Review of Constitutional State by Barber

7/30/2019 Review of Constitutional State by Barber

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Two methodological chapters: one on constitutional theory in general (chapter 1), the other on

rules (chapter 4).

A book containing some of the key elements of a general theory of the (constitutional) state,written from the standpoint of analytical theory. Barber defines the state by means of a

normatively selective reconstruction of the common understanding of what a state is (putting

forward an interpretative constitutional theory, one that takes seriously the point of social

institutions).

In chapter 2, Barber defines the state by means of distinguishing it from other relatively

similar social entities. The State is characterized by reference to three of its key elements:

territory, people and a set of governing institutions. On the one hand, the state makes specific

and peculiar claims to authority as a social entity, which imply some form of supremacy claim

which has to be grounded on actual experience [22The state s commands must generally be

effective, but this effectiveness needs not rest on endorsement of the states claim to exercise

authority+ *24: This claim to authority is closedly related to territory; ultimately, people own

land at the mercy of the state: the state regulates the acquisition, sale, and use of property.

On the other hand, and even more importantly, the state is a peculiar social group [25 The

central thesis of this book is that the state should be understood as a social group+ *28 Social

groups rely upon an innate psychological need to be included within collectivities, a need that

has been likened to hunger or thirst+ *29 Need of complex social groups is closely related to

the difficulties in simple groups in dividing up tasks between members; and in endingdisagreements about their objectives or membership] [30 Complex social groups may include

members who disagree about the overall objective of the group, and may use coercion to

secure obedience to group rules. Complex groups are constituted, at least in part, by rules that

have been consciously chosen. These rules may have been chosen by some or all members of

the group, or the members of the group may have chosen to act within a template of rules

created by others. Complex groups have the capacity to include rules in their constitutions

which allow for the division of tasks, the resolution of disputes and the regulation of

membership *31+ The state clearly has the key attributes of a social group. It has members, in

its citizens and subjects, amongst others, and it has rules which bind the group together, in its

constitution. It is a complex group, and many of its constitutive rules will exhibit a considerable

degree of formalization *33+ There are many social groups that pursue the well-being of their

members. What is really peculiar to the state is the way in which it pursues this goal, the

demands it makes of its people in the course of its activities [34 which are the important

features of the state that are stressed:+ The authority-based accounts of the state certainly

bring forward some of its important features. States do issue commands, these commands do

take the form of authoritative directives and these directives are of enormeous importance

to the people of the state. The ability to produce directives of this type creates the possibility

that the state can coordinate action. The possibility of coordination brings with it the

possibility of great benefits to people facilitating collective action and solving coordination

problems and the possibility of great harm. Models of the state as a social group point to


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other important features of the state. They emphasise the interaction between the people of

the state in the context of the state that is, their interaction as state members rather than as

private individuals and the connection between the people of the state and the institutions

of the state.

[A clear institutional flavor: in the same way that law is but just one of the possible normativeorders, the state is but one of the types of social group: the need of the state is related to the

three basic social functions of the law: solving conflicts in an authoritative and final manner,

coordinating action to achieve complex social tasks, and providing normative templates with

the help of which to organize and structure social relations.

A peculiar claim later on [56] The argument for the intrinsic value of citizenship is confined to

societies like ours. Not all societies should create a state, and so not all societies need or

should strive towards citizenship. Tribal communities and small religious communities might

flourish without an institution which functions like the state.

And also to be contested, at least in relation to the EU, Whilst global organisations play an

important role in many peoples lives, the states role is, generally, more important still. The

state remains the broadest and most powerful political institution with which most people

engage, and, for most, their contact with international organisations is mediated through it.

In chapter 3, Barber considers the key planks of the state.

For a state to be a proper state, it is necessary that it has a functioning legal order [37] The

complexity of the state of a social group is intimately associated to the requirement of a legal

order, with the help of which to address its people. Although Barber quotes it separatedly, the

functioning legal order is likely to comprise also people generally know the content of the law

and be reasonably confident that it will be upheld by the courts and enforced by the

executive. Similarly, the state musthave the capacity to issue commands, adjudicate

disputes and enforce its decisions. More distinctively (although very relatedly) the state must

also maintain the separation of powers, at least in a thin sense [37].

The state ought to promote the well-being of its members [38], as that is a constitutive rule of

what is a state, and it must indeed acknowledge that such is its purpose [38]. While this does

not in itself distinguish the state from other social groups, what really makes the difference is

the broad and distinctive capacities of the state to actually advance the well-being of its

members [39]. A state which fails to advance the well-being of its members has not just failed

to acquit a moral obligation which applies to it (as an active torturer fails to meet the moral

obligation not to torture) it has also failed as a state *40+ *and puzzlingly: it is invariably the

case that there is a rule of the states constitution which sets the well-being of its members as

its primary purpose. If the state fails to acknowledge that the well-being of its members is its

objective, the state will still be a state, but indeed a failing state. These three features of the

state are closedly related to the political obligation to obey the law of the state: When it

issues purportedly authoritative directives it therefore claims not only that its people ought to

act in conformity with these commands, but, additionally, it implies some further explanation

of the basis of this obligation. The state implies that there are good moral reasons which applyto the subjects of the directive which render their obedience mandatory. It follows that in


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such a state, political parties should be fighting over the proper direction of state policy and,

consequently, when politics is functioning properly, they fight within the bounds set by the

states primary purpose *46+ *Consociational systems present a number of problems, and

chiefly, that they prevent the emergence of the type of citizenship that Barber considers key

and fundamental]

The state is distinguished from other social groups in that it lays claim to possess supreme

authority over its people (which means that the state plays an integrative function, integrating

all other social groups) [45] a function which is fundamental to these other social groups

themselves, as they have an easier time justifying their narrower remit, precisely because the

state is there to consider the wider picture.

Citizenship is the specific type of state membership. It has and must have an aspirational

quality; it is, in part, to be understood as the best type of relationship the mass of the people

of the state can enter into with that state () It is an institution which particular individuals can

enter into; an office of the state *49+ Important distinguishing features of Barbers account:citizenship is not simply concerned with the relation of the state to the individual, it is also

concerned with the interaction of the citizenry; citizenship can be rejected, to a degree *50+

The citizen shares in the government of the state [50] and partly as a function of this, is

responsible for the actions of the state (key, in contrast to Marshall, is participation; and

citizenship is not only a matter of rights, but also of duties (which triggers duties of loyalty, as

exist among friends]; as the obligations she has are not only vis a vis the state as such, but also

her fellow members: Laws can help instil, or undermine, mutual respect, but an important

dimension of citizenship is manifested in the attitudes that citizens adopt towards each other.

[NOTA BENE: And one may add that Barber is rather insensitive to the logic of the Rechtsstaat:

Social justice may require *that individuals possess particular rights against the state for social

benefits]. There may be societies in which it is not necessary for the state to provide

healthcare or education to its people because other institutions exist charities and business,

perhaps which meet these needs. Having said that, a certain level of social well-being is

necessary in order for the creation of citizenship.

Citizenship is of fundamental value and importance for four related reasons. Firstly, it is

important to have control over your life, to be able to choose projects and relationships you

wish to pursue, and to make decisions about how these will be pursued *54: autonomy, non-domination+. Secondly, people must belong to various social groups if they are to flourish.

People need groups to pursue projects and schemes and to provide them with support and

comfort. Thirdly, moral equality shared by humans (each person is morally important, and no

person is of greater moral importance than another). Fourth, the state is necessary for the

regulation and integration of these social groups.

Chapter 5 The Constitution

[contiguity between chapter 5 and 6; perhaps material should have been logically ordered

rather differently]


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Two key statements: Firstly, it is far from clear which rules should be counted as part of the

states constitution and which rules act on the state indirectly, mediated through other

institutions and groups. Secondly, that state constitutions contain both legal and non-legal

rules, and further, that constitutions may include laws drawn from a number of different legal

systems. Third legalistic accounts of the state provide a distorted picture of the state *75+

Against Kelsens legalistic account of the state; why? Fundamentally incompatible with the

recognition of the plurality of the sources of constitutions *78+

(1) It is quite possible for there to be more than one domestic legal order within the state,

these legal rules bound together, but left distinct by, a collection of legal and non-legal

constitutional rules

UK: Scotland has a distinctive legal system, not acknowledging statutes of Westminster

contrary to the Treaty of Union

79 Strange argument about private law rules not being part of the constitution, but reflecting

the constitutional identity of the state; indeed that is the argument made by public law

scholars in continental Europe, because these laws are instantiations of basic constitutional

principles.

