In 2 volsAvailable from British Library Document Supply Centre- DSC:D178995 / BLDSC - British Lib... more In 2 volsAvailable from British Library Document Supply Centre- DSC:D178995 / BLDSC - British Library Document Supply CentreSIGLEGBUnited Kingdo
This paper considers the ways in which constitutional thought and practice continue to shape the ... more This paper considers the ways in which constitutional thought and practice continue to shape the distinctiveness of Scotland as a political community in the post-independence referendum period. The emphasis is not just on the immediate future, nor on some ideal ‘deep future’, but on the foreseeable future. What are the candidate models and plausible pathways by which the future development of the territorial constitution might be pursued? What benefits and drawbacks are associated with different approaches and what are their prospects of success? In particular, what are the limits of accommodation of Scottish self-government within the framework of the UK state, and how, if at all, might such an accommodation be maintained in the face of continuing strong support for independence? The headline notion of the 'territorial constitution' provides a useful angle of approach to these questions. The territorial constitution could signify one of three things. It might refer to the overall constitutional order as conventionally understood. Here we use the ‘territorial’ part as mere shorthand to refer to the (geographically located) state as a constitutional whole. Yet, however familiar, this usage is of limited utility in unpacking Scottish constitutional distinctiveness. In its tendency to reduce constitutional authority to the sovereign state alone, this 'Westphalian' version of the territorial constitution obstructs an adequate appreciation of Scotland's situation and prospects in a more complex regulatory environment. Instead, the article introduces two applications of the idea of a territorial constitution that are less familiar but more promising for our purposes. One usage, which has recently gained ground in mainstream constitutional debate, treats the ‘territorial’ adjective as referring to just one discrete dimension and focus of treatment within a broader constitutional order, albeit an order that may still be understood in terms of the paramount authority of the sovereign state. That dimension involves the vertical distribution of authority within the polity. This is the usage with which we are mainly concerned in the present paper. The other possible application to which we refer departs more radically from our conventional constitutional frame of reference. More than a matter of adjectival stress, instead it treats ‘territorial constitution' as a compound noun -- a distinct and separate species within the constitutional genus, and so as only one of a variety of 'constitutional' orders (including functionally defined orders such as the EU, or the 'security constitution' of the UN) applicable to any particular population. From these broader perspectives, many of the positions on the Scottish constitutional future under review in these turbulent post-referendum times, from the traditional unitary state with limited devolution of powers, through the new brand of asymmetrical Unionism and a broader framework of multilateral federalism to the option of sovereign independence, look like positions along a spectrum rather than categorically distinct choices.
This paper examines the unresolved questions in Neil MacCormick's theory of post- sovereignty... more This paper examines the unresolved questions in Neil MacCormick's theory of post- sovereignty (in the context of the EU and more widely) in the light of his broader efforts to reconcile different strains in his intellectual and political world-view—universalism and particularism, cosmopolitanism and localism, internationalism and nationalism. It concludes that on that broader and deeper basis he might well have been drawn to a very thin form of universalism—namely a kind of inter-systemic framework of exchange involving mutually autonomous universalisation requirements.
This paper examines the growing influence of reflexive over teleological nationalism in sub-state... more This paper examines the growing influence of reflexive over teleological nationalism in sub-state movements. Teleological nationalism is the more conventional modern type, involving a menu of set goals, the ultimate being full sovereignty. Reflexive nationalism, by contrast, involves an adjustable relationship between a self-defining 'people' and a set of institutional platforms, where collective goals are cumulative rather than predetermined, relative rather than absolute. Reflexive nationalism claims a standing right to decide-'sovereignty of choice' rather than 'sovereignty of outcome'. Particularly in the unsettled environment of contemporary multi-layered Europe, where the supranational EU challenges the sovereign authority of member states, national movements (in Scotland, Catalonia, Flanders etc.,) tend towards reflexive nationalism. Sometimes they become an established part of the governmental landscape, their longterm aspirations de-emphasized. Yet questions remain. First, is reflexive nationalism transferable between settings? Is the 'right to be taken seriously' as regards questions of self-determination an emerging European or even global norm, or, as the case of Catalonia has vividly demonstrated in very recent times, is its acceptance or rejection purely a matter of local constitutional law and politics? Secondly, is it legitimate? Is it 'fair dealing' in terms of the recognition also due the self-determination claims of existing national sovereigns? Thirdly, is it sustainable long term? Is the 'right to decide', regardless of what is decided, a meaningful proto-sovereignty, and, if so, can sovereignty's delivery be deferred indefinitely without losing that right to decide?
This article introduces the Symposium on Law, Polity, and the Legacy of Statehood. The general ai... more This article introduces the Symposium on Law, Polity, and the Legacy of Statehood. The general aim of the Symposium is to identify and interrogate key background assumptions that shape contemporary debate and controversy over the relationship between legal normativity and political architecture. In particular, we seek to shed light upon the different suppositions and conjectures that inform analysis of the place of law as a source of institutional design and form of cultural expression within a state-centered framework in an age in which the position of the state within the global configuration is undergoing significant change. In so doing, we focus on three sets of factors which challenge the continuing centrality of the statelaw paradigm within our governance architecture. These are the development of new forms of polity nesting within and beyond the state, the extension of transnational policy domain specialization, and the disembedding of certain frameworks of legal normativity from any and all polity settings.
