Regius Professor of Public Law and the Law of Nature and Nations

LLB, PhD, LLD (Honoris Causa) (Uppsala), FBA, FRSE
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Biography

Neil Walker holds the Regius Chair of Public Law and the Law of Nature and Nations at the University of Edinburgh.

His main area of expertise is constitutional theory. He has published extensively on the constitutional dimension of legal order at sub-state, state, supranational and international levels. He has also published at length on the relationship between security, legal order and political community. He maintains a more general interest in broader questions of legal theory as well as in various substantive dimensions of UK and EU public law.
 
Previously he taught public law at Edinburgh for ten years (1986-96), was Professor of Legal and Constitutional Theory at the University of Aberdeen (1996-2000), and, most recently, was Professor of European Law at the European University Institute in Florence (2000-8), where he was also the first Dean of Studies (2002-5).
 
He has also held various visiting appointments - including Visiting Professor, Department of Philosophy, University of Tilburg, Netherlands (2000); Visiting Professor of Law, University of Columbia, NY(2005); Eugene Einaudi Chair of European Studies, University of Cornell (2007); and Distinguished Visiting Professor of Law, University of Toronto (2007). More recently, he was Global Professor of Law at New York University in 2011, and the Sidley Austin-Robert D. MacLean Visiting Professor of Law at Yale Law School in 2014-15.
 
Professor Walker's inaugural lecture, entitled "Out of Place and Out of Time: Law's Fading Co-ordinates", was delivered on the 18th November 2008. You can listen to it from the Blogs and Podcasts section of the School website.
 
In December 2008 Professor Walker was asked by the Scottish Government to conduct an independent review of final appellate jurisdiction in the Scottish legal system. His final Report, submitted in January 2010, can be found at:

Willingness to take Ph.D. students: Yes

Websites

Professor Neil Walker's Homepage at Edinburgh Law School

Courses Taught

Law Democracy and Citizenship (Honours) (Course Organiser)

PhD Supervisees

Kenneth Campbell  'The role of the Scottish 'settlement' in the emergence of constitutional laws and Britain's 'unwritten' constitution.'

Alexander Latham  'Democracy and Judicial Review: a theory of a practice'

Lucas Miotto Lopes  'Coercion and the Nature of Law'

Constanza Salgado  'Private property and its public dimension.'

Peter Speirs  'Rebuilding the Ship at Sea: Reconstituting the Scottish Political Constitution'

Silvia Suteu  'Eternity and the Constitution: The Promise and Limits of Eternity Clauses'

Vinicius Vidor  'Reasoning over Free Speech: on the role of neutrality and shame on the way we reason about speech'

Books and Reports

Neil Walker, Intimations of Global Law, (Cambridge University Press, 2014)
Abstract: A strain of law reaching beyond any bounded international or transnational remit to assert a global jurisdiction has recently acquired a new prominence. Intimations of Global Law detects this strain in structures of international law claiming a planetary scope independent of state consent, in new threads of global constitutional law, administrative law and human rights, and in revived notions of ius gentium and the global rule of law. It is also visible in the legal pursuit of functionally differentiated global public goods, general conflict rules, norms of 'legal pluralism' and new legal hybrids such as the global law of peace and humanity law. The coming of global law affects how law manifests itself in a global age and alters the shape of our legal-ethical horizons. Global law presents a diverse, unsettled and sometimes conflicted legal category, and one which challenges our very understanding of the rudiments of legal authority.

Cormac Mac Amhlaigh, Claudio Michelon, Neil Walker, After Public Law, (Oxford University Press, 2013)
Abstract: Public law has been conceived in many different ways, sometimes overlapping, often conflicting. However in recent years a common theme running through the discussions of public law is one of loss. What function and future can public law have in this rapidly transforming landscape, where globalized states and supranational institutions have ever-increasing importance?The contributions to this volume take stock of the idea, concepts, and values of public law as it has developed alongside the growth of the modern state, and assess its continued usefulness as a distinct area of legal inquiry and normativity in light of various historical trends and contemporary pressures affecting the global configuration of law in general.Divided into three parts, the first provides a conceptual, philosophical, and historical understanding of the nature of public law, the nature of private law and the relationship between the public, the private, and the concept of law. The second part focuses on the domains, values, and functions of public law in contemporary (state) legal practice, as seen, in part, through its relationship with private domains, values, and functions. The final part engages with the new legal scholarship on global transformation, analysing the changes in public law at the national level, including the new forms of interpenetration of public and private in the market state, as well as exploring the ubiquitous use of public law values and concepts beyond the state.

Neil Walker, MacCormick's Scotland, (Edinburgh University Press, 2012)
Abstract: This volume started as a series of papers to mark the contribution of the late Sir Neil MacCormick and to celebrate his scholarship and life.

Jo Shaw, Stephen Tierney, Neil Walker, Europe’s Constitutional Mosaic, (Hart, 2011)
Abstract: This book emerged from an extended seminar series held in Edinburgh Law School which sought to explore the complex constitutional arrangements of the European legal space as an inter-connected mosaic. There has been much recent debate concerning the constitutional future of Europe, focusing almost exclusively upon the EU in the context of the (failed) Constitutional Treaty of 2003-5 and the subsequent Treaty of Lisbon. The premise of the book is that this focus, while indispensable, offers only a partial vision of the complex constitutional terrain of contemporary Europe. In addition, it is essential to explore other threads of normative authority within and across states, embracing internal challenges to state-level constitutional regimes; the growing jurisprudential assertiveness of the Council of Europe regime through the ECHR and various democracy-building measures; as well as Europe's ever thicker relations, both with its border regions and with broader international institutions, especially those of the United Nations. Together these developments create increasingly dense networks of constitutional authority within the European space. This fluid and multi-dimensional dynamic is difficult to classify, and indeed may seem in many ways impenetrable, but that makes the explanatory challenge all the more important and pressing. Without this fuller picture it becomes impossible to understand the legal context of Europe today or the prospects of ongoing changes. The book brings together a range of experts in law, legal theory and political science from across Europe in order to address these complex issues and to supply illustrative case-studies in the topical areas of the constitutionalisation of European labour law and European criminal law.

Neil Walker, Final Appellate Jurisdiction in the Scottish Legal System, (Scottish Government, 2010)

Neil Walker, Gianluigi Palombella, Relocating the Rule of Law, (Hart, 2009)
Abstract: In this set of interdisciplinary essays leading scholars discuss the future of the Rule of Law, a concept whose meaning and import has become ever more topical and elusive. Historically, the term denoted the idea of 'government limited by law'. It has also come to be equated, more broadly, with certain goods suggested by the idea of legality as such, including the preservation of human dignity and other individual and social benefits predicated upon or conducive to a rule-based social order. But in both its narrow and broader senses the Rule of Law remains a much contested concept. These essays seek to capture the main areas and levels of controversy by 'relocating' the Rule of Law not just at the philosophical level, but also in its main contemporary arenas of application - both national, and increasingly, supranational and international.

Neil Walker, Martin Loughlin, The Paradox of Constitutionalism, (Oxford University Press, 2007)
Abstract: This book sets out to examine some of the key features of what we describe as the paradox of constitutionalism: whether those who have the authority to make a constitution - the 'constituent power' - can do so without effectively surrendering that authority to the institutional sites of power 'constituted' by the constitutional form they enact. In particular, is the constituent power exhausted in the single constitutive act or does it retain a presence, acting as critical check on the constitutional operating system and/or an alternative source of authority to be invoked in moments of crisis? These questions have been debated both in different national contexts and at the level of constitutional theory, and these debates are acknowledged and developed in the first two sections of the book. Part I includes chapters on how the question of constituent power has been treated in the constitutional histories of USA, France, UK and Germany, while Part II examines at the question of constituent power from the perspective of both liberal and non-liberal theories of the state and legal order. The essays in Part III consider the operation of constitutionalism with respect to a series of contemporary challenges to the state, including those from popular movements below the level of the state and challenges from the supranational and international levels, and they analyse how the puzzles associated with the question of constituent power are played out in these increasingly important settings

Neil Walker, Ian Loader, Civilizing Security, (Cambridge University Press, 2007)
Abstract: This book develops and defends an original argument concerning the importance and value of security as a good, and the virtue and necessity of the democratic state in fostering and sustaining that good. It travels widely over debates in social and political theory, sociology, criminology, law and international security studies.

Neil Walker, Relocating Sovereignty, (Ashgate Publishing, 2006)
Abstract: This volume brings together a collection of classic and contemporary texts which engage with the core problem of sovereignty from the perspective of various legal and law-related sub-disciplines: legal history and theory, constitutional law, international law and relations and EU law. Many of the highlights from the intense debates about the continuing relevance or otherwise of the internal sovereignty of national legal orders and the external sovereignty of states in a rapidly- globalizing world are reproduced here.

Neil Walker, Europe's Area of Freedom, Security, and Justice, (Oxford University Press, 2004)
Abstract: This collection brings together leading specialists in the areas of European Union law which are now organized under the Area of Freedom, Security and Justice (AFSJ). The concept of the AFSJ was introduced into the EU Treaty framework by the Treaty of Amsterdam in 1997, and it incorporates migration law, family reunion law, asylum law, police cooperation, and cooperation in criminal law. Each of these areas of law is the subject of an in-depth examination in a separate chapter of this book. The early years of the AFSJ, building upon a substantial body of law already in place under the Treaty of Maastricht and various intergovernmental arrangements, have witnessed a rapid expansion in legislative and executive activity in the field of European internal security. In migration law, family reunion law, asylum law, police co-operation, and co-operation in criminal law, the scale and intensity of action at the supranational level is already such as to overturn longstanding assumptions about the priority of national law in matters of migration control and criminal justice. An introductory chapter examines the various policy strands covered by the AFSJ; investigates what, if anything, can be viewed as its distinctive legal underpinning; and discusses its possible future development in the light of current discussions over the adoption of a first documentary Constitution for the European Union. In addition to setting out the main contours of legal policy, each chapter examines the continuing tension between national sovereignty on the one hand and a growing commitment to collective, EU-wide action on the other. The volume also addresses the wider constitutional implications of a growing supranational capacity in questions of the priority of political values in the evolving EU; fundamental rights protection; the control of new forms of executive and administrative discretion; and the pressures of accommodating the ten new Enlargement states within the internal security field.

