Constitutionalism in 3D: Mapping and Legitimating Our Lawmaking Underworld

• Author: Joseph Corkin
• Published date: 01 September 2013
• DOI: http://doi.org/10.1111/eulj.12019
• Date: 01 September 2013

Constitutionalism in 3D: Mapping and

Legitimating Our Lawmaking Underworld

Joseph Corkin*

Abstract: This article proposes a method for conceptualising the way lawmaking has

ebbed away from our national parliamentary-governmental complexes: horizontally,

towards unelected officials, in a process of bureaucratisation; vertically, towards the EU,

in a process of Europeanisation; and laterally, towards private actors that are left to

regulate themselves, in a process of privatisation. The combined effect has been to diffuse

lawmaking across many very diverse actors that interact in dense constellations across a

3D governance space described by these axes. The descriptive innovation of analysing

these processes together points also to a common normative challenge; that of finding

new ways to legitimate the outer reaches of this governance space, furthest removed from

our traditional constitutional structures and the reasonably neat (electoral) lines of

accountability they offer back to us. A tentative solution is proposed in creatively

rethinking administrative and constitutional law while remaining faithful to the philo-

sophical core of classical constitutionalism.

The ‘comfort to live in a world where,’ as Aldous Huxley put it, ‘one can delegate

everything tiresome, from governing to making sausages, to somebody else’1should not

be mistaken for indifference as to just how this happens. So, while it may be true that

those who like sausages should not watch them being made, European Commissioner

Chris Patten was surely too flippant in suggesting that the advice applies equally to

lawmaking.2This article assumes its readers are not so squeamish as to need to avert

their eyes and will instead appreciate a simplified means of explaining lawmaking’s

messiness. Its purpose is not to add gratuitously to an already long list of ever

more ingenious characterisations—multi-level,3networked,4post-regulatory,5new,6

* Senior Lecturer, Department of Law, Middlesex University, London, UK.

1A. Huxley, Point Counter Point (Grosset and Dunlap, 1928), at 270.

2Reported in The Observer, 29 December 2002.

3G. Marks, ‘Structural Policy and Multi-Level Governance in the EC’, in A. Cafruny and G. Rosenthal

(eds), The State of European Community, Vol. 2: The Maastricht Debated and Beyond (Longman, 1993),

at 391.

4K.-H. Ladeur, ‘Towards a Legal Theory of Supranationality: The Viability of the Network Concept’,

(1997) 3 European Law Journal 33.

5C. Scott, ‘Regulation in the Age of Governance: The Rise of the Post Regulatory State’, in J. Jordana

and D. Levi-Faur (eds), The Politics of Regulation: Institutions and Regulatory Reforms for the Age of

Governance (Edward Elgar Publishing, 2004), at 145.

6J. Scott and D. Trubek, ‘Mind the Gap: Law and New Approaches to Governance in the European

Union’, (2002) 8 European Law Journal 1.

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new-ish,7differentiated,8decentred,9polycentric10 and so on—but is instead to propose

a practical method for navigating Europe’s lawmaking underworld,11 which is at once

nuanced enough to capture the sheer number and dizzying variety of the actors

involved (and the density of their interactions) while parsimonious enough to offer the

conceptual simplicity that must precede any comprehensive analysis of that

underworld’s legitimacy.

The article uses dimensions of bureaucratisation, Europeanisation and privatisation

as a frame with which to capture a shift in lawmaking to locations beyond our

traditional constitutional structures, which has transformed a skyline dominated by

the distinct outlines of our national parliamentary-governmental complexes into one

that is altogether hazier. Legislative as well as administrative, national as well as

supranational and public as well as private actors now interact and compete with one

another in complex constellations, with flattened hierarchies and blurred boundaries,

to formulate the thousands of regulations, codes and standards that are the stuff of

contemporary lawmaking.12 And just as these ‘laws’ are in perpetual flux as their

makers adapt them to changing public expectations and newly emerging market

failures, risks and opportunities, so too are the processes through which they are

made: Sedimented one upon the next, they combine into ever more complex structures

that defy characterisation in conventional constitutional terms but also denude the

description sui generis of meaning because, as a convenient miscellaneous category, it

now applies to too much. Though we might isolate certain traits—the privileging of

informal over formal arenas, of cooperative problem solving over hierarchical

command-and-control instructions, of flexibility over rigidity, of bottom-up coordi-

nation over top-down imposition and so on13—we lack a convenient conceptual

framework with which to describe contemporary lawmaking processes other than

through just such a list of prevalent characteristics.

Though pitched largely descriptively, the article does not ignore the normative

territory onto which it can scarcely avoid straying. So, in proposing a new way of

conceptualising lawmaking’s dispersal away from the national parliamentary-

governmental complexes that were its traditional focus, the article is careful to

acknowledge the legitimacy implications that stem from stretching the lines of

accountability that extend back to those subject to the law. A purely descriptive,

uncritical account might otherwise lend apparent coherence and an unjustified aura of

7C. Scott, ‘Governing without Law or Governing without Government? New-ish Governance and the

Legitimacy of the EU’, (2009) 15 European Law Journal 160.

8M. Egeberg and J. Trondal, ‘Differentiated Integration in Europe: The Case of the EEA Country

Norway’, (1999) 37 Journal of Common Market Studies 133.

9J. Black, ‘Decentring Regulation: The Role of Regulation and Self-Regulation in a “Post-Regulatory

World” ’, (2001) 54 Current Legal Problems 103.

10 E. Ostrom, ‘Beyond Markets and States: Polycentric Governance of Complex Economic Systems’,

(2010) 100 American Economic Review 641.

11 J. Weiler used the term ‘underworld’ to describe the EU’s committee system (Die Zeit, 22 October 1998),

but it is equally apt to describe many contemporary lawmaking processes.

12 J. Weiler, ‘Epilogue: “Comitology” as Revolution: Infranationalism, Constitutionalism and Democ-

racy’, in C. Joerges and E. Vos (eds), EU Committees: Social regulation, Law and Politics (Hart, 1999),

at 339; P. Cane, ‘Understanding Judicial Review and Its Impact’, in M. Hertogh and S. Halliday (eds),

Judicial Review and Bureaucratic Impact: International and Interdisciplinary Perspectives (Cambridge

University Press, 2004), at 15.

13 A.-M. Slaughter, A New World Order (Princeton University Press, 2004); J. Jordana and D. Levi-Faur

(eds), The Politics of Regulation,n6supra.

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