The Co-originality of Law and Democracy in the Moral Horizon of Modernity
In order to improve our understanding of the challenges facing constitutionalism in today’s globalizing world, Neil Walker rightly focuses on the relationship between democracy and constitutionalism. In the first part of the paper, Walker highlights the complexity of this relationship and argues that common approaches, according to which constitutionalism and democracy are either complementary or oppositional, are too simplistic. Walker tries to show that we are facing a false dichotomy and that we should appreciate that this relationship is, in fact, a double one. It is complementary because constitutionalism supports the realization of democracy in the sense that it helps to fulfil the necessary empirical conditions for democratic processes to get started or keep going. It is oppositional to the extent that constitutionalism qualifies democracy on the normative level by providing an independent rationale for non-democratic values understood in terms of individual rights or collective goods. In the second part of the paper, Walker makes use of his analysis for a reassessment of the fate of constitutionalism in the context of current day globalization. He argues, more specifically, that the double nature of the relationship between constitutionalism and democracy shows that the current debate is again set in terms which suggest an inappropriate dichotomy. On the one hand, theorists who embrace the rise of postnational constitutional structures as a fortunate reinvigoration of constitutionalism even in the absence of the concomitant rise of postnational democracy underestimate the importance of constitutionalism’s complementary relationship with democracy. On the other hand, theorists indicting postnational constitutionalism precisely because it lacks democratic credentials are too quick in assuming that constitutionalism has no proper and independent normative functions to fulfil in the absence of a proper embedding in a specific democratic polity. Instead of opting for one of the horns of this false dilemma, Walker suggests that the challenge of postnational constitutionalism consists in finding a new and adjusted architecture in which democracy retains a ‘nested centrality’ rather than a ‘singular preeminence’ in a postnational order which now no longer consists of neatly separated constitutional states but rather of intricate and only partly constitutionalized postnational networks. Although Walker’s analysis is appealing in many respects, there is a noteworthy shift in his argumentation as he moves from the first to the second part of his paper. I believe this shift is revealing in the sense that it points us towards a remaining one-sidedness and, thus, weakness of his approach. In the first part, Walker analyses the complementary relationship between constitutionalism and