Neil Walker, Sovereignty in Transition, (Hart Publishing, 2003)
Abstract: Sovereignty in Transition brings together a group of leading scholars from law and cognate disciplines to assess contemporary developments in the framework of ideas and the variety of institutional forms associated with the concept of sovereignty. Sovereignty has been described as the main organising concept of the international society of states - one which is traditionally central to the discipline and practice of both constitutional law and of international law. The volume asks to what extent,and with what implications, this centrality is challenged by contemporary developments that shift authority away from the state to new sub-state, supra-state and non-state forms. A particular focus of attention is the European Union, and the relationship between the sovereignty traditions of various member states on the one hand and the new claims to authority made on behalf of the European Union itself on the other are examined. The collection also includes contributions from international law, legal philosophy, legal history, political theory, political science, international relations and theology that seek to examine the state of the sovereignty debate in these disciplines in ways that throw light on the focal constitutional debate in the European Union.

Neil Walker, Paul Beaumont, Carole Lyons, Convergence and Divergence in European Public Law, (Hart Publishing, 2002)

Neil Walker, Policing in a Changing Constitutional Order, (Sweet & Maxwell, 2000)

Neil Walker, Paul Beaumont, Legal Framework of the European Single Currency, (Hart Publishing, 1999)

Neil Walker, Wilson Finnie, Christopher Himsworth, Edinburgh Essays in Public Law, (Edinburgh University Press, 1991)

Neil Walker, The Scottish Community Charge, (W Green and Son, Edinburgh, 1989)

Neil Walker, D. Bradley, R. Wilkie, Managing the Police: Law, Organisation and Democracy, (Wheatsheaf Books, Harvester Press, Brighton, 1986)

Articles

Neil Walker, 'Constitutional Pluralism Revisited ', (2016), European Law Journal, Vol 23, pp 333-355
Abstract: This essay revisits the theory of constitutional pluralism. This theory was first developed in the EU context as a way of understanding and defending the absence of a broadly agreed source of final authority in the relationship between national and supranational (EU) legal systems and their respective appellate courts in the context of the significant increase in supranational jurisdiction around the time of the Maastricht Treaty 25 years ago. The essay argues that the theory of constitutional pluralism remains relevant today, in particular offering better explanatory and justificatory accounts of the EU than any of the singularist (or monist), holist or federalist alternatives. Its continuing relevance, however, depends on a more explicit focus on the political underpinnings of the legal and judicial dimensions of constitutional pluralism than has typically been the case in the literature, and on more detailed consideration of the preconditions, forms and limits of constitutional initiative in the contemporary phase of unprecedented challenge to the legitimacy of the EU.

Neil Walker, 'Human Rights and Global Public Goods: The Sound of One Hand Clapping?', (2016), Indiana Journal of Global legal Studies, Vol 23, pp 249-265
Abstract: Each operating in a presumptively general or universal register, “public goods” and “human rights” are among the most popular and visible contemporary carriers of ideas of global law and governance and are therefore prime sources for any broader project of global justice. Their combination, moreover, holds out the prospect of a fertile engagement between the two core concerns of modern political morality—our collective requirements and potential (public goods) and our individual dignity and well-being (human rights). Yet for all their ambition, public goods and human rights each face the formidable challenge of placing considerations of political authority and political morality in productive balance. Exploring both, we face the frustrating phenomenon of one hand clapping—a failure to reconcile authority and morality in a satisfactory manner. The discourse of global public goods presupposes rather than provides grounds for the relevant “public” and so suffers from a general deficit of political authority. In turn, this reinforces the incompleteness of its claim in political morality. The discourse of human rights, perhaps surprisingly, reveals stronger authoritative roots; however, these are locally situated, and the soil becomes very thin as we move away from the state to the broader global environment and the familiar yet ethically abstracted moral discourse of universal entitlement. In conclusion, I argue, it is precisely because both of these dimensions of global ethics—public goods and human rights—face the same type of difficulty of the grounding political authority that their conjunction in a single scheme does not allow either to compensate for the deficiencies of the other.

Neil Walker, 'Our Constitutional Unsettlement ', (2014), Public Law, pp 529-548

Neil Walker, 'Postnational Constitutionalism and Postnational Public Law: A Tale of Two Neologisms', (2012), Transnational Legal Theory, Vol 3, pp 61-86
Abstract: This paper examines how ideas of postnational constitutionalism and postnational public law have developed and will likely continue to develop in ways that are in some respects complementary and in other respects in tension. Both terms are neologisms-recently emergent concepts seeking to adapt legal-normative ideas suited to one (state) context to another (postnational) context. To subscribe to either, or to both, is already to take sides against a broad church of postnational sceptics, and instead to view the legal forms and vocabulary of statehood as a mobile resource and as an indispensable part of any answer to the question of the authority of the expanding domain of law beyond the state under conditions of globalisation. Yet beyond this basic threshold of agreement, postnational constitutionalists and postnational public lawyers tend to differ in emphasis. Whereas the former focus on the 'constitutive' or 'input' side of state-like law at the myriad new sites of postnational authority, the latter tend to concentrate on the 'throughput' or 'output' side of state-like law in postnational contexts. For the former, authority and legitimacy tend to be a function of particular pedigree and collective subjectivity, whereas for the latter authority and legitimacy tend to be a function of general 'public' norms and procedures and supposedly objective standards. These differences are motivated by normative preferences, and also by differing diagnoses of the postnational environment and different estimations of law's possibilities and limitations under these circumstances. Other approaches that try to reach beyond this normative and diagnostic division to combine or reconcile input and output, particular and general, subjective and objective, must do so in appreciation of the fact that the basic opposition in question cannot be entirely eradicated. Rather, it reflects the deep and resilient ambivalence of the aspirational horizon associated with the age of political modernity-as relevant to the postnational phase as to the state-centred phase-in which the values of autonomy and equality within a constructed socio-political project have displaced earlier notions of conformity and status in accordance with a pre-given order of things. For under these modern conditions law must be concerned both to endorse and facilitate the collective pursuit of autonomy and equality and to protect the core individual expression of these values from collective encroachment.

Neil Walker, 'Reconciling MacCormick: Constitutional Pluralism and the Unity of Practical Reason', (2011), Ratio Juris, Vol 24, pp 369-85
Abstract: This article begins by assessing the ways in which the life and work of Neil MacCormick exemplified a dual commitment to the local and particular—especially through his advocacy of nationalism—and to the international and the universal. It then concentrates on one of the key tensions in his work which reflected that duality, namely the tension between his longstanding endorsement of constitutional pluralism—and so of the separate integrity of different “local” constitutional orders—and his belief in some kind of unity, and so community, residing in the moral and rational properties of all law. The article continues by considering a number of ways in which this tension may be resolved. It concludes, with particular reference to MacCormick's late work on ethics, that the answer may be found through the idea of a general unity of practical reason which undergirds the various special orders of practical reason by which particular legal systems are distinguished.

Neil Walker, 'Rosenfeld's Plural Constitutionalism ', (2010), International Journal of Constitutional Law, Vol 8, pp 677-84

Neil Walker, 'Constitutionalism and the Incompleteness of Democracy: A Reply to Four Critics', (2010), Rechtsfilosofie & Rechtstheorie, Vol 39, pp 276-88

Neil Walker, 'The Anti-Political Polity ', (2010), Modern Law Review, Vol 73, pp 141-54

Neil Walker, 'Constitutionalism and the Incompleteness of Democracy: An Iterative Relationship', (2010), Rechtsfilosofie & Rechtstheorie, Vol 39, pp 206-33
Abstract: This paper contends that the relationship between democracy and modern constitutionalism possesses an underappreciated complexity, which, unless addressed, prevents us from embracing the challenge to constitutionalism or the possibilities open to it in today’s globalising world. That complexity is revealed by treating democracy as an incomplete ideal, referring both to the empirical incompleteness of democracy as unable to supply its own terms of application - the internal dimension - and to the normative incompleteness of democracy as guide to good government - the external dimension. This double-edged incompleteness explains the contingent necessity of modern constitutionalism. Constitutionalism is a necessary response to democratic incompleteness - seeking both to realise democracy (the internal dimension) and to supplement and qualify democracy (the external dimension). Yet, if incomplete democracy requires the accompaniment of constitutionalism, such incompleteness also means that democratic considerations cannot specify definitively the content of constitutionalism. The content of constitutionalism as a means to completing democracy, therefore, remains contingent upon other normative and practical considerations. Democratic incompleteness thus remains both the justificatory foundation for contemporary constitutionalism and the main reason for its inherent fragility. The paper proceeds by examining the relationship between democracy and constitutionalism along various internal, external and mixed dimensions, observing that some of the ways in which constitutionalism treats democracy recur over time and circumstance. Yet how democratic incompleteness manifests itself, and how constitutionalism responds to incompleteness, also evolves and alters, revealing the relationship between constitutionalism and democracy as iterative. The paper then concentrates on the iteration emerging from the current globalising wave. The fact that states are no longer either the exclusive sites of democratic authority or the only constitutional entities and sources compounds democratic incompleteness and complicates how constitutionalism responds. Nevertheless, it is argued, the historical role of constitutionalism in political modernity as key to addressing the double incompleteness of democracy persists under globalisation, as does democracy’s inability to supply all vital terms of constitutionalism. This continuity reflects how the deep moral order of political modernity, in particular the emphasis on individualism, equality, collective agency and collective self-improvement, remains constant while its institutional architecture, including the forms of its commitment to democracy, evolves. Constitutionalism, itself both a basic orientation and a set of design principles for that architecture, remains a necessary support for and supplement to democracy. Yet postnational constitutionalism, even more than its state-centred predecessor, remains contingent upon non-democratic considerations, so reinforcing constitutionalism’s normative and sociological vulnerability. This conclusion challenges two dominant but opposing understandings of the postnational constitutionalism of the global age - both that which indicts global constitutionalism because of its weakened democratic credentials and that which assumes that these weakened democratic credentials pose no problem for postnational constitutionalism, which may instead thrive through a heightened emphasis on non-democratic values.