In 2 volsAvailable from British Library Document Supply Centre- DSC:D178995 / BLDSC - British Lib... more In 2 volsAvailable from British Library Document Supply Centre- DSC:D178995 / BLDSC - British Library Document Supply CentreSIGLEGBUnited Kingdo
This paper considers the ways in which constitutional thought and practice continue to shape the ... more This paper considers the ways in which constitutional thought and practice continue to shape the distinctiveness of Scotland as a political community in the post-independence referendum period. The emphasis is not just on the immediate future, nor on some ideal ‘deep future’, but on the foreseeable future. What are the candidate models and plausible pathways by which the future development of the territorial constitution might be pursued? What benefits and drawbacks are associated with different approaches and what are their prospects of success? In particular, what are the limits of accommodation of Scottish self-government within the framework of the UK state, and how, if at all, might such an accommodation be maintained in the face of continuing strong support for independence? The headline notion of the 'territorial constitution' provides a useful angle of approach to these questions. The territorial constitution could signify one of three things. It might refer to the overall constitutional order as conventionally understood. Here we use the ‘territorial’ part as mere shorthand to refer to the (geographically located) state as a constitutional whole. Yet, however familiar, this usage is of limited utility in unpacking Scottish constitutional distinctiveness. In its tendency to reduce constitutional authority to the sovereign state alone, this 'Westphalian' version of the territorial constitution obstructs an adequate appreciation of Scotland's situation and prospects in a more complex regulatory environment. Instead, the article introduces two applications of the idea of a territorial constitution that are less familiar but more promising for our purposes. One usage, which has recently gained ground in mainstream constitutional debate, treats the ‘territorial’ adjective as referring to just one discrete dimension and focus of treatment within a broader constitutional order, albeit an order that may still be understood in terms of the paramount authority of the sovereign state. That dimension involves the vertical distribution of authority within the polity. This is the usage with which we are mainly concerned in the present paper. The other possible application to which we refer departs more radically from our conventional constitutional frame of reference. More than a matter of adjectival stress, instead it treats ‘territorial constitution' as a compound noun -- a distinct and separate species within the constitutional genus, and so as only one of a variety of 'constitutional' orders (including functionally defined orders such as the EU, or the 'security constitution' of the UN) applicable to any particular population. From these broader perspectives, many of the positions on the Scottish constitutional future under review in these turbulent post-referendum times, from the traditional unitary state with limited devolution of powers, through the new brand of asymmetrical Unionism and a broader framework of multilateral federalism to the option of sovereign independence, look like positions along a spectrum rather than categorically distinct choices.
This paper examines the unresolved questions in Neil MacCormick's theory of post- sovereignty... more This paper examines the unresolved questions in Neil MacCormick's theory of post- sovereignty (in the context of the EU and more widely) in the light of his broader efforts to reconcile different strains in his intellectual and political world-view—universalism and particularism, cosmopolitanism and localism, internationalism and nationalism. It concludes that on that broader and deeper basis he might well have been drawn to a very thin form of universalism—namely a kind of inter-systemic framework of exchange involving mutually autonomous universalisation requirements.
This paper examines the growing influence of reflexive over teleological nationalism in sub-state... more This paper examines the growing influence of reflexive over teleological nationalism in sub-state movements. Teleological nationalism is the more conventional modern type, involving a menu of set goals, the ultimate being full sovereignty. Reflexive nationalism, by contrast, involves an adjustable relationship between a self-defining 'people' and a set of institutional platforms, where collective goals are cumulative rather than predetermined, relative rather than absolute. Reflexive nationalism claims a standing right to decide-'sovereignty of choice' rather than 'sovereignty of outcome'. Particularly in the unsettled environment of contemporary multi-layered Europe, where the supranational EU challenges the sovereign authority of member states, national movements (in Scotland, Catalonia, Flanders etc.,) tend towards reflexive nationalism. Sometimes they become an established part of the governmental landscape, their longterm aspirations de-emphasized. Yet questions remain. First, is reflexive nationalism transferable between settings? Is the 'right to be taken seriously' as regards questions of self-determination an emerging European or even global norm, or, as the case of Catalonia has vividly demonstrated in very recent times, is its acceptance or rejection purely a matter of local constitutional law and politics? Secondly, is it legitimate? Is it 'fair dealing' in terms of the recognition also due the self-determination claims of existing national sovereigns? Thirdly, is it sustainable long term? Is the 'right to decide', regardless of what is decided, a meaningful proto-sovereignty, and, if so, can sovereignty's delivery be deferred indefinitely without losing that right to decide?
This article introduces the Symposium on Law, Polity, and the Legacy of Statehood. The general ai... more This article introduces the Symposium on Law, Polity, and the Legacy of Statehood. The general aim of the Symposium is to identify and interrogate key background assumptions that shape contemporary debate and controversy over the relationship between legal normativity and political architecture. In particular, we seek to shed light upon the different suppositions and conjectures that inform analysis of the place of law as a source of institutional design and form of cultural expression within a state-centered framework in an age in which the position of the state within the global configuration is undergoing significant change. In so doing, we focus on three sets of factors which challenge the continuing centrality of the statelaw paradigm within our governance architecture. These are the development of new forms of polity nesting within and beyond the state, the extension of transnational policy domain specialization, and the disembedding of certain frameworks of legal normativity from any and all polity settings.
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Papers by Neil Walker