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Constitutional imaginations
of the state: Afterword to the
Foreword by Ran Hirschl and

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Ayelet Shachar
Michèle Finck*

This Afterword does not seek to contest Ran Hirschl and Ayelet Shachar’s account of spatial
statism. It rather argues that although public power remains in many ways untouched by the
ever-changing world states are embedded in, counternarratives can also be identified. Looking
toward urban spaces as well as the regulation of data and online spaces, I illustrate that a
complementary story of state power can also be told. The challenge is to make sense of the
fact that state power is both changing and not changing at the same time.

In their Foreword, Ran Hirschl and Ayelet Shachar offer a thought-provoking account
of how considerations of space, place, and density impact on the conceptualization
and utilization of state power in an increasingly complex and interdependent world.1
The authors rightly point out that any dismissals of the strength of states as potent
public law actors have been premature as states very much continue to exercise many
of their core functions. I do not disagree with these accounts. It appears undeniable
that public power remains in many ways untouched by the ever-changing world in
which states are embedded. Indeed, “state law is not dissolving but transforming.”2
Yet, whereas no “new sources of authority and legitimacy” have replaced states,
they have nonetheless emerged.3 Whereas the authors highlight that “statist law has
ingeniously transformed and adapted itself in novel, interesting ways to a new and
complex legal order,” there is also a counternarrative to this story.4 The aim of my
brief reaction piece is to highlight that in addition to the authors’ narrative we can
also identify a second, parallel narrative that reveals a complementary story.

* Senior Research Fellow, Max Planck Institute for Innovation and Competition, Munich, Germany. Email:
michele.finck@ip.mpg.de.
1
Ran Hirschl & Ayelet Shachar, Spatial Statism, 17(2) Int’l J. Const. L. 389 (2019).
2
Id. at 391.
3
Id. at 393.
4
Id. at 436.

I•CON (2020), Vol. 18 No. 1, 15–21 doi:10.1093/icon/moaa010

16 I•CON 18 (2020), 15–21

In my Afterword, I  wish to draw attention to the role of imagination when

studying law, including constitutional law. Oftentimes we’re subject to bias in such
undertakings as we’re making sense of the world as it is through the familiar lenses of
the world as it used to be. Our constitutional imagination, that is, the assumptions we
take for granted when evaluating a given legal phenomenon, shapes our perspective
on public power.5 As I will attempt to highlight, however, there are multiple parallel
narratives and conceptions of the world that are unfolding. The challenge is to make

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sense of their coexistence—in this case that state power is both changing and not
changing at the same time.
To highlight these parallel accounts, I  will focus on two different elements. First,
I  will provide a counternarrative to the analysis of urban agglomeration and state
domination. Second, I will briefly introduce an additional topic that I believe is partic-
ularly interesting to study in this context, namely, the regulation of data and online
spaces.

1.  Cities and constitutional law: Not as statist as you

might think
Hirschl and Shachar undertake a detailed analysis of the impact of urbanization on
constitutional law to conclude that despite the enormous socio-economic and cultural
significance of the phenomenon, it has so far not significantly affected constitutional
law. They similarly observe that “legal scholars have, by and large, overlooked the
new reality of extensive urbanization,” as the city “remains a non-entity and a non-
subject” in this discipline.6 Looking toward EU constitutional law, there is reason to
disagree with these two conclusions.
First, a wealth of literature on the status of local and regional authorities in EU
law and beyond exists that is not accounted for by the authors.7 Second, and as I have
tried to argue elsewhere, considering that cities are outsiders of EU constitutional law
provides merely one perspective of a more complex phenomenon.8 If we study EU law

5
See also Lorraine Weinrib, Postwar Paradigm and American Exceptionalism, in The Migration of Constitutional
Ideas 110 (Sujit Choudhry ed., 2007) (“[c]onstitutional conceptions organize our understanding of our
particular domestic arrangements”).

6
Hirschl & Shachar, supra note 1, at 408–409.

7
In fact, this literature is too extensive to cite it exhaustively here. For representative examples, see The Role
of Regions and Sub-National Actors in Europe (Stephen Weatherill & Ulf Bernitz eds., 2005); Joxerramon
Bengoetxea, Autonomous Constitutional Regions in a Federal Europe, in Federalism in the European Union (Geert
De Baere et al. eds., 2012); Josephine van Zeben, Local Governments as Subjects and Objects of EU Law, in
Framing the Subjects and Objects of EU Law (Samo Bardutzky & Elaine Fahey eds., 2017); Carlo Panara, The
Sub-National Dimension of the EU (2015); Fernanda Nicola, Invisible Cities in Europe, 35 Fordham Int’l L.J.
1282, 1285 (2012); Piet van Nuffel, What’s in a Member State? Central and Decentralized Authorities before
the Community Courts, 38 Common Mkt. L. Rev. 871 (2001). Similar work has also emerged in public inter-
national law: Yishai Blank, Localism in the New Global Legal Order, 47 Harv. J. Int’l L. 263 (2006); Helmut
Aust, Auf dem Weg zu einem Recht der Globalen Stadt?, 73 Zeitschrift für ausländisches öffentliches Recht und
Völkerrecht 673 (2013); Luis Eslava, Local Space, Global Life: The Everyday Operation of International Law
and Development (2015).
8
Michèle Finck, Subnational Authorities in EU Law (2017).
 Constitutional imaginations of the state: Afterword    17

from above the surface, we see statist interactions between the EU and its member
states, leading to the conclusion that cities are indeed outsiders of this legal order. If
we peek below this surface, however, it becomes apparent that cities have long become
insiders of EU constitutional law, able to change its normative core, just as member
states can.
The Omega case highlights this parallel narrative.9 Omega is a case known to any
student of EU law. Whereas it is usually studied for its implications for the relationship

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between fundamental rights and fundamental freedoms, the role of general princi-
ples in EU law, and the supranational legal order’s respect for national identities, it
also highlights that local norms are able to directly influence the substance of EU law.
Here, the city of Bonn had banned laser games, arguing that they infringed the right
to respect of human dignity as the game involved “playing at killing people.”10 One
of the many interesting elements surrounding this case was that the German federal
government had previously argued that such a ban was undesirable.11 In banning the
activity locally, Bonn thus did not follow higher orders but rather initiated an auton-
omous public policy.
After a series of disputes in national courts, the European Court of Justice (ECJ) was
ultimately called upon to determine whether the ban had infringed the freedom to pro-
vide services (a cardinal market integration principle in EU law).12 Indeed, following the
ban, a British service provider could no longer provide equipment to Omega. The ECJ
concluded that the freedom to provide services could be restricted by the city’s measure.13
In doing so, the Court for the first time qualified the right to human dignity as a ge-
neral principle of EU law and this even though it was not common to all member states
and its interpretation in relation to laser games was far from homogenous in Germany.
Through this recognition, the city’s norm was able to indirectly influence the normative
content of EU law—highlighting that sub-national authorities are in fact shapers of EU
constitutional law.14 As the ECJ treats subnational norms in the same manner as those
of the member states, the former have the same ability to shape EU law’s substantive de-
velopment. The Court did not explicitly engage with the local nature of the ban, but in
a way that is exactly the point as it underscores that no differentiation is made between
member states and cities, and that the porosity that exists between EU law and member
state law also exists between EU law and urban law. Other cases confirm that the inter-
action between local norms and EU law can shape the latter’s interpretation in the same
manner as conflicts between national and EU norms do.15

9
Case C- 36/02, Omega Spielhallen v. Oberbürgermeisterin Bonn, EU:C:2004:614.
10
This prohibition was issued on the basis of legislation of North Rhine Westphalia that entrusted local
authorities with averting risks to public order.
11
Ewiger Streit, Der Spiegel, Mar. 28, 1994, at 93.
12
TFEU art. 56.
13
TFEU art. 52 allows for restrictions on this economic freedom on the basis of public policy (a justification
that must be interpreted strictly).
14
Omega, ¶ 34; Opinion of Advocate General Stix-Hackl, ¶¶ 82–91, EU:C:2004:162.
15
See, e.g., Case 1/90, Aragonesa v. Departamento de Sanidad y Seguridad Social, EU:C:1991:327; Case
2/90, Commission v. Belgium, EU:C:1992:310; Case C-202/11, Las v. PSA Antwerp, EU:C:2013:239;
Case C-346/06, Rüffert v. Niedersachsen, EU:C:2008:189.
18 I•CON 18 (2020), 15–21

Without a doubt local authorities have, unlike the member states, no formal status in
EU law.16 A functional analysis of other domains of EU law, however, equally confirms
that cities can be insiders of EU constitutional law, and that they are sometimes active
participants of the Union’s polycentric governance structure.17 Interestingly, official
EU documents now also allude to this polycentric structure—which stands in contrast
to the bicentricity of the treaties themselves. To illustrate, the 2016 Pact of Amsterdam
proclaims that “the urban agenda for the EU acknowledges the polycentric structure

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of Europe.”18 Subnational authorities have indeed assumed a pivotal role in the ad-
ministration of EU law and the development of the supranational legal order: (i) they
can influence EU law’s substantive development (see Omega); (ii) they have become
important allies of the Union in the achievement of supranational objectives; (iii) a
legally mandated relation of loyalty has emerged between the EU and subnational
authorities19; and (iv) subnational authorities also hold a strong direct relation to the
EU in their capacity as market participants.20
The existence of this parallel account does not negate the authors’ conclusions.
Indeed, there are also many other aspects of supranational law that illustrate that
in these domains, local authorities very much remain outsiders to the bicentric re-
lations between the EU and the member states. Cities are hence both insiders and
outsiders of EU law. This indicates that both those arguing that traditional constitu-
tional structures are being profoundly transformed and those arguing that they re-
main static are right. Similar conclusions can also be drawn from an analysis of data
and online regulation.

2.  Data and the regulation of online activity

One domain of regulatory activity that is particularly worthwhile studying to deter-
mine the reach of public power is that of data and online regulation. Indeed, while
one may limit the study of spatial statism to the offline world, it can be questioned
whether this provides a complete picture. As Hildebrandt has argued, “speaking of
an offline world is becoming an increasingly invidious or precarious description, an
anachronism oblivious of the computational operations that take place behind the
surface of screens and things.”21 This could also be said to be the case in relation to

16
I have argued elsewhere that the reference to local and regional authorities in article 4(2) and TEU
(Treaty on the European Union) article 5(3) does not alter that conclusion. See Finck, supra note 8.
17
On polycentricity generally, see Karl Polanyi, The Logic of Liberty (1951); Carles Tiebout et  al., The
Organization of Government in Metropolitan Areas: A Theoretical Inquiry, 55 Am. Pol. Sci. Rev. 83 (1961);
Elinor Ostrom, Polycentric Systems for Coping with Collective Action and Global Environmental Change, 20
Global Envt’l Change 550 (2012). On polycentricity in the EU, see also Polycentricity in the European Union
(Josephine van Zeben & Ana Bobic eds., 2019).
18
European Union, Establishing the Urban Agenda for the EU: “Pact of Amsterdam” (May 30, 2016),
https://ec.europa.eu/futurium/en/system/files/ged/pact-of-amsterdam_en.pdf.
19
To illustrate, the ECJ held in that local authorities are subject to a duty of loyalty toward the European
Union. See further Case C-103/88, Fratelli Costanzo v. Milano, EU:C:1989:256.
20
See further Finck, supra note 8, at 15–16.
21
Mireille Hildebrandt, The Virtuality of Territorial Borders, 13 Utrecht L. Rev. 22 (2017).
 Constitutional imaginations of the state: Afterword    19

some of the topics chosen by the authors, as online data flows affect these, too. For
example, (smart) cities are clearly affected by these new technologies just as religious
activity is now often also shaped by global online discourse.
Our current understanding of territorial jurisdiction has been shaped by the
technologies of the past, particularly the rise of cartography and the printing press.22
It can thus be expected that the current wave of technological transmutation will
have similar effects on the concept—and indeed it appears that this is currently al-

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ready the case. While an all-encompassing study of said dynamics is clearly outside
the scope of this Afterword, two cursory examples underline that new technologies
are influencing public power and our understanding thereof. First, the expansion of
power of private actors, and, second, the jurisdictional challenges of transnational
data regulation.
First, the emergence of powerful corporate players such as the GAFA platforms has
formed a powerful private counterpart to private power. True, there have always been
powerful corporate entities, yet one striking characteristic of these players is that net-
work effects allow them to enter ever more fields and assume influence in a wide pan-
oply of fields that has seldom been seen in other domains.23 Some have even claimed
that large online platforms are in the process of turning into state-like creatures.24
Platforms’ terms of service and internal dispute resolution systems frequently
have a higher practical significance to individuals than their public counterparts.
Beyond their purely private ordering functions, platforms have become regulation
intermediaries that determine how, for instance, the right to freedom of expression
ought to be interpreted and their interpretations frequently diverge from the strict
letter of the law. With its Libra project, Facebook may moreover well be attempting to
break the state monopoly over monetary policy.
Second, global data flows have generated hard questions on the notion of jurisdic-
tion. Illustrative is a case currently pending before the ECJ—Google v. CNIL—which
concerns the territorial scope of EU data protection law, in particular the right to
erasure (the “right to be forgotten”).25 Under article 17, GDPR data subjects have a
qualified right to request the erasure of personal data that relates to them.26 So far,
when Google—in its function as a regulatory intermediary—determined that such
a request was founded, it delisted the relevant personal data related to a person from
its search results after a query was made for the person’s name.27 However, it only
did so in relation to EU domains (such as Google.fr or Google.de), not those outside

