Loughlin - in Defence of Staatslehre

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IN DEFENCE OF STAATSLEHRE
Author(s): Martin Loughlin
Source: Der Staat, Vol. 48, No. 1 (2009), pp. 1-27
Published by: Duncker & Humblot GmbH
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IN DEFENCE OF STAATSLEHRE
Von Martin Loughlin, London*
I. Introduction
From the moment Georg Jellinek brought the disciplines of Staatslehre

and Staatsrechtslehre to maturation in his Allgemeine Staatslehre (1900),
the foundations of the sciences of the state have been subject to attack. The
causes are various. One obvious reason is that, having flourished in the era of
Wilhelmine Germany, these sciences had been tainted with brush of absolut-
ism. But there are others, such as the fact that the state, especially in the Ger-
man tradition, has often been thought of as an aspect of reality, or at least as
an entity possessing metaphysical foundations. These attacks became more
insistent in the second half of the twentieth century. During the post-war
period many German jurists have celebrated what has been called the pro-
gressive "dethronement of the state sciences by constitutional jurisdiction"1.
With the establishment of a liberal-democratic constitution and the gradual
extension in authority of the Bundesverfasssungsgericht, many jurists now
argue that the substantial doctrines of state theory have been overthrown by
the emerging, value-orientated constitutional jurisprudence of the court.2
During the last 20 or so years, however, this recently-acquired authorita-
tive status of the constitutional framework has itself been contested. This
new challenge has come about because of the growing range of governmen-
tal functions now being exercised through supra- or transnational institu-
tional arrangements. The globalizing effects of recent economic and techno-
logical developments are now having a significant impact on governing,
politics, constitutions and law. And these effects are today being registered
not only at the level of state theory; they also touch the question of constitu-
tional authority.
One manifestation of the emerging crisis has been the plethora of writing
either extolling or lamenting the present state of affairs and promoting no-
* Professor of Public Law, London School of Economics & Political Science.

1 Bernhard Schlink, Die Entthronung der Staatsrechtswissenschaft durch die Ver-
fassungsgerichtsbarkeit, Der Staat 28 (1989), pp. 161-172.
2 See, in particular, the analysis of Josef Isensee, Staat und Verfassung, in: Isensee/
Kirchhof (eds.), Handbuch des Staatsrechts der Bundesrepublik Deutschland, 3rd
edn. 2004, Vol. 2, p. 3, esp. pp. 7 - 17.
2 Martin Loughlin
vel interpretations. This is especially evident in the spate of speculative

writing on multi-level government, transnational constitutionalism, and
the emergence of international constitutional ordering. But in the train of
innovation comes the threat of confusion, the danger of losing the coherence
that adherence to a common juristic language provides. This is especially
the case when, as is presently the case, no paradigm shift has yet been ef-
fected. Much of the innovative literature thus expresses itself in the lan-
guage of "post-ism": building on the claim that we are living today in a
post-industrial or post-modern era, a conviction is emerging that we are en-
tering an era of post-state, post-sovereignty, or post-constitutionalism.
This essay adopts a position contrary to many of the innovators. It argues

in particular that, although identifying important trends in government
practices, those who seek to explain it by invoking the language of post-
state and post-sovereignty are opening up a new world in which they are
under an obligation to do that which no one has yet done: that is, to estab-
lish a coherent conceptual framework that can make sense of this new con-
struct they seek to build beyond the world of the state. But although de-
fending the old concepts, this does not include constitutionalism. Arguing
that constitutionalist rhetoric has itself become part of the problem, it seeks
to re-work the original language of public law, and it does so by returning
to the sciences of the state and arguing in defence of Staatslehre .
This is, to be sure, a version of state theory that has been stripped of its
absolutist governmental implications and of its metaphysical aura. It is also
a specifically juristic concept of the state, one that is built on the axiomatic
distinction between government and state. In this constructivist account, a
version of state theory that underpins the modern discourse of public law is
elaborated and this, it is argued, continues to have utility in seeking to ex-
plain the changes that are affecting government today. The implicit argu-
ment is that, for particular historical reasons, many jurists have too readily
abandoned state theory in favour of adherence to a free-standing constitu-
tionalism, and this has left them without anchorage in the open seas ahead.
The contemporary challenges to constitutional doctrine require a return to
state-based concepts.
This argument proceeds in stages. The essay will first outline the basic
elements of the related concepts of sovereignty (II.), state (III.) and constitu-
tion (IV.) that make up the modern discourse of "public law" (V.,VI.). With
these basic concepts in place, the deficiencies of the claim that we are mov-
ing beyond the modern discourse of public law and entering a new world of
multi-level constitutionalism is explained (VII.). In recognition of the im-
portance of contemporary governmental developments, it will seek finally
to identify the key issues for state theory that these developments raise
(VIII.).
In Defence of Staatslehre 3
H. Sovereignty
Before outlining the juristic concept of the state, it is necessary first to

explain the meaning of the concept of sovereignty, with which it is inextric-
ably linked. Though conceptually distinct, the term "sovereignty" has its
historic roots in the figure of the sovereign. The term "sovereign" originally
denoted the office of the ruler, and it signified the authority of that office.
That is, the "sovereign" ruler was not legally obligated to any other power
and, since the ruler's "sovereignty" expressed his independence from higher
authority, sovereignty came to signify the quality of the legal relationship
between ruler and subject. The potestas of the sovereign ruler was absolute.
The way in which this concept of sovereignty evolved during the early-
modern period provides the key to understanding how the concept is linked
to the concept of the state. This can be illustrated most concisely by high-
lighting seven innovatory aspects of this evolutionary process that even-
tually came together to form distinctive features of the modern concept of
sovereignty.
Kingship is a representative office. The ruler did not exercise a personal

power, but occupied a representative office. In assuming this office, the ru-
ler represented the people. The office of rule was thus established and
equipped with power and jurisdiction for the purpose of providing a system
of rule in the common interest. This distinction was recognized during the
middle ages in doctrine (such as "the king's two bodies"3) and practice (such
as coronation oaths in which the king promised to uphold the laws of the
realm).4 Even authoritarian early-modern scholars such as Hobbes accepted
that the sovereign ruler occupied a purely representative office.5
The ruling will is an institutional will. Once it was acknowledged that the
ruler did not exercise a purely personal power but was entrusted with the
discharge of an office, the way was opened for the claim that the ruler's will
was an institutionalized will. This had been recognized in the middle ages
with the ceremony of the seals, which ensured that the king's will was not a
personal but rather an official will. A simple illustration of the evolving
process of institutionalization is the transition marked by comparing Louis
XIV's claim in the seventeenth century, L'Etat, c'est moi, with that of Fre-
derick II's assertion in the eighteenth that he was the "first servant of the
state"6.
3 Emst H. Kantorowicz, The King's Two Bodies: A Study in Mediaeval Political

Theology, Princeton NJ 1957.
4 Fritz Kern , Kingship and Law in the Middle Ages [1914], Oxford 1948.
5 Thomas Hobbes, Leviathan [1651], Richard Tuck (ed.), Cambridge 1996, ch. 30
(Of the office of the sovereign representative).
6 Friedrich Meinecke, Machiavellismi The Doctrine of Raison d'État and its place
in Modern History, New Haven 1957, ch. 12.
4 Martin Loughlin
The sovereign occupies a corporate office. Institutionalization of the office

