Administrative Law of the European Union, its Member States and the United States: A Comparative Analysis – Edited by René Seerden

• Author: Dominique Custos
• DOI: http://doi.org/10.1111/j.1468-0386.2009.00478_2.x
• Date: 01 July 2009
• Published date: 01 July 2009

eulj_478564..573

BOOK REVIEWS

The Paradox of Constitutionalism. Constituent Power and Constitutional Form. Edited

by Martin Loughlin and Neil Walker. Oxford: Oxford University Press, 2007. vii +

375pp. Hb. £50.00.

The third global tide of constitution making has inspired an abundance of theoretical

reflection and comparative analyses. These academic aftershocks to the ‘velvet revolu-

tion’ in Central and Eastern Europe and constitutional activity elsewhere have famil-

iarised the interpretive community with constitutional moments and processes, projects

and actors, conflicts and problems. Some of the latter have become known as para-

doxes: notably that constitutions have to presuppose the imaginary collective—people,

nation, or Volk—that they are about to constitute, and, in a more practical spirit, that

constitutional guarantees are needed most in times where they are least heeded by the

powers that be. The most distinguished problem or paradox, ambivalence or dilemma

has always been encapsulated in the founding myth of democratic polities—the ‘origi-

nal sin involved in the self-arrogation of constituent power’ (Walker, p 248)—and the

daughter problem of how to relate the unbridled authority of the people as sovereign to

the constituted powers as embodying and exercising the idea of a self-government

limited by the rule of law and fundamental rights.

This twin problematique has inspired Martin Laughlin and Neil Walker carefully to

collect, edit and thoughtfully introduce 16 articles that revisit, elaborate, paraphrase or

critique the founding myth and subsequent step into the everyday of national, pluri-

national, supranational and international political regimes. The editors characterise as

‘paradoxical’ that governmental power is ultimately generated from the consent of the

sovereign people and—to be sustained and effective—must be divided, constrained

and exercised through distinctive institutional forms. Thus, De Maistre’s dictum of

the people as ‘a sovereign that cannot exercise sovereignty’ and, by the same token,

the Rousseau-Kant controversy over what comes first—sovereignty or fundamental

rights—are reiterated, and later dissected and creatively reassembled in Neil Walker’s

masterful interpretation of the EU’s ‘post-constituent constitutionalism’.

The introduction sets the stage for Hans Lindahl’s journey towards an ontology of

collective self-hood and the following three compact chapters of the book dealing with

the problematique of constituent power from a historical and comparative perspective;

through the prism of rival conceptions; as well as its extension and diversification in

different national, supranational and international contexts. For obvious reasons, a

short review cannot do justice to all of these highly informative and lucid contributions

but has to proceed with all deliberative selectivity.

Faced with the problem to reduce complexity, Lindahl, in a first move, focuses on the

paradox that logically and temporally precedes the paradoxical or tensional relation

between the complex of sovereignty/democracy/self-determination and the limited

government/rule of law/human rights complex: namely, how the collective self—subject

of the ‘primordial constituent power’ (Stephen M. Griffin)—gets to be constituted.

Historians or political sociologists are liable to investigate how, by whom and through

European Law Journal, Vol. 15, No. 4, July 2009, pp. 564–573.

© 2009 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA