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[2] But before going further – weren’t the protestors on the streets of Genoa and Prague anti-globalisation protestors? Isn’t there a broad consensus on the left that globalisation is an evil? That idea is beginning to slip away. Any perpetuation will most likely come from the media’s determination to paint contemporary activists as ‘hippy anachronists’. Globalisation is not a disintegrative force, a tide of limitless endings on which we must either float (according to the neo-liberals) or against which we should pile the sandbags (to follow state socialists and nationalists). Globalisation is an identifiable, if not entirely discrete, step in the evolution of the social life of the species. No one group or nation controls it, can lay moral claim to it, or can even claim to know precisely where this step will evolve to. In this way, the now highly visible and idealistic politics of anti-capitalism are not merely global in scale, but also, it is now clear, a defining ideological and political quality of globalisation itself. Pursuing this line, the real alternatives are not those of global hyper-capitalism, with all its risks and technological rewards, or a return to old-fashioned styles of community life. The alternatives are, to borrow from Richard Falk, inhumane globalisation versus humane globalisation.[1]
[3] My aims here are modest. I want, firstly, to introduce these two models
of globalisation. Secondly, I will argue that the shift
to humane globalisation
involves fundamental changes to the way we think about the rule of law and about
the Australian
Constitution (‘Constitution’). Humane
globalisation will probably involve constitutional amendments, but the
substantive content of those amendments is
not, refreshingly, the important
point. More important is what such amendments would necessarily signify; that
is, a re-appraisal
of conventional ideas about what our Constitution is and does,
and, by extension, a revisiting of settled conceptions of the rule of law.
[N]ational governments have been forced into a zero-sum game where the necessary economic objectives can be reached only at the expense of social and political objectives. In the context of a global economy, nation states can only increase the international competitiveness of their ‘position’ by imposing self-restrictions on the formative powers of the state itself.[2]
[6] All of these processes rely, in some way, on the claim of states to sovereignty. We can think of sovereignty, a concept belonging to jurisprudence, as the hierarchical ordering of decision and law-making powers, such that those powers can be traced to a highest point or set of highest points negotiating among themselves for supremacy in a given context. Defined in this way, there is an inherent tension between the idea of sovereignty and the realisation of democracy, a tension that is not dissolved by accompanying ideological claims that the state, the product of a social contract of some kind, embodies a popular sovereignty. For Hannah Arendt, ‘the famous sovereignty of political bodies has always been an illusion, one which can only be maintained by instruments of violence; that is, with essentially non-political means’.[3] Politics, on this reading, is defined by open discussion and debate, oriented towards the higher questions of community life. For the French legal theorist Leon Duguit,[4] sovereignty is a purely metaphysical idea, one that, even where it is associated ideologically with popular sovereignty, has always been used to justify tyranny and despotism. More recently, Jürgen Habermas has argued for the abandonment of all Austinian conceptions of positive law, including the notion of parliament as the expression or representation of popular will.[5]
[7] This is not to say that the sovereign state has always served us badly. For much of the 20th century, the inherent violence of sovereignty was obscured by a measure of success in incorporating democratic elements into the policy program of the state. The ‘welfare state’ appeared to offer a lasting compromise between real democracy and liberalism. But as globalisation and neo-liberalism have become entrenched, the Arendtian critique of sovereignty has become more persuasive. The state’s claim to embody a popular sovereignty rings even more hollowly. First, processes of commodification and marketisation that characterise the ‘enterprise state’ rupture the claims to civil association that underpin the idea of social contract. Second, the picture is complicated by the well-publicised loss of sovereignty to global capital, a loss probably best understood in terms of the demise of the state’s ‘formative powers’.[6] The ‘hollowing out’ of the state in this sense only seems to increase the urgency and forcefulness of the state’s claim to sovereignty vis-à-vis its citizenry. The legitimacy deficit finds compensation in both the state’s use of force and in strident nationalism. The neo-liberal state, it is often suggested, is strong and slim.
[8] This critique of sovereignty is also implicitly a critique of the liberal rule of law and of liberal constitutionalism, a point that becomes clearer when we ask: how can law rule power? On one hand, law can rule sovereign power by establishing a new power and constituting a new sovereign; for example, in the form of a constitutional court administering a Bill of Rights. But this is not what the rule of law claims for itself. In fact, when law constitutes power, law itself ceases to rule. The central claim of the rule of law, rather, is that where power is exercised according to the precepts of that rule – that is, where the rule of law limits sovereign power – the sovereign is civilised. In this way, the rule of law not only protects the rights, interests or human dignity of those subject to the decisions of the sovereign, but, despite its opposition to power, goes a long way towards protecting sovereignty itself from ideological attack. As Julien Freund puts it, the ‘sovereignty of law’, the key claim of liberal legalism, exists not to constitute power, but to legitimate it.[7]
[9] Another way to think about this problem is in terms of the mutual and
antagonistic presupposition of sovereignty and the rule of law. Over sixty
years ago, the Frankfurt School legal theorist Franz Neuman wrote that
both sovereignty and the Rule of Law are constitutive elements of the modern state. Both however are irreconcilable with one another, for highest might and highest right cannot be at one and the same time realised in a common sphere. So far as the sovereignty of the state extends there is no place for the Rule of Law. Wherever an attempt is made at reconciliation we come up against insoluble contradictions.[8]
[12] Humane globalisation, in contrast, envisions a world not of sovereigns, but of networked and cosmopolitan civil societies. States, stripped of their ‘metaphysical’ legal entitlements, would exist only as mechanisms for enforcing and administering law. Law, in turn, would no longer be conceived as the command of sovereign, but rather as the means for integrating the discussions and decisions of civil society. On this reading, associated most strongly with the recent writing of Jürgen Habermas,[9] democracy is only possible and humane globalisation only plausible where the state is at all levels permeable to and determined by the democratic potentials implicit in a discursively open civil society.