22
Id. at 19.
23
Martin Moore & Damian Tambini, Digital Dominance (2018).
24
Lucie Greene, Silicon States (2018).
25
Case C-507/17, Google v.  CNIL (ECJ, filed Aug. 21, 2017); see also Michèle Finck, Google v CNIL:
Defining the Territorial Scope of European Data Protection Law, Oxford Business Law Blog (Nov. 16, 2018),
https://www.law.ox.ac.uk/business-law-blog/blog/2018/11/google-v-cnil-defining-territorial-scope-
european-data-protection-law.
26
See also Case C-131/12, Google Spain v. AEPD, EU:C:2014:317.
27
Requests to Delist Content under European Privacy Law, Google, https://transparencyreport.google.com/
eu-privacy/overview (last visited Sept. 2, 2019).
20 I•CON 18 (2020), 15–21

the EU (such as Google.com). The French data protection authority considered this
to be insufficient and brought an action against Google, asking that after a successful
request for erasure, it delist information from all domains worldwide. Only this, the su-
pervisory authority considered, could ensure the complete and effective protection of
data subjects under EU law, as otherwise the information remains accessible where a
user of the search engine uses a VPN. Google refused, arguing that this extraterritorial
application of EU law might effectively force it to breach the law elsewhere (such as

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free speech in the United States). This case will have interesting implications for state
power (exercised collectively by the member states through the EU), as the ECJ will ei-
ther decide that there is no need to delist the information from all domains worldwide
(and hence limit the internal effectiveness of its own laws for those using VPNs) or
force the extraterritorial application of EU law (hence forcing an application of norms
that exceeds territory and underlines other states’ territorial jurisdiction).
More broadly, EU data protection law is a fascinating area to study to reflect on the
territorial scope of laws. Among other interesting features are the manner in which
EU law regulates transnational data transfers as well as the fact that more and more
jurisdictions are adopting GDPR-like legislation (often diverging from their own
traditions) in order to obtain adequacy decisions—a phenomenon that some have la-
beled “data imperialism” as it considerably increases the EU’s soft power in the world.
This has led some to claim that “the principle of territoriality, the traditional corner-
stone of the law of jurisdiction, appears to be losing its salience in the field of inter-
national data protection.”28 At the same time, however, states very much continue
to assert their own traditional dominance in the sense of spatial statism. Generally,
Internet regulation is swelling as states are adopting national laws to govern online
interactions (think of the German NetzDG) or do so collectively through the EU (as the
GDPR confirms).29 Thus, deeper studies of data and online regulation promise to pro-
vide intriguing insights regarding the contours of state power in this day and age that
could further highlight that there are two sides to the story spatial statism is telling.

3.  Conclusion
This Afterword  has sought to underline that besides spatial statism, a different yet
parallel account of state competence and power can be made out. Just like some of
the schools of thought (such as global administrative law) that the authors describe
in their introductory sections, the two examples that I have briefly discussed illustrate

28
Cedric Ryngaert, Symposium on Extraterritoriality and EU Data Protection, 5 Int’l Data Privacy L. 221, 221
(2015). See also Benjamin Greze, The Extra-Territorial Enforcement of the GDPR: A Genuine Issue and the
Quest for Alternatives, 9 Int’l Data Privacy L. 109 (2019).
29
Gesetz zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken (Netzwerkdurch­
setzungsgesetz—NetzDG) [Network Enforcement Act], https://www.gesetze-im-internet.de/netzdg/
BJNR335210017.html; Regulation (EU) 2016/679 of the European Parliament and of the Council
of April 27, 2016, on the protection of natural persons with regard to the processing of personal data
and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection
Regulation), 2016 O.J. (L 119) 1.
 Constitutional imaginations of the state: Afterword    21

that some elements of public power are indeed changing. I  do not believe that this
disproves the claim to spatial statism. Rather, both stagnation and mutation can be
observed. The interesting question to be explored in future research is whether the
implications of these different conceptions, particularly in an ever-changing world
state, have always been caught between these two different dynamics, or whether
there is anything exceptional about the current state of affairs, and if so what the
implications of that observation are.

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