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183) Oxford Journal of Legal Studies Summer, 2005 Article *183 CONSTITUTIONAL THEORY: A 25TH ANNIVERSARY ESSAY Martin Loughlin [FNd1] 1. Introduction

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Constitutional theory has recently been undergoing a remarkable revival. For most of the 20th century the subject had been in decline, as the attention of scholars turned away from the constitutional forms and towards the social and economic tasks of government and after 1989, once liberal democracy had apparently been accepted as the only legitimate constitutional framework, it appeared to be on its last legs. The entire modern project of devising imaginative schemes for conceiving the ways in which people form a political unity organized through a governing framework was reaching its terminus. All that remained was a set of technical questions driven by the need to ensure effective co-ordination between the established rule-making, rule-executing and rule-interpreting agencies of the state. In such circumstances, the aim of this article cannot be simply to offer a sketch of the main themes in constitutional theory during the last 25 years of publication of the Journal; it must also proffer an explanation for the subject's recent revival. My argument will be that the turning point for constitutional theory comes only during the 1990s, and is driven by evident limitations in the solutions posited by the application of liberal political philosophy to constitutional questions. Many of the difficulties flow from tensions inherent within liberal thought, such as between freedom and belonging and between economic and political conceptions of liberalism. Others are more deep-seated and go to the fundamentals of liberal convictions about the nature of the state. But before turning to these questions, the subject of the inquiry must be specified. What are constitutions? What does it mean to theorize about constitutions? *184 2. What Constitution? It is generally accepted today that a constitution is a formal framework of fundamental law that establishes and regulates the activity of governing a state. This is an essentially modern understanding, a product of Enlightenment thought. It was most clearly expressed by Thomas Paine, who argued that a constitution must have a 'real' and not simply an 'ideal' existence, and that

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'whenever it cannot be produced in visible form, there is none'. His basic point was that a constitution 'is a thing antecedent to a government, and a government is only the creature of a constitution'. [FN1] Paine was here articulating the convictions of late 18th century constitution-makers who had taken the innovative step of arguing that societies are capable of 'establishing good government from reflection and choice' rather than being 'forever destined to depend for their political constitutions on accident and force'. [FN2] Since many today would regard Paine's argument as being self-evidently correct, the radical nature of his claim might be highlighted. Compare Paine's views to those of the French counter-revolutionary thinker, Joseph de Maistre. Referring to the above passage from Paine's 'evil book on the rights of man', Maistre suggested that 'it would be difficult to get more errors into fewer lines'. [FN3] He maintained that the belief that 'a constitution can be made as a watchmaker makes a watch' was one of the greatest errors of the Enlightenment, not least because 'the constitution of a nation is never the product of deliberation'. [FN4] Maistre believed that so-called constitutional reform never establishes anything new but only declares existing rights, and hence that a country's constitution cannot be known from its written laws 'because these laws are made at different periods only to lay down forgotten or contested rights, and because there is always a host of things which are not written'. [FN5] The contrast between Paine and Maistre reveals two senses of the term constitution. A constitution can be viewed not only as a text, but also as an expression of a political way of being. And in this latter sense, constitutions can no more be made than language is made, since constitutions evolve from the way of life of certain groups that come to conceive of themselves as 'a people' or 'nation'. Although Maistre's political views were controversial, especially since he tied his constitutional thought to the belief in divine power and an objective sense of the good, it is not essential to embrace that theology to feel the force of his argument. Hegel, after all, expressed a similar conviction when claiming that 'what is ... called "making" a constitution is ... a thing that has never happened in *185 history' since a constitution 'only develops from the national spirit'. [FN6] My argument will be not only that both conceptions must be kept in mind, but that the central questions of constitutional theory are generated from the tension between them. I will later examine the ways in which this tension is played out. At this stage, it need only be noted that the two conceptions reflect contrasting idioms of modern political thought, which become condensed into the forms of

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moral universalism and historical particularism. These distinct ways of ordering knowledge draw on the metaphors of mechanism (checks and balances) and evolutionism (the 'living' constitution) respectively, and also on the imagery of closed and open systems, to produce what might be called 'moral Newtonian' and 'political Darwinian' styles of constitutional reasoning. [FN7] The differences can be sketched by drawing a series of linked antinomies: reason versus tradition, form versus substance, mechanism versus organism, and individual autonomy versus collective identity. Rationalism, formalism and individualism are linked, and constitutional theories in this mode tend to deploy an analytical method to describe the constitution of the state through the use of mechanical metaphor. And those who take a cultural, experiential and holistic approach use a historical method and organic metaphors to elaborate the idea of a constitution as the collective identity of a people. One aim of constitutional theory should be to highlight the ways in which such figurative language shapes the way we think about constitutions. 3. Which Theory? Given the tensions between these two conceptions of constitution, and especially given the way they are underwritten in language forms, it seems unlikely that constitutional theory can be limited to the search for clarity in the use of constitutional concepts,[FN8] or to an attempt to explain constitutional arrangements through scientific analysis. [FN9] Although these approaches offer insight into the nature and function of constitutional arrangements, language intended to clarify is capable of having the opposite effect. And we should note that these approaches focus on constituted power, and this is only one aspect of constitutional discourse. But neither can the questions of constitutional theory be gathered up within the normative schemes of contemporary political philosophy. Such schemes generally inquire into the ideal character of political phenomena and although they may explicate concepts of central importance to constitutional discourse, their ideal aspect renders them of limited utility to constitutional*186 theory. [FN10]Constitutional theory does not involve an inquiry into ideal forms, since otherwise it would be completely absorbed into political philosophy. If constitutional theory is to form a distinct inquiry, it must aim to identify the character of actually existing constitutional arrangements. Since the distinction between governors and governed lies at the core of these arrangements, constitutional theory should be able to offer an account of the nature of this relationship. But the activity of governing must be examined as we find it: ubiquitous, ambiguous, contentious, and shot through

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with the power of discretionary action. The temptation--prevalent in much of normative political philosophy--to resolve these complexities by defining a limited scope for government, positing a specific role, or assuming that the activity can be bounded by clear rules is to be resisted. Constitutional theory must acknowledge the singular nature of the activity that lies at the heart of all political constitutions, and that activity 'as originally identified should not be changed, dissolved, reduced to something else, understood in other terms or explained away'. [FN11] Although constitutional theory is therefore to be treated as a specific engagement, the nature of the exercise must not be misconstrued. The term 'constitutional' does not signify a particular method of understanding, analogous, for example, to sociological theory. Rather, 'constitutional' stands as an explicandum, the identification of that which is to be theorized. In the first instance, theorizing about constitutions simply requires that we stop, stand back, and reflect on the postulates of the practices adopted in devising imaginative schemes through which we might make some sense of the state, understood as a political unity of a people. By doing so, it might be possible to identify a system of postulates, that is, a set of concepts--power, authority, liberties, rights, office, law, democracy, responsibility, accountability, citizenship--that are related to one another in such a way that they form a relatively coherent arrangement. [FN12] Such systems constitute a set of beliefs, and the job of the theorist is to stipulate those beliefs with a view to being able to offer an explanation of character of the practice. [FN13] Constitutional theory thus occupies what may be called a 'conditional platform of understanding, the conditions being in some way supplied by the "fact" to be understood'. [FN14] This is analogous to what Charles Taylor recognized to be a hermeneutical exercise in understanding. [FN15] And given that the activity *187 rests on a set of beliefs about how we sustain a world of governing, we should not be surprised to see that this engagement often takes the form of what Rousseau called 'a civil religion'. [FN16] 4. Liberal Philosophy and Constitutional Theory Liberal political philosophy stands in an ambiguous relationship to constitutional theory. The reason for this is that so much of recent liberal philosophy has been promoted on the back of an ideal character: that of the rational individual actor. Building on this assumption, liberals have produced normative theories of immense analytical rigour. But this postulate--the foundation of their strength as normative theory--is also the source of their weakness as constitutional theory. This has not stopped attempts being made to use these varieties of liberal philosophy to colonize the ground of