of the sovereign led, in turn, to its corporatization. This came about through
internal differentiation. As the tasks of government increased in scale and
complexity, the "sovereign" powers of office - what Bodin had called the
"marks of sovereignty"7 - could no longer be exercised personally by the
ruler. Initially, the diffusion was rudimentary, with, for example, the king's
leading ministers acting as custodians of the great seals of state. But even-
tually these sovereign powers came to be exercised variously through the
king-in-parliament, the king-in-council, the king's ministers, and the king's
courts. The powers of rule were exercised not only through an institutiona-
lized office but also through a corporate form.
The concept of sovereignty is distinguishable from the figure of the sover-
eign. With institutionalization, internal differentiation and corporatization
of the office of the sovereign, it became necessary to draw a distinction be-
tween the sovereign powers of rule and the concept of sovereignty itself. So-
vereignty came to be understood to be the absolute legal authority of the
ruling power in its corporate capacity. This point was implicit in the early-
modern writing on the state. As Bodin was the first to recognize, state theo-
ry can be founded only by drawing a distinction between sovereignty and
government.8 Specifically, while the powers of rule can be divided, sover-
eignty - the absolute authority of the collective ruling power - could not.
Sovereign authority ultimately rests in "the people". The distinction be-
tween the figure of the sovereign and the concept of sovereignty moved to a
new evolutionary stage once it came to be accepted that sovereign right was
not bestowed from above (by God), but was conferred from below (by the
people). This was because the claim could no longer be justified historically.
While constitutional development can be understood as a historical process
in which the monarchy, having established a transcendent authority bor-
rowed from religious sources,9 assumes an increasingly differentiated
form,10 this narrative becomes highly strained once in modern times author-
ity is assumed to rest with the people. Since "the people" that possesses ul-
timate authority exist qua people only once the institutional arrangements
of governing already have been established, this claim seems paradoxical.11
This difficulty can be finessed by only arguing that rather than resting on a
7 Jean Bodin , Les six livres de la république, Paris 1576, Bk. I, ch. 10 (On the true
marks of sovereignty); id., The Six Bookes of a Commonweale [1606], McRae (ed.),
Cambridge Mass 1962.
8 Ibid., Bk. II.
9 Marcel Gauchet, The Disenchantment of the World: A Political History of Reli-
gion, Princeton NJ 1997.
10 Raoul C. Van Caenegem , An Historical Introduction to Western Constitutional
Law, Cambridge 1995.
11 Paul Ricoeur, The Political Paradox, in: id., History and Truth, Evanston 1965,
p. 247.
historical account, the claim about the ultimate source of authority takes
the form of a virtual act: the political pact, otherwise known as the social
contract. This pact symbolizes the passage from natural to civil existence.
But, importantly, it was able to acquire this meaning only in retrospect.
Sovereignty is relational. Once the virtual character of the transitional
moment is acknowledged, it is evident that, in anything other than a purely
representational sense, it cannot be claimed that power is delegated from
the people (i. e., the multitude) to their governors. Nonetheless, it is only
through this type of virtual exercise that the imaginative world of the poli-
tical - the world of public law - is created. Once this threshold is crossed,
sovereignty can more clearly be recognized as offering a representation of
the power and authority created through the formation of that world. So-
vereignty vests neither in the ruler, nor in the office of government, nor in
the people; sovereignty vests in the relationship itself. Sovereignty stands as
a representation of the autonomy of a political sphere and as a symbol of
the absolute authority of that sphere.
Sovereignty is a juristic concept. This claim to absolute authority of the
political (or public) sphere is intrinsically a juristic claim. It is a juristic claim
in a double sense. First, this world of absolute authority (sovereignty) must
assume an institutional form, and this is effected by conferring the office of
government with a rightful power. Secondly, the power that is conferred
equips government with an unlimited competence to govern through the in-
strumentality of law. It should be noted that two different concepts of law are
here being deployed: the law that constitutes, and the law that is created as a
consequence of that constitution. The latter is positive law. The former is that
which is created by the secularization, historicization and positivization of
natural law. This distinction, which is of critical importance if the nature of
state theory is to be grasped, is today invariably overlooked. Part of the rea-
son is linguistic, since in English there is only one word for law (cf. das Ge-
setz, das Recht /la loi, le droit). The former concept - public law in the techni-
cal sense (the law that constitutes the public sphere) - can accurately be ren-
dered more clearly in French as droit politique or in German as Staatsrecht :
that which confers the right to govern by way of positive law.
HI. The State
Equipped with these concepts of sovereignty and law, it is possible now to

outline the institution of the state. In the tradition of Staatslehre, there are
three constitutive elements of the concept of the state: territory, ruling
authority, and people. By accentuating each of these elements in turn, three
main aspects of the state can be presented.12
12 Georg Jellinek, Allgemeine Staatslehre, 1st edn. 1900, esp. chs. 11, 13.
6 Martin Loughlin
The first aspect, Staatsgebiet, is straightforward: it refers to the existence

of the state as a clearly defined, independent territory. This aspect of the
state is reflected in the notion that the entire world is divided up into an
arrangement of bounded territories, or states.
The second aspect, Staatsgewalt , refers to the institutional apparatus of
rule that is established to secure sovereign authority, both internally and
externally. This is the concept that is being referred to when the state is con-
ceived to be an active agency.
The third aspect, Staatsvolk, connotes the idea of the state as the aggrega-
tion of the members of the association - subjects or citizens - within that
territory.
Although these three constituent elements of the state were most clearly
expressed in German scholarship, they have been widely adopted in Eur-
opean jurisprudence.13 Two critical points about this formulation should be
emphasized. The first is that these three aspects of the state are inextricably
connected, and the concept of the state itself cannot be reduced to that of
any single aspect. While it is sometimes claimed that "the state is a terri-
tory" or "the state is the ruling authority" or "the state is the people", each
of these expressions should be understood to form a particular aspect of a
single abstract entity. The second point is that, as an abstract term encom-
passing the three aspects of territory, ruling power and people, the state is a
correlative expression of sovereignty. State and sovereignty each stand as
representations of the autonomy of a political sphere, with the concept of
the state articulating the main elements of that sphere (territory, people,
and institutional apparatus) and sovereignty symbolizing its absolute
authority.
Thus understood, the concept of the state performs an ontological func-
tion: it is the entity that is presupposed for the purpose of gaining access to
modern political reality In order to explain this point, two further dimen-
sions of the concept might be highlighted: its juristic form, and its ideal and
relational character. These two dimensions are considered in turn.
First, state and sovereignty are juristic concepts. The claim about the so-
vereign character of the state means that the state is the sole source of law.
This is evidently the case with respect to positive law, the law enacted by
the authorized institutions of the state. But it must also be emphasized that
with respect to droit politique or Staatsrecht - the law that constitutes
(public law) - there can be no notion of fundamental law. In most governing
regimes, there of course exists the notion of fundamental positive law, which
takes the form of constitutional provisions which, through various institu-
is See e. g. Raymond Carré de Malberg, Contribution à la Théorie générale de

l'État, Paris 1920, Vol. 1, pp. 2-7; W. R. Anson, The Law and Custom of the Constitu-
tion, Vol. I [1886], 4th edn. Oxford 1911, p. 15.
tional devices, are protected from repeal by legislatures in the ordinary

manner. But the point here is that, although entrenched laws exist with re-
spect to the office of government, there can be no fundamental law binding
the state. As the source of law, the state has ultimate authority to change all
law.
Some jurists reject this claim and argue that, although the highest author-
ity with respect to positive law, the state in reality acts as an agent for the
formulation and enforcement of rules of conduct that are not entirely cre-
ated by itself. This is the claim made by anti-positivists of various hues
who, although they do not today generally claim the higher authority of di-
vine law, at least argue that the state in its law-making role acts essentially
as an agent. The main claim they make is that the state acts as an agent for
the ratification of either the customary mores of society, or that it expresses
the "spirit of the people", or that it is obliged to respect the "inherent rea-
sonableness" or "higher morality" of particular prior claims.
The common error that arguments of this type display is that of reducing
the concept of the state to only one of its aspects: Staatsgewalt, the institu-
tionalized office of government. The juristic concept of the state must not be
confused with its government: as has already been indicated, sovereignty
and government must be kept distinct. Once the juristic character of the
state is grasped it is evident that this type of argument cannot be sustained.
Common values and beliefs of the people are of course reflected in the pub-
lic law of all governing regimes. The point is that such values and beliefs
acquire force in public law only as the "will of the people" or as various
claims of right of citizens. That is, they acquire force only when they have
been re-interpreted as aspects of the concept of the state.
During the twentieth century, this philosophical idea of the state became
lost under the weight of argument that reduces the state to Staatsgewalt.
Whatever value this might have in political science, it leads to confusion
and incoherence in the search to understand public law. If public law is to
be grasped as a coherent arrangement, then the state must be understood
not simply as a set of institutions that possess a monopoly of coercive power
(Herrschaft, potestas); the state must be understood as an expression of an
ordered way of grasping the nature of the political world. That is, and here I
come to the second dimension of my claim about the state, the state must be
treated as a scheme of intelligibility.14
14 On this claim see Michel Foucault, Security, Territory, Population: Lectures at

the Collège de France, 1977-78, Senellart (ed.), London 2007, pp. 286-287; Peter J.
Steinberger, The Idea of the State, Cambridge 2004, ch. 1. In neither case, however, is
this scheme treated as being a special feature of a peculiarly juristic concept of the
state. Cf. Hermann Heller, Staatslehre [1934], in: id., Gesammelte Schriften, Leiden
1971, Vol. 3, p. 79, at pp. 339-349 („Der Staat als organisierte Entscheidungs- und
Wirkungseinheit"): discussed below at p. 15 et seq.
8 Martin Loughlin
The state is essentially an idea, or a composite of ideas. Since this is a