[13] We need to define civil society. Many long and scholarly books have been written about the history of that idea; this is the place for something short and simple. The term ‘civil society’ describes a politically effective community, one whose political power is distinguished and generated by a commitment to talking, in a manner inclusive of all the individuals that make up that community, about the issues and problems that face it. If so, it is easy to understand why civil society-based concepts of democracy have stolen the academic limelight. The reason is not, despite the recent genealogy of academic interest in the subject, that civil society played a pivotal and instructive role in some of the experiences of political revolution in Central and Eastern Europe. I do not have the feeling that Australians, for example, want ‘people power’ to, in a direct, sudden and reconstitutive action, overthrow the government. The reason is, rather, that civil society has an appeal which is altogether ‘in tune with the times’, by which I mean our intuitive sense of what is lacking in our lives – the feeling of empowerment that accompanies direct participation and contribution, as well as the feeling of belonging to a wider collectivity.
[14] But if political community of this kind is what we all intuitively want (and I realise that this is a big claim), why don’t we have it? Why do civil societies remain so flaccid and unimpressive, even in, or especially in, places (such as Australia) where civil and political rights – the rights which make civil society possible – are, for most of the population, only irregularly infringed? Perhaps the answer is that, as Darrow Schechter has put it, the sovereign state ‘suspend[s] the potentially limitless political space of the political, and transform[s] it into a hierarchical chain of command’.[10] For Schechter, as for Arendt, the sovereign state presents a sort of false politics, one which crowds out genuine – as well as genuinely political – communication between individuals. Humane globalisation would lie, then, with the expansion of such genuine politics, with the opening of the networks that link these various civil societies. The result would be something like a global civil society, generating its political power and capacities in a manner separate from states, but in a way that also connected those capacities with the administrative and legislative powers of states. The system of states would then become a way of integrating the discursive power of a global civil society and thus of solving problems of global significance. We would, it could be hoped, transcend the dismal failure of the state system in this arena.[11]
[15] One
possible response to this democratic vision would be to dwell on its sheer
idealism. That response would have some ground.
All alternative visions are
idealistic in some sense. But rather than presenting a model of a perfect system
to be attained at all
costs (a favourite basis for an anti-Marxist critique of
left politics), humane globalisation presents us with a set of ideas for
reorienting our current legal and political systems, for achieving a
better rather than a best system. More importantly, the seeds of this
reorientation are already with us, in the form of the so-called
anti-globalisation
movement of contemporary times. That electronically networked
community is bolstered by wider popular discontent with states and,
in
particular, discontent with the current relationship between states and global
capital.
[17] Is the choice between these two globalised paths, between neo-liberalism and democracy, a constitutional choice in Australia? If we take as our guide the content over the last ten years of matters of so-called constitutionalism, the answer is clearly ‘no’. These questions have nothing to do with the republic or a Bill of Rights. They have nothing to do with the question of whether we should abolish the States. It follows that while both globalisation and our Constitution are widely recognised as a ‘hot topics’ for national debate, there is not in Australian academia or public life any apparent discussion of the relation between our Constitution and the way that we are now, in that global context, being governed. One could almost be forgiven for thinking that the question of the Constitution has nothing to do with the question of government. Given the urgency of the neo-liberal threat to democracy, are our current constitutional pre-occupations a case of fiddling while Rome burns, or perhaps a convenient distraction from the excesses of neo-liberalism?
[18] The apparent uncoupling of these questions (the
governmental and the constitutional) is not merely the outcome of an uncritical
national debate but, more fundamentally, a lopsidedness and ultimately
dysfunction in the liberal conception of what a constitution
is and does. Dario
Castiglione, a writer attuned to the long history of constitutionalism, has
argued that constitutions have three
interrelated functions. The first is to
constitute a political entity. This points not only to an act of origin, but
also, it logically
follows, an ongoing and genuine relationship between that act
of origin (classically, the constitution of ‘a people’)
and the
operation of a system of government. In this way, the constitution gives
authority to that system. The second is to ‘give
form to the institutions
and procedures of governance of a political community’. This not only
means defining what counts as
public power (ie, what counts as
constitutionally-regulated power) but also incorporating into the constitutional
picture the normative
and descriptive elements of relationships between
constitutional actors; that is, those who wield public power. The third function
of a constitution is to limit public or sovereign power. Castiglione points out
that the liberal conception of the constitution places
an overwhelming emphasis
on the third possible
function.[12] As I have
argued above, it is a chief claim of the rule of law that where law
circumscribes and constrains sovereign power, law civilises
that power.