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constitutional theory. The most challenging liberal constitutional theories do not, however, rest on the figure of the atomistic individual. Rather, they tend to operate with a particular conception of the relationship between state and society: liberal constitutional theories tend to express a belief that, while society is natural, the state is artificial. As constitutional theory, this assumption is contentious. It marks a further stage in the break that has been effected between ancient and modern constitutional thought. It rejects the Aristotelian conviction that 'man is by nature a political animal', [FN17] and distances itself from the imagery-expressed in the idea of 'the body politic' or the state--of the corporate nature of socio-political existence. In liberal thought, society is viewed as an organism operating through some evolutionary dynamic--an 'invisible hand'. But the state is no longer conceived to be an organic totality (the polis). Instead, the state--or, for liberals, 'the government'--is simply a mechanism, a piece of machinery devised to deal with society's collective action problems. [FN18] Sovereignty and society are no longer envisaged as having been born together: instead, government is assumed to have been established by 'society' for the purpose of meeting certain limited objectives. [FN19] If, as I am suggesting, the state is a fundamental entity in constitutional theory, then the triumph of this liberal conviction is likely to presage the death of constitutional theory. Once the exercise of imagining the formation of the political unity of a people is abandoned or transcended, then constitutional theory--and with it also the autonomy of the political--is at an end. Modern constitutional theory has evolved from an intrinsic dynamic between the two *188conceptions of constitution--between constituent power and constituted power. State and society remain inseparable and if one is exalted at the expense of the other that dynamic is spent. For this reason, pace the liberal conviction, there can be no such thing as an ideal best state: a constitution can only be assessed within a particular socio-political context. These broad claims about liberal philosophy may be illustrated with regard to the pioneering work of John Rawls. In A Theory of Justice, Rawls followed earlier liberal theories in drawing on the image of a state of nature (for Rawls, the original position) for the purpose of justifying the claim that, although free and equal, individuals should rationally agree to live under conditions of inequality. He achieves this not only by giving priority to the right over the good (equal liberty over equality), but also by assuming that social and economic inequalities should be treated simply to be facts of life. [FN20] By making these assumptions, Rawls is able severely to circumscribe the powers of government: if, as he claims, 'justice denies that the loss of freedom for

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some is made right by a greater good shared by others', [FN21] then government is unlikely to possess any significant redistributive power. Although A Theory of Justice discusses constitutional arrangements, it does not amount to a constitutional theory. [FN22] The activity of governing receives no serious consideration and, significantly, Rawls argues that '[w]e may think of the political process as a machine which makes social decisions when the views of representatives and their constituents are fed into it'. [FN23] Rather, the book presents a version of social contract theory which analyses justice from the perspective of the rational, self-interested individual for whom all goods can be traded. It is therefore best understood as an application of a general theory of rational choice to the question of social justice. [FN24] A Theory of Justice epitomizes the way in which the concerns of economic analysis, analytical jurisprudence and moral philosophy have recently been blended to form an abstract, technical, liberal and rationalistic public philosophy. [FN25] During the last 25 years, however, Rawls re-orientated the thrust of his work. Acknowledging the existence of 'a special domain of the political', [FN26] he shifted his attention to 'the political conception of a constitutional regime', [FN27] directly addressed the issue of political conflict, and mounted a sustained defence of liberal democracy. In Political Liberalism, Rawls promoted the idea of a 'reasonable pluralism' built on an 'overlapping consensus' between conflicting political doctrines. Abandoning the stance of the self-interested actor and drawing a *189 distinction between the reasonable and the rational, he argued that it was necessary to distinguish between reasonable and unreasonable comprehensive doctrines, the latter of which pose particular dangers to constitutional democracy. Since a society may contain 'unreasonable and irrational, and even mad, comprehensive doctrines', he suggested that the challenge for liberalism is 'to contain them so that they do not undermine the unity and justice of society'. [FN28] Containment is to be achieved by defending a form of liberal constitutionalism founded on equal rights, equality of opportunity and public reason. The last concept provides the key to his constitutional analysis. Public reason specifies 'the basic moral and political values that are to determine a constitutional democratic government's relation to its citizens and their relation to one another'. [FN29] It thus seems to be a variant of political right, droit politique. [FN30] But Rawls promotes a specific conception of public reason. This reason is dualist in form: 'it distinguishes constituent power from ordinary power as well as the higher law of the people from the ordinary law of legislative bodies'. [FN31] Notwithstanding his acknowledgement of the

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significance of constituent power, however, he argues that public reason is demonstrably not the expression of a democratic will: 'Parliamentary supremacy is rejected'. [FN32] In an illustration of the way that many jurists encase constituent power in an institutional form, Rawls argues that public reason is directed mainly to officials, and that it applies 'in a special way to the judiciary and above all to a supreme court in a constitutional democracy with judicial review'. [FN33] Public reason is the 'higher law' that, he claims, amounts to 'the expression of the people's constituent power'. [FN34] Stripped to its essentials, public reason is 'the reason of its supreme court'. [FN35] By focusing on the issues of containment and stability, Rawls reminds us of the battles that still had to be waged during the 1990s over the forms of government to be established in post-communist states, post-Apartheid South Africa and other states making the transition from authoritarian regimes. [FN36] Historically, state unity had been achieved essentially by requiring agreement on a comprehensive political doctrine, and intolerance to others became a condition of *190 maintaining that stability (cuius regio, eius religio). The political question for liberalism was whether 'there may exist over time a stable and just society of free and equal citizens profoundly divided by reasonable religious, philosophical, and moral doctrines'. [FN37] The modern clash, Rawls contends, is 'between salvationist, creedal, and expansionist religions' that incorporate 'a transcendental element not admitting of compromise'. [FN38] The choice is thus between 'mortal conflict' and 'equal liberty of conscience and freedom of thought'. [FN39] Only on the basis of the latter, he claims, is political justice possible: 'Political liberalism starts by taking to heart the absolute depth of that irreconcilable latent conflict'. [FN40] Rawls is undoubtedly right to identify the tension between competing ideas of the good and the need to develop some institutional framework for handling differences as lying at the heart of constitutional theory. But his solution-which ends up as a defence of liberalism over democracy [FN41]-- remains contentious. To assume that an even-handed procedural framework can be established in the political sphere while insulating the power vested in property (the structure of inequality in the socio-economic world) from political debate would appear to be either nave or disingenuous. [FN42] It is precisely because such questions remain part of the basic political relationship that the structure of constituted power must ultimately remain uncertain and conditional. Yet this is what Rawls refuses to concede. Despite paying lipservice to the constituent power of the people, he absorbs it entirely into the framework of constituted power [FN43] and insists on inscribing liberal principles into basic political institutions in order to guarantee 'a stable constitutional consensus'. These liberal principles, he claims, 'meet the urgent

