The Post-national Horizon of Constitutionalism and Public Law: Paradigm Extension or Paradigm Exhaustion?

This chapter examines how postnational constitutionalism and postnational public law have developed in ways that are both complementary and in mutual tension. To subscribe to either one is to take sides against a broad church of postnational sceptics, and instead view the legal forms and vocabulary of statehood as an indispensable aid in authorizing the expanding domain of law beyond the state. Yet postnational constitutionalists and postnational public lawyers differ in emphasis. For the former, authority flows from particular pedigree and collective subjectivity, whereas for the latter authority flows from the establishment of general ‘public’ procedures and supposedly objective standards. Other approaches seeking to reach beyond this division must appreciate that the opposition between subjective and objective, ‘input’ and ‘output’, cannot be entirely eradicated. Rather, it reflects the resilient ambivalence of the aspirational horizon of political modernity — as relevant to the postnational environment as to the state — in which values of autonomy and equality under a manufactured socio-political project have replaced notions of conformity and status in accordance with a pre-given order of things. For in these modern conditions, law must simultaneously facilitate the collective pursuit of autonomy and equality and protect the core individual expression of these values from collective encroachment.