Castiglione writes that:
Modern liberal constitutionalism insists that a clear definition of negative limits to the sphere of, and capacity for government action and the normative restriction of political sovereignty are indeed the primary function of constitutions. But this does not follow from any particular property of the constitution in general. The more immediate way in which constitutions limit power follows rather from what has been said with regard to its two other main purposes ... [for example], certain forms of power are de facto excluded by simply naming the principles, institutions and procedures which are properly political ... the definition of the ‘political’ guarantees that political power is limited in so far as its normal workings are made regular and predictable.[13]
[20] Correlative to that lack of constitutional status mentioned above is a reduction in the effective constitutional limits on power. This happens in two ways. First, the commercialisation or contractualisation of governmental power often takes government beyond the reach of judicial review; judicial review being liberal constitutionalism’s chief mechanism for the civilising of sovereign power. For instance, common law courts, guided by a desire to maintain a strict division between public and private law, generally view government contracts as falling on the private side of the line. Such questions of the province of judicial review cause considerable and justifiable anxiety among judges and academics but this is not, from the point of view of administrative law, the most important aspect of commercialisation. More important is that commercialisation transforms the form and substance of governmental power. No longer does government primarily exercise its power through rules, with all their associated assumptions of prospectivity, generality and stability. A private-like form of managerial governance, devoted to flexibility and responsiveness, now dominates the administration of public resources and the regulatory projects of government. As liberal theorists (both constitutional theorists and writers more broadly) debate the meaning and inherent good of the rule of law, the relevance of the conventional conception of the rule of law is rapidly diminishing.
[21] The preceding paragraphs can be summarised in this
way: even if we define the constitutionalisation of power as the limiting
of
power, the currently dominant conception of the Constitution, by giving
overwhelming emphasis to negative limitations, fails, perhaps even on its own
terms, to constitutionalise what are increasingly
dominant forms of governmental
power. Those forms are linked intrinsically to the trajectory of inhumane
globalisation.
[23] Firstly, if we are bound to a conception of the rule of law that takes
as its starting point an opposition to state sovereignty,
that accepts what I
have identified as the mutual and antagonistic presupposition of the rule of law
and sovereignty, then the tenets
of humane globalisation will remain alien to
constitutional discourse. Instead, we must begin to think of the rule of law as
an institution
that integrates the law-making power of the state with the
law-making potentials of civil society, that integrates the vertical and
the
horizontal modes of deriving power. On the surface, this sounds like the public
law equivalent of science fiction, but it is
not. What makes public law a
fascinating field of inquiry right now is that we are already part of the way
there. It is a result
of the contractualisation and quasi-privatisation of
government that governmental power is now the product of a mixture of
hierarchical
and non-hierarchical relationships, both formal and informal. The
American administrative lawyer Jody Freeman has recently argued
that governance
is
a set of negotiated relationships. This alternative conception of policy-making, implementation, and enforcement is dynamic, non-hierarchical and decentralised, envisioning give and take among private and public actors. Information, expertise and influence flow downward, from agency to private actors; upward from private actor to agency; and horizontally, among private and public actors.[14]
[25] Secondly, the very questions that Castiglione sees as missing from liberal constitutionalism – ‘what is public power? What institutions and procedures count as properly public?’ – are questions that critical and reflective administrative lawyers are already asking. If, as I have argued, constitutional thought needs to remarry the question of government with the question of the Constitution, then legal scholars in the public law field must proceed by combining the ‘big picture’ of constitutional law with the ‘small(er) picture’ of administrative law.
[26] This does not
mean that we should disassociate the Constitution from the
constitutional text. (Indeed, textual amendments are likely to be a necessary if
not sufficient condition for institutionalising
genuinely democratic political
structures.) What it does mean is that we should make and clarify a
distinction between constitutional codification and what we might call
constitutional practice. Identifying constitutional practice in this way
means more than simply viewing government through the prism of constitutional
thought.
By itself, that strategy will take us nowhere new. We will end up with
a conception of public law unsustainably and unrealistically
fixated on judicial
review. We must also view the Constitution through the
prism of government. To put things in bold terms, the chief constitutional
project for the new millennium is the constitutionalisation,
and hence
codification, of the structures and institutional relationships required for a
genuinely democratic governmental practice.
Let us rein in the ad hoc,
unprincipled and undemocratic transformation of our state. Let us reclaim, or
perhaps claim for the first
time, that state. When the problem is phrased in
this way, we can begin to see that a critical approach to constitutionalism, to
the project of re-coupling the question of constitution and the question of
government, is a necessary condition for securing political
structures at once
post-sovereign and genuinely democratic.
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URL: http://www.austlii.edu.au/au/journals/UNSWLawJl/2001/67.html