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political requirement to fix, once and for all, the content of certain basic political rights and liberties, and to assign them a special priority. Doing this takes those guarantees off the political agenda and puts them beyond the calculus of social interests, thereby establishing clearly and firmly the rules of political contest'. [FN44] By seeking permanently to fix a specific constitutional settlement, Rawls is not establishing a neutral framework: he is asserting the claim of political liberalism *191 as a comprehensive doctrine. [FN45] By acknowledging the need to promote a political culture (rather than simply treating the political system as a mechanism), [FN46] Political Liberalism comes much closer to the concerns of constitutional theory. But Rawls treats this culture as given rather than as having evolved through history. And the contentious nature of his claim is illustrated by the fact that there appears to be no room for either Maistre's fundamentalist Catholicism or Paine's radical democracy in the Rawlsian constitutional frame. [FN47] Political liberalism effectively assumes the status of a civil religion. [FN48] 5. The Rejuvenation of Constitutional Theory Far from explicating the moral foundations of some universally acceptable system of constitutional democracy, Rawls' analysis--an exemplary account of liberal constitutional theory--raises many questions. Does only one model of constitutionalism (entrenched fundamental law enforced by an independent supreme court) exist? How can the apparent tension between liberal and democratic values be resolved? What, if anything, remains of constituent power once a constitutional framework has been adopted? If the objective of rights entrenchment is to advance liberty, is government able in times of emergency to suspend those rights for the purpose of maintaining the system of liberty? Is a formally neutral liberal constitution able adequately to deal with claims of historic injustice? What is the prospect for extending liberal constitutional principles universally, and with what consequences? Many of these questions have recently emerged as matters of controversy. In this account, I am able only to offer a sketch some of the issues they pose and I do so by focusing on four main tension points: between liberalism and democracy, norm and exception, identity and difference, community and cosmopolis. Underpinning this account will be the argument that these issues can be adequately addressed only when the tensions between the two conceptions of a constitution are acknowledged, and constitutional discourse recognized as taking a dialectical form. *192 A. Liberalism and Democracy

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The political theory of constitutionalism--founded on separation of power, rule of law, and entrenchment of basic rights--has acquired an unprecedented status over the last 25 years. This has resulted in a more intense interaction between law and politics, and an enhancement in the political power of lawyers in general and the judiciary in particular. As a consequence, techniques of constitutional control have become the subject of sophisticated analysis, modes of constitutional review have emerged as the object of research investigation, and theories of constitutional adjudication now form a major academic industry. But is this trajectory taking us closer to some ideal of the rule of law, or does it lead simply to the consolidation of the rule of lawyers? Many of the controversies surrounding this question concern the relationship between liberalism and democracy. Today, the liberal aim of promoting respect for individual rights is commonly regarded as having established itself alongside democracy as a second source of constitutional legitimacy. But how are these two values related? There are serious issues at stake: if liberty takes priority, then basic rights impose limitations on the sovereign power of the democratic legislature, and if democratic values prevail then rights protection cannot easily be guaranteed. We therefore need to appreciate the ways in which two values conflict, and be clear about which should prevail. Or can the two principles somehow be reconciled? Modern philosophers had grappled with this question with limited degrees of success. Rousseau, for example, sought to dissolve the tension by devising the concept of 'the general will', which expressed the outcome of the democratic process in an abstract and universal form, and Kant tried to subordinate legislation (democracy) to morality (right). [FN49] Neither seemed especially convincing. During the 1990s, however, Habermas posited a solution in the form of a 'co-originality thesis'. [FN50] His thesis is that since one cannot be realized without the other and since neither sets limits on the other, the principles of liberty and democracy should be treated as being equally original. Habermas' argument is that private and public autonomy are interdependent and that this interdependence rests on the complementarity of reason (morality) and will (positive law) and on an internal (i.e. conceptual) relation between the rule of law and democracy. [FN51] Since a concept cannot define itself, it is not difficult to demonstrate that a basic law is a necessary condition of democracy and that, although appearing as *193 constraints, these rules amount to enabling conditions. [FN52] But such rules concern rights of expression and participation and do not of

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necessity extend to rights that guarantee private autonomy. The challenge has been to show that the entire corpus of basic rights, and not merely political rights, are constitutive of the democratic project. Here, Habermas deploys discourse theory to make the case that rights to individual autonomy provide the foundations that enable individuals to become moral beings (i.e. authors of their own laws) and that only a community of moral beings may assert the claims of democracy. He concludes that 'the rule of law is inscribed in political self-legislation, just as the categorical imperative ... is inscribed in moral self-legislation' and just as 'the morally acting individual binds her will to the idea of justice, the reasonable self-binding of the political sovereign means that the latter binds itself to legitimate law'. [FN53] The co-originality thesis attempts to resolve the paradox of constitutional democracy through an exercise in conceptual clarification. It is able to succeed, however, only by invoking discourse theory, a normative theory of communicative competence that uses the image of an ideal speech situation, and thus operates as a variant of social contract theory. Consequently, although potent as normative philosophy, the thesis is less compelling as constitutional theory. The main difficulty lies in the fact that modern constitutions are drafted at particular moments in history and those subject to constitutional rules generally have not taken part in the making of them. This concern led Paine--otherwise a strong promoter of modern constitutional frameworks--to argue that 'every generation must be as free to act for itself, in all cases, as the ages and generations which preceded it'. [FN54] For Paine, the entrenchment of constitutional rights amounted to an attempt to govern the living by 'the manuscript assumed authority of the dead'. [FN55] Habermas tries to avoid this criticism by arguing that descendants must imagine they 'are "in the same boat" as their forbears'. [FN56] But this manoeuvre only exacerbates his difficulties since, for it to work, this 'boat' must stand as a metaphor for the state, understood as the political unity of a people. Habermas must therefore follow those like Maistre who recognized that the political identity of a people precedes the establishment of a formal constitution. The problem then is that democracy would appear not to be rationally constructed through the adoption of a text (reason), but to be the product of a way of living of a people (culture). Habermas has recently claimed that the authority of modern constitutional democracy can be promoted through the concept of 'constitutional patriotism', a rational commitment to an 'abstract foundation' uncoupled from 'its *194 historical identification with a ... political culture'. [FN57] But this constitutional patriotism would now seem to be underpinned by a thick political culture.