characteristic that the state shares with all institutions, this is best ex-
plained by analogy. For this purpose, I take my own institution, the London
School of Economics.15 The LSE comprises teachers and students, research-
ers and administrators, a set of buildings in central London, and a library
and various other facilities. But the LSE is not reducible to any one of these
component parts; it can, for example, move location entirely and still re-
main the LSE. And though some might think that focusing on the group of
people who work there brings us closer to identifying the institution, this
claim is rendered more complicated by virtue of the fact that membership
comprises a constantly changing body of people. The LSE may need each of
these component parts to comprise its identity, but individually these ele-
ments are of secondary significance. Contrary to the view that the institu-
tion acquires its identity from these elements, it might be argued that each
of the various elements of which the institution is composed in fact derives
its identity from an interpretation of the whole, i. e., from our sense of the
meaning of the institution qua institution. The LSE is an idea, a composite
of scholarly and educational beliefs and principles, and it is the idea itself
that serves to confer meaning on its component parts.
To say that an institution - whether the LSE or the state - is essentially a
set of ideas captures an important truth. But this cannot be the whole truth.
Although institutions are constituted by ideas, they cannot be reduced sim-
ply to that set of ideas. If an institution is to be said to exist, then these ideas
must be set to work in the material world; the ideas must animate and give
meaning to the workings of the component material entities. These consti-
tuting ideas cannot remain purely abstract; they work through the principle
of "necessary embodiment".16 And the dialectic between idea and material-
ity can be adequately expressed only in relational language.
The concept of the state gives us access to the nature of modern political
reality and provides the key to understanding public law. Understood as a
juristic concept, the state is a scheme of intelligibility. It is an institution, by
which is meant that it expresses both an idea and the instantiation of that
idea. Through such an exercise of representation, the state brings into exis-
tence a comprehensive way of seeing, understanding and acting in the
world.
IV. Constitution
If the state is a scheme of intelligibility, the question arises: what is the

nature of this scheme? Although it is axiomatic that the nature of the
Cf. Steinberger (n. 14), pp. 17 - 18.

16 Charles Taylor, Hegel, Cambridge 1975, pp. 82-83.
scheme can be expressed only through the medium of law, it is at this criti-
cal point that certain jurists fall into error. The reason is because the gener-
ality of the formulation leads to a failure to differentiate between the two
different concepts of law which are in play. If the state is the source of law,
so the argument goes, its nature cannot be revealed through the medium of
law without resorting to entirely paradoxical reasoning. But this arises be-
cause of a failure to differentiate between positive law (the law made by the
constituted authority) and droit politique or Staatsrecht (the law that con-
stitutes the authority of the law-making institutions of the state). Once
Staatsrecht is taken to be the form through which the concept of the state is
made manifest, the basic question can be reformulated. The question is:
how is the state constituted? Alternatively, does the state have a constitu-
tion?
It should be emphasized here that the critical question to be addressed

concerns that of the constitution of the state. This question must be differ-
entiated from that of the constitution of the office of government. The dis-
tinction between the two is implicit - not quite explicit - in Carl Schmitťs
Verfassungslehre. It is to be found mainly in the distinction Schmitt draws
between the absolute and relative concepts of the constitution.17
What Schmitt calls the relative concept of the constitution arises because
of the modern tendency to think of constitutions as formal documents. The
constitution is assumed to be a text, the text is treated as being a statute,
and the constitution is thus, in the course of time, conceived to be a docu-
ment containing a set of individual constitutional laws. Modern documen-
tary constitutions are not necessarily fundamental in a substantive sense;
such constitutions merely establish the office of government. The creation
of modern constitutions has led to the relativization of the concept of the
constitution, not least because many of the provisions to be found in formal
constitutions are concerned with details of governmental arrangements and
do not focus essentially on fundamentals of the constitution of the state.
This relativization of constitutional thought has gone hand-in-hand with
the emergence of normativism. In the frame of normativism, the state is
transformed into a purely legal order (i. e. a system of norms), and this
leaves the way open to permitting a reworking of the relationships between
state, sovereignty, constitution and law. In brief, the constitution is the
state, the state is the legal order, the constitution is the basic norm of that
legal order, and sovereignty expresses the totality of norms in that autono-
mous legal order. Once such normativism is embraced, it then becomes pos-
sible to promote more extravagant metaphorical claims, such as claiming
that the constitutional order expresses the sovereignty of reason or "the rule
of law". This type of normativist portrayal, Schmitt notes, cannot amount
17 Carl Schmitt , Verfassungslehre, 9th edn. 1954, Pt. I, §§ 1-2.
10 Martin Loughlin
to a positive account of either the state or the constitution; it expresses, in

reality, a new natural law.
The absolute concept of the constitution, by contrast, is a substantive con-
dition, and it refers essentially to the formation of a political unity of the
people. This is a lived condition of order, focusing specifically on to the con-
stitution of the state. The absolute concept of the constitution invites the
drawing of a distinction between the material constitution as a political
unity and the formal constitution as an institutional frame. And from this
perspective, three basic observations about the modern concept of the con-
stitution can be drawn. First, that the formal constitution is not self-author-
izing; it is valid only by virtue of an existing political will that establishes it.
Secondly, that its validity does not rest - as it might appear to - purely on its
normative correctness or its conceptual unity; constitutional laws maintain
their validity essentially because they presuppose an underlying "material"
constitution. Thirdly, that it is an error to treat the formal constitution as
"an exhaustive codification", since "the unity of the constitution lies not in
the constitution itself, but rather in the political unity, the peculiar form of
existence of which is determined through the act of constitution making"18.
This distinction between the formal and material concepts of the consti-
tution is of primary importance if the processes of constitutional develop-
ment are to be grasped. To make sense of this claim, however, it is necessary
to abandon Schmitt's residual essentialism. Schmitt's distinction between
the relative and the absolute concepts of the constitution - between the nor-
mativist and existential concepts - must be reworked and expressed in rela-
tional terms. What this entails can be illustrated by reference to the concept
of constituent power.
The concept of constituent power would appear to presuppose the exis-
tence of an entity that is the bearer of the political unity and which, through
an act of will, constitutes the office of government. That is, the concept
works through the distinction that can be drawn between the political pact
that creates the political unity and the constitutional contract which estab-
lishes the constitution of the office of government. Constituent power is
power created as a result of the political pact, and which then authorizes
the constitutional contract. This power vests in "the people". The people,
Schmitt claims, "remains the origin of all political action, the source of all
power, which expresses itself in continually new forms, producing from it-
self these ever renewing forms and organizations"19.
18 Schmitt, (n. 17), p. 22: Aber die Einheit der Verfassung liegt nicht in ihr selber,
sondern in der politischen Einheit, deren besondere Existenzform durch den Akt der
Verfassungsgebung bestimmt wird."
19 Schmitt (n. 17), p. 79: "Das Volk, die Nation, bleibt der Urgrund allen poli-
tischen Geschehens, die Quelle aller Kraft, die sich in immer neuen Formen äußert,
immer neue Formen und Organisationen aus sich herausstellt
In Defence of Staatslehre 1 1
But how can this apparently prior existential form of the people be ex-
plained? While Schmitt is right to claim that normativism evades that ques-
tion by positing the existence of normative ordering and eliminating the
idea of "the people" as a collective subject, Schmitt's answer - the positing
of a collective subject (the people) as the constitution-making power - is
scarcely free of its own difficulties. Whereas normativism regards the foun-
dation as involving a pure act of representation, and is thus able to absorb
the constituent power into the constituted power, Schmitt argues that con-
stituent power must be understood as an expression of the direct and im-
mediate power of the people to give itself a constitutional form. Whereas
normativism is purely formal and self-grounding, Schmitt's existential
unity pre-supposes a mysterious prior substantial equality of the people.
Can we move beyond this stark opposition between representation and
presence? The answer is that this impasse can be resolved only by recogniz-
ing that, in LindahVs words, "the 'self' of self-constitution speaks to reflex-
ive identity, to identity as collective selfhood in contradiction to identity as
sameness"20. Lindahl thus argues that "collective self-constitution means
constitution both by and of a collective self", and it is this irreducible ambi-
guity that lies at the core of all attempts to found political community.21
This means that there can be no "we" that forms a people "in the absence of
an act that effects closure by seizing the political initiative to say what goal
or interest joins together the multitude into a multitude, and who belongs to
the people"22. Consequently, "although Schmitt is right to assert that foun-
dational acts elicit a presence that interrupts representational practices,
this rupture does not - and cannot - reveal a people immediately present to
itself as a collective subject"23. Constituent power not only involves the ex-
ercise of power by a people; it simultaneously constitutes a people.
Once the reflexive nature of constituent power is recognized, the way is
opened for a dialectical interpretation. Rather than treating the constituent
power of the people as an existential unity that precedes the formation of
the constitution, it expresses a dialectical relation between "the nation"
that is posited for the purpose of self-constitution and the constitutional
form through which it is able, for the most part, to speak authoritatively.
This collective entity of the people "must rely on a past that never has been
present and a future that never will become a present, hence on a past and a
future that elude its control"24. That is, the exercise of constituent power
20 Hans Lindahl, Constituent Power and Reflexive Identity: Towards an Ontology