MacCormick 1953 SC 396, 1953; Gibson v Lord Advocate 1975 SLT 134

(2) It is possible for the state to be partly constituted by non-domestic legal orders: both by

international law and, less commonly, by the rules of foreign legal systems

80: An unincorporated rule of international law may still form part of the Constitution if asignificant portion of those within the state crucially, those within state institutions treat it

as binding on them, and act accordingly

87 How to distinguish the acceptance of the rule from the external imposition of the said rule

(3) It is possible for the rules of a foreign legal order to be part of the constitution of the state

[Former colonies, at least for a while paying considerable attention to how the law develops]

(4) Diceys genius in recognizing that Constitutions are also made up of non-legal rules

(contrary to Blackstones legalistic account of the constitution).; unwritten maxims ofconstitutional morality, system of political morality that underpins the constitutional order,

serving to shape constitutional institutions through the force of usage and custom,

constitutional conventions; in Marshalls terms, the rules that political actors ought to feel

obligated by, if they have considered the precedents and reasons correctly.

J J Park The Dogmas of the Constitution, 1832

81 Non-legal rules are an aspect of every functioning constitution, but in an unwritten,

political, constitution like that of the United Kingdom, an understanding of these non-legal

rules is essential to a plausible account of the constitution (he claims it is non-legal rules that

define the office of Prime Minister; if we were to rely on Kelsens account of legal rules

constituting the office of Prime Minister, then the institution will be barely existent)


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85 Constitutional conventions are customs that have ossified into rules; gained normative

force and trigger social disapproval when breached

What is meant by a legal and by a non-legal law; and in what sense can Barber really say that

legalistic approaches of the state provide a distorted vision of the state when he offers what

on all accounts is a legalistic vision and conception of the state; and why the casual treatmentof principles (as indeed the emergence of constitutional conventions may not be different

from the emergence of principles) [87]. And then the task of identifying the differences

between laws and constitutional conventions has caused British constitutional theorists a great

deal of trouble [89] The difference between law and convention is one of degree: laws and

conventions can be placed upon a spectrum of types of social rules, a spectrum graduated in

terms of the formalization of rules. Laws lie at the most formalized end of this spectrum, but

there is no single, definable, point at which rules shift from being conventions into being laws.

Alongside this argument, it will be contended that conventions can become through judicial

intervention, and that conventions can crystallise into laws by becoming increasingly

formalized *89+ T.R.S. Allan: In matters of constitutional significance, legal doctrine and

political principle are inevitably interdependent and intertwined *91+ But Barber, not all

norms that are recognized by courts are legal rules (courts can recognize lists of instructions on

the back of a packet of soup, but these are not legal rules); Elliot: conventions reflect

underlying constitutional values (but courts may enforce a convention even where there is

not a pre-existing legal rule which the convention helps interpret, or which renders the

convention of legal significance) *94+ Factortame the Court acting outside of its legal powers,

but within its constitutional powers [95]. Reinforced by the possibility that a convention

crystallizes into law without the intervention of a law-making body [97] Conventions of

ministerial responsibility [98-99+ Power of the Prime Minister to change norms *100+ TheCode possesses the union of primary and secondary rules that Hart commended as the core of

a legal system *101+ Against Raz: Their claim is that some of the systems that writers like Raz

would exclude from the legal world are better thought of as variations on the forms law takes.

On their more liberal reading, many formalized, institutionalized, systems of rules would count

as law () whilst European law claims supremacy over national law, it does not claim authority

to regulate all areas of domestic life, nor does it claim that national law is incorporated within

European law *102+

McCormickean twist: The plurality of law means that law recognizes norms that are not legal

norms as part of the law; but this implies confusing the source of legal norms and the nature ofthe laws once institutionalized.