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Habermas' attempt to devise a principled relation between liberty and democracy is therefore suggestive, but ultimately is unable to dissolve the basic tension. This should not be surprising, however, since the tension-between autonomous reason and collective culture--is precisely what gives meaning to modern constitutional discourse. [FN58] This is an ineradicable relation. Consequently, many liberal constitutional jurists who began by boldly asserting the transcendental claims of law are now quietly acknowledging that, being bound up in this tension, law is in reality a technique that operates pragmatically within specific political contexts. [FN59] But what has yet to be fully acknowledged is that constitutional interpretation is a singular type of juristic reasoning whose dynamic comes from the tension between constitutional texts and a sense of the political identity of a people. Constitutional reasoning is, in short, a special form of political discourse. And this means that constitutional lawyers--Tocqueville's bulwarks [FN60]-- have specific political responsibilities that they may not be well equipped to discharge properly. B. Norm and Exception From the discussion on liberty and democracy we see that law can be conceived both to be a tool of power and also as being constitutive of power. These differing conceptions yield a distinction, often overlooked in juristic analysis, between 'rule by law' and 'the rule of law'. To say that government should govern only through the instrumentality of law is one thing; to say that government should be conceived to be entirely a creature of law is another. Much of the juristic analysis relating to the concept of the rule of law focuses on the formal properties of law as a set of general, stable, prospective and coherent rules of conduct. [FN61] But the significance of such analysis varies according to the conception of law to *195 which it is being applied. And writers are seldom clear about the conception being invoked. For constitutional theory, the critical aspect is not that of formal analysis. Rather, it concerns a strategic question, orientated to the constitutive conception of law and specifically focused on the extent to which, and conditions under which, political power is capable of being institutionalized. [FN62] The liberal ideal is that of total institutionalization and the realization of 'the normative state'. This aims at the elimination of the figure of the sovereign so that there will be no ultimate lawgiver, but only the rule of rules. Once we move from normative construct to actual practice, however, things get tough. The problem presents itself in an acute form when liberal democracies face threats to the stability of their systems. Rawls explicitly acknowledges the need to contain these threats. The critical issue is: to what

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extent should the system of constitutional protections--the institutionalized principles of liberty and equality--be suspended for the purpose of safeguarding the security of the regime? And, equally importantly, who is to make the decision on the existence and nature of that emergency? Invoking the maxims of salus populi suprema lex esto and 'necessity knows no law', the ancients often relied on the practice of commissarial (or constitutional) dictatorship, that is, the suspension of constitutional rule for the purpose of defending against a threat and seeking to bring about the restoration of constitutional order. [FN63] Most modern constitutional regimes make formal provision for suspension of constitutional guarantees in an emergency, [FN64] though the danger--especially when the constitution is drafted on normativist assumptions [FN65]--is that constitutional dictatorship may descend into sovereign dictatorship. [FN66] But deciding to make no constitutional adjustment in times of perceived threat carries its own dangers, not least that government will respond by subterfuge, leading to a widening of the gap between constitutional norms and governmental action, and undermining respect for constitutional ordering itself. This question-that of the relationship between norm and exception--has become especially acute since the declaration of the 'war on terror' after the *196 attacks of 11 September, 2001. Despite juristic support for the position, [FN67] doing nothing was apparently not an option: 'if pedantic respect for civil liberties requires government paralysis', Ackerman commented, 'no serious politician will hesitate before sacrificing rights to the war against terrorism'. [FN68] Ackerman argued that, in order to avoid a cycle of repression, liberals must be prepared to adopt 'a more hard-headed doctrine, one that allows short-term emergency measures'. [FN69] The difficulty with his solution, as he himself recognized, is that 'the longer people live under the shadow of the emergency, the more likely they are to recognize the utopian nature of the [normativist] model and to demand that the legal system accommodate the necessities of the situation'. [FN70] That is, the exception may eventually become the norm. [FN71] In order to avoid this possibility, Gross has proposed an 'extra-legal measures' approach in which normal order is maintained, save that the executive can take extraordinary measures provided they assume responsibility for this extra-legal action, offer their reasons, and place themselves at the mercy of the nation and the state to authorize ex post facto the action taken. But this is hardly uncontroversial, especially since, as Dyzenhaus pointedly notes, ex post authorization was precisely the method used by Hitler in 1934 to justify his purge of the SA on the 'Night of the Long Knives'. [FN72]

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The issue of the exception is of pivotal importance in constitutional theory, and it is one for which there can be no legal-institutional solution. Maintaining the norm in exceptional times will invariably lead to an undermining of the authority of the norm. Legislating for a limited state of exception carries the prospect that those restrictions--being incapable of clear definition--eventually become transmuted into the norm. And leaving the decision on the necessary action to the discretion of government to be ratified retrospectively throws into the spotlight the precise issue--the vital importance of authoritative leadership--that liberal constitutionalism seeks to suppress. In the state of exception, the separation between legislative, executive and judicial--the norm--disintegrates, and Schmitt's provocative claim that 'sovereign is he who decides on the exception' can no longer be ignored. [FN73] *197 When Dicey wrote that there exists a state of exception in which 'for the sake of legality itself the rules of law must be broken' he put this finger on the key issue. [FN74] What this ineffable statement suggests is that the state of exception, although beyond (positive) law, remains of juristic significance. Trying to face this issue directly, Agamben has argued that the state of exception is 'neither external nor internal to the juridical order, and the problem of defining it concerns precisely a threshold, or a zone of indifference, where inside and outside do not exclude each other but rather blur with each other'. [FN75] Schmitt is more concise and to the point: in the state of exception 'the state remains, whereas the law recedes'. [FN76] Once the state is understood to be an expression of the political unity of a people, we are able to identify the key juristic question. Positive constitutional law--the norm--owes its existence to the 'material' constitution and this way of life, which has a juridical aspect as droit politique, provides an anchorage permitting us to identify the role and limits of the exception. What distinguishes the emergency suspension of constitutional guarantees by liberal democratic states from the mode of operation of the Nazi regime is not the form that these emergency powers take, though this can have significant effects. [FN77] Ultimately, it depends on the workings of the material constitution. [FN78] C. Identity and Difference Consideration of the norm/exception dichotomy causes us to reflect further on the idea of the political unity of a people. This is a modern notion, originating in the contractarian theories of political philosophers who founded governmental authority on the consent of 'the people'. In such writing, the multitude is transformed into a people, who then deliberate and agree a

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constitution. This type of exercise therefore presupposes a people that exist as a unity prior to the establishment of the formal constitution. This unity--a nation or demos--is what is meant by 'the state'. *198 From this perspective, modern constitutionalism forms part of the state-building project. Even in the late 16th century, we find Bodin arguing that 'hard it is for high and stately buildings long to stand, except they be upholden and staid by the most strong shores, and rest upon the most sure foundations'. [FN79] In addition to erecting an institutional frame that objectified governing arrangements (the formal constitution), the foundations were bolstered by the production of exemplary stories about the character and history of a people. This policy, which promoted homogenization (by, for example, eliminating minority languages within the state) and a sense of corporate identity, has become known as nationalism. Although 'nation' is a political concept that stands in an ambiguous relation to an ethnos, it is clear that the identity of a people was built on difference: inclusion was rooted in exclusion and, as the modern and ostensibly universal narrative of constitutionalism got under way, equality founded on inequality. [FN80] The evolution of modern constitutionalism was therefore directly linked to the processes of 'civilization', and its character was thrown into relief by such colonial practices as treating conquered land as terra nullius and otherwise suppressing the political claims of indigenous peoples. [FN81] Modern constitutional development can therefore be understood as a quest for inclusion. While this has mainly involved the struggle to extend civil and political rights to all, attention has recent turned to the need to acknowledge difference within identity. This presents particular difficulties for liberalism, especially when the claim for recognition is made against a background of historic subjugation. Treating certain claimants equally today may not result in treating them justly, especially if such equal treatment operates 'within the imperial conventions and institutions that have been constructed to exclude, dominate, assimilate or exterminate them'. [FN82] The quest for inclusionary justice in the context of a legacy of slavery or the suppression of indigenous populations or other minority groups may thus require affirmative action by government or the conferral of special powers, rights or immunities not extended to the general body of citizens. [FN83] Equal respect might require differential treatment. *199 Many states that today have adopted liberal democratic constitutions are experiencing group conflicts over a broad range of economic, political and