of Collective Selfhood, in: Loughlin/Walker (eds.), The Paradox of Constitutionalism,
Oxford 2007, p. 9.
21 Ibid., p. 10.
22 Ibid., p. 18.
23 Ibid.
2* Ibid., p. 20.
12 Martin Loughlin
"is never a pure decision that 'emanates from nothingness"'; the people
"can only act by re-acting to what, preceding it at every step, never ceases
to confront it with the question, 'Who are we?'."25 In this understanding,
constituent power cannot adequately be understood without reference to
constituted power; it acts for the purpose of establishing a constitutional
form of government, and it continues to work through the established con-
stitutional form by irritating, questioning and modifying the meaning of
that structure. Constituent power and constituted power exist in a dialecti-
cal relation. Only in this dialectical relationship do the three constitutive
elements - territory, people, office of government - come together as the
state, or what alternatively might be called the public sphere.
V. The Constitution of the State
Once the relation between constituent power and constituted power - be-
tween the people and the office of government - is recognized to be reflex-
ive, the way is open more directly to address the issue of the constitution of
the state. There exists a clear trajectory of argument - which flows from
Bodin, through Pufendorf, Spinoza, Rousseau and Sieyes, to Schmitt - that
insists that public law can be understood only once sovereignty is differen-
tiated from government, the political pact from the constitutional contract,
the state from the institutional form, and the constituent power from the
constituted power. While this division is axiomatic for public law, what re-
mains more contentious is the manner in which the relationship between
the former and the latter concepts are phrased. My argument here has been
that these relationships are not causal, but reflexive. Furthermore, since the
state and its institutional form are reciprocally connected, some confusion -
which is particularly evident because of a tendency of many to reduce the
concept of the state to one of its aspects - might be avoided if we referred
instead simply to the public sphere.
This idea of the public sphere expresses the autonomy of a modern politi-
cal world that has been formed in thought and set to work in practice. The
public sphere is thus synonymous with the idea of sovereignty as "a repre-
sentation of the autonomy of a political sphere" and the state as "a scheme
of intelligibility". And just as those formulations suggest the existence of a
scheme or a particular form of representation, the public sphere similarly
carries with it the idea that it is in some sense constituted. The question to
be asked is: what are its constitutive elements?
The most basic element is the generally accepted belief that political
power ultimately rests with an entity called "the people" and that it is the
25 ibid., p. 21.
people who, through the constitutional contract, authorize the establish-

ment of the institutions of government. Although the office of government
can take a variety of forms, there exist certain constitutive principles
through which it operates in the modern world. These are the principles im-
plicit in the logic of sovereignty (above, II.) and which, deriving from the
belief that government is an office of trust, leads to the idea that the consti-
tution of the public sphere is based on some notion of representative, re-
sponsible, and accountable government.
Since it is also implicit in these understandings that the constitution of

government rests on the principle of consent, another constitutive element
can be identified: the constitution of the public sphere rests on the figure of
the citizen-subject. This flows from the fact that, notwithstanding evident
differences in talents, innate strength, or acquired wealth, individuals in
the public sphere are conceived to be free and equal agents who participate
as equals in public affairs and are subjected only to those restrictions and
limitations authorized by the laws. Individuals present themselves both as
bearers of equal rights and subjects of generally-prescribed duties. This
yields the basic principle of legal and political equality.
Grounded on these basic constitutive elements, the public sphere mani-

fests itself as a sphere of both absolute and conditioned power. Political
power must first be conceptualized as being absolute, in the sense that the
authority of the people to fashion the political world is unbounded. That is,
the authority exercised through the public sphere cannot be limited by the
claims of history, custom or inherited religious beliefs. The only constraints
are those that are derived immanently, those that the people or their repre-
sentative governors determine to be in the public interest. This point ex-
presses the principle of public autonomy. Being a constituted (or con-
structed) world, however, that power is, of its nature, also conditioned: it is
conditioned by its terms of establishment. And the most important condi-
tion for the establishment of this modern political reality is recognition of
the principle of the (political) equality and liberty of the individuals who
comprise it. This is the correlative principle of private autonomy.
This concept of the public sphere thus cannot be grasped without ac-
knowledging the complex character of the political power it generates and
sustains. Political power is not located in the authority of the established
institutions of government to impose their commands; that is merely potes-
taSy rightful authority, or the distributive aspect of power. The essence of
power is to be found in the way it is generated, and it is generated by the
drawing together of a people in ties of allegiance to a particular constitution
of the state. If authority is ultimately a product of the consent of "the peo-
ple", then they have somehow to transcend their manifest differences and
material inequalities and participate in this collective exercise of imagina-
14 Martin Loughlin
tion. And in the modem world this is generally achieved through the estab-
lishment of the elaborate frameworks of modern constitutional contracts
which seek to direct the exercise of public power to public purposes, to en-
sure that the exercise of such powers are checked and reviewed, and to en-
sure that when exercised the basic liberties of the citizen are respected.
These constitutional frameworks do not impose a set of constraints on the
exercise of public power: rather, they establish the architectural forms
through which such power can be generated.
VI. Droit politique/Staa tsrech ¿/Public Law
Once political power is conceived in this way, the juristic implications

can be brought to the foreground. The most basic point to be emphasized is
that the public sphere is constituted through a singular type of juristic dis-
course - that which has been called droit politique , Staatsrecht, or public
law in its distinctive meaning. By differentiating between droit politique
and positive law, the essential conceptual distinction between state and
government can be retained and set in a more appropriate relational frame.
This distinction, for example, enables us to resolve the apparent paradox
between state and law that permeates discussion of the subject. Thus, "the
constitution of a legal order by a political unity" can be seen to involve an
exercise in positive law-making, whereas "the constitution of a political
unity through a legal order" refers not to the positing of a legal order (in a
strict sense) but to the constitution of political unity through droit politique.
The critical issue thus becomes that of explaining how droit politique
frames the public sphere.
The key is to appreciate the intimate connections between droit politique

and political power. Since power is itself generated from the relation be-
tween constituent and constituted power, it is evident that a dynamic, more
sociologically-orientated understanding of law must be adopted if the juris-
tic aspects of this relation are to be grasped. The constitutive elements of
the public sphere (the constitution of the state, the logic of sovereignty)
form the constitutive rules of public law and are to be distinguished from
those positive laws which make up the constitution of the office of govern-
ment, the latter amounting only to the regulative rules of a particular re-
gime. By retaining this conceptual distinction, the nature of the juristic dis-
course of public law can more clearly be identified.
This discourse of public law is the constitutive discourse of the public

sphere, and it functions in a similar way to other types of constitutive rules.
Just as the rules of grammar are not restrictions on speech but are possibi-
lity-conferring rules that enable us to speak with greater precision, so too
should the rules and practices of public law be seen not as restrictions on
power or liberty but as rules that are constitutive of the meaning of these
terms. Constitutive rules thus possess the characteristic of being simulta-
neously enabling and restricting. Here, the maxim "less is more" flourishes:
(legal) constraints are (power) enabling. Such grammatical rules are not to
be taken to be descriptions of some brute reality; rather, they are rules that
have been devised - in our case through the evolving discourse of public law
- for the correct use of certain terms. The criterion of appropriateness can
not therefore be whether it provides an accurate representation of reality It
depends primarily on whether the grammatical structure is capable of dis-
playing a coherent conceptual scheme. This is an intricate exercise, not least
because such schemes cannot be legislated: Caesar non est supra grammati-
cos. That is, the meaning of a statement can be grasped only in the context
of a particular language, and the language can be understood only by ima-
gining a form of life.
The jurist who did most to identify this logic was Hermann Heller, who
specified the tension between positive law and droit politique as the main
driving force of public law. Heller argued that the concept of law cannot be
devised without reference to the idea of law, which is in no way identical to
it, and the latter could be adequately formulated only by "the relati vization
of positive law by supra-positive, logical and ethical ( sittliche ) basic princi-
ples of law".26 Against legal positivists such as Gerber and Laband, who
had argued that a state built on opinions and beliefs "can only have a un-
sure and fluctuating existence",27 he claimed that these guiding principles
cannot come from anything other than our existing practices. Against both
the scholars who seek the security of transcendental principles and those
who reduce law to power politics, Heller argued for a dialectical under-
standing of public law in which the basic principles emerge as immanent
ethical practices that often sit in a relationship of tension with, or even in
contradiction to, the enacted rules of positive law.
From this dialectical insight, Heller sought to develop a comprehensive
theory of the state,28 understood as "the autonomous organization and acti-
vation of social co-operation within a territory"29. Staatsgewalt thus "mani-
26 Hermann Heller, Bemerkungen zur Staats- und Rechtstheoretischen Problematik