Neil Walker, 'Out of Place and Out of Time: Law's Fading Co-ordinates', (2010), Edinburgh Law Review, Vol 14, pp 13-46

Neil Walker, 'Beyond Boundary Disputes and Basic Grids: Mapping the Global disorder of Normative Orders', (2008), International Journal of Constitutional Law, Vol 6, pp 373-96
Abstract: The recent proliferation of transnational forms of legal regulation and recognition has transformed the way we understand the global legal configuration, both in quantitative and in qualitative terms. Quantitatively, so dense are the connections and so significant the overlaps between legal orders that they can no longer easily be compartmentalized — still less marginalized — as mere boundary disputes. Qualitatively, the underlying basic grid, or “order of orders,” through which we make sense of such connections and overlaps, is no longer well understood in traditional Westphalian terms — as the accommodation of mutually exclusive state sovereignties within a largely facilitative framework of international law. Rather, there is an emerging “disorder of orders,” with traditional state sovereigntist, unipolar, global-hierarchy, regional, legal-field discursive (including global versions of both “constitutional” and “administrative” law), coherentist, and pluralist grids of understanding of the relationship between normative orders vying with one another, but with none gaining ascendancy. The future of the global legal configuration is likely to involve more of the same. It is likely we will not witness the re-establishment of a new dominant order of orders but, instead, will depend on the terms of accommodation reached among these competing models and among the actors — popular, judicial, and symbolic — who are influential in developing them.

Neil Walker, 'Taking Constitutionalism Beyond the State ', (2008), Political Studies, Vol 56, pp 519-43

Neil Walker, 'Europe at 50. A Midlife Crisis. Democratic Deficit and Sovereignty Surplus ', (2008), Irish Journal of European Law, Vol 15, pp 23-34
Abstract: The paper argues that the resilient democratic deficit of the EU is closely connected to its equally longstanding ‘sovereignty surplus.’ The division and competition of sovereignty between member states and the EU has created a more crowded space of overlapping polities, each requiring democratic legitimation but each also with the propensity to detract from the democratic capacity of the others. Secondly, the very gravity and divisiveness of what is at stake for the various parties involved and positions implicated in the sovereignty surplus renders the question of the proper diagnosis and treatment of the ensuing democratic deficit highly controversial and, indeed, sharply polarized. Thirdly and finally, and bringing us to the current constitutional controversy and mid-life crisis, the sovereignty surplus also makes the question of praxis - of how to secure the very ground of initiative necessary to develop and act on a more inclusively resolved diagnosis and treatment of the democratic deficit – whatever that may be, difficult if not intractable.

Neil Walker, 'Not the European Constitution ', (2008), Maastricht Journal of European and Comparative Law, Vol 15

Neil Walker, 'Adam Tomkins, Our Republican Constitution ', (2007), Edinburgh Law Review, Vol 11, pp 126-29

Neil Walker, 'Juridical Transformation as a Process: A Comment on Stone Sweet', (2007), German Law Journal, Vol 8, pp 929-933

Neil Walker, 'EU Constitutionalism in the State Constitutional Tradition ', (2006), Current Legal Problems, Vol 59, pp 51-89

Neil Walker, 'Big “C” or small “c”? ', (2006), European Law Journal, Vol 12, pp 12-14
Abstract: (Note: Italian version “Una costituzione con la “C” maiuscola o con la “c” minuscola?” published in (2005) 25 Quaderni costituzionali 881-884.)

Neil Walker, 'A Constitutional Reckoning ', (2006), Constellations, Vol 13, pp 140-50

Neil Walker, 'Europe’s Constitutional Engagement ', (2005), Ratio Juris, Vol 18, pp 387-99

Neil Walker, 'Legal Theory and the European Union: A 25th Anniversary Essay', (2005), Oxford Journal of Legal Studies, Vol 25, pp 581-601

Neil Walker, 'Europe’s Constitutional Momentum and the Search for Polity Legitimacy ', (2005), International Journal of Constitutional Law, Vol 4, pp 211-38

Neil Walker, Ian Loader, 'A State of Denial?: Rethinking the Governance of Security', (2004), Punishment & Society, Vol 6, pp 221-28

Neil Walker, 'The Legacy of Europe’s Constitutional Moment ', (2004), Constellations, Vol 11, pp 368-92

Neil Walker, 'Europe's Constitutional Passion Play ', (2003), European Law Review, Vol 28, pp 905-08

Neil Walker, 'Constitutionalising Enlargement, Enlarging Constitutionalism ', (2003), European Law Journal, Vol 9, pp 365-85

Neil Walker, G. de Burca, 'Law and Transnational Civil Society: Upsetting the Agenda?', (2003), European Law Journal, Vol 9, pp 387-400

Neil Walker, 'Policing and the Supranational ', (2002), Policing and Society, Vol 12, pp 307-21

Neil Walker, 'The Idea of Constitutional Pluralism ', (2002), Modern Law Review, Vol 65, pp 317-59
Abstract: Constitutional discourse has perhaps never been more popular, nor more comprehensively challenged than it is today. The development of new constitutional settlements and languages at state and post-state level has to be balanced against the deepening of a formidable range of sceptical attitudes. These include the claim that constitutionalism remains too state-centered, overstates its capacity to shape political community, exhibits an inherent normative bias against social developments associated with the politics of difference, provides a language easily susceptible to ideological manipulation and, that, consequent upon these challenges, it increasingly represents a fractured and debased conceptual currency. A rehabilitated language of constitutionalism would meet these challenges through a version of constitutional pluralism. Constitutional pluralism recognises that in the post-Westphalian world there exists a range of different constitutional sites and processes configured in a heterarchical rather than a hierarchical pattern, and seeks to develop a number of empirical indices and normative criteria which allow us to understand this emerging configuration and assess the legitimacy of its development.

Neil Walker, Ian Loader, 'Policing as a Public Good: Reconstituting the Connections Between Policing and the State', (2001), Theoretical Criminology, Vol 5, pp 9-35

Neil Walker, 'All Dressed Up ', (2001), Oxford Journal of Legal Studies, Vol 21, pp 563-82

Neil Walker, 'Setting English Judges to Rights ', (1999), Oxford Journal of Legal Studies, Vol 19, pp 133-51

Neil Walker, 'Sovereignty and Differentiated Integration in the European Union ', (1998), European Law Journal, Vol 4, pp 355-88
Abstract: Discusses the principle of uniformity in the development of law and institutions in the European Union. Concept of sovereignty; Conclusion.

Neil Walker, Karl Newman, 'Justice and Home Affairs ', (1998), International and Comparative Law Quarterly, Vol 47, pp 231-38

Neil Walker, 'Devolution to Scotland: The Legal Aspects. Ed by T StL N Bates (Edinburgh: T & T Clark, 1997) ', (1998), Edinburgh Law Review, Vol 2, pp 366-67

Neil Walker, 'Defining Core Police Tasks: The Neglect of the Symbolic Dimension?', (1996), Policing and Society, Vol 6, pp 53-71

Neil Walker, 'Law Under Pressure ', (1994), Modern Law Review, Vol 57, pp 130-50

Neil Walker, 'The Accountability of European Policing Institutions ', (1993), European Journal on Criminal Policy and Research, Vol 1, pp 34-52

Neil Walker, 'European Policing After 1992 ', (1993), Journal of Children's Services, Vol 31, pp 3-28

Neil Walker, Christopher Himsworth, 'The Poll Tax and Fundamental Law ', (1991), Juridical Review, pp 45-78

Neil Walker, 'Spycatcher’s Scottish Sequel ', (1990), Public Law, pp 354-71

Neil Walker, Christopher Himsworth, 'Where Rates and Charges Meet ', (1989), Juridical Review, pp 189-95

Neil Walker, 'After Rates?: The Community Charge in Scotland', (1987), Public Law, pp 586-616

Neil Walker, D. Bradley, R. Wilkie, 'Beyond Managing by Objectives ', (1987), Policing, Vol 3, pp 68-74

Chapters

Neil Walker, 'Beyond Secession? Law in the Framing of the National Polity' in Stephen Tierney (ed.) Nationalism and Globalisation (Hart Publishing 2015) 155-184

Neil Walker, 'The Philosophy of European Union Law ' in Anthony Arnull, Damian Chalmers (ed.) The Oxford Handbook of European Union Law (Oxford University Press 2015) 3-27

Neil Walker, 'Justice in and Of the European Union ' in Dimitry Kochenov, Grainne de Burca, Andrew Williams (ed.) Europe's Justice Deficit? (Hart Publishing 2015) 247-258

Neil Walker, 'Epilogue Rethinking Aloud' in Miguel Maduro, Kaarlo Tuori, Suvi Sankari (ed.) Transnational Law (Cambridge University Press 2014) 381-88

Neil Walker, 'Sovereignty Frames and Sovereignty Claims ' in Richard Rawlings, Peter Leyland, Alison Young (ed.) Sovereignty and the Law (Oxford University Press 2013) 18-33
Abstract: This Chapter argues that much of the contemporary confusion and controversy over the meaning and continuing utility of the concept of sovereignty stems from a failure to distinguish between sovereignty as a deep framing device for making sense of the modern legal and political world on the one hand, and the particular claims which are made on behalf of particular institutions, agencies, rules, or other entities to possess sovereign authority on the other. The Chapter begins by providing a basic account of the difference between sovereignty as framing and sovereignty as claiming; it continues by analyzing why and how our understandings and uses of sovereignty have altered in the contemporary wave of globalization; and concludes with thoughts about the distinctive ways in which the evolving state of sovereignty framing and claiming plays out in the specific context of the UK and its external and internal legal and constitutional relations today.