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cultural matters ranging from land claims to regional autonomy, representation to immigration policy, and language rights to symbols of national identity. Kymlicka even suggests that finding answers to the constitutional questions that these clashes raise presents 'the greatest challenge facing democracies today'. [FN84] Although these struggles for recognition of suppressed collective identities seek in various ways to disaggregate the homogenous political concept of the nation, we can distinguish between those that can become individuated as a matter of citizen rights and those that retain an intrinsically collective aspect. In the former category, can be placed the claims of members of religious, ethnic or other cultural groups to be accorded a special civic status. Should Sikh men be exempt from the legal requirement to wear motorcycle helmets? Should Muslim girls be permitted to wear the hijab in school? In general, what status should be granted to conscientious objection to civil obligation? Here too might be placed the feminist claim not merely to formal equality but to the need to recognize difference. [FN85] In these situations, a tension exists between equal rights and the right to difference based on a claim of authenticity, [FN86] and the division lies between an assertion of formal equality and a communitarian claim that formal liberalism may be 'a particularism masquerading as the universal'. [FN87] Such clashes remind us that 'it is just as absurd to fancy that a philosophy can transcend its contemporary world as it is to fancy that an individual can overleap his own age'. [FN88] The conflicts appear susceptible to diffusion only by resorting to general notions of prudence--that is, understanding, deliberation, and accommodation. [FN89] The latter category, however, raises singular questions for constitutional thought. These are illustrated by current controversies concerning the status of aboriginal land claims in Australia, Canada and New Zealand, [FN90] or language rights in Quebec, [FN91] or even assertions to internal selfgovernment in the celtic regions of the United Kingdom. [FN92] The common denominator is a demand for constitutional recognition of cultural identity in ways that undermine liberal equality: that is, whether special treatment for distinct groups offends the *200 principle of equal treatment, or freedom of expression is undermined by policies of language protection designed to support a culture, or whether equality of representation is eroded by pragmatic (asymmetric) federal arrangements. But the issue is not simply one of equality of rights; it also involves a more basic constitutional claim of whether the group--Maori, Inuit, Qubcois, Scot--is also a nation that is competent to assert its own claims to sovereignty. [FN93]

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Questions of cultural recognition challenge, in various ways, the modern constitutional discourse of a sovereign people that establishes a constitution on the foundation of universal equality. When these questions are brought to the fore, the modern idea of a constitution as a foundational agreement tends to be displaced, and we are obliged to fall back on the older understanding of constitutions as 'chains of continual intercultural negotiations and agreements'. [FN94] But the emerging politics of recognition does more than force us to reconsider the relationship between the two conceptions of constitution. It also brings to the fore those issues of power and domination that are inscribed in the ways in which particular groups come to establish themselves as a nation-state, and thus subverts some of the more self-serving stories of peoplehood on which constitutional discourse is founded. D. Community and Cosmopolis Recent debates on identity/difference offer a specific illustration of a more diffuse sense amongst citizens that the gap between community and the legalinstitutional arrangements of government is both large and growing. Contemporary government now appears remote, complex, bureaucratic, and not easily susceptible to popular influence. This trend is reinforced by recent economic transformations that have released the power of capital from the boundary controls of nation-states, since if governments are to retain some semblance of control over the economic welfare of their citizens, co-ordinated action at the supra-national level would appear to be essential. Contemporary pressures on government therefore suggest that the conditions of legitimacy and effectiveness are pulling in opposing directions: citizens are responding to a feeling of government remoteness by retreating to a simple primordialism, while government is becoming enmeshed in functional systems operating above the level of the nation-state. The challenge for constitutional thought arises precisely because modern constitutional structures and practices have evolved on the basis of a determinate territorial unit whose sovereign authority is now being questioned. The modern nationstate is not strictly a community; *201 rather, it is a nation comprised of several communities united in allegiance to a distinctive governing apparatus. And, as Balibar argues, the space between communitarianism and cosmopolitanism within which the nation-state is situated can appear paradoxical, since 'the mode in which the nation institutes belonging and engenders a form of identification through the universal ... hides profound antinomies'. [FN95] One consequence of the bringing to consciousness of these antinomies has

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been the emergence of more pluralistic modes of constitutional discourse, as the language of constitutionalism is extended beyond the nation-state form. [FN96] But some writers are claiming that those antinomies can now be resolved by realizing the universal potential inherent in the claim of equal liberty: if one believes in equality, why does the argument stop at the borders of particular nation-states? [FN97] This stance is most clearly manifest in those who, picking up on Kant's writing, [FN98] now extend his argument beyond the idea of a universal moral law to that of a moral and legal universalism, and promote the claims of a cosmopolitan polity. [FN99] For others, the inclusionary/exclusionary dynamic cannot be eliminated without eradicating the political itself, and therefore the basis on which constitutional discourse has evolved. The era of economic globalization, they argue, is resulting in the emergence of a new form of liberal imperialism, in which the claim to sovereign authority need no longer be tied to territorial control and the exclusions are now hidden beneath the banner of democracy and rights. [FN100] The constitutional arguments surrounding these questions have come to focus primarily on the question of Europe. The recent pace of European integration has generated considerable speculation about the constitutional character of the EU project. And, once again, this brings to a head the tension between the two senses of constitution. Those promoting the need for a European constitution thus claim that, as a consequence of modernization, the links between community and state are now being severed and that political identity, being no longer based in the cultures of particular historic communities, must come to rest on a common allegiance to the universal principles of liberty and equal citizenship expressed in the foundation of the European Union. [FN101] This is, of course, the claim of 'constitutional patriotism' which Habermas has been promoting. [FN102] In relation to the European question, Habermas argues that 'the constitutional question does not provide the key to the main problem we have *202 to solve' since 'the challenge before us is not to invent anything but to conserve the great democratic achievements of the European nation-state, beyond its own limits'. [FN103] Given the nature and structure of the EU, the obstacles may be more serious than he seems prepared to acknowledge. [FN104] But even if he is right and constitutionalization does not require significant innovation, Habermas remains aware of the scale of the challenge, recognizing that 'the decisive question is whether the civil society and the political public sphere of increasingly large regimes can foster the consciousness of an obligatory cosmopolitan solidarity'. [FN105] Since it can be accepted that Europe is integrating economically, socially, and

