Matej Avbelj, Review of Cormac S. Mac Amhlaigh. New Constitutional Horizons: Towards a Pluralist Constitutional Theory

This volume’s self-described objective is to contribute to the field of pluralist constitutional theory. At first glance, this objective combines modesty and boldness as an academic ambition. In the eyes of many, the field of pluralist constitutional theory has already been populated to the point of exhaustion. Nothing new or of added academic value, to the extent that “the pluralist movement” can be seen as making any scholarly sense at all, could still be said. For others, even if there was something to pluralist constitutional theory in the past, it should now, when the very survival of our liberal constitutional democracies is at stake, be discontinued and laid to rest, lest it be taken up by the vile illiberal, parochial, nationalist, and identitarian political forces to bolster their own political cause. However, to the author’s credit, the book not only foresees and directly engages with the two arguments that could undermine the project ex ante but also dismisses them with full force, making not just any contribution to the field of pluralist constitutional theory but indeed an original one.

Living up to the established high standards of the Oxford Constitutional Theory series, this book is not just another event-driven volume, one that will pass into irrelevance as soon as the world under study is impacted by new events and crises of all sorts. On the contrary, this is a profound study for our pluralist age of theorizing in general and of developing constitutional theories in particular. The book thus adopts a meta-theoretical approach, drawing on the classical themes and texts of leading legal and political theorists (Kelsen, Hart, Raz, Rawls, Dworkin, and Waldron). This allows it to neatly distinguish between various layers of our theoretical engagement (descriptive, explanatory/analytical, and normative), and, in so doing, to achieve a high degree of conceptual clarity that much of the existing pluralist constitutional theory lacks. In this context, the book’s very clear distinction between “plurality” as a “descriptive account” and “pluralism” as a “normative account” should be emphasized (at 7). Similarly, the monograph is entirely straightforward about its definition of constitutionalism as “a normative theory of legitimacy” (at 133), which it grounds in Dworkin’s interpretative approach embedded in the normative idea(l) of unity of values.

It is on this basis that the book advances and defends a theory of interpretative transnational constitutional pluralism. This theory, not unlike other competing theoretical approaches in the field, strives to establish a middle ground between overly idealized and hence utopian approaches to existing forms of transnational governance and those theoretical and practical (political) forces that reject from the outset the ambitions of addressing the transnational challenges beyond the state as irrelevant. In the author’s words, the theory’s goal and capacity is to provide meaningful practical guidance to the real challenges that transnational legal, political, economic, and social practices pose to the largely statist repository of theoretical and practical tools available to us for making transnational governance not just lawful but also legitimate.

In its overall very nuanced, carefully crafted, and non-confrontational prose, the book essentially and ultimately stands for a bold defense of constitutionalism, both as a theoretical framework and as a discursive container of practical reasoning for addressing the theoretical and practical challenges of transnational governance in a plurality-ridden realm. The persistent objectors to the author’s approach are told either that they do not partake in the same game as the world “really is” or that their disagreement is not a genuine one and that, eventually, due to the unavoidability of the interpretative approach, even the competing theoretical approaches are bound to offer their own justification for existing social practices, which, to repeat after Dworkin, “do not carry identifying labels.”¹ After all, the object and purpose of governing lawfully and legitimately within and beyond the state—for example, transnationally—is shared across the theoretical board, while the labeling of the quality of the desired system of governance should be much less important.

Nevertheless, the book sticks to constitutionalism both in name and as the most compelling theory for transnational governance. This is, of course, a normative choice—legitimate but not inevitable. Alternative approaches have been envisaged for the transnational realm, circumscribing constitutionalism to the state and state-like environments. The book glosses over this critique, chiefly because of its definition of constitutionalism (as a normative theory of legitimacy), which is both reductive and overinclusive at the same time, turning constitutionalism into a passe-partout concept, for example, fitting into every environment in which the exercise of any authority raises legitimacy issues. There, and hence everywhere, constitutionalism, thus conceived, is an answer.

Despite this critique, the book, ultimately, must be credited for defending what really matters. In truth, much of the legal and political theory, both within and beyond the state, has, in recent decades, as the world has undergone a comprehensive pluralization, been caught in petty semantic and labeling academic quarrels. These might carry some prestige, as labels, in academia especially, do matter. However, what is much more important, and this volume could not have made it clearer, is to understand that what really matters means asking the right questions about the actual problematique, both within and beyond the state, and devising a best-fit interpretative justification to answer that particular query. If legal theories and their authors, following Dworkin, were competing in this enterprise, not only would it not matter whether we are constitutionalists, pluralists, both, or neither, but the world too would be a better and more just place. This is, on our interpretative account, among the most important messages of Mac Amhlaigh’s book, which has indeed succeeded at opening new horizons about the new constitutional horizons.

Footnotes