Neil Walker, 'Universalism and Particularism in Human Rights Trade-off or Productive Tension?' in David Kinley, Wojciech Sadurski, Kevin Walton (ed.) Human Rights (Edward Elgar Publishing 2013) 89-112

Neil Walker, 'The Shifting Foundations of European Constitutionalism ' in Denis J. Galligan, Mila Versteeg (ed.) Social and Political Foundations of Constitutions (Cambridge University Press 2013) 637-60

Neil Walker, 'Social Democracy and Security ' in Michael Keating, David McCrone (ed.) The Crisis of Social Democracy in Europe (Edinburgh University Press 2013) 119

Neil Walker, 'Universalism and Particularism in Human Rights ' in Cindy Holder, David Reidy (ed.) Human Rights (Cambridge University Press 2013) 39-58

Neil Walker, 'MacCormick, Sir (Donald) Neil (1941–2009) ' in H. C. G. Matthew, Brian Harrison (ed.) Oxford Dictionary of National Biography (Oxford University Press 2013)

Neil Walker, 'The Post-national Horizon of Constitutionalism and Public Law Paradigm Extension or Paradigm Exhaustion?' in Cormac Mac Amhlaigh, Claudio Michelon, Neil Walker (ed.) After Public Law (Oxford University Press 2013) 241-63
Abstract: This chapter examines how postnational constitutionalism and postnational public law have developed in ways that are both complementary and in mutual tension. To subscribe to either one is to take sides against a broad church of postnational sceptics, and instead view the legal forms and vocabulary of statehood as an indispensable aid in authorizing the expanding domain of law beyond the state. Yet postnational constitutionalists and postnational public lawyers differ in emphasis. For the former, authority flows from particular pedigree and collective subjectivity, whereas for the latter authority flows from the establishment of general ‘public’ procedures and supposedly objective standards. Other approaches seeking to reach beyond this division must appreciate that the opposition between subjective and objective, ‘input’ and ‘output’, cannot be entirely eradicated. Rather, it reflects the resilient ambivalence of the aspirational horizon of political modernity — as relevant to the postnational environment as to the state — in which values of autonomy and equality under a manufactured socio-political project have replaced notions of conformity and status in accordance with a pre-given order of things. For in these modern conditions, law must simultaneously facilitate the collective pursuit of autonomy and equality and protect the core individual expression of these values from collective encroachment.

Neil Walker, 'Independence in an Interdependent World ' in Gerry Hassan, James Mitchell (ed.) After Independence (Luath Press 2013)

Neil Walker, 'Afterword ' in Maksymilian Del Mar, Claudio Michelon (ed.) The Anxiety of the Jurist (Ashgate Publishing 2013) 321-24

Cormac Mac Amhlaigh, Claudio Michelon, Neil Walker, 'Introduction ' in Cormac Mac Amhlaigh, Claudio Michelon, Neil Walker (ed.) After Public Law (Oxford University Press 2013) 1-10
Abstract: This chapter introduces the themes treated in this book, in particular that of continuity and change in public and private law. The title of the volume is open to a variety of interpretations. This introduction shows how those interpretations map on to the aims of the book. This is done through the exploration of the nature and essence of public law as it has existed in the state context, the relationship between public law and its ‘after’, namely private law, as well as the ways in which global changes challenge these understandings given changes in the nature and role of the state.

Neil Walker, 'Scottish Nationalism For and Against the Union State ' in Neil Walker (ed.) MacCormick's Scotland (Edinburgh University Press 2012) 163-90

Neil Walker, 'The European Union's Unresolved Constitution ' in Michel Rosenfeld, Andras Sajo (ed.) The Oxford Handbook of Comparative Constitutional Law (Oxford University Press 2012) 1185-1208
Abstract: This article shows how widespread and how volatile the language of constitutionalism has become in today's EU. It poses the baseline question of the very possibility of a constitutional law for the EU — a question that all positions in favour of a constitution, written or unwritten, are bound to answer affirmatively. The article begins by considering the EU against a general background of constitutional imagination and definition. In so doing, it explains why our understanding of the EU is influenced by the historic centrality of the modern state to constitutional theory and practice, but also why, in these inescapable but incomplete terms, the EU is an unresolved constitutional entity. It then considers how the EU's putatively constitutional features have emerged and unfolded, in so doing focusing on the centrality of law. And as this centrality has come under pressure in the mature EU, the article looks at the changing constitutional challenges and opportunities of this new post-state polity.

Neil Walker, 'The Place of European Law ' in Gráinne de Búrca, J. H. H. Weiler (ed.) The Worlds of European Constitutionalism (Cambridge University Press 2012) 57-104

Neil Walker, 'Constitutionalism and Pluralism in Global Context ' in Matej Avbelj, Jan Komarek (ed.) Constitutional Pluralism in the European Union and Beyond (Hart 2012) 17-38

Neil Walker, 'On the Necessarily Public Character of Law ' in Claudio Michelon, Gregor Clunie, Christopher McCorkindale, Haris Psarras (ed.) The Public in Law (Ashgate Publishing 2012) 7-33
Abstract: This paper asks whether and how modern law may be understood as necessarily public in character. It begins by looking at the two main ways - doctrinal and disciplinary - in which law is understood as only selectively and contingently public. In both these cases law's public quality is counterposed to its private quality. However, publicness can also be conceived of as the juridical master category embracing the public and the private in the disciplinary and doctrinal senses. This conception of the necessary and irreducible publicness of law draws on the tradition of ius publicum, recently revived in the Anglophone world in the work of Martin Loughlin. That body of thought conceives of the state as a pre-positive and generically public jural foundation - a scheme of intelligibility for making sense of the positive law (constitution, statute law, common law) of the state. This is a plausible and powerful way of understanding the history of the modern state-based, sovereigntist legal constellation. However, it may be challenged both methodologically for elevating the state-based account to the status of the only plausible narrative, and substantively for its inability to capture the state-decentring aspects of contemporary globalization. A conception of pre-positive publicness no longer simply proposed as a dominant, value-neutral historical paradigm of explanation, but now underpinned by a normative commitment to democracy, is proposed as way of addressing both the methodological and the substantive limitations of the ius publicum account.

Neil Walker, 'The Cosmopolitan Local ' in Agustin Jose Menendez, John Erik Fossum (ed.) Law and Democracy in Neil MacCormick's Legal and Political Theory (Springer 2011) 3-15
Abstract: This chapter highlights the creative tension between the two sides of the oeuvre of MacCormick the intellectual and the person: the local and the cosmopolitan. Neil's biography and convictions attracted him to the 'in-between', an orientation which helped shape and mould his intellectual world-view by rendering him sensitive to questions that tended to be ignored or sidelined in mainstream theories. This is the background against which MacCormick developed his many contributions to legal theory (his post-positivistic institutional theory of law), and political theory (his views on democratic nationalism and supranationalism), and which prompted him to analyse the pluralistic structures of the democratic constitutional political order (both at supranational and at infranational levels). This background helps us to come to terms with the actual implications and significance of MacCormick’s constitutional pluralism and to reconsider the tensions in MacCormick’s shift from radical to moderate pluralism.

Neil Walker, 'Beyond the Holistic Constitution? ' in Peter Dobner, Martin Loughlin (ed.) The Twilight of Constitutionalism? (Oxford University Press 2010) 291-308
Abstract: This chapter deals with the constitutional consequences of the erosion of statehood. It does so by considering whether — and, if so, on what terms — constitutionalism can remain a viable concept in the old state setting. It asks whether — and, if so, on what terms — constitutionalism could possibly be adapted to new settings. It argues that the use of the term constitutionalism should be retained, and it should be used to serve as a placeholder for exactly those concerns with respect to which others reject the use of the constitutional language when speaking about the transnationalisation of law. Constitutionalism serves a crucial longstop function of providing a medium for dealing with the abiding concerns we still have, and ought to have, about our ideas of the common interest.

Neil Walker, 'Multilevel Constitutionalism Looking Beyond the German Debate' in Kaarlo Tuori, Suvi Sankari (ed.) The Many Constitutions of Europe (Ashgate Publishing 2010) 143-68

Neil Walker, 'Surface and Depth The EU's Resilient Sovereignty Question' in Jürgen Neyer, Antje Wiener (ed.) Political Theory of the European Union (Oxford University Press 2010) 91-110
Abstract: The paper asserts the enduring significance of ‘sovereigntist’ thinking not just at the rhetorical surface of EU discourse, but as a deep organizing theme of its constitutional politics. It argues that the ‘sovereignty surplus’ of the EU — referring to the excess and overlapping quality of claims to sovereignty in the EU (i.e. that ultimate authority is claimed both for the supranational centre and for the member states) and to the competition over scarce legal, political and cultural capital that arise from the simultaneous pursuit of these claims — underscores the notorious ‘democratic deficit’ of the EU in three ways. The sovereignty surplus is, first of all, the deep cause of the democratic deficit, in that competition over sovereignty’s scarce symbolic and organizational capital frustrates the development of EU-wide democracy. Secondly, the very gravity and divisiveness of what is at stake for the various parties involved and for the positions implicated in the ‘sovereignty surplus’ renders the question of the proper diagnosis and treatment of the ensuing democratic deficit highly controversial and, indeed, sharply polarised. Thirdly and finally, and bringing us back to the recent controversy over the aborted EU Constitution, the sovereignty surplus also makes the question of praxis — of how to secure the very ground of initiative necessary to develop and act on a more inclusively resolved diagnosis and treatment of the democratic deficit — whatever that may be, difficult if not intractable. The paper concludes by arguing for the importance of keeping that last question on the legal and political agenda, even — indeed especially — in an age of constitutional fatigue.

