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

LLB, PhD, LLD (Honoris Causa) (Uppsala), FBA, FRSE
View my full research profile


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); Distinguished Visiting Professor of Law, University of Toronto (2007). and Global Professor of Law, New York University (2011-12)

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:

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'


Neil Walker Intimations of Global Law (Cambridge University Press, 2015)

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

Bill Gilmore, Neil Walker, Malcolm Anderson, Monica den Boer, Peter Cullen, and Charles D. Raab Policing the European Union (Clarendon Press, 1996)
Abstract: International co-operation and criminal law enforcement have become a centrally important policy issue for Europe in the 1990s. This book examines all of the major empirical and theoretical issues associated with the emerging pattern of co-operation, including the harmonization of criminal law and criminal procedures, law enforcement strategies, police organization and discipline, and the politics of immigration and civil liberties.

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

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

Edited Books

Claudio Michelon, Neil Walker, Cormac Mac Amhlaigh 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: Tis volume started as a series of papers to mark the contribution of the late Sir Neil MacCormick and to celebrate his scholarship and life.

Neil Walker, Jo Shaw, Stephen Tierney Europe's Constitutional Mosaic (Hart, 2011)

Neil Walker, Gianluigi Palombella Relocating the Rule of Law (Hart, 2009)

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 Relocating Sovereignty (Ashgate, 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)

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

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

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

Journal Articles

Neil Walker 'Our Constitutional Unsettlement' (2014) Public Law 529-48

Neil Walker 'Neil MacCormick' (2013) Oxford Dictionary of National Biography

Neil Walker 'Postnational Constitutionalism and Postnational Public Law: A Tale of Two Neologisms' (2012) Transnational Legal Theory Vol 3 61-86

Neil Walker 'Reconciling MacCormick: Constitutional Pluralism and the Unity of Practical Reason' (2011) Ratio Juris 24(4) 369-85

Neil Walker 'Constitutionalism and the Incompleteness of Democracy: A Reply to Four Critics' (2010) Rechtsfilosofie & Rechtstheorie (39)3) 276-288

Neil Walker 'Constitutionalism and the Incompleteness of Democracy: An Iterative Relationship' (2010) Rechtsfilosofie & Rechtstheorie 39(3) 206-233

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

Neil Walker 'The Anti-Political Polity' (2010) Modern Law Review 73 141-154

Neil Walker 'Europe at 50. A Midlife Crisis. Democratic Deficit and Sovereignty surplus' (2008) Irish Journal of European Law 23-34 Vol 15(3 and 4)

Neil Walker 'Beyond boundary disputes and basic grids: Mapping the global disorder of normative orders' (2008) International Journal of Constitutional Law Vol 6 pp373-96

Neil Walker 'Taking Constitutionalism Beyond the State' (2008) Political Studies vol 56 pp519-543 [Download]

Neil Walker 'Not the European Constitution' (2008) Maastricht Journal of European and Comparative Law Vol 15 no 1

Neil Walker 'Juridical Transformation as a Process: A Comment on Stone Sweet' (2007) German Law Journal Vol 10 (October 2007)

Neil Walker 'EU Constitutionalism in the State Constitutional Tradition' (2007) Current Legal Problems

Neil Walker 'A Constitutional Reckoning' (2006) Constellations Vol 13(2) 140-150

Neil Walker 'Legal Theory and the European Union: A 25th Anniversary Essay' (2005) Oxford Journal of Legal Studies vol25 581-601

Neil Walker 'Europe's Constitutional Engagement' (2005) Ratio Juris 18 387-399

Neil Walker 'Europe's Constitutional Momentum and the Search for Polity Legitimacy' (2005) International Journal of Constitutional Law Vol 4(2) 211-238

Neil Walker 'A State of Denial?: Rethinking the Governance of Security' (2004) Punishment & Society Vol 6 221-8

Neil Walker 'The Legacy of Europe's Constitutional Moment' (2004) Constellations Vol 11(3) 368-392

Neil Walker 'Constitutionalising Enlargement, Enlarging Constitutionalism' (2003) European Law Journal Vol 9 No 3 365-385

Neil Walker, G de Burca 'Law and Transnational Civil Society: Upsetting the Agenda?' (2003) European Law Journal Vol 9 No 4 387-400

Neil Walker 'Europe's Constitutional Passion Play' (2003) European Law Review Vol 28(6) 905-908

Neil Walker 'Policing and the Supranational' (2002) Policing and Society Vol 12 (Autumn) 307-321

Neil Walker 'The Idea of Constitutional Pluralism' (2002) Modern Law Review Vol 65(3) 317-359
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 'All Dressed Up' (2001) Oxford Journal of Legal Studies Vol 21 563-582

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

Neil Walker 'Setting English Judges to Rights' (1999) Oxford Journal of Legal Studies Vol 19(1) 133-151

Neil Walker 'Justice and Home Affairs' (1998) International and Comparative Law Quarterly Vol 47 Part 1 pp231-238

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

Neil Walker 'Law Under Pressure' (1994) Modern Law Review Vol 57 130-150

Neil Walker 'The Accountability of European Policing Institutions' (1993) European Journal on Criminal Policy and Research Vol 1(4) 34-52

Neil Walker 'European Policing After 1992' (1993) Journal of Children's Services Vol 31(1) 3-28

Chris Himsworth, Neil Walker 'The Poll Tax and Fundamental Law' (1991) Juridical Review Spring pp45-78

Neil Walker 'Spycatcher's Scottish Sequel' (1990) Public Law pp 354-371

Chris Himsworth, Neil Walker 'Where Rates and Charges Meet' (1989) Juridical Review pp 189-195

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

Neil Walker, D Bradley and R Wilkie 'Beyond Managing by Objectives' (1987) Policing Vol 3(1) 68-74


Neil Walker 'The Philosophy of European Union Law' in Anthony Arnull and Damian Chalmers (eds) The Oxford Handbook of European Union Law (OUP, 2015) 3-27

Neil Walker 'Justice in and Of the European Union' in D Kochenov, G De Burca and A Williams (eds) Europe's Justice Deficit? Justice and the European Union (Hart Publishing, 2015) 247-58

Neil Walker 'The Philosophy of European Union Law' in Anthony Arnull and Damien Chalmers (eds) The Oxford Handbook of EU Law (OUP, 2015)

Cormac Mac Amhlaigh, Claudio Michelon, Neil Walker 'Introduction' in Claudio Michelon, Neil Walker, Cormac Mac Amhlaigh After Public Law (Oxford University Press, 2013)

Neil Walker 'The EU's Unresolved Constitution' in M Rosenfeld and A Sajo (eds) The Oxford Handbook of Comparative Constitutional Law (OUP, 2012)

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

Neil Walker 'Scottish Nationalism For and Against the Union State' in Neil Walker MacCormick's Scotland (Edinburgh University Press, 2012) 163-190

Neil Walker 'On the Necessarily Public Character of Law' in Claudio Michelon, Haris Psarras, Gregor Clunie, Christopher McCorkindale (eds) The Public in Law (Ashgate, 2012) 7-33

Neil Walker 'The Place of European Law' in Grainne De Burca and Joseph Weiler (eds) The Worlds of European Constitutionalism (Cambridge University Press, 2012) 57-104

Stephen Tierney, Neil Walker 'A Constitutional Mosaic? Exploring the New Frontiers of Europe's Constitutionalism' in Neil Walker, Jo Shaw, Stephen Tierney Europe's Constitutional Mosaic (Hart, 2011) 1-20

Neil Walker 'The Cosmopolitan Local' in A Menendez and J E Fossum (eds) Law and Democracy in Neil MacCormick's Legal and Political Theory (Springer, 2011) 3-15

Neil Walker 'Surface and Depth: The EU's Resilient Sovereignty Question' in Jurgen Neyer and Antje Wiener (eds) Political Theory of the European Union (Oxford University Press, 2010) 91-110

Neil Walker 'Multilevel Constitutionalism: Looking Beyond the German Debate' in Kaarlo Tuori and Suvi Sankari (eds) The Many Constitutions of Europe (Ashgate, 2010) 143-168

Neil Walker 'Beyond the Holistic Constitution?' in Petra Dobner and Martin Loughlin (eds) The Twilight of Constitutionalism? (OUP, 2010) 291-308

Neil Walker 'Opening or Closure? The Constitutional Intimations of the ECJ' in Loic Azoulai (eds) The Past and Future of EU Law; The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Hart Publishing, 2010) 333-342

Neil Walker 'Denizenship and Deterritorialization in the European Union' in Hans Lindahl (eds) A right to Inclusion and exclusion? (Hart, 2009) 261-272

Neil Walker 'Reframing EU Constitutionalism' in Jeffrey Dunoff and Joel Trachtman (eds) Ruling the World? Constitutionalism, International Law and Global Governance (Cambridge, 2009) 149-177

Neil Walker 'The Variety of Sovereignty' in Rebecca Adler-Nissen and Thomas Gammeltoft-Hansen (eds) Sovereignty Games: Instrumentalizing State Sovereignty in Europe and Beyond (Palgrave, 2009) 21-32