The State in Action

How and in what sense the state can possess intentions and undertake actions [104]; liberal

suspicion towards the sociological, crypto-collectivistic attribution of intentions to the state,

and in general, to social groups: the discussion by Le Bon and Durkheim of group mentality

and collective imagination begins to look worryingly mysterious, possessing a disturbing whiff

ofthe magical *107+ Barber is interested in a view which is essentially compatible with the

recognition that groups are collections of people and are dependent for their existence and


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functioning on their members *107+ Some of the descriptive terms we apply to individuals

also may be applicable to social groups () holists may have used terms which are normally

considered to possess a psychological aspect in a metaphorical or analogous sense *107; 108:

enough points of similarity to justify the use of the terms in a metaphorical sense; the

application of the same term in each context] From this, Barber concludes that groups behave

in ways that resemble persons: they appear to hold intentions, have attitudes towards people

and things, and act. And we tend to think of social groups in this fashion; we conceptualise the

group, and not simply the people who comprise the group, as possessing these features

But even here the key role of rules (and thus of law) transpires: As the rules that constitute

the group become more complex, the intentions of the group may also become more

complicated. The group can intend to achieve a diverse collection of things through a diverse

collection of mechanisms and processes *110+; (1) rules formalized in the constitution; (2) but

sometimes such rules are to be constructed in the whole context of the constitution; (3) and

sometimes they are to be derived from an unconscious or unreflected practice of the members

of the group.

But action of any group may be rather complicated by the fact that the action can be

accidental from the standpoint of the rules; it is in this sense that the group may end up being

liable even if there was no intention of breaching specific norms

The state advances its claims through its law-applying officials, but it can also make claims

through other mechanisms. The state can additionally make claims through legislation

produced by its law-making bodies, and through its Constitution, however that document was

created and enacted. The state can also make claims through its executive officers acting in

their official capacity () The sources of the claims of the state may consequently be wider

than the sources of the claims of law *116+

The state may be indecisive, it may be unable to form clear intentions, or it may hold

conflicting intentions which prevent it from acting. The state may make mistakes: the

intentions it adopts may be foolish, or the actions it undertakes in pursuit of those intentions

may be misdirected or counterproductive *116+

The neurotic state: makes persistent errors and makes no efforts to correct them [120] Based

on Bions analysis of group behavior: *1+ group members are inappropriately dependent on the

group leaders (as in the totalitarian state); [2] in democracies, political parties stirring upunrealistic expectations, which will only be realized when they gain power; [3] fight-flight:

identification of the other as a threat, and violent reaction as response to that alleged threat

[119-120]

Then he claims that Schmitt was prey to the paranoid-schizoid attitude: Schmitts state does

not merely identify others as enemies when and if it is threatened, its identity requires that it

manufacture an enemy- whether or not this other group actually poses a threat. Without an

enemy Schmitts state ceases to exist *122+ It is unclear the extent to which Schmitts

sovereign can be an institution rather than a person *122+


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Responsibility and Continuity of the State: If the group has a personality that transcends the

individuals that compose it, and if it can act in the name of others, must be responsible for

actions that can be attributed to it, one way or the other. Not in legal, economic sense, but in a

moral sense (as the legal responsibility is not the issue of the chapter or indeed of the book-

128- beyond a few cautionary remarks at the end of the chapter, little will be said about the

circumstances in which compensation should be paid or apologies should be issued by states

[128]

Capacity of the state: A group posseses rational unity when it forms and preserves intentions

over time, and acts upon these intentions (a functioning state must exhibit some level of

rational unity to avoid collapsing into anarchy) (the state may be inconsistent, and there may

even be good reasons for its inconsistency; but that is no good reason to exempt the state

from responsibility as long as it is inconsistent) [131] (the state, as Veitch has argued, can be

used to discharge responsibility, to undertake the dirty jobs making it impossible to trace them

back to any concrete individual). But members of the group bear responsibility by virtue of

their membership [133: so much so that they can be responsible, as members of the state, for

actions which were undertaken many years ago; unlike a subject, the citizen possesses a

capacity to participate in, and consequently to influence, the decisions of the state () Citizens

are most obviously responsible for those actions they support, but they are also responsible

for actions they oppose or they are neutral towards [134; the moral problem being here the

difficulty of renouncing citizenship if there is no other citizenship on offer that the citizen can

op to]

The capacity of the state is again closely related to law and institutions. It is because the state

has laws that govern institutions that it can act in a meaningful way; nations, in contrast, have

serious problems in deploying action in a similar way, even roughly similar way.

