies  29 Judiciary neutrality  43 Justice Rawlsian theory  12, 13 Kelson’s theory link between law and morality  14 Labour relations  169, 183, 188 Labour rights provisions  42, 74 Law attribution to non-legal sources  8 crystallisation of dominant interests  15 factors determining  7, 8 foundations of democracy  10–12 morality, separation from  12–17 politics proper  8–12  ideological function  16, 17 justice, Rawlsian theory  12, 13 morality and link between  12–17 Althusser’s writings  15–17, 33 Kelsen’s arguments  14 Marxist thesis  15–17 Neo-Kantian tradition  12, 13 positive objection to  14 relative autonomy of  16, 17 social conflict, relationship between  7, 8, 17, 18 state as a mechanism for legal power  17 Liberalism foundation of  23 framework of  32 link between constitutionalism and   32, 33

Index Lisbon Treaty  82 Locke’s philosophy trust as foundation of polity’s constitution  22 Maastricht Treaty  53, 62 Macedonian Empire universalism  58 Machiavelli constitutional system proposal for Florence  39, 40 Discourses  40 dominant ideology  185 foundation of politics  8, 9 History of Florence  39, 40 relationship between law and social conflict  7, 8 unification of a people  170 Madison, J US Constitution  26 Marketisation of politics  139–142 Marshall, TH social citizenship  64–67, 93 Marxism Capital, The  24 capitalist mode of production—see Capitalist mode of construction ideology of the dominant class  24, 25 Jewish Question  24 link between law and morality  15–17 power, conception of  164–166 social capital  176, 193 Milner, J-C paradoxical classes  94 Nation state class struggle and  186–190 constitutionalism and  45, 46 creation  18, 38 economy and the state, interaction between  181, 182 Althusser’s writings  182–186 dominant ideology  184–186 educational process  183 ideological state apparatuses  182–186 ideology  183 legal personality  184 production process  182, 183 state power and state apparatuses, distinction between  186 violence, physical and symbolic  183 European Union  54–56 power—see Power universalism and  58, 59 National identity and citizenship European Union  50, 51, 55, 56 French Declaration of Rights of Man and Citizen  24, 25

 209

Natural rights Hobbesian theory  9, 21, 22 philosophy of the Enlightenment  21–23 Negri, A constituent power, identification of  37 global governance  117 Neo-Kantian tradition law and morality, link between  12, 13 Neoliberalism  100, 101, 110, 120, 121, 130–132 New constitutionalism  152–154 Non-government organisations (NGOs) civil society participation  86 market-based strategies  141 monitoring and reporting  144 nascent forms of transnational government  113, 114 promotion of global public interest  105 working together  121 Norm dynamics  155–157 North Atlantic Treaty Organisation (NATO)  146, 152 Open method of coordination (OMC) in EU governance implementation of social policies  82, 88 Organisation for Economic Cooperation and Development (OECD)  152 Origins of constitutionalism  18 Peace-building political contestation  155, 156 Political citizenship commonness  62 dynamic process  61, 62 European citizenship  62 exclusion  61, 62 inclusion and exclusion  62 industrial citizenship counterpart of  66 national identity and  62 politics proper  61 Political contestation  155–157 Political trade-offs  42 Politics consensus—see Consensus dissensus—see Dissensus foundation of  9–12 friend-enemy, distinction  9 Machiavellian tradition  9 politics proper  8–12 citizenship  61 consensual theories  10 democracy  10–12 idea of  10 Ranciere’s explanation  10 understanding of  10, 11 Schmittian conception  9 social conflict and  8–12 Post-communist countries  41