Neil Walker 'The Rule of Law and the EU: Necessity's Mixed Virtue' in Neil Walker, Gianluigi Palombella (eds) Relocating the Rule of Law (Hart, 2009) 119-138

Neil Walker, Ian Loader 'Liberty, Security and the Responsible State' in Stuart White and Daniel Leighton (eds) Building a Citizen Society (Lawrence and Wishart, 2008) 44-56

Neil Walker 'The pattern of transnational policing' in Tim Newburn (eds) Handbook of Policing (2nd Edition) (Willan Publishing, 2008)

Neil Walker 'The reframing of law's imperial frame: A comment on Tully' in Stephen Tierney, Emilios Christodoulidis (eds) Public Law and Politics: The Scope and Limits of Constitutionalism (Ashgate, 2008)

Neil Walker 'Making a World of Difference? Habermas, Cosmopolitanism and the Constitutionalization of International Law' in O. Payrow Shabani (eds) Multiculturalism and Law: A Critical Debate (University of Wales Press, 2007) pp.219-234

Neil Walker 'The Migration of Constitutional ideas and the Migration of the Constitutional Idea' in S. Choudhry (eds) The Migration of Constitutional Ideas (Cambridge University Press, 2007) pp. 316-344

Neil Walker, Ian Loader 'Locating the Public Interest in Transnational Policing' in Andrew Goldsmith and James Sheptycki (eds) Crafting Transnational Policing (Hart Publishing, 2007) pp.111-146

Neil Walker, M. Loughlin 'Introduction' in Neil Walker, Martin Loughlin (eds) The Paradox of Constitutionalism (Oxford University Press, 2007) pp. 1-8

Neil Walker 'Post-Constituent Constitutionalism' in Neil Walker, Martin Loughlin (eds) The Paradox of Constitutionalism (Oxford University Press, 2007) pp.247-268

Neil Walker 'On Regulating the Regulation of Regulation' in F. Cafaggi (eds) Reframing Self-regulation in European Private Law (Kluwer, 2006) pp. 347-357

Neil Walker, Ian Loader 'Necessary Virtues: The Legitimate Place of the State in the Production of Security' in Jennifer Wood and BenoƮt Dupont (eds) Democracy, Security and the Governance of Society (Cambridge University Press, 2006) pp.165-195

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

Neil Walker 'EU Constitutionalism and New Governance' in G. De Burca and J. Scott (eds) Constitutionalism and New Governance in Europe and United States (Hart Publishing, 2006) pp. 15-36

Neil Walker 'Relocating Sovereignty: An Introduction' in Neil Walker Relocating Sovereignty (Ashgate, 2006)

Neil Walker 'Central Europe's Second Constitutional Transition: The EU Accession Phase' in A. Czarnota, M. Krygier and W. Sadurski (eds) Rethinking the Rule of Law After Communism (Central European University Press, 2005) pp. 341-370

Neil Walker 'Sovereignty, Global Security and the Regulation of Armed Conflict: The Possibilities of Political Agency' in J. Huysmans, A. Dobson and R. Prokhovnik (eds) The Politics of Protection: Sites of Security and Political Agency (Routledge, 2005) pp.154-174

Neil Walker 'In Search of the Area of Freedom, Security and Justice: A Constitutional Odyssey' in Neil Walker Europe's Area of Freedom, Security, and Justice (Oxford University Press, 2004) pp.3-40

Neil Walker 'Postnational Constitutionalism and the Problem of Translation' in J.H.H. Weiler and M. Wind (eds) European Constitutionalism Beyond the State (Cambridge University Press, 2003) pp.27-54

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

Neil Walker 'Culture, Democracy and the Convergence of Public Law: Some Scepticisms about Scepticism' in Neil Walker, Paul Beaumont and Carole Lyons (eds) Convergence and Divergence in European Public Law (Hart Publishing, 2002) pp. 257-272

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

Neil Walker 'Human Rights and Postnationality: Reconciling Political and Constitutional Pluralism' in Tom Campbell, Keith Ewing, and Adam Tomkins (eds) Sceptical Essays on Human Rights (Oxford University Press, 2001) pp. 119-144

Neil Walker 'Fundamental Law' in (eds) Stair Memorial Encyclopaedia of the Laws of Scotland (Re-issue 4) (Butterworths Law (Scotland), 2001) Volume on Constitutional Law, pp. 29-82

Neil Walker 'The Transnational Dimension' in F. Leishman, B. Loveday and S. P. Savage (eds) Core Issues in Policing (Longman, 2000)

Neil Walker 'The Antinomies of the Law Officers' in M Sunkin and S Payne (eds) The Nature of the Crown: A Legal and Political Analysis (Oxford University Press, 1999) pp.135-164