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administratively, and that it is necessary to evoke a common European culture to sustain the project, the disagreement between civic nationalists and those espousing a constitutional patriotism seems ultimately to rest on one key issue: the degree of faith that can sensibly be placed in a formal constitution's ability to act as a catalyst that could generate the type of pan-European public culture needed to sustain constitutional order. 6. Conclusion This survey has been underpinned by a more general argument about the nature of constitutional theory. My argument has been that once the two conceptions of constitution are highlighted, the basis for recognizing that constitutional discourse has a dialectical character is revealed. The normative schemes of formal constitutional frameworks, with their claims to equality, liberty and rule-bounded authority, tend to be presented in a universalized form that of necessity must be qualified or given specific meaning whenever set to work within the political ways of being of actually existing states. 'But it is precisely in these clashes between what is absolutely right and what arbitrariness makes pass as right', argues Hegel, 'that there lies the need for studying the fundamentals of [constitutional] right'. [FN106] Constitutional claims may have an emancipatory dimension, but whenever they are applied some part of that ideal is inevitably butchered. In the article, I have tried to show that constitutional theory has been rejuvenated mainly because of perceived limitations in the more universal claims of modern constitutionalism. The fundamentals of constitutional right are to be located within the tensions that exist between such aspects of constitutional practice as liberalism and democracy, norm and exception, identity and difference, and community and cosmopolis. And although identification of the character of these fundamentals might appear to offer little by way of instruction on the best way forward, it should at least enhance our understanding of the complexities of the current situation. [FNd1]. Professor of Public Law, London School of Economics and Political Science. For comments on an earlier draft, I should like to thank Damian Chalmers, Neil Duxbury, David Dyzenhaus, Conor Gearty, Tom Hickman, Thomas Poole, Mohammed Rasekh and Neil Walker. [FN1]. T. Paine, 'Rights of Man' in his Rights of Man, Common Sense and other Political Writings [1791], M. Philp (ed.) (Oxford: Oxford University Press, 1995), 83-331, 1 at 122. [FN2]. J. Madison, A. Hamilton and J. Jay, The Federalist Papers [1788], I.

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25 OXJLST 183 FOR EDUCATIONAL USE ONLY 25 Oxford J. Legal Stud. 183 (Cite as: 25 Oxford J. Legal Stud. 183) Kramnick (ed.) (London: Penguin, 1987), 87.

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[FN3]. J. de Maistre, 'Study on Sovereignty' [1794-5] in Jack Lively (ed.), The Works of Joseph de Maistre (New York: Macmillan, 1965), 93-129 at 107. [FN4]. Ibid 103. [FN5]. Ibid 103-4. [FN6]. G. W. F. Hegel, The Philosophy of Mind [1830], W. Wallace (trans.) (Oxford: Clarendon Press, 1971), .540. [FN7]. See M. Landau, 'On the use of metaphor in political analysis' in his Political Theory and Political Science: Studies in the Methodology of Political Inquiry (New Jersey: Humanities Press, 1979), ch 3. [FN8]. See, e.g. G. Marshall, Constitutional Theory (Oxford: Clarendon Press, 1971) which analyses the meaning of such concepts as 'state', 'sovereignty', 'equality under the law' etc. [FN9]. See, e.g. R. Hardin, Liberalism, Constitutionalism, and Democracy (Oxford: Oxford University Press, 1999). [FN10]. Note, e.g. J. Rawls, A Theory of Justice (Oxford: Oxford University Press, 1972), 227: 'our discussion is part of a theory of justice and must not be mistaken for a theory of the political system. We are in a way describing an ideal arrangement'. [FN11]. M. Oakeshott, 'What is political theory?' [1973] in his What is History? And other essays L. O'Sullivan (ed.) (Exeter: Imprint Academic, 2004), 391402, 397. [FN12]. See further M. Loughlin, 'Theory and Values in Public Law: An Interpretation' 2005 PL 46-64, at 62-64. [FN13]. Viewed in this light, the classical text of constitutional theory is G. W. F. Hegel, Philosophy of Right [1821], T. M. Knox (trans.) (Oxford: Oxford University Press, 1952). Hegel argues that the task of constitutional theory is 'the apprehension of the present and the actual, not the erection of a beyond, supposed to exist, God knows where, or rather which exists, and we can perfectly well say where, namely in the error of a one-sided, empty, ratiocination' (ibid at 10).

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[FN14]. Oakeshott, above n 11 at 400. [FN15]. C. Taylor, 'Interpretation and the Sciences of Man' in his Philosophical Papers, vol. 2 (Cambridge: Cambridge University Press, 1985), ch 1. [FN16]. J-J Rousseau, The Social Contract [1762], M. Cranston (trans.) (Harmondsworth: Penguin, 1968), iv. 8. [FN17]. The Politics, Bk.I.ii (italics supplied). [FN18]. The implications of this analysis for legal, political and constitutional thought are clearly drawn in F. A. Hayek, Law, Legislation and Liberty: vol. 1 Rules and Order (London: Routledge and Kegan Paul, 1973). [FN19]. This is the essential distinction to be drawn between the political (and juristic) theories of Hobbes and Locke. For thought-provoking account of how the social becomes ubiquitous see: M. Foucault, Society Must be Defended (London: Penguin, 2003). [FN20]. See Rawls, above n 10 at 7. cf. S. S. Wolin, Politics and Vision: Continuity and Innovation in Western Political Thought (Princeton: Princeton University Press, expanded edn. 2004), 532-34. [FN21]. Rawls, above n 10 at 3-4. [FN22]. Ibid at 227. [FN23]. Ibid at 196 (italics supplied). [FN24]. Ibid at 16. [FN25]. See Wolin, above n 20 at 530. [FN26]. J. Rawls, Political Liberalism (New York: Columbia University Press, rev.edn. 1996), 137. [FN27]. Ibid at xx. [FN28]. Ibid at xviii-xix. [FN29]. Rawls, 'The Idea of Public Reason Revisited' in his The Law of Peoples

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[FN30]. Cf. M. Loughlin, The Idea of Public Law (Oxford: Oxford University Press, 2003), esp. ch 8. [FN31]. Rawls, above n 26 at 233. cf. B. Ackerman, We the People: Foundations (Cambridge, Mass.: Belknap Press, 1991), ch 1. [FN32]. Rawls, above n 26 at 233 [FN33]. Ibid at 216. [FN34]. Ibid at 231. [FN35]. Ibid. [FN36]. Rawls' work also helps to explain why the Weimar republic, a classic case of the failure of a liberal democratic constitution to sustain itself in the face of intense political conflict, has recently become the object of extensive investigation. See, e.g. P. C. Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law: The Theory and Practice of Weimar Constitutionalism (Duke University Press, 1997); J. P. McCormick, Carl Schmitt's Critique of Liberalism (Cambridge: Cambridge University Press, 1997); D. Dyzenhaus, Legality and Legitimacy: Schmitt, Kelsen, and Heller in Weimar (Oxford: Oxford University Press, 1999); E. Kennedy, Constitutional Failure: Carl Schmitt in Weimar (Durham, N.C.: Duke University Press, 2004). [FN37]. Rawls, above n 26 at xxvii. [FN38]. Ibid at xxvii-xxviii. [FN39]. Ibid at xxviii. [FN40]. Ibid. [FN41]. See, e.g. J. Habermas, 'Reconciliation through the public use of reason' in his The Inclusion of the Other: Studies in Political Theory (Cambridge: Polity Press, 1999), 49-73 at 71 (arguing that Rawls gives priority to constitutional protection of the private sphere and this 'not only contradicts the republican intuition that popular sovereignty and human rights are nourished by the same root' but 'also conflicts with historical experience').