Neil Walker, 'Opening or Closure? The Constitutional Intimations of the ECJ' in Maguel Poiares Maduro, Loic Azoulai (ed.) The Past and Future of EU Law (Hart Publishing 2010) 333-42

Neil Walker, 'The Rule of Law and the EU Necessity's Mixed Virtue' in Gianluggi Palombella, Neil Walker (ed.) Relocating the Rule of Law (Hart 2009) 119-38
Abstract: In this set of interdisciplinary essays leading scholars discuss the future of the Rule of Law, a concept whose meaning and import has become ever more topical and elusive. Historically the term denoted the idea of 'government limited by law'. It has also come to be equated, more broadly, with certain goods suggested by the idea of legality as such, including the preservation of human dignity and other individual and social benefits predicated upon or conducive to a rule-based social order. But in both its narrow and broader senses the Rule of Law remains a much contested concept. These essays seek to capture the main areas and levels of controversy by 'relocating' the Rule of Law not just at the philosophical level, but also in its main contemporary arenas of application - both national, and increasingly, supranational and international.

Neil Walker, 'The Variety of Sovereignty ' in Rebecca Adler-Nissen, Thomas Gammeltoft-Hansen (ed.) Sovereignty Games (Palgrave 2009) 21-32

Neil Walker, 'Denizenship and Deterritorialization in the European Union ' in Hans Lindahl (ed.) A Right to Inclusion and Exclusion? (Hart 2009) 261-72

Neil Walker, 'Reframing EU Constitutionalism ' in Jeffrey L. Dunoff, Joel P. Trachtman (ed.) Ruling the World? (Cambridge University Press 2009) 149-77

Neil Walker, 'The Pattern of Transnational Policing ' in Tim Newburn (ed.) Handbook of Policing (Willan Publishing 2008) 119-47

Neil Walker, 'The Reframing of Law's Imperial Frame A Comment on Tully' in Emilios Christodoulidis, Stephen Tierney (ed.) Public Law and Politics (Ashgate Publishing 2008) 117-28
Abstract: This paper provides a constructive critique of Jim Tully's innovative body of work on the juridical nature of 'empire' in its contemporary post-colonial phase. Tully's work emphasizes the high degree of continuity between the legal articulation of classical imperial power relations and the contemporary settlement, even though that settlement is mediated through a much more developed and notionally egalitarian framework of international and transnational law. The present author accepts much of Tully's critique, but urges that space must be retained within any explanatory scheme for the reconstitutive and transformative potential of law, even if that law cannot be hermetically sealed off from its imperial legacy.

Neil Walker, 'Making a World of Difference? Habermas, Cosmopolitanism and the Constitutionalization of International Law' in Omid A. Payrow Shabani (ed.) Multiculturalism and Law (University of Wales Press 2007) 219-34

Neil Walker, 'The Migration of Constitutional ideas and the Migration of the Constitutional Idea The Case of the EU' in Sujit Choudhry (ed.) The Migration of Constitutional Ideas (Cambridge University Press 2007) 316-44

Neil Walker, 'Post-Constituent Constitutionalism? The Case of the European Union' in Martin Loughlin, Neil Walker (ed.) The Paradox of Constitutionalism (Oxford University Press 2007) 247-68
Abstract: This chapter considers the general question of the relationship between constituent power and constitutional form in the context of new or shifting non-state political configurations, and specifically in the case of the constitionalization of the European Union. It examines four hypotheses on the concept of a European constituent power: non-constituent constitutionalism, constitutional scepticism, constitutional vindication, and a post-constituent constitutionalism that, unlike the others, recognizes the initial absence of a supranational constituent power but insists upon both the value and the plausibility of its subsequent development. The chapter develops a position in defence of such a post-constituent constitutionalism — one that nurtures at least some ‘constituent’ qualities without undermining the continuing constituent authority of states.

Neil Walker, 'Central Europe’s Second Constitutional Transition The EU Accession Phase' in Adam Czarnota, Martin Krygier, Wojciech Sadurski (ed.) Rethinking the Rule of Law After Communism (Central European University Press 2006) 341-70

Neil Walker, 'On Regulating the Regulation of Regulation ' in Fabrizio Cafaggi (ed.) Reframing Self-regulation in European Private Law (Kluwer Academic Publishers 2006) 347-57

Neil Walker, 'The Burden of Universalism ' in Zenon Bankowski, James MacLean (ed.) The Universal and the Particular in Legal Reasoning (Ashgate Publishing 2006) 53-68

Neil Walker, 'Relocating Sovereignty An Introduction' in Neil Walker (ed.) Relocating Sovereignty (Ashgate Publishing 2006)

Neil Walker, 'EU Constitutionalism and New Governance ' in Grainne De Burca, Joanne Scott (ed.) Constitutionalism and New Governance in Europe and United States (Hart Publishing 2006) 15-36

Neil Walker, 'Sovereignty, Global Security and the Regulation of Armed Conflict The Possibilities of Political Agency' in Jef Huysmans, Andrew Dobson, Raia Prokhovnik (ed.) The Politics of Protection (Routledge 2005) 154-74

Neil Walker, 'In Search of the Area of Freedom, Security and Justice A Constitutional Odyssey' in Neil Walker (ed.) Europe's Area of Freedom, Security, and Justice (Oxford University Press 2004) 3-40
Abstract: Pulling together a collection on the continuously increasing body of policy and law under the EU's Area of Freedom, Security, and Justice (AFSJ) is not without difficulties, as this relatively new legal brand is made up of both ‘soft’ and ‘hard’ law. While some of the law involved is new and has resulted from the new institutional promises and competences presented through the Treaty of Amsterdam in 1997, some also resulted from the alarming bequests from the pre-Amsterdam years. Since this may be associated with the ‘third pillar’ of the 1992 Maastricht Treaty, it can be observed that it was derived from informal arrangements that were dominant in initial justice and home affairs. Therefore, this chapter attempts to find both internal and external coherence so that we may be able to determine defining features of the AFSJ. Also, we look into the constitutional dimension of the AFSJ.

Neil Walker, 'Late Sovereignty in the European Union ' in Neil Walker (ed.) Sovereignty in Transition (Hart Publishing 2003) 3-32

Neil Walker, 'From Großraum to Condominium - A Comment ' in Navraj Singh Ghaleigh, Christian Joerges (ed.) Darker Legacies of Law in Europe (Hart Publishing 2003) 193-204

Neil Walker, 'Postnational Constitutionalism and the Problem of Translation ' in JHH Weiler, Marlene Wind (ed.) European Constitutionalism Beyond the State (Cambridge University Press 2003) 27-54

Neil Walker, 'Culture, Democracy and the Convergence of Public Law Some Scepticisms about Scepticism' in Paul Beaumont, Carole Lyons, Neil Walker (ed.) Convergence and Divergence in European Public Law (Hart Publishing 2002) 257-72

Neil Walker, 'The Problem of Trust in an Enlarged Area of Freedom, Security and Justice A Conceptual Analysis' in Malcolm Anderson, Joanna Apap (ed.) Police and Justice Co-operation and the New European Borders (Kluwer Law International 2002) 19-34

Neil Walker, 'Human Rights in a Postnational Order Reconciling Political and Constitutional Pluralism' in Tom Campbell, Keith Ewing, Adam Tomkins (ed.) Sceptical Essays on Human Rights (Oxford University Press 2001) 119-44
Abstract: This chapter looks at the overall significance of human rights developments in the European Union (EU) domain for the Human Rights Act 1998 (HRA) of the United Kingdom. It argues that those who retain a healthy scepticism (rather than cynicism) about the beneficial consequences of the implementation of the HRA, and the possible hardening of its strong principle of favourable interpretation towards the European Convention on Human Rights catalogue, its judicial declaratory power of incompatibility, and its monitoring of executive and parliamentary prior compliance into a de facto system of domestic entrenchment, cannot afford to disregard the EU dimension. The development of the EU as a higher tier of government, with its own claims to democratic legitimacy, disturbs some of the empirical premises of this key aspect of the sceptic's argument. This chapter discusses the democratic critique of rights' constitutionalism, reconciliation of political and constitutional pluralism, and arguments in favour of reconciliation between democracy and rights constitutionalism in the European context.

Neil Walker, 'Fundamental Law ' in The Laws of Scotland (Butterworths Law (Scotland) 2001) 29-82

Neil Walker, 'The Transnational Dimension ' in Frank Leishman, Barry Loveday, Steven Savage (ed.) Core Issues in Policing (Longman 2000)

Neil Walker, 'Sovereignty and Differentiated Integration in the European Union ' in Zenon Bankowski, Andrew Scott (ed.) The European Union and its Order (Blackwell Publishing Ltd 2000) 31-64

Neil Walker, 'The Antinomies of the Law Officers ' in Maurice Sunkin, Sebastian Payne (ed.) The Nature of the Crown (Oxford University Press 1999) 135-64
Abstract: This chapter examines the antimonies of the law officers of the Crown in Great Britain. It highlights the tension between law officers' attachment to a particular government on the one hand and their commitment to the integrity of the legal and political order on the other hand. It describes the three models of law officers and suggests that the non-political model ignores the fact that decision-making in the public interest is based on political criteria.