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

Neil Walker 'The New Frontiers of European Policing' in Malcolm Anderson, Eberhard Bort (eds) The Frontiers of Europe (Pinter, 1998) pp.165-186

Neil Walker 'Deficient Weaponry, Reluctant Marksmen and Obscure Targets: Flaws in the Accountability of Undercover Policing in the EU' in den Boer, M. (eds) Undercover Policing and Accountability from an International Perspective (European Institute of Public Administration, Maastricht, 1997) pp.205-216

Neil Walker 'The Crumbling Pillars of Statutory Interpretation' in Hector MacQueen Scots Law into the 21st Century: Essays in Honour of W. A. Wilson (W. Green / Sweet & Maxwell, 1996) pp. 126-137

Neil Walker 'Policing the European Union: The Politics of Transition' in O. Marenin (eds) Policing Change, Changing Police: International Perspectives (Garland Publishing Inc, US, 1995) pp.251-284

Neil Walker 'Care and Control in the Police Organisation' in M. Stephens and S. Becker (eds) Police Force, Police Service: Care and Control in Britain (Palgrave Macmillan, 1994) pp.33-66

Neil Walker 'European Integration and European Policing: A Complex Relationship' in M Anderson and M Den Boer (eds) Policing Across National Boundaries (London: Pinter, 1994) pp.22-45

Neil Walker 'The International Dimension' in R Reiner and S Spencer (eds) Accountable Policing: Empowerment, Effectiveness and Equity (Institute for Public Policy Research, 1993) pp. 113-171

Neil Walker 'The Middle Ground in Public Law' in Neil Walker, Chris Himsworth, Wilson Finnie (eds) Edinburgh Essays in Public Law (Edinburgh University Press, 1991) pp. 57-95

Notes and Reviews

Neil Walker 'Big "C" or small "c"?' (2006) European Law Journal Vol 12 pp12-14
Abstract: (Note: Italian version "Una costituzione con la "C" maiuscola o con la "c" minuscola?" published in (2005) 25 Quaderni costituzionali 881-884.)

Working Papers

Neil Walker 'The Jurist in a Global Age', Edinburgh Law School Working Paper Series, 2015/13 (SSRN, 2015) [Download]
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', Edinburgh Law School Working Paper Series, 2015/11 (SSRN, 2015) [Download]
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 'Human Rights and Global Public Goods: The Sound of One Hand Clapping', Edinburgh Law School Working Paper Series, 2015/21 (SSRN, 2015) [Download]
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 'Subsidiarity and the Deracination of Political Community: The EU and Beyond', Edinburgh Law School Working Paper Series, 2015/31 (SSRN, 2015) [Download]
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 'Beyond Secession? Law in the Framing of the National Polity', Edinburgh Law School Working Paper Series, 2014/51 (SSRN, 2014) [Download]
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 EU's Unresolved Constitution', Edinburgh Law School Working Paper Series, 2011/15 (SSRN, 2011) [Download]
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 'Surface and Depth: The EU's Resilient Sovereignty Question', Edinburgh Law School Working Paper Series, 2010/10 (SSRN, 2010) [Download]
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', Edinburgh Law School Working Paper Series, 2010/25 (SSRN, 2010) [Download]
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 'The Cosmopolitan Local: Neil MacCormick's Post-Sovereign World', Edinburgh Law School Working Paper Series, 2010/34 (SSRN, 2010) [Download]
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 'On the Necessarily Public Character of Law', Edinburgh Law School Working Paper Series, 2010/35 (SSRN, 2010) [Download]
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?', Edinburgh Law School Working Paper Series, 2009/16 (SSRN, 2009) [Download]
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', Edinburgh Law School Working Paper Series, 2009/01 (SSRN, 2009) [Download]
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 'Denizenship and the Deterritorialization in the EU', EUDO Citizenship Observatory Robert Schuman Centre for Advanced Studies, EUI LAW 2008/08 (European University Institute, 2008) [Download]
Abstract: The category of the denizen is becoming increasingly important in the identity politics of the EU. EU law and policy over a number of years has encouraged the development of a new hybrid status of the permanent resident who possesses many legal and social rights but lacks full political citizenship. Thinkers and politicians differ over the implications of this development, some seeing it as a temporary status on the way to full citizenship, others seeing it as a permanent sub-citizenship status, and others still seeing it as a way of moving beyond the citizenship/non-citizenship dichotomy in understanding the relationship between individuals and political communities. The paper explores this third alternative at some length, and concludes that the figure of the denizen may indeed be an appropriate archetype for imagining political community at the supranational level.