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[FN42]. Rawls maintains that rights to personal property needed for personal independence and self-respect are part of basic liberties but that wider conceptions--rights to acquisition and to control natural resources and the means of production--are not (since they are not necessary for the development of moral powers): above n 26 at 298. Such property rights must depend 'upon the traditions and social institutions of a country and its particular problems and historical circumstances' (ibid at 338). But does this not mean that it must ultimately be subject to 'public reason', which is not the reason of democracy but of the supreme court? [FN43]. Cf. A. Negri, Insurgencies: Constituent Power and the Modern State, M. Boscagli (trans.) (Minneapolis: University of Minnesota Press, 1999), ch 4. [FN44]. Rawls, above n 26 at 161 (italics supplied). [FN45]. See, e.g. Rawls, above n 26 at 152: 'in affirming a political conception of justice we may eventually have to assert at least certain aspects of our own comprehensive religious or philosophical doctrine (by no means necessarily fully comprehensive). This will happen whenever someone insists, for example, that certain questions are so fundamental that to insure their being rightly settled justifies civil strife .... At this point we may have no alternative but to deny this, or to imply its denial and hence to maintain the kind of things we had hoped to avoid.' [FN46]. Ibid at 13-14. [FN47]. See J. Rawls, 'The Priority of the Right and Ideas of the Good' in his Collected Papers, S. Freeman ed (Cambridge, Mass: Harvard University Press, 1999), 449-72. Maistre's fundamentalism is rejected as a religious comprehensive doctrine that belongs to the social but not the political world (at 462) and Paine's radical form of civic humanism is denounced as a comprehensive doctrine that holds that 'man is a social, even a political animal, whose essential nature is most fully achieved in a democratic society in which there is widespread and vigorous participation in political life' (at 469). [FN48]. See, e.g. Dyzenhaus, above n 36 at 231: 'Political liberalism is thus political in the Schmittian sense. It asserts its truth against every challenge. But it is also political in just the contradictory way Schmitt thought liberalism had to be. At the same time as it asserts its truth, at least when it is hard pressed by its enemies, it seeks to ban truth from politics, claiming that it is neutral between all positions. But this neutrality is one between fully

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[FN49]. J-J.Rousseau, above n 16, esp. II.ii, II.iii.; I. Kant, 'Perpetual Peace: A Philosophical Sketch' in his Political Writings, Hans Reiss (ed.) (Cambridge: Cambridge University Press, 2nd edn, 1991), 93-130, esp. 125. [FN50]. See J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge: Polity Press, 1997), 127. Robert Fine has astutely observed that this work can be read as an extended commentary on Hegel's Philosophy of Right: see R. Fine, Philosophical Investigations: Hegel, Marx, Arendt (London: Routledge, 2001), 20. [FN51]. J. Habermas, 'On the Internal Relation between the Rule of Law and Democracy' in The Inclusion of the Other, above n 41, ch 10. [FN52]. This is an illustration of what has been called 'constraint theory'. See J. Elster, Ulysses Unbound: Studies in Rationality, Precommitment and Constraints (Cambridge: Cambridge University Press, 2000); S. Holmes, Passions and Constraint: On the Theory of Liberal Democracy (Chicago: University of Chicago Press, 1995), esp. ch 5. [FN53]. J. Habermas, 'Constitutional democracy: a paradoxical union of contradictory principles?' (2001) 29 Political Theory 766-81 at 778-79. [FN54]. Paine, above n 1 at 91. [FN55]. Ibid at 92. [FN56]. Habermas, above n 53 at 775. [FN57]. J. Habermas, 'The Postnational Constellation and the Future of Democracy' in his The Postnational Constellation: Political Essays (Cambridge: Polity Press, 2001), 58-112 at 74. [FN58]. Cf. Hegel, above n 13 (dialectic between abstract and concrete conceptions of right). [FN59]. Cf. R. Dworkin's 'right answer' thesis in Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1977) with his recent statement that the thesis is to be understood within the frame of 'essentially contested concepts': Dworkin, 'Thirty years on' (2002) 115 Harv. L. Rev. 1655-87 at 1686. Cf. similarly D. Beatty, Constitutional Law in Theory and Practice

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(Toronto: University of Toronto Press, 1995), asserting the universal claims of rationality and proportionality, with his The Ultimate Rule of Law (Oxford: Oxford University Press, 2003), which promotes a more pragmatic accommodation through proportionality. A related adjustment can be seen in T. R. S. Allan's movement from a historical to a normative claim, signalled in a switch from definite to indefinite article in his monographs, Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism (Oxford: Clarendon Press, 1993) and Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University Press, 2001). [FN60]. See A. de Tocqueville, Democracy in America [1835], H. Reeve (trans.) (New York: Vintage Books, 1990) vol.1, 278, who argues that one of the most important functions of lawyers is 'to neutralize the vices inherent in popular government' by 'secretly oppos[ing] their aristocratic propensities to the nation's democratic instincts, their superstitious attachment to what is old to its love of novelty, their narrow views to its immense designs, and their habitual procrastination to its ardent impatience'. [FN61]. This juristic account is most clearly expressed in L. L. Fuller, The Morality of Law (New Haven: Yale University Press, 2nd edn, 1969), ch 2. It might be noted that what from a citizen's perspective may be viewed as moral qualities of law, are from a governmental perspective prudential criteria. [FN62]. See S. Holmes, 'Lineages of the Rule of Law' in J. M. Maravall and A. Przeworski (eds), Democracy and the Rule of Law (Cambridge: Cambridge University Press, 2003), ch 1. [FN63]. C. L. Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Princeton: Princeton University Press, 1948); J. Ferejohn and P. Pasquino, 'The Law of the Exception: A Typology of Emergency Powers' (2004) 2 Int. J. of Constitutional Law 210-39. [FN64]. Article 48 of the Weimar Constitution is perhaps the most welldocumented of these: see, e.g. Caldwell, above n 36, esp. ch 6. cf. A. V. Dicey, Introduction to the Study of the Law of the Constitution (London: Macmillan, 8th edn, 1915), ch 8. But note Dicey's comment (at 408): 'There are times of tumult or invasion when for the sake of legality itself the rules of law must be broken .... The Ministry must break the law and trust for the protection of an Act of Indemnity' (italics supplied). [FN65]. Consider, e.g. Ackerman's important point that the American export of a formal separation of powers to Latin American countries became a

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significant contributory factor in the transformation of liberal constitutional forms into sovereign dictatorships: see B. Ackerman, 'The New Separation of Powers' (1999-00) 113 Harv. Law Rev. 633-729 at 645-46. [FN66]. This is, of course, precisely the route through which Hitler was able to consolidate power. The promulgation of the Emergency Decree of 28 February 1933 (the Reichstag fire decree) thus became, in effect, the constitutional charter of the Third Reich. [FN67]. Ex p. Milligan 71 US 2 (1866) at 120-21, per Davis J: 'No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its [sc. the constitution's] provisions can be suspended during any of the great emergencies of government. Such a doctrine leads directly to anarchy or despotism ...'. [FN68]. B. Ackerman, 'Don't Panic' London Review of Books, 7 February, 2002, 15-16. [FN69]. Ibid. [FN70]. O. Gross, 'Chaos and Rules: Should Responses to Violent Crises Always be Constitutional?' (2003) 112 Yale LJ 1011-1134, at 1071-72. [FN71]. Thus, Israel began life under a 'temporary' emergency regime in 1948, and this has remained in place ever since, and the Prevention of Terrorism legislation introduced on a temporary basis in the UK in 1974 was periodically re-enacted and in 1989 made permanent: see Gross, ibid, 1091- 92. Gross also notes the danger of assimilation, using the illustration of Ireland which in 1984 integrated its emergency provisions, in existence since 1939, into its ordinary criminal legislation, signifying a shift from a 'due process' to 'crime control' model: ibid 1973-74. [FN72]. D. Dyzenhaus, 'The State of Emergency in Legal Theory' in M. Hor, V. Ramraj and K. Roach (eds), Global anti-terrorism law and policy: regional perspectives (Cambridge: Cambridge University Press, forthcoming 2005). See also Fuller, above n 61 at 54-55. [FN73]. C. Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty [1922] (Cambridge, Mass.: MIT Press, 1988), 5. [FN74]. Dicey, above n 64.