Neil Walker, 'Situating Scottish Policing ' in Peter Duff, Neil Hutton (ed.) Criminal Justice in Scotland (Ashgate Publishing 1999) 94-114

Neil Walker, 'The New Frontiers of European Policing ' in Malcolm Anderson, Eberhard Bort (ed.) The Frontiers of Europe (Pinter 1998) 165-86

Neil Walker, 'Deficient Weaponry, Reluctant Marksmen and Obscure Targets Flaws in the Accountability of Undercover Policing in the EU' in Monica den Boer (ed.) Undercover Policing and Accountability from an International Perspective (European Institute of Public Administration, Maastricht 1997) 205-16

Neil Walker, 'The Crumbling Pillars of Statutory Interpretation ' in Hector MacQueen (ed.) Scots Law into the 21st Century (W. Green / Sweet & Maxwell 1996) 126-37

Neil Walker, 'Policing the European Union The Politics of Transition' in Otwin Marenin (ed.) Policing Change, Changing Police (Garland Publishing Inc, US 1995) 251-84

Neil Walker, 'Care and Control in the Police Organisation ' in Mike Stephens, Saul Becker (ed.) Police Force, Police Service: Care and Control in Britain (Palgrave Macmillan 1994) 33-66

Neil Walker, 'European Integration and European Policing A Complex Relationship' in Malcolm Anderson, Monica den Boer (ed.) Policing Across National Boundaries (London: Pinter 1994) 22-45

Neil Walker, 'The International Dimension ' in Robert Reiner, Sarah Spencer (ed.) Accountable Policing (Institute for Public Policy Research 1993) 113-71

Neil Walker, 'The Middle Ground in Public Law ' in W. Finnie, Christopher Himsworth, Neil Walker (ed.) Edinburgh Essays in Public Law (Edinburgh University Press 1991) 57-95

Working Papers

Neil Walker, 'Internal Enlargement in the European Union: Beyond Legalism and Political Expediency' 2015
Abstract: The argument of this paper proceeds in three stages. It begins by criticizing the tendency in recent debates on sub-state nationalism in Europe to avoid the deeper questions of political morality concerning the entitlement (or otherwise) of these sub-state nations that are separating from existing Member States to assume membership of the European Union. It then raises these deeper questions, and argues, against Joseph Weiler in particular, that the correct attitude for the EU to take is one of considered neutrality rather than strong endorsement either of the case for accession or of the case against accession by new internal states. In the final part of the argument what role, if any, the EU has to play in the absence of such a directorial mandate, is examined. A more modest procedural role is then considered, and dismissed as unlikely though attractive. In conclusion, it is argued that the EU nonetheless influences the debate over the sovereign aspirations of sub-state nations simply by existing, and thereby changing the balance of political incentives in a way that is more accommodating of forms of autonomy short of independence.

Neil Walker, 'Subsidiarity and the Deracination of Political Community: The EU and Beyond' 2015
Abstract: This paper is concerned to account for the concept of subsidiarity's broad topicality. What is the overall significance of the simultaneous development of the subsidiarity theme across a number of fields, EU law in particular, but also the ECHR, general international law and the shifting internal dynamics of many federal states? Just why has subsidiarity emerged as an important term within the lexicon of contemporary legal theoretical reflection and institutional design? The answer - or at least the beginning of the answer - lies in the way in which, and the reasons for which, ‘subsidiarity’ presents itself as what Jeremy Waldron calls a ‘solution concept’ rather than an ‘achievement concept.’ A solution concept is one, quite simply, that is defined by the solution it seeks rather than by the result it achieves. That is to say, what joins inquiry into a solution concept is a shared sense that the problem to which it is directed is one of significance and of broad application, even if the answer remains elusive. From this baseline, I argue three things. I argue, first, that the emergence of subsidiarity as a candidate term has to do with broader and endemic problems and puzzles associated with changes in the scale and patterning of global political forms and institutions; secondly, that subsidiarity’s response to this operates through an attempt to think of political community and the relationship between political communities in a manner that looks beyond familiar ideas of their rootedness in territory, ethnicity, culture and conceptions of peoplehood associated with popular sovereignty. The invocation of the idea of subsidiarity, in other words, implies a more deracinated understanding of political community. And I want to argue thirdly, that while in some respects it may seem a vain or overstated ambition to seek to rethink political community in such a manner, there are nevertheless good and pressing reasons - pertaining to fundamental questions of the very sustainability of new forms of political architecture in the EU and elsewhere - why we should persevere with the theme of subsidiarity within our political discourse.

Neil Walker, 'Human Rights and Global Public Goods: The Sound of One Hand Clapping' 2015
Abstract: Each operating in a presumptively general or universal register, ‘public goods’ and ‘human rights’ are amongst the most popular and visible contemporary carriers of ideas of global law and governance, and so prime sources for any broader project of global justice. Their combination, moreover, hold out the prospect of a fertile engagement between the two core concerns of modern political morality – our collective requirements and potential (public goods) and our individual dignity and well-being (human rights). Yet for all their ambition, public goods and human rights each faces the formidable challenge of placing considerations of political authority and political morality in productive balance. Exploring both, we face the frustrating phenomenon of one hand clapping – with a failure to reconcile authority and morality in a satisfactory manner. The discourse of global public goods presupposes rather than provides grounds for the relevant ‘public’, and so suffers from a general deficit of political authority, which in turn reinforces the incompleteness of its claim in political morality. The discourse of human rights, perhaps surprisingly, reveals stronger authoritative roots, but these are locally situated, and the soil becomes very thin as we move away from the state to the broader global environment and the familiar yet ethically abstracted moral discourse of universal entitlement. In conclusion, I argue, it is just because both these dimensions of global ethics, public goods and human rights, face the same type of difficulty of the grounding political authority that their conjunction in a single scheme does not allow either to compensate for the deficiencies of the other.

Neil Walker, 'The Jurist in a Global Age ' 2015
Abstract: The jurist comprehends law as something more than technical expertise. The jurist is concerned not only with serving the needs of her professional clients, whatever these needs may be, but also with the wider purpose of enhancing the well-being of law as a practical idea. What implications does this longstanding if highly open-ended conception of the jurist have for legal research and education today? The paper begins to address this question by exploring some of the general and enduring tensions and divisions within our understanding of law as an academic discipline; between a humanities-based approach and a social scientific approach, and also between service, detached and critical orientations towards the law. It then proceeds to re-examine these divisions in the context of the intense development of transnational and global law in the contemporary age. The paper argues that the challenge to state-centred legal authority accompanying that development has enhanced the role of jurists as co-producers of legal norms and authority frameworks. It has also required jurists to become more invested both in the kind of reflective historical inquiry into and evaluation of our common cultural productions associated with the humanities, and in the analysis of emergent trends associated with certain of the social sciences. And in its focus on the new fluidity of legal authority, the globalisation of law also increasingly questions the force of the opposition between a conservatively-inflected service or detached orientation and a (potentially transformative) critical orientation. The role of the jurist in a global age, in sum, is significantly altered, and requires us to revise some of the distinctions that have traditionally attended our thinking about legal teaching and learning.

Neil Walker, 'The Antinomies of Constitutional Authority ' 2015
Abstract: The paper revisits the question of the nature and viability of a post-state or cosmopolitan constitutionalism, and of its merits in comparison to state-centred constitutionalism, by reference to a number of deep-rooted antinomies within constitutional thought and practice. The first concerns the structural dimension of constitutionalism, in particular the tension between constitutionalism as an integrated achievement, its features embedded in the specific polity so as to form an indivisible whole, and constitutionalism as a disaggregable achievement, capable of abstraction from the particular polity and, in its abstract form, separable into various generic attributes. The second concerns the ethical dimension of constitutionalism; more specifically the tension between a particular and polity-centred and a universal and polity-transcending understanding of what lends meaning and value to constitutional arrangements, principles and doctrines. The third concerns the functional dimension of constitutionalism, and in particular the tension between gubernaculum and jurisidictio – between a conception of constitutional value that accords priority to governing capacity and one that stresses the importance of constraints upon public power. The fourth and last antinomy concerns the socio-cultural dimension of constitutionalism, and in particular the tension between constitutionalism as the expression of and investment in an already established political way of being, and constitutionalism as a blueprint for progress – a future-oriented project of political community. The paper shows how state constitutionalism has sought, with greater or less success, to find a balance between the contending forces within these four dimensions. Post-national constitutionalism, in contrast, tends to gloss over the antinomic structure of constitutionalism and to take a one-sided approach within each dimension, emphasising abstraction and disaggregation, universalism, jurisdiction and projection against their more culturally grounded alternatives. How prevalent and unavoidable is this tendency, and with what consequences for the legitimacy of transnational constitutional claims?

Neil Walker, 'Beyond Secession?: Law in the Framing of the National Polity' 2014
Abstract: This paper examines the legal and political course of contemporary secession struggles within the European Union, with particular reference to the recent Scottish referendum, the 'consultation' in Catalonia, and the developing situation in Flanders. The focus is upon the way in which secession debates have become tied up with the question of the EU membership prospects of the potentially seceding state. The EU institutions themselves have adopted an attitude of 'conservative neutrality' to these prospects and to the legitimacy of secession more generally – a minimalist approach which largely defers to the various and differing domestic constitutional arrangements of the ‘parent’ state and which, at best, does not exclude new membership where secession may be compatible with these domestic arrangements. The paper contrasts the unwillingness of the EU to assume a directorial role in the theatre of European secession – an attitude which has some anomalous consequences but which accurately reflects the EU’s weak legitimacy over such a ‘high political’ question – with its highly significant role in the more elementary matter of stage (re) design. For the very existence and development of the EU as a supranational entity, alters the basic calculus through which we attribute value – both instrumental and expressive – to forms of political life at, above and below the level of the state. And while the full historical consequences of the EU’s reframing exercise remain unsettled and unpredictable, they are already reshaping political expectations and aspirations in ways that alter our very sense of the significance of 'secession' and associated statuses.

Neil Walker, 'The Philosophy of European Union Law ' 2014
Abstract: The philosophy of EU law builds upon two broader areas of inquiry - the philosophy of law in general and the philosophy of the EU in general. The philosophy of EU law enriches and is enriched by our understanding of both. In particular, the paper explains, the philosophy of EU law tracks and examines the intersection of four core legal philosophical questions in light of the peculiarities of the EU. First, there is the overall justification of the authority of the EU legal order, which requires examination of the justifications of the EU as a socio-political project more generally, as these have influenced and been influenced by its special conditions of origin and dynamic. Secondly, our inquiry addresses the deep normative orientation and interpretive grain of EU law. Thirdly, it asks how EU law operates as a valid and effective framework of practical reasoning. How does EU law work as law? And finally, questions of the integrity or coherence of EU law, in particular its relationship, both continuous and discontinuous, with member state legal systems, are examined.