der Gegenwart [1929], in: Gesammelte Schriften, Leiden 1971, Vol. 2, p. 249, at p. 275:
"[...] der Begriff des Rechtes kann nicht gebildet werden, ohne die keineswegs mit
ihm identische Idee des Rechtes, die letztere aber nicht ohne die Relativierung des po-
sitiven Rechtes auf überpositive, logische und sittliche Rechtsgrundsätze."
27 Carl Friedrich von Gerber, Ueber öffentliche Rechte, Tübingen 1852, p. 22: "Ein
Staat, der nicht auf Rechte, sondern auf Meinungen gegründet ist, kann nur eine un-
sichere und schwankende Existenz haben." For discussion of Laband, see Heller
(n. 26), pp. 269-271.
28 Heller (n. 14), pp. 79-395. Most of Part III of this work has been translated by
David Dyzenhaus as Hermann Heller, The Nature and Function of the State, Cardozo
Law Review 18 (1996), pp. 1139-1216. 1 rely on this translation for quotations.
29 Heller (n. 14), p. 310; id. (n. 28), p. 1143.
16 Martin Loughlin
fests itself and is maintained by a co-operation between people, which orien-

tates itself to a common order of rules"30. Staatsgewalt is always a "legally
organized, political power" and, owing to its intrinsic social function, it
"must not only strive for legality in the legal technical sense, but also, for the
sake of its self-preservation, for an ethical justification of its positive legal or
conventional norms, i. e. for legitimacy".31 Staatsgewalt thus "has authority
only when the justification of its power enjoys recognition" and this author-
ity "is based in legality only insofar as the legality is founded legitimately".32
At the core of Heller's state theory lies the tension not only between legal-
ity and legitimacy, or between the formal and material constitution, but also
between positive law and droit politique. But this involves no simple divi-
sion between norm and fact: "all the ideologists of force fail to recognize
this power formation by law, while conversely all the pacifist ideologists do
not want to recognize law formation by power".33 As he explained, every
theory "that begins with the alternatives, law or power, norm or will, objec-
tivity or subjectivity, fails to recognize the dialectical construction of the
reality of the state and it goes wrong in its very starting point".34 The reason
is that once the "power-forming quality of law" has been grasped, it be-
comes impossible to understand the constitution "as the decision of a norm-
less power".35 Heller argued against the normativists on the ground that
"efficacy and validity, the existence and normativity of the constitution,
must indeed be logically distinguished, but they nevertheless apply to the
same constitutional reality, in which the assertion of one always supposes
the other at the same time".36 But he similarly argued against the material-
ists on the ground that, although a collective political will can be designated
as that which determines the existence of the political unit, "without a nor-
mative act, a collection of people has neither a will capable of decision nor
power capable of action, and at the very least it has no authority whatso-
ever".37 Heller argued instead that, rather than contradicting one another,
the existential and normative aspects of the constituent power are recipro-
cally related and mutually dependent.
Although Heller's Staatslehre has, with some justification, been criticized
as being highly abstract and rather vague in its formulation,38 it does have
30 Heller (n. 14), p. 311; id. (n. 28), p. 1144.

3i Heller (n. 14), p. 355; id. (n. 28), p. 1179.
32 Heller (n. 14), p. 355; id. (n. 28), p. 1180.
33 Heller (n. 14), p. 356; id. (n. 28), p. 1180.
34 Heller (n. 14), p. 393; id. (n. 28), p. 1214.
35 Heller (n. 14), p. 393; id. (n. 28), p. 1214.
36 Heller (n. 14), p. 393; id. (n. 28), pp. 1214-1215.
37 Heller (n. 14), p. 394; id. (n. 28), p. 1216.
38 See Wolfgang Schluchter, Entscheidung für den sozialen Rechtsstaat, 2n edn.
1983, pp. 182-216.
the singular merit of identifying more precisely than any other legal scholar
the juristic logic that makes sense of the constitution of the state. This is the
juristic logic of droit politique , which serves the function of sustaining the
public sphere as an autonomous way of viewing the world.
VII. Entstaatlichung
There has been widespread speculation in recent years that the modern
era of state theory is drawing to a close. This speculation derives from con-
temporary conditions that present challenges to various aspects of state the-
ory. The main challenge is territorial. Staatsgebiet signifies not so much an
area of land as a defined space that became the object of authoritative rule.
Before the modern era, rulers sought to increase their power by external
means (i. e. by acquiring more extensive territories). But with the formation
of the modern state their attention turned inwards as they sought to intensi-
fy the impact of their mode of rule. Authority was therefore enhanced by
conditioning, and it was conditioned both by its limited territorial jurisdic-
tion (the inside-outside distinction) and by its constituted sphere (the pub-
lic-private distinction). These conditions have been placed in question as a
result of the challenges facing governments today. Specifically, in order to
meet the demands of their citizens, governments today have felt obliged
both to enter into intricate arrangements with other governments through
international networks (which can lead to a blurring of the inside-outside
distinction) and increasingly to involve private actors in joint arrangements
to meet public objectives (which can lead to a blurring of the public-private
distinction).
Since these developments have also had an impact on the primary meth-
ods of rule - as hierarchy (the exercise of command) and contract (the sign-
ing of treaties) have come to be modified through the emergence of intricate
regulatory regimes both at home and abroad - some scholars have argued
that contemporary trends mark the decline of statehood (Entstaatli-
chung).39 There have undoubtedly been changes: de-territorialization may
be the most obvious phenomenon, but in practice the changes may more ac-
curately be expressed as involving some de-intensification of each of the
major aspects of the state entity (i.e. people and ruling power as well as ter-
ritory). I will return to this point. Before doing so, however, it might be
pointed out that for many jurists, state theory had long since been in de-
cline, if not altogether jettisoned. For these jurists, this apparent recent de-
39 The social scientific evidence is, however, ambivalent: see, e. g., Michael Mann,
Has globalization ended the rise and rise of the nation-state?, Review of International
Political Economy 4 (1997), pp. 472-496 (who argues that the patterns of change are
simply too varied to enable us to claim that the nation-state or the nation-state
system is either strengthening or weakening).
18 Martin Loughlin
cline is therefore registered not as a decline in the power of state theory as

such, but as a challenge to the master concept of constitutionality. In mis-
taking the cause, they lead others to misconstrue the solution.
One prominent illustration is the analysis provided by Dieter Grimm
who, while accurately specifying the causes of the challenge to state theory,
argues that "the decline of statehood places not individual constitutions but
constitutionalism as such in question"40. His central claim is that modern
(i. e. post- 1776) constitutions mark the transition from empirical to normative
constitutions, that these normative constitutions are constitutive of ruling
power, and that in "a constitutional state there can be no extra- or supra-
constitutional powers beneath the pouvoir constituant"41. In grounding his
analysis of constitutional development in a sharp division between descrip-
tive and prescriptive constitutions, Grimm rejects both the distinction be-
tween the formal and material constitution that drives the modern dis-
course and the distinction between positive law and droit politique that
gives it juristic meaning.42 He is thus led to adopt a normativist interpreta-
tion of state and constitution, and this causes him to argue that de-territor-
ialization of governmental power presents itself essentially as a constitu-
tional problem. But because his framework does not permit the drawing of
a distinction between the constitution of the state and the office of govern-
ment, this leads him to conclude that somehow the solution must be found
in revised constitutional forms.
This characterization of the nature of the problem has been widely ac-
cepted, especially among German jurists. And once characterized as such,
there has been no shortage of proposed solutions. These range from "com-
pensatory constitutionalism", i. e., the necessity to promote global constitu-
tionalism to compensate for a perceived de-constitutionalization at the na-
tional level,43 through the argument that an international value-based order
is now emerging that forms an embryonic international constitutional or-
der,44 and to the sweeping claim that the link between constitutionalism
40 Dieter Grimm, The Constitution in the Process of Denationalization, Constella-