The Continuity of the States; Against Kelsens understanding, for two reasons (1)

comparatively minor events be turned into epochal ones (Factortame for example, left

unaffected the membership of the state, its territory, the bulk of its institutions, and the bulk

of the laws which accommodate and limit such unconstitutional action 140); (2) fails to

understand radical changes if they can be reconciled with a stable Grundnorm (as in Canada or

Australia, where only apparently the grundnorm was left unchanged) [140/141]

If Kelsen was the standard, the relative ease with which the Grundnorm can be broken

creates the risk that it will be too easy for states to shed responsibility for their past actions. It

is hard to believe that a state which has recently completed a vicious and unjust war could

escape responsibility and start afresh by simply adopting a new constitution in violation of the

provisions of the old; at the same time that it remains implausible to claim that an oppressed

region that has been granted independence by an imperial power remains directly responsible

for the abuses undertaken in its territory by the former colonial/imperial regime *141+

Even if a new state is not responsible for previous wrong deeds, it may have a responsibility to

deal with them, to provide solutions that take seriously into account the fact that these

wrongs were indeed committed [143].

PLURALISM


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Legal Pluralism

145 Legal pluralism resulting from disagreement about the constitutional ordering of the state

(which essentially boils down to an institutional confrontation) or about the existence of the

state (whether one state is really independent or not) [In both cases there is an element of

institutional pluralism, certainly)

145 A legal order can contain multiple rules of recognition that lead to the order containing

multiple, unranked, legal sources. These rules of recognition are inconsistent, and there is the

possibility that they will, in turn, identify inconsistent rules addressed to individuals. In

addition, pluralist orders lack a legal mechanism to resolve the inconsistency; there is no

higher constitutional body that can resolve this dispute through adjudication or legislation.

There is a need of showing that these kind of legal orders are something else than mere

transitory aberrations, that pluralism can actually explain a relevant legal, political and

constitutional practice.

146 Anthropological/Sociological approach: Pluralism typical of imperial legal systems, and the

way in which they accommodated religious and tribal law; Kelsen pointed to conflicts of law as

a means of reconciling unity and diversity

147 Are there really genuine contradictions that we can speak of?

Kelsen

148 Legal systems always contain norms that solve conflicts; but what if they do not, or if the

ranking rules are themselves inconsistent?

149 Logical principle of non-contradiction (it is a logical principle necessarily part of all legalsystems; the fundamental assumption of non-contradiction is part of any serious interpretative

effort; judges solve case holding only one of the rules in clash.

149 Barber says that it is far from obvious that logical principles should be applied to ethical

issues; and even less so to systems of law; even if the maxim decreeing that all that is not

forbidden is permitted is a prima facie principle of every legal system, it is certainly not a

necessary rule of a legal system. It is possible, if difficult, to imagine a system functioning

without such a rule

156 Against Fullers claim that non-contradiction is attractive, claim that there could be ethicalreasons for endorsing contradictory rules

Analysis of the famous Rhodesian case, fully bracketed from the substantive implications of

the dispute [159-164]; Legal Pluralism in the European Union: Assumes the constitutional

analysis of national constitutional courts, which is underpinned by the idea that there are two

distinct and very different legal orders *165+ Over time they have moved together, the

boundaries of each becoming blurred. It would be a mistake to say that they have become, or

will become, a single legal order *168+ Why: Enormeous amount of norms untouched by

Europe, Institutions created by national rules


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Constitutional Pluralism because the European Union stands somewhere between

confederation and federation; uneasily sitting between the two. In some respects, the self-

understanding of the Union is closer to that of a federation than to that of a confederation.

But (1) the Union does not claim that there exists a unifying constitution that empowers, or

purports to empower, both the Community institutions and the institutions of the Member

States; there is no single Constitution that delegates power to both European and national

institutions [177]; The Union does not claim to exercise control over the extent of its territory

[178]; The Union does not claim to exercise control over the acquisition of citizenship of the

Union [178] The claims made by the Union consequently present a fundamental challenge to

the identity of the Member States [180] But the paucity ofthe Unions executive branch in

itself demonstrates that the Union lacks the capacity to take effective action to back its claim

to exert authority [180]

Review of Constitutional State by Barber

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