Martin Loughlin and Postnational Constitutionalism: Some Counter-Scepticisms

Foundations of Public Law: A Critical Review, M. Dowdle and M. Wilkinson (eds) (Hart), June 2017

Edinburgh School of Law Research Paper No. 2016/29

14 Pages Posted: 22 Dec 2016 Last revised: 22 Feb 2017

See all articles by Neil Walker

Neil Walker

University of Edinburgh, School of Law

Date Written: December 21, 2016

Abstract

In his many works Martin Loughlin makes no secret of his scepticism towards a strain of thinking that understands fundamental legal and political authority as having shifted away from the state towards postnational sites and mechanisms. He does not deny the increasing density of regulatory structures that cross state boundaries, while resisting efforts to view these developments as sounding at the deepest level of legal and political authority, and so as implying a new ‘pluralism of foundations’ in which other independent sources and containers of legal authority join the state in a new global multiverse. Loughlin's objection to this new strain of thinking is twofold. He claims that the 'postnationalists' do not supply the evidence to substantiate their perception of a new or emerging diversity of foundations. He claims, additionally, that although the burden should lie on the postnationalists, as self-appointed heralds of 'the new', to build upon their diagnosis of deep structural change by offering a coherent or developed account of a ‘sustainable future state’ of globally extended political forms and relations, they fail to discharge that burden. In response to these charges, I question the security of the premises and deep argumentative structure that sustain Loughlin’s own postnational constitutional scepticism. I suggest that the evidential basis of his own claims may be challenged, as may the sustainability of the state-centred legal and political structure he portrays. My immediate point is not to 'win' the argument, but to encourage a more ecumenical approach to a set of questions that surely challenges all candidate understandings of today's global legal and political constellation.

Keywords: public law, constitution, postnational, Loughlin, pluralism, foundations

Suggested Citation

Walker, Neil, Martin Loughlin and Postnational Constitutionalism: Some Counter-Scepticisms (December 21, 2016). Foundations of Public Law: A Critical Review, M. Dowdle and M. Wilkinson (eds) (Hart), June 2017, Edinburgh School of Law Research Paper No. 2016/29, Available at SSRN: https://ssrn.com/abstract=2888555 or http://dx.doi.org/10.2139/ssrn.2888555

Neil Walker (Contact Author)

University of Edinburgh, School of Law ( email )

Old College
South Bridge
Edinburgh, EH8 9YL
United Kingdom

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
172
Abstract Views
853
Rank
314,422
PlumX Metrics