Neil Walker, 'Our Constitutional Unsettlement ' 2014
Abstract: This paper argues that the United Kingdom is now in a state of constitutional unsettlement. A state of constitutional unsettlement is not, first, a settled constitution, nor is it, secondly, an unsettled constitution, nor thirdly, is it a written Constitutional settlement. Yet all of these other conditions are significant in placing the circumstances of constitutional unsettlement in historical and comparative relief. The UK used to have something like a settled constitution, though it meant, and continues to mean, very different things to different people; we then, quite recently, moved into the phase of an unsettled constitution, but one whose terminus has offered neither a return to a settled constitution nor arrival at a new – and for the UK unprecedented, documentary Constitutional settlement. Instead, the unsettled constitution has become normalized – or at least regularized – as a state of constitutional unsettlement, in which questions of EU membership, of devolution and independence, of human rights protection etc, are subject to continuous disputation with deeply uncertain long-term consequences, regardless of how they may be resolved in the present tense. There is much to be concerned with in our state of constitutional unsettlement. Nevertheless, the very idea of a condition of constitutional unsettlement need not be considered in principle and inevitably pathological. Rather, as a state of affairs that is be in the process of becoming more and more embedded in contemporary public life and less and less capable of wholesale or even measured undoing or transformation, then, short of fatalistic acceptance, we may have no option but to look for the positives. And, having done so, we may find in certain virtues of transparency, the primacy of the political, fluidity and adaptability of outcome, and less exclusive conceptions of constitutional identity, more positives than might have been anticipated.

Neil Walker, 'Justice in and of the European Union ' 2014
Abstract: This paper examines the strengths and limitations of the idea of justice as a way of exploring and assessing the legitimacy of the EU. Justice is either conceived of 'in' various specialist policy sectors (environmental, security, gender etc.,), so responding to a disaggregated notion of the EU polity and its legitimacy. Or justice is conceived of as a feature 'of' the EU as a whole - so responding to a holistic notion of the EU polity and its legitimacy. On the one hand, the disaggregated approach can at best be supplementary to the holistic approach, since, as the European financial crisis has once again vividly exposed, the EU can and does develop 'joined-up' policy with significant cross-sectoral consequences across its 28 member states. On the other hand, a more rounded idea of justice stands as a means of collective self-authorisation that complements democracy - itself indispensable but problematic in the EU context - as a way of thinking of legitimacy in polity-holistic terms. In particular, the recent popularity of a conception of justice as a 'right to justification ' seeks to combine the 'democratic' merit of equal subjective right with an objective concern for good public-regarding reason. The paper concludes by discussing the strengths and limitations of the idea of justice as the right to justification.

Neil Walker, 'Scotland's Constitutional Future: Interdependent Independence or Independent Interdependence?' 2013
Abstract: Scotland's urgent constitutional question, which will be addressed in a referendum in the autumn of 2014, challenges many conventional assumptions about what is at stake in the struggle over sovereign authority and political identity, and about how that struggle might be treated and resolved. This essay investigates that challenge.

Neil Walker, 'A European Half-Life?: A Retrospective on Joseph Weiler's 'The Transformation of Europe'' 2013
Abstract: Joseph Weiler’s 1991 article, The Transformation of Europe (TOE), was undoubtedly a landmark in European legal scholarship, but it also marked a watershed in its author’s own approach to the European project. European legal scholarship was never the same after TOE, but nor was Joseph Weiler’s contribution to that body of scholarship. In some ways, a shift in perspective is to be expected. TOE was an agenda-reshaping piece, and it is only natural that its author should follow the new agenda that he did so much to set. That is one part of the story. However, I believe that it is also the case that the author gradually came to understand the new agenda to be less relevant, or less ‘actionable’ than previously he had, and in any case less central, either because the world had simply moved on yet again in new and unpredictable ways, or, perhaps, because the agenda had never been as open as he once believed. In this retrospective comment, I explore both parts of the story. I examine what they tell us about the evolving character of supranational Europe as a political project and also as a field of inquiry, and how this movement is both reflected in and touched by the thought of one of the leading jurists of the age. In particular, I examine Weiler's post-TOE thesis of political Messianism as a way of accounting for both the early success and the recent loss of momentum of the EU. And in introducing the metaphor of the 'half-life' as the characteristic of an entity in irreversible decline, I address the following issues: whether and to what extent Weilers' views on the trajectory of Supranational Europe are consistent with such a metaphorical depiction; precisely what such a depiction entails in terms of the EU's prognosis; and how this approach might be challenged.

Neil Walker, 'Sovereignty Frames and Sovereignty Claims ' 2013
Abstract: This essay argues that much of the contemporary confusion and controversy over the meaning and continuing utility of the concept of sovereignty stems from a failure to distinguish between sovereignty as a deep framing device for making sense of the modern legal and political word on the one hand, and the particular claims which are made on behalf of particular institutions, agencies, rules or other entities to possess sovereign authority on the other. The essay begins by providing a basic account of the difference between sovereignty as framing and sovereignty as claiming, setting out how, during the ascendancy of the modern state, the stability of the former is contrasted with the fluidity of the latter. It continues by analyzing why and how our understandings and uses of sovereignty have altered in the contemporary wave of globalization, with the very framing significance of sovereignty thrown into doubt. The essay argues, against that scepticism, for the continuing significance of the sovereignty frame in the global age. It concludes with some thoughts about the distinctive ways in which the evolving state of sovereignty framing and claiming plays out in the specific context of the United Kingdom and its external and internal legal and constitutional relations today. The resilient centrality of the doctrine of Parliamentary sovereignty tends to collapse the distinction between the sovereignty frame and the sovereignty claim in the UK context, with certain reductive consequences for the structure and focus of constitutional debate in the UK.

Neil Walker, 'The Shifting Foundations of the European Union Constitution ' 2012
Abstract: This article traces the contested and unresolved history of EU constitutionalism. In particular it looks at the interaction of three strands; judge-centred legal constitutionalism, implicit documentary constitutionalism (itself divided into more or less evolutionary or foundational sub-strands), and Big 'C' explicit documentary constitutionalism. It examines the various shifts not only in the actual pattern of relations between these strands, but also in how they are incorporated into dominant insider narratives. After the failure and fall of the (first ever) explicit Constitutional Treaty of 2004, the dominant insider constitutional narrative remained explicit, but no longer tied to a self-certified constitution of a foundational nature. Rather, it (re)stressed in express constitutional language the incremental and evolutionary quality of the EU's distinctive polity development and achievement. Given the present Euro crisis however, the evolutionary narrative, predicated upon continuing overlapping consensus, is under threat, and the return (and, perhaps, final rejection) of explicit foundational constitutionalism cannot be discounted. The story of the EU's constitutional origins, therefore, remains unfinished, and is closely tied up with the very fate of the EU polity.

Neil Walker, 'The EU's Unresolved Constitution ' 2011
Abstract: This paper examines the long evolution of the EU’s unresolved constitution. Where the state is generally considered as a culturally prior, comprehensive, exclusive, monopolistic, singular, accomplished, determinate and settled political form and constitutional polity, the EU remains an accessory, partial, complementary, competitive, composite, incipient, indeterminate and disputed political form and constitutional polity. Over the last 15 years, as the relatively consensual law-centred focus of the EU’s early and ‘thin’ constitutional settlement has come under increasing strain, the unresolved nature of the EU constitution has become more palpable. In this regard, the failed Big ‘C’ constitutional project has to be seen as the symptom of a continuing problem rather than as some kind of 'closure' event. The challenge to EU constitutionalism today is to stand above the various and divisive polity visions with which it is often and self-defeatingly associated in the name of an expressive commitment to the very idea of a European common good notwithstanding these different polity visions

Neil Walker, 'The Place of European Law ' 2010
Abstract: The essay initially offers a general method of characterizing polities in terms of their response to three core issues; namely, the form of collective agency they represent, the nature of their generative or mobilizing resources, and the type of basic social ontology they endorse. For each core issue we tend to frame our thinking in terms of a binary opposition - popular sovereignty versus other forms of political title, particularism versus universalism and collectivism versus individualism. In the Westphalian, state-centred worlds of high modernity the defining idea of collective agency is that of popular sovereignty, and this form of agency requires and enables both universalist-individualist and particularist-collectivist strands at the levels of generative resources and basic social ontology in order to survive and prosper. Moreover, in this Westphalian universe, the only major political form that accompanies the state is the inter-state or international form, itself largely parasitic upon the state, and contrasting in its characterization in terms of the three core issues. It lacks popular sovereignty, and is only weakly represented along both universalist- individualist and particularist-collectivist dimensions. Once we shift to the late modern world of increasingly transnationalized legal, political, economic and cultural relations we confront a more complex picture. The defining issues and tensions remain the same, but are written onto a configuration of legal and political space no longer organized in terms of a relationship of mutual exclusivity. The EU occupies a very distinctive place within this new tableau. It does not replicate nor does it replace either the state or the international. Rather, it stands between them, incorporates strains of each and interlocks with them both. To grasp the EU’s situation in late modernity, therefore, requires that we map the defining issues of high modernity and their attendant tensions onto the more complex, deeply interpenetrated and shifting authority configuration of which the EU itself constitutes but one, if key, component. Thus we can begin to appreciate how and why the EU’s interconnected capacities to address the three defining predicaments of modernity - the proper source of collective agency, the provenance of the resources of political community, and the balance between individualist and collectivist ontologies, is becoming ever more precarious as it enters its second half century. The EU’s longstanding emphasis upon individualism aligned to a historically contingent form of peace-centred collectivism in response to the ontological question has both helped compensate for and (re)contributed to the difficulties it has encountered in the face of each of the other two questions; namely, its structural weakness in response to the resources question and its self-reinforcing reluctance and precariousness of common cause before the collective agency question. As the EU’s emphasis upon individualism becomes less sustainable with the gradual expansion of its remit, reputation and self-understanding, the deficiencies in the EU’s capacity to address the resources and agency questions become all the more evident and the need to treat them ever more urgent. In turn, this manifests itself as a profound challenge to the place of law within the EU - as a medium that both reflects and seeks to answer these problems. The essay concludes by offering some thoughts on how the EU, and in particular the EU in its legal and constitutional register, may respond to that predicament.

