Martin Loughlin and Postnational Constitutionalism: Some Counter-Scepticisms

Abstract

In his many works Martin Loughlin makes no secret of his scepticism towards a strain of thinking that understands fundamental legal and political authority as having shifted away from the state towards postnational sites and mechanisms. He does not deny the increasing density of regulatory structures that cross state boundaries, while resisting efforts to view these developments as sounding at the deepest level of legal and political authority, and so as implying a new ‘pluralism of foundations’ in which other independent sources and containers of legal authority join the state in a new global multiverse. Loughlin's objection to this new strain of thinking is twofold. He claims that the 'postnationalists' do not supply the evidence to substantiate their perception of a new or emerging diversity of foundations. He claims, additionally, that although the burden should lie on the postnationalists, as self-appointed heralds of 'the new', to build upon their diagnosis of deep structural change by offering a coherent or developed account of a ‘sustainable future state’ of globally extended political forms and relations, they fail to discharge that burden. In response to these charges, I question the security of the premises and deep argumentative structure that sustain Loughlin’s own postnational constitutional scepticism. I suggest that the evidential basis of his own claims may be challenged, as may the sustainability of the state-centred legal and political structure he portrays. My immediate point is not to 'win' the argument, but to encourage a more ecumenical approach to a set of questions that surely challenges all candidate understandings of today's global legal and political constellation.