INTRODUCTION

Internal and external factors are presently inspiring a resurgence of interestin constitutionalism. This interest goes beyond the purely parochial con-cerns of traditional constitutional doctrine. We are experiencing a transi-tion to a form of internationalization which is distinct from what has gonebefore. Globalization and europeanization are more than simply fashion-able intellectual currency. They are impacting significantly on all areas oflegal scholarship. The architecture of legal discourse is altering to reflectthis and in the process new sites of constitutional contestation are openingup. Multi-layered governance is a reality which few can afford to neglect.This process will only intensify in the years to come. The title of this col-lection captures what we see as an exciting time for those prepared toengage with these trends on an inclusive basis.

Internally, competing claims to recognition by a variety of excluded andoppressed groups have challenged some of the old stories about constitu-tional traditions. These groups seek to expose the partial and distortednature of concepts which claim universality in the constitutional state. Inpractice many of these ‘internal’ disputes are now effectively international-ized and thus problematize any simple notion of ‘inside/outside’. Newforms of regional co-operation have raised the spectre of a postnationalconstitutionalism which is rightly suspicious of the loaded language of thepast. As the collection demonstrates, there are attempts to respond at thenational level to these transnational processes. For example, the ‘third way’proposed by ‘new Labour’ in Britain confronts these and the concept hasclear implications for areas as diverse as: the voluntary sector; corporategovernance; and devolutionary settlements. At the micro-level mediationraises familiar debates about the nature of the processes of constitutional-ism. In particular, the work renews the informalism/formalism debate. Thismaps onto broader themes in, for example, regulatory law where procedu-ralization is discussed in response to the problematization of law’s role.

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* School of Law,The Queen’s University, Belfast BT7 1NN, Northern Ireland** Centre for the Study of Law in Europe, Department of Law, University ofLeeds, Leeds LS2 9JT, England

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JOURNAL OF LAW AND SOCIETYVOLUME 27, NUMBER 1, MARCH 2000ISSN: 0263–323X, pp. 1–3

Voices, Spaces, and Processes in Constitutionalism

COLIN HARVEY,* JOHN MORISON,* AND JO SHAW**

Whatever view one takes of the substantive issues in these disputes it is evident that this is an important time in the debate on constitutionalism.Serious questions are being asked about traditional approaches. There aresolid grounds for scepticism about our inherited vocabularies. It is ques-tionable whether they continue to possess both explanatory and criticalpower. If they fail in both respects the issue for scholars is the troubling oneof what it means, in precise terms, to be ‘critical’ in legal scholarship. Thenew critical voices entering this debate tend not to be solely concerned withadvancing alternative models for their own sake. The work arises from dis-satisfaction with the explanatory potential of the maps of legal and politi-cal knowledge that we have inherited. This new constitutionalism seeksboth tools that will facilitate the work of scholarship but also a criticalfoothold that prevents us becoming enthralled by the force of the languagesof constitutional law and politics that we possess.

The inherited concept of constitutionalism that we have is the doctrinethat governments must act within the constraints of a known constitutionwhether this is written or not. It is a notion of government tied to anordered framework of impersonal laws. This concept of constitutionalismcan be traced to the seventeenth-century struggle between monarchist sup-port for the doctrine of the divine right of kings and parliament and thejudiciary’s assertion of the primacy of a system of authority based on law.Since then, the concept has been put to use in a diverse range of waysdepending on particular societal contexts. This diversity in usage raises dif-ficult questions which are now being addressed. For there are clearly prob-lems with purely static views of constitutionalism. It is no coincidence thatthe terms ‘relational’, ‘constitutional conversations’, ‘dialogic constitution-alism’, and ‘proceduralism’ recur in this collection. The new voices talkabout constitutionalism as an interactive process of connectedness and thusthey seek to disrupt traditional narratives of a settled constitutional order.Some will quite fairly cast suspicion on claims to novelty. Process-basedtheory is not new to law. But the basic terms of the debate have shifted toreflect specific historical contingencies. Others will simply overreact andeven retreat to the classical texts to rekindle their faith.

The concept of constitutionalism faces in two directions at once. This isprecisely because constitutionalism implies both a foundational act and anongoing processes of contestation. One is always a backwards look at thehistorical fact of the founding act and the other is the normative task ofcontinuing interpretation. To be sure, constitutionalism has a grand histor-ical legacy but it is also an often mundane day-to-day activity. The ‘consti-tution in practice’ is an intricate web of lived experience and humaninteraction. Rather than a static exercise in historical retrieval, constitu-tionalism is an ongoing process which each new generation engages in andnecessarily alters in the process of engagement. It is no longer best viewedexclusively as a means of limiting or controlling power for it is itself con-stituted by democratic struggles. Liberal constitutionalism has, in effect,

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collapsed into democracy. The emphasis on constitutionalism as an ongo-ing process gets us away from an obsessive concern with the historical factsof a constitutive act. Enactment becomes a part only of the story. Howeverthe problem that continues to haunt constitutionalism is the legacy of the‘wilfulness’ of the constitutive act. By unearthing constitutionalism’s his-torical specificity one is faced with the fact of force which often underpinsit. Republicans, in particular, struggle with this because they have to con-tend with the accusation that the theory ultimately sanctions militarism andterror. And it is here that the politics of discourse raises old fears. If con-stitutionalism is an essentially contested concept and there are no universalcriteria to settle the meaning of constitutionalism indefinitely upon what dowe ground our criticism of pure unmediated power struggles?

This is where the governmentality literature is of interest. For this workargues that there is nothing rational or necessary about the constitutional-ism that we have. There is less interest here in the reconstructive effort madeby those who see constitutionalism as a continuing conversation. The gov-ernmentality literature instead reveals the strategies of power which main-tain the unities of modernity. Constitutionalism is thus a discursive practicewhich we can probe for the purpose of unearthing the complex strategies of subjugation and domination which it contains. Modernity’s narrative ofprogression is rejected in work that suspects that we have simply replacedold forms of tyranny with new mechanisms of enslavement. This exposes thecontingency of our current practices but also the formations that constitutemore sophisticated systems of domination. This is a less optimistic readingof our current practices which encourages constant vigilance.

These are only some of the themes to be found in the current literatureand within this collection. Many more could be mentioned. The aim in thiscollection is to bring together in one place important critical voices in thecurrent debate on constitutionalism. No attempt is made to claim a falseunity. We prefer to allow the contributors to speak for themselves. Each of the contributions thus reflects the specific concerns of the author. We dohowever wish to advance this collection as a critical contribution to the cur-rent debate on our ‘constitutional futures’.

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© Blackwell Publishers Ltd 2000