Neil Walker, 'The Cosmopolitan Local: Neil MacCormick’s Post-Sovereign World' 2010
Abstract: This paper examines the unresolved questions in Neil MacCormick's theory of post- sovereignty (in the context of the EU and more widely) in the light of his broader efforts to reconcile different strains in his intellectual and political world-view—universalism and particularism, cosmopolitanism and localism, internationalism and nationalism. It concludes that on that broader and deeper basis he might well have been drawn to a very thin form of universalism—namely a kind of inter-systemic framework of exchange involving mutually autonomous universalisation requirements.

Neil Walker, 'Surface and Depth: The EU's Resilient Sovereignty Question' 2010
Abstract: The paper asserts the enduring significance of ‘sovereigntist’ thinking not just at the rhetorical surface of EU discourse, but as a deep organizing theme of its constitutional politics. It argues that the ‘sovereignty surplus’ of the EU — referring to the excess and overlapping quality of claims to sovereignty in the EU (i.e. that ultimate authority is claimed both for the supranational centre and for the member states) and to the competition over scarce legal, political and cultural capital that arise from the simultaneous pursuit of these claims — underscores the notorious ‘democratic deficit’ of the EU in three ways. The sovereignty surplus is, first of all, the deep cause of the democratic deficit, in that competition over sovereignty’s scarce symbolic and organizational capital frustrates the development of EU-wide democracy. Secondly, the very gravity and divisiveness of what is at stake for the various parties involved and for the positions implicated in the ‘sovereignty surplus’ renders the question of the proper diagnosis and treatment of the ensuing democratic deficit highly controversial and, indeed, sharply polarised. Thirdly and finally, and bringing us back to the recent controversy over the aborted EU Constitution, the sovereignty surplus also makes the question of praxis — of how to secure the very ground of initiative necessary to develop and act on a more inclusively resolved diagnosis and treatment of the democratic deficit — whatever that may be, difficult if not intractable. The paper concludes by arguing for the importance of keeping that last question on the legal and political agenda, even — indeed especially — in an age of constitutional fatigue.

Neil Walker, 'Constitutionalism and the Incompleteness of Democracy: An Iterative Relationship' 2010
Abstract: This paper contends that the relationship between democracy and modern constitutionalism possesses an underappreciated complexity, which, unless addressed, prevents us from embracing the challenge to constitutionalism or the possibilities open to it in today’s globalising world. That complexity is revealed by treating democracy as an incomplete ideal, referring both to the empirical incompleteness of democracy as unable to supply its own terms of application - the internal dimension - and to the normative incompleteness of democracy as guide to good government - the external dimension. This double-edged incompleteness explains the contingent necessity of modern constitutionalism. Constitutionalism is a necessary response to democratic incompleteness - seeking both to realise democracy (the internal dimension) and to supplement and qualify democracy (the external dimension). Yet, if incomplete democracy requires the accompaniment of constitutionalism, such incompleteness also means that democratic considerations cannot specify definitively the content of constitutionalism. The content of constitutionalism as a means to completing democracy, therefore, remains contingent upon other normative and practical considerations. Democratic incompleteness thus remains both the justificatory foundation for contemporary constitutionalism and the main reason for its inherent fragility. The paper proceeds by examining the relationship between democracy and constitutionalism along various internal, external and mixed dimensions, observing that some of the ways in which constitutionalism treats democracy recur over time and circumstance. Yet how democratic incompleteness manifests itself, and how constitutionalism responds to incompleteness, also evolves and alters, revealing the relationship between constitutionalism and democracy as iterative. The paper then concentrates on the iteration emerging from the current globalising wave. The fact that states are no longer either the exclusive sites of democratic authority or the only constitutional entities and sources compounds democratic incompleteness and complicates how constitutionalism responds. Nevertheless, it is argued, the historical role of constitutionalism in political modernity as key to addressing the double incompleteness of democracy persists under globalisation, as does democracy’s inability to supply all vital terms of constitutionalism. This continuity reflects how the deep moral order of political modernity, in particular the emphasis on individualism, equality, collective agency and collective self-improvement, remains constant while its institutional architecture, including the forms of its commitment to democracy, evolves. Constitutionalism, itself both a basic orientation and a set of design principles for that architecture, remains a necessary support for and supplement to democracy. Yet postnational constitutionalism, even more than its state-centred predecessor, remains contingent upon non-democratic considerations, so reinforcing constitutionalism’s normative and sociological vulnerability. This conclusion challenges two dominant but opposing understandings of the postnational constitutionalism of the global age - both that which indicts global constitutionalism because of its weakened democratic credentials and that which assumes that these weakened democratic credentials pose no problem for postnational constitutionalism, which may instead thrive through a heightened emphasis on non-democratic values.

Neil Walker, 'On the Necessarily Public Character of Law ' 2010
Abstract: This paper asks whether and how modern law may be understood as necessarily public in character. It begins by looking at the two main ways - doctrinal and disciplinary - in which law is understood as only selectively and contingently public. In both these cases law's public quality is counterposed to its private quality. However, publicness can also be conceived of as the juridical master category embracing the public and the private in the disciplinary and doctrinal senses. This conception of the necessary and irreducible publicness of law draws on the tradition of ius publicum, recently revived in the Anglophone world in the work of Martin Loughlin. That body of thought conceives of the state as a pre-positive and generically public jural foundation - a scheme of intelligibility for making sense of the positive law (constitution, statute law, common law) of the state. This is a plausible and powerful way of understanding the history of the modern state-based, sovereigntist legal constellation. However, it may be challenged both methodologically for elevating the state-based account to the status of the only plausible narrative, and substantively for its inability to capture the state-decentring aspects of contemporary globalization. A conception of pre-positive publicness no longer simply proposed as a dominant, value-neutral historical paradigm of explanation, but now underpinned by a normative commitment to democracy, is proposed as way of addressing both the methodological and the substantive limitations of the ius publicum account.

Neil Walker, 'Beyond the Holistic Constitution? ' 2009
Abstract: This paper considers whether, why and to what extent we should conceive of transnational regulation in constitutional terms. It distinguishes between two different candidates for transnational constitutional status. On the one hand, there are various actual or potential 'holistic' transnational constitutions, such as the EU and the WTO. These constitutional orders resembe that of the state to the extent that they involve the framing of a distinct 'body politic'. This 'body politic' may be thinner or thicker, depending on the number and richness of the framing layers involved (legal order, politico-institutional complex, popular self-authorization, distinct society or demos), but the idea of the constitution as a constituent dimension and expression of a broadly encompassing, internally coherent and externally bounded polity is present in all cases. On the other hand, there are also today various international societal actors and functional spheres (e.g internet regulation, sport regulation) that on one view possess their own 'societal constitutions'. Unlike holistic forms of regulation, however, these areas tend to combine very narrow forms of self-regulation with diverse forms of external regulation. The idea of a discrete framing is not present even in legal or institutional terms, still less in popular or social terms. Nevertheless, the paper argues, there may be good normative reasons for continuing to use the language and mindset of constitutionalism in these contexts.

Neil Walker, 'Out of Place and Out of Time: Law's Fading Co-Ordinates' 2009
Abstract: Modern jurisprudence has been dominated by questions of authority and questions of meaning. The present paper addresses what it calls the third question of jurisprudence - namely the question of how law situates itself in space and time. This is a question to be addressed at various levels, the most important of which concerns the overall legitimacy of law as a normative enterprise which claims to come from somewhere and 'somewhen' and to be directed to somewhere and 'somewhen'. In the Westphalian tradition in which the dominant forms of law have been constitutional law and international law, this question of self-situation has tended to be answered either in highly universalistic terms (a law that transcended place and time) or in highly particularistic terms (a law that was peculiar to a particular place and perpetual in its ambition) . Both universalistic and particularistic narratives, despite their superficial contrast, emphasize the holistic and magisterial properties of law - as a form of authority that is both comprehensive and self-contained and sovereign within its situation. Today, with the fading of the Westphalian paradigm and the growth of myriad new forms of transnational law, various forms of new regulation - pluri-constitutive, interstitial, non-constitutive and global general law - lack the background co-ordinates either of universalism or of a comprehensive particularism and the associated systemic qualities of holism and magisterialism. What do these new forms of 'uncharted law' suggest more generally about the future of the legal form and of the ways in which law may legitimate itself?

Neil Walker, 'The Rule of Law and the EU: Necessity’s Mixed Virtue' 2008
Abstract: The maintenance of the Rule of Law is a concern for all established polities. For a still emerging polity such as the EU, it has a more fluid and more dynamic significance. If we examine the various functions that the Rule of Law is capable of performing – regulatory, authorizing, instrumental, community-identifying and promotional – all of these hold significant potential in the EU context. At the same time, however, the EU’s effective capacity to exploit that potential is highly precarious. This paper argues that the promise and the vulnerability of the Rule of Law in the supranational context are two side of the same coin. They spring from the same background political circumstances of limited and uncertain ‘polity legitimacy.’ The paper concludes nevertheless that, provided investment in the Rule of Law embraces an awareness of these difficulties and is suitably modest, it still has a vital role to play in the development of a legitimate supranational order.