tions 12 (2005), p. 447 (453).
41 Grimm (n. 40), p. 452.
42 Grimm (n. 40) states that the formation of the normative constitution led to a
splitting of the positi vized legal order into two complexes: a traditional one that was
produced by the state and bound the individual; and a new one that proceeded from
or was ascribed to the sovereign and bound the state". Although this usage of the
term 'the state' is ambiguous (does it equate merely to the institutionalized apparatus
of rule: Staatsgewalt ?), it is evident that Grimm here adopts a normativist concept of
the constitution which transforms the state into a purely (positive) legal order.
43 See, e. g., Anne Peters, Compensatory Constitutionalism: The Function and Po-
tential of Fundamental International Norms and Structures, Leiden Journal of Inter-
national Law 19 (2006), pp. 579-610.
44 See, e. g., Christian Tomuschat, Die internationale Gemeinschaft, Archiv des
Völkerrechts 33 (1995), pp. 1-20; Erika de Wet, The International Constitutional Or-
der, International & Comparative Law Quarterly 55 (2006), pp. 51-76.
and nation-state should be severed, giving way to a graduated approach

that conceives constitutionalism as a free-standing and overarching concept
which shapes the practices of "governance" (the term coined to signal the
end of command and contract and the emergence of the regulatory mode of
action) from local to global levels.45
The objective here is not to survey the extensive and rapidly growing ad-
vocatory literature on what has been called "multi-level constitutionalism",
but only to highlight its key features and to illustrate its errors and limita-
tions. There is relatively little disagreement over the nature of the changes
that are taking place in governing arrangements. The controversy is not
over the facts, but over the conceptual tools needed to explain the signifi-
cance of these changes and justify particular solutions. My argument, in
nuce , is: that the arguments of advocates of multi-level constitutionalism
are invariably normativist, rejecting any serious engagement with the com-
plex juristic entity of the state; that they nevertheless are required, at criti-
cal points, to fall back on state theory to stake their claims; that in doing so
they invariably distort - or simply get wrong - the core tenets of state theo-
ry; and that as a consequence, the solutions being proposed, being based on
a mischaracterization of the problem, both neglect important aspects of it
and generate a new series of problems for which they do not offer viable
solutions.
One leading illustration is Ingolf Pernice's argument in 1999 that the Eur-
opean Union does not need a constitution, because it already possesses a
"multi-level constitution", that is, a constitution made up of the constitu-
tions of the member states bound together by a complementary constitu-
tional body consisting of the European treaties ( Verfassungsverbund ).46 If
this argument were pitched consistently at the level of the constitution of
government (as distinct from the constitution of the state) this might be un-
controversial: modern government requires the sharing of tasks, and at cri-
tical stages these arrangements need to be streamlined and rationalized.
Such a claim, it should be noted, does not directly touch on the constitution
of the state, i. e., on sovereignty. But as the argument unfolds, it becomes
clear that Pernice is promoting a more radical thesis: viz , that in these cir-
cumstances of shared government, "each level of government has 'original'
legitimacy", an argument he subsequently extends to "original and autono-
mous" authority.47
45 See, e. g., Thomas Cottier /Maya Hertig, The Prospects of 21 Century Constitu-
tionalism, Max Planck Yearbook of United Nations Law 7 (2003), pp. 261 - 328.
46 Ingolf Pernice , Multilevel Constitutionalism and the Treaty of Amsterdam: Eur-
opean Constitution Making Revisited?, Common Market Law Review 36 (1999),
p. 703 (707).
47 Pernice (n. 46), pp. 709, 713-714. Note that Pernice argues that in these circum-
stances "there is no legal criterion for deciding the question of precedence over na-
tional law in case of a conflict" (713-714). This may be correct as a matter of
20 Martin Loughlin
What is the source of this claim? Pernice suggests that multi-level consti-
tutionalism is founded on Rousseau's argument that the social contract
"does not necessarily lead to one unitary state and the notion of constitution
is not necessarily bound to a rigid concept of the state"48. This is plainly
wrong, and the error lies in failing to acknowledge the distinction that
Rousseau, following Bodin, carefully makes between sovereignty and gov-
ernment. For Rousseau, sovereignty is both inalienable and indivisible:
while governmental power can be transferred or divided, the general will
can not - and sovereignty "is nothing but the exercise of the general will"49.
Rousseau himself noted that many fail to grasp this essential point, and they
try to divide the sovereign, turning it "into a being that is fantastical and
formed of disparate pieces; it is as if they were putting together man out of
several bodies one of which had eyes, another arms, another feet, [ . . . ]"50.
Sovereignty, in Rousseau's state theory, cannot be subject to division, and
must remain free of any bonds of positive constitutional law.
Pernice then goes on to make an additional, though equally contentious,
argument, viz , that the creation of the category of EU citizenship establishes
a "common belongingness of peoples of member states" and it "may be re-
garded as a European social contract " that constitutes the common legal
status of peoples in the EU and gives legitimacy to the institutions of the
EU and their actions.51 This is a bold, unsubstantiated, and highly implau-
sible claim. It pays lip service to state theory in the guise of the concept of
constituent power, while simultaneously asserting that the concept has car-
ried out its work to legitimate the formation of a new and autonomous level
of constituted government. Pernice thus asserts that the "primacy of Eur-
opean law in the multilevel constitutional system of the EU is founded on
the common decision of the peoples of the Member States to achieve a func-
tioning structure of political action above the State level, and this structure
may not be put in question by the institutions of an individual Member
State"52. Although in the state theory sketched above the political pact
takes the form of a virtual act, this does not mean that anything goes, i. e.,
that the characterization of the pact is entirely an exercise of the imagina-
tion. Rather, its reflexive character means that a certain rigour must be ap-
plied in showing that a coherent political scheme can be formed. Pernice's
claim that somehow the EU is founded on "the common decision of the peo-
positive law, but once one acknowledges the distinction between positive law and
droit politique, the issue is less straightforward.
48 Pernice (n. 46), p. 709.
49 Jean-Jacques Rousseau , The Social Contract, in: Gourevitch (ed.), The Social
Contract and other later political writings, Cambridge 1997, p. 39 (57). The general
argument is made in Bk. II, chs. 1-4.
50 Rousseau (n. 49), p. 58.
5! Pernice (n. 46), p. 710 (emphasis in original).
52 Pernice (n. 46), p. 719.
In Defence of Staatslehre 2 1
ples" is an exercise in pure representation; this is a characteristic mark of

normativism, one falling far short of the standards of juristic argument re-
quired by droit politique.53
Pernice's claim is, nevertheless, a model of restraint as compared to Cot-
tier and Hertig's promotion of "21st century constitutionalism"54. Claiming
that "the historical, political and economic context has undergone impor-
tant changes which a modern theory of constitutionalism has to account for
if it is to ensure its traditional functions and to contribute to global govern-
ance", they baldly assert that constitutionalism needs to "address these
complexities and reach beyond the boundaries of the Nation State".55 Mod-
ern constitutionalism focused on the nation-state now needs to "give way to
a graduated approach" which extends "to fora and layers of governance
other than nations" and which treats these "layers of governance [ . . . ] as
on[e] overall complex".56 This is a purely normativist exercise, the expres-
sion of the "sovereignty of reason". They moralize the dichotomy between
domestic constitutional law and international law so that the argument can
slickly be made that the international sphere similarly needs to be constitu-
tionalized,57 and recent international arrangements for co-operation are,
without explanation, treated as a new moral stage of development rather
than the continuation of Realpolitik in changed circumstances.58 Drawing a
sharp distinction between the descriptive and normative concepts of the
constitution, they reject the former, and claim that, while "the state centred
concept of constitutionalism may have been appropriate, if at all, in the
state-centred, dualistic Westphalian system" it "fails [ . . . ] to offer a useful
analytical tool in a world where the boundaries between domestic and in-
ternational law have been progressively blurred, and where new polities
have emerged which challenge the states' exclusive legal and political
authority".59
53 For an alternative critical account of Pernice's argument see Matthias Jestaedt,