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Index

Poulantzas, P concepts and foundations of power and of the state  164, 190 Poverty biopolitics  136 developing countries  134, 135 government techniques/ technologies  134–136 International Monetary Fund conditionality policies  136 lending and borrowing practices  136 ‘poor’ category of/role of  135 possible solutions  135 problems of  133, 134 United Nations Millennium Development Goals project  134 Power acceptance and consensus  187 authority  126 biopolitics  131–133 capitalist mode of production—see Capitalist mode of production class struggle  188–197 coercion and consensus  128, 187 conclusions  199–201 constituent power—see Constituent power constitutionalism and  163, 191–121 domination and exploitation  128, 129, 187 Foucault and the function of power  126–132, 163 foundation of capitalist mode of production—see Capitalist mode of production class struggle  186–190 overview  163–166 freedom  131 function of  126–130 government, meaning of  127, 128 governmentality, concept of  127, 130 hegemony, Gramscian concept of  132, 133 ideology  132 internal confrontation  187, 188 knowledge and control, concept of  131, 132 liberal governmentality  130–132 Marxist tradition capitalist mode of production—see Capitalist mode of production overview  164–166 meaning  126 neoliberalism  101, 130–132 non-disciplinary power  131 primary site of  187, 190, 191 productive force  130 rationality  130 resistance  136, 137, 149, 150, 157

roots of capitalist mode of production—see Capitalist mode of production class struggle  186–190 overview  163–166 social relation as  190, 191 source of  126 sovereignty  130, 131 subjectivation, process of  128 technologies/techniques of government  129 temporal and spatial fluctuations  187 Pre-constitutional thinking Aristotle’s philosophy  19 Cicero’s constitutional ideal  20 Roman Empire  19, 20 seeds of  18 Public private partnerships collaboration, methods of  143 Commission of Global Governance  143 concept and practice of  145 control and authority  144 forms of  143 horizontality, focus on  144, 145 international non-government organisations (INGOs)  144 joint policies and practices  143 limited role of the state  143 non-government organisations (NGOs)  144 self-regulation  145 technology of government, working as  142–146 United Nations, view of  144–146 Ranciere, J political citizenship  61, 62, 72 Rawlsian theory on justice  12, 13 Republican constitutionalism  43 Residence EU citizenship rights  69 Resistance anti-globalisation movement  149–151 global contestatory politics  149–152 market mechanisms for  139–142 power and  136, 137, 149, 150, 157 Right to strike  42, 74–76 Roman Empire pre-constitutional thinking  19, 20 universalism and  58 Rosenau, JN and Czempiel, E-O study of governance  108, 109, 113–116, 143, 173 Rousseau’s principal of popular sovereignty  22, 23 Schmittian concept of politics  9 Schnapper, Dominique nationality  55–57

Index Social citizenship capitalism  64, 65 civil rights  64–66 collective bargaining  66 collective political struggle  66, 67 constitutionalism and  67 dynamic process  63 European Union  67 equality and  63, 64 national consciousness  65, 67 political rights  64, 65 social entitlements  65–67 social rights  64–66 trade unionism  66 universality  63 Social conflict democracy  10–12 European constitutionalism  200 law as product of/mediator of  17, 18 meaning  8 pacification  66, 200 politics, conduct of  8–12 relationship between law and  7, 8, 17, 18 Social consensus—see Consensus Social entitlements  65–67 Social protection  66 Social rights  42, 64–66 Socialist democracies  29 Sovereignty constitutionalism and  32, 35, 36, 46 global governance and  103, 113, 115, 116 philosophy of the Enlightenment  21–23 political contestation  155 power  99, 101, 127–131, 163 Rousseau’s theory of popular sovereignty  22, 23 State—see Nation state

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Streeck, W Treaty of Rome  73 Third country nationals EU citizenship rights  70 Trade unionism  66 Treaty of Rome  69, 73, 77 Uniform national language  189 United Nations (UN)  146, 152 Universalism nation state and  58, 59 US Constitution  26, 30, 43 US judiciary  77 Volk-Staat-Staatsangehöriger  53 Weber, M territorial and capitalist logics of power  166, 175 Weiler, Joseph European constitutionalism  53–55 Western expansionism  58 Westphalian system  113, 114 Workers’ rights in the EU protection  74 balancing test  76 collective rights  74, 77, 78 proportionality test  75, 76 right to strike  74–76 trade unionism  73, 77 works councils  74 Works councils in the EU  74 World Bank  121, 122, 146, 152 World Trade Organisation (WTO)  120, 121, 146, 150, 152 Written and unwritten constitutions  29, 30

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