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[FN75]. G. Agamben, State of Exception (Chicago: University of Chicago Press, 2005), 23. [FN76]. Schmitt, above n 73 at 12. [FN77]. Consequently, the ruling of the House of Lords in A. v Secretary of State for the Home Department [2004] UKHL 56 (holding that powers of detention against aliens was discriminatory) may lead to detention powers being extended more generally to citizens: Statement of Home Secretary 'Measures to combat terrorism' HC Debs vol.430, cols. 305-9 (26 January, 2005). The application of a principle of legal equality does not always promote maximum liberty. See now the Prevention of Terrorism Act 2005. [FN78]. It might be noted that there is a more general aspect of the normexception dichotomy which here cannot properly be addressed. In essence it is this: if the exception concerns the manner in which government takes necessary discretionary action to promote the safety and welfare of the people in ways that fail to respect the separation of powers (the norm), to what extent has modern government in reality established the conditions in which the exceptional state has been transformed into the norm? In other words, to what extent has the normative constitution now been transformed into a dignified facade behind which the efficient workings of executive government, blending legislative, executive and judicial power, carries on its administrative business? See, e.g., O. Beaud, 'Constitution et constitutionalisme' in P. Reynaud and S. Rials (ed.), Dictionnaire de philosophie politique (Paris: Presses universitaires de France, 1996), 117-26 (identifying a third-deformalized--type of constitutionalism concerned with promoting the social conditions of existence of the people). [FN79]. J. Bodin, The Six Bookes of a Commonweale [1576], R. Knolles (trans.) (Cambridge, Mass: Harvard University Press, 1962), iv.6. [FN80]. See J. Habermas, 'On the Relation between the Nation, the Rule of Law, and Democracy' in Habermas, above n 41, 129-53; cf. J. S. Mill, 'Considerations on Representative Government' [1861] in his Three Essays (Oxford: Oxford University Press, 1975), 144-423 at 382: 'Free institutions are next to impossible in a country made up of different nationalities. Among a people without fellow-feeling, especially if they read and speak different languages, the united public opinion, necessary to the working of representative government, cannot exist'. [FN81]. See J. Tully, Strange Multiplicity: Constitutionalism in an Age of

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Diversity (Cambridge: Cambridge University Press, 1995); D. Ivison, P. Patton and W. Sanders (eds), Political Theory and the Rights of Indigenous Peoples (Cambridge: Cambridge University Press, 2000). Note also Schmitt's argument that the establishment in 16th and 17th centuries of an Amity Line which distinguished between the European world and the 'new world' created a zone of exception within which colonial wars were conducted, whilst limiting the pursuit European wars and thereby creating the conditions for the development of public international law: C. Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum [1950] (New York: Telos Press, 2003). [FN82]. Ibid at 97. [FN83]. A subset of this general issue focuses on the politics of remembering and forgetting in making the transition from authoritarian to liberal societies: see R. G. Teitel, Transitional Justice (Oxford: Oxford University Press, 2000). [FN84]. W. Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Clarendon Press, 1995), 1. [FN85]. See I. M. Young, Justice and the Politics of Difference (Princeton: Princeton University Press, 1990). [FN86]. See B. Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism (Cambridge, Mass.: Harvard University Press, 2001); S. Benhabib, The Claims of Culture: Equality and Diversity in the Global Era (Princeton: Princeton University Press, 2002); A. Gutmann, Identity in Democracy (Princeton: Princeton University Press, 2003). [FN87]. C. Taylor, 'The Politics of Recognition' in his Philosophical Arguments (Cambridge, Mass.: Harvard University Press, 1995), 225-56 at 237. [FN88]. Hegel, above n 13 at 11. [FN89]. See Benhabib, above n 86. [FN90]. See, e.g. P. Havemann (ed.), Indigenous Peoples' Rights in Australia, Canada and New Zealand (Auckland: Oxford University Press, 1999). [FN91]. See, e.g. K. McRoberts, Quebec: Social Change and Political Crisis (Toronto: McClelland & Stewart, 3rd edn, 1993).

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[FN92]. See, e.g. M. Keating, Plurinational Democracy: Stateless Nations in a Post-Sovereignty Era (Oxford: Oxford University Press, 2001); S. Tierney, Constitutional Law and National Pluralism (Oxford: Oxford University Press, 2004). [FN93]. This point in turn raises the issue of whether a liberal state is required to offer a right of secession: see Patriation Reference (Reference re Amendment of the Constitution of Canada) [1981] 1 SCR 753; M. Weinstock, 'Constitutionalizing the right to secede' (2001) 9 J. of Political Philosophy 182203. cf. Habermas, above n 80 at 140-43. [FN94]. Tully, above n 81 at 183-84. And compare Tully's use of Bill Reid's sculpture, The spirit of Haida Gwaii, with Habermas' 'boat' metaphor: above n 56. [FN95]. . Balibar, We, the People of Europe? Reflections on Transnational Citizenship (Princeton: Princeton University Press, 2004), 56. [FN96]. See N. Walker, 'The Idea of Constitutional Pluralism' (2002) 65 MLR 317-59. [FN97]. cf. Hegel, above n 13, 227-28: 'the French Revolutionaries destroyed once more the institutions which they had made themselves, since any institution whatever is antagonistic to the abstract self-consciousness of equality'. [FN98]. Kant, above n 49; see M. Nussbaum, 'Kant and Stoic Cosmopolitanism' (1997) 5 J. of Political Philosophy 1. [FN99]. D. Archibugi, D. Held and M. Klher (eds), Re-imagining Political Community (Cambridge: Polity, 1998); P. Eleftheriades, 'Cosmopolitan law' (2003) 9 European LJ 241. [FN100]. See, e.g. W. Rasch, Sovereignty and its Discontents: On the Primacy of Conflict and the Structure of the Political (London: Birkbeck Law Press, 2004), esp. ch 8. [FN101]. See, e.g. Treaty on European Union, Art. 6: 'The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States'.

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25 OXJLST 183 FOR EDUCATIONAL USE ONLY 25 Oxford J. Legal Stud. 183 (Cite as: 25 Oxford J. Legal Stud. 183) [FN102]. Habermas, above n 57.

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[FN103]. J. Habermas, 'Why Europe needs a Constitution' (2001) 11 New Left Review 5-26 at 6. [FN104]. See U. K. Preuss, 'The Constitution of a European Democracy and the Role of the Nation State' (1999) 12 Ratio Juris 417-28. [FN105]. 'Learning from Catastrophe? A Look Back at the Short Twentieth Century' in Habermas, above n 57, 38-57 at 55. [FN106]. Hegel, above n 13 at 224. END OF DOCUMENT

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