Der Europäische Verfassungsverbund - Verfassungstheoretischer Charme und rechts-
theoretische Insuffizienz einer Unscharf erelation, in: Krause/Veelken/Vieweg (eds.),
Recht der Wirtschaft und der Arbeit in Europa, 2004, p. 637.
54 Cottier/ Hertiq (n. 45).
55 Ibid., p. 263.
56 Ibid., p. 264.
57 Ibid., pp. 266-267: "The rule of law, and the principle of the separation of
powers, both core precepts of constitutionalism, thus only applied within the Nation
State, whereas international law remained a 'constitution-free' and 'morality-free
zone', dominated by utter Realpolitik and the barrel of the gun." There is here no
recognition that this inclusionary-exclusionary boundary provided the condition
which enabled domestic constitutional structures to develop. The existence of the
boundary is thus not susceptible to simple moralization in the terms they present.
58 Ibid., pp. 267-268: "These developments [EC, WTO, UN Covenants] [. . .] were
implicitly guided by the aim of introducing a new layer of constitutional checks and
balances so as to constrain the power of the sovereign states" (emphasis supplied).
59 Ibid., p. 297.
22 Martin Loughlin
Many of Cottier and Hertig's misunderstandings flow from a failure to ac-

knowledge the distinction between the political pact and the constitutional
contract, and confusion between sovereignty and government.60 In its place,
they assert that constitutionalism itself is the foundational concept, that it
must be understood as a graduated process, and that the critical task for
constitutionalism is that of "interfacing different layers of governance from
local to global levels, building a house with different storeys".61 This house
typically will have five storeys: local government, provinces, central govern-
ment, regional institutions (such as the EU) and global arrangements. This,
they claim, does not mean that "all layers are of an equal nature or impact",
or that "higher levels of regional and international law are more powerful"
but only that "all these layers should be considered, as a whole, as a consti-
tutional system".62 It nevertheless remains unclear how this statement
meshes with their promotion of "the principle of supremacy of the 'higher'
levels of governance in case of conflict", though its ideological underpin-
ning is exposed when they assert that this constitutional system "starts
from the presumption of hierarchy, but may allow for derogations to the ex-
tent that this is required by the protection of rights".63
Cottier and Hertig bring out explicitly many of the implicit assumptions
of advocates of multi-level constitutionalism. These include its pervasive
normativism, which seeks to eliminate the concept of the state altogether or
to reduce it entirely to a structure of positive legal norms; its assertion of
constitutionalism (or constitutionalization) as a self-standing foundational
process, without recognizing it to be a political concept devised as a state-
building philosophy; its deployment of, but failure to grasp, basic concepts
of state theory, such as the distinctions between sovereignty and govern-
ment or between droit politique and positive law; and its transformation of
questions concerning the constitution of the state into questions of constitu-
tional government. Although this multi-level constitutionalism is conceived
as forming an integrated five-storey house, as Bodin noted, "hard it is for
high and stately buildings long to stand, except they be upholden and staid
by most strong shores, and rest upon most sure foundations"64. The founda-
tions of this scheme remain obscure. Taking up Bodin's metaphor, Hobbes
had argued that the people, when seeking to establish a commonwealth,
"cannot without the help of a very able Architect, be compiled into any
other than a crazy building, such as hardly lasting out their own time, must
assuredly fall upon the heads of their posterity"65. Who, it might be asked,
60 Ibid., pp. 304-307 (section headed 'Shared Sovereignty').

61 Ibid., p. 264.
62 Ibid., p. 301.
63 Ibid., p. 313.
64 Bodin, The six Books (n. 7), p. 517.
65 Hobbes (n. 5), p. 221.
is the architect of multi-level constitutionalism? And rationally structured

though it may appear to be, is it not in actuality, at least from the perspec-
tive of public law, a crazy building?
VIH. Conclusions
Many of the difficulties of multi-level constitutionalism flow from the as-

sumption that formal constitutions are foundational of the discipline of
public law. When working within the frame of relatively stable national
constitutions, jurists have been able to operate with authoritative constitu-
tional concepts without the need to explain the background assumptions,
drawn from state theory, on which these concepts rest. In the face of govern-
mental changes flowing from globalizing tendencies, however, attempts to
devise responses purely in constitutional terms expose these underpinnings
and also reveal multi-level constitutionalism's lack of foundations. The
challenges that these developments present can properly be addressed only
by returning to the basics of state theory.
One starting point for such a return is to acknowledge the distinction

within public law between sovereignty and government. Sovereignty is an
absolutist concept, expressing the autonomy of the political sphere. It can-
not be divided without being destroyed. It cannot be transcended without
being replaced by a new conceptual scheme that is able to make sense of the
public sphere. But whereas sovereignty is a purely juristic concept, govern-
ment is not. The office of government is, of course, generally authorized by
a constitutional contract, a contract that institutes an elaborate division of
governmental roles. But governing itself involves two quite different types
of tasks: making laws and making policies. Sovereignty refers to the abso-
lute authority of the law-making power (potestas ). However, there exists
another task which has become ubiquitous in modern government, and that
is to formulate and implement policies to promote the public good. In pur-
suit of this task, governments have created extensive civil, police and mili-
tary services, have acquired powerful means of regulating economic life,
have established comprehensive schemes for provision of health, education,
social security and social welfare, and have generated the capacity to raise
tax revenues from their citizens to enable these various policies to be car-
ried out.
The policy-making function of government is founded on a different type

of power to that of potestas: this is potentia, the government's actual ability
to dispose of things. Of its nature, potentia can never be an absolute power.
Yet, to be successful (i. e. to be powerful), governments must be able to for-
mulate and implement policies efficiently and effectively, and for this they
require the support of their citizens. Given the material resources that mod-
24 Martin Loughlin
ern governments today have acquired, it might be thought that they could
use force in pursuit of these policies. But this is likely to be both highly re-
source-intensive and ultimately ineffective; the generation of a sentiment of
solidarity (otherwise, legitimacy) is a much more efficacious means of exer-
cising potentia.
Governing thus involves two different types of activities, law-making and
policy-making, and draws on two main sources of legitimacy for its actions,
the acceptance of rightful authority (potestas), and the perceived success of
government policies (potentia).66 Its significance here is that the increased
level of inter-governmental co-operation in recent years has been driven en-
tirely by the policy-making tasks of governments. That is, in order to do
those things which modern governments have assumed as their role - to ad-
vance the security and welfare of its citizens - governments have felt ob-
liged to enter into increasingly intricate inter-governmental arrangements.
And it is only when this point is acknowledged, that the critical juristic
questions can be brought into focus.
Two preliminary observations might be made. The first is that these in-
itiatives do not directly affect sovereignty; sovereignty is implicated only if
the argument is to be made that contemporary arrangements render no
longer viable the conceptual scheme of public law. The second is thât these
initiatives do not automatically raise (formal) constitutional questions.
While constitutions establish a framework that authorizes governmental
action, the methods governments use to pursue their policies do not gener-
ally raise constitutional issues. Much of the environmental law regulating
action throughout the member states of the EU, for example, has its source
in European Community decision-making structures; but similarly much of
the land use planning law that regulates action in these states has its source
in administrative (rather than legislative) decision-making structures.
There is nothing intrinsically inappropriate about either development: con-
stitutions generally leave the tasks of policy initiation and policy implemen-
tation to the sphere of governmental action. Jurists who seek to subject EC-
inspired measures to the canons of hyper-constitutional requirements may
only be revealing a general ideologically-rooted anti-governmental stance,
itself a common feature of normativist thought.
But this is not to say that inter- or supra-governmental arrangements are
incapable of generating constitutional problems. The point is that, from the
perspective of state theory, the problems they raise in reality make them-
selves felt at the more fundamental level of the constitution of the state.
That is, these arrangements mainly raise questions about the meaning of
66 This distinction has certain parallels with the distinction made by political
scientists between input legitimacy and output legitimacy: see, e. g., Fritz Scharpf,
Governing in Europe: Effective and Democratic?, Oxford 1999.
representative, responsible and accountable government today. Govern-

ments have entered into a wide range of international agreements, obliga-
tions and understandings - ranging from the Basel Banking Committee me-
chanism to acceptance of the International Standardization Organization's
product harmonization measures, from WTO agreements to participation in
such elaborate regional structures as the EU and NAFTA - with the goal of
advancing their own nation's interests (though often not under propitious
circumstances). The existence of these arrangements pose particular chal-
lenges to governments, not least by requiring them to explain and justify
these apparent self-imposed limitations on their freedom of action to the
people in whose name they claim to act. These are not minor issues: they
concern the overall legitimacy of the regime and if governments are to
maintain their authority they require delicate handling. There is, in fact,
plenty of evidence to suggest that governments (and political elites) are fail-
ing in this task,67 and this carries the danger that, feeling government to be
too remote and unresponsive, the people retreat to a simple primordialism
that is corrosive of modern political discourse. But to the extent that these
developments raise juristic questions, they should be registered as questions
concerning the constitution of the state rather than the constitution of gov-
ernment, primarily raising questions of droit politique rather than positive
law.
The argument of the essay, then, is that those promoting multi-level con-
stitutionalism as a solution to contemporary governmental developments
have mis-diagnosed the problem, and this has led to mis-specification of
the solution. Consider, for example, the problems that exist in devising ap-
propriate decision-making structures for an enlarged EU with an expanded
jurisdictional remit. Significant agreement might exist on the necessity of
reforms to address issues of transparency, consultation and streamlining of
these processes. But by elevating these matters of administrative procedure
to questions of finalité , constitutionality and federalism, Euro-politicians
engaged in a hyper-normative response that, notwithstanding grandstand-
ing gestures, guaranteed its singular failure.68 The dangers of promoting a
67 Consider, e. g., the debacle over the ratification of the EU Constitutional Treaty,
with the failure of the French and Dutch referendums. As Perry Anderson neatly put
it: "Virtually every time - and there have not been many - that voters have been al-
lowed to express an opinion about the direction the Union was taking, they have re-
jected it. The Norwegians refused the EC tout court; the Danes declined Maastricht;
the Irish, the Treaty of Nice; the Swedes, the euro. Each time, the political class
promptly sent them back to the polls to correct their mistake, or waited for the occa-
sion to reverse the verdict. The operative maxim of the EU has become Brechťs dic-
tum: in case of setback, the government should dissolve the people and elect a new
one." Perry Anderson, Depicting Europe, London Review of Books, 20 September
2007. Note also the rejection of the Treaty of Lisbon reforms by the Irish electorate in
the referendum of 12 June 2008.
68 German politicians and scholars were again in the vanguard of this movement.
See, e. g., Joschka Fischer, From Confederacy to Confederation: Thoughts on the
26 Martin Loughlin
constitutionalist response in the international arena are exacerbated by re-

cognition that modern constitutional discourse will be unduly strained at
the international level if it continues to be founded on the idea of popular
authorization. This realization has led to the emergence of "constitutionali-
zation" as a free-standing process of rationalist constitutional design - one
that can now operate without this fiction. But without "the people" as a
long-stop, the process threatens to transform itself into a new phenomenon,
which might be called "authoritarian constitutionalism"69, through which a
new "imperial network" (based on the G8, World Bank, IMF and WTO) will
seek to secure the legitimacy of its global rule.70
The specifically juristic issue that this mode of constitutionalism presents
flows from the common perception that these matters of transnational gov-
ernment must be regulated by positive law rather than through the more
delicate arts of droit politique. Instead of treating these issues as requiring a
skilful political response which acknowledges both the importance and lim-
itations of law, this new constitutionalism gives reign to a rationalist legal
metaphysics. It is driven to do so for two main reasons: first, because, not
controlling resources in the way national governments do, supranational
institutions are obliged to use law as their primary instrument of policy-im-
plementation; and secondly because there exist specific barriers at the in-
ternational level that prevent governmental agencies from controlling and
checking the more ambitious doctrines of the newly formed international
judicial institutions.71 Although authoritarian constitutionalism might lead
Finality of European Integration, Speech at Humboldt University, 12 May 2000; Jür-

gen Habermas , Why Europe needs a constitution, New Left Review 11 (Sept/Oct
2001), p. 5. Cf. Anderson (n. 68): "In the last days of the campaign, as polls showed
increasing rejection of the Constitution among voters, panic gripped the French med-
ia. But no local hysterics, though there were many, rivalled those in Germany. 'Europe
Demands Courage,' admonished Günter Grass, Jürgen Habermas and a cohort of
like-minded German intellectuals, in an open letter dispatched to Le Monde. Warn-
ing their neighbours that Trance . . . would isolate itself fatally if it were to vote No ,'
they went on: 'The consequences of a rejection would be catastrophic,' indeed 'an in-
vitation to suicide', for 'without courage there is no survival.' In member states new
and old 'the Constitution fulfils a dream of centuries' and to vote for it was not just a
duty to the living, but to the dead: 'we owe this to the millions upon millions of vic-
tims of our lunatic wars and criminal dictatorships.' This from a country where no
risk was taken of any democratic consultation of the electorate, and pro forma ratifi-
cation of the Constitution was stage-managed in the Bundesrat to impress French
voters a few days before their referendum, with Giscard as guest of honour at the
podium. "
69 Cf. Alexander Somek, Authoritarian Constitutionalism: Austrian Constitutional
Doctrine 1933 to 1938 and its Legacy, in: Joerges/Ghaleigh (eds.), Darker Legacies of
Law in Europe: The Shadow of National Socialism and Fascism over Europe and its
Legal Traditions, Oxford 2003, p. 361.
70 Cf. James Tally, The Imperialism of Constitutional Democracy, in: Loughlin/
Walker (n. 20), p. 315.
71 See Fritz Scharpf, Reflections on Multilevel Legitimacy, MPIfG Working Paper
07/3, esp. pp. 12-16; id., Notes Toward a Theory of Multilevel Governing in Europe,
MPIfG Discussion Paper 00/5.
to a consolidation of the rule of lawyers, it may do so only at the price of

losing sight of the principle that the ostensible objective of these public pol-
icy measures is to promote the public good.
The governmental challenges now being opened up for discussion raise
complex issues concerning what is living and what is dead in the modern
discourse of public law. Although these developments present major chal-
lenges for each of the key elements of state theory (territory, ruling author-
ity, people), it has been argued that a cogent juristic analysis requires that
we first return to the basics of state theory. This paper does not seek to offer
solutions, other than that of suggesting that a modern discourse of droit po-
litique , which maintains the tensions between freedom and necessity, malle-
ability and stability, and thus the conditionality of its acceptability, should
not be abandoned in favour of some freestanding notion of multilevel con-
stitutionalism. Its basic objective has been only to sketch the juristic frame-
work through which contemporary developments can best be assessed.

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Duncker & Humblot GmbH

Von Martin Loughlin, London*

From the moment Georg Jellinek brought the disciplines of Staatslehre

* Professor of Public Law, London School of Economics & Political Science.

vel interpretations. This is especially evident in the spate of speculative

This essay adopts a position contrary to many of the innovators. It argues

Before outlining the juristic concept of the state, it is necessary first to

Kingship is a representative office. The ruler did not exercise a personal

3 Emst H. Kantorowicz, The King's Two Bodies: A Study in Mediaeval Political

The sovereign occupies a corporate office. Institutionalization of the office

HI. The State

Equipped with these concepts of sovereignty and law, it is possible now to

The first aspect, Staatsgebiet, is straightforward: it refers to the existence

is See e. g. Raymond Carré de Malberg, Contribution à la Théorie générale de

tional devices, are protected from repeal by legislatures in the ordinary

14 On this claim see Michel Foucault, Security, Territory, Population: Lectures at

The state is essentially an idea, or a composite of ideas. Since this is a

If the state is a scheme of intelligibility, the question arises: what is the

Cf. Steinberger (n. 14), pp. 17 - 18.

It should be emphasized here that the critical question to be addressed

17 Carl Schmitt , Verfassungslehre, 9th edn. 1954, Pt. I, §§ 1-2.

to a positive account of either the state or the constitution; it expresses, in

20 Hans Lindahl, Constituent Power and Reflexive Identity: Towards an Ontology

V. The Constitution of the State

people who, through the constitutional contract, authorize the establish-

Since it is also implicit in these understandings that the constitution of

Grounded on these basic constitutive elements, the public sphere mani-

VI. Droit politique/Staa tsrech ¿/Public Law

Once political power is conceived in this way, the juristic implications

The key is to appreciate the intimate connections between droit politique

This discourse of public law is the constitutive discourse of the public

26 Hermann Heller, Bemerkungen zur Staats- und Rechtstheoretischen Problematik

fests itself and is maintained by a co-operation between people, which orien-

30 Heller (n. 14), p. 311; id. (n. 28), p. 1144.

cline is therefore registered not as a decline in the power of state theory as

40 Dieter Grimm, The Constitution in the Process of Denationalization, Constella-

and nation-state should be severed, giving way to a graduated approach

ples" is an exercise in pure representation; this is a characteristic mark of

53 For an alternative critical account of Pernice's argument see Matthias Jestaedt,

Many of Cottier and Hertig's misunderstandings flow from a failure to ac-

60 Ibid., pp. 304-307 (section headed 'Shared Sovereignty').

is the architect of multi-level constitutionalism? And rationally structured

Many of the difficulties of multi-level constitutionalism flow from the as-

One starting point for such a return is to acknowledge the distinction

The policy-making function of government is founded on a different type

representative, responsible and accountable government today. Govern-

constitutionalist response in the international arena are exacerbated by re-

Finality of European Integration, Speech at Humboldt University, 12 May 2000; Jür-

to a consolidation of the rule of lawyers, it may do so only at the price of

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