Post-nationalism and the Quest for Constitutional Substitutes

Post-nationalism is suggestive of a number of transformations in the practice of both law and politics. In the case of politics, it implies an assertion of the salience of the organization of scale, time, and individual subjectivity in the practice of politics, yet a corresponding acknowledgement that traditional administrative structures have lost their hegemony over organization of these phenomena. In the case of law, it implies a legal pluralism caused in part by administrative differentiation, but also brought about an increase in the number and types of organization that have private 'law-making' capacities. These processes are particular disruptive for the modern constitution, which has traditionally been identified as a central instrument in the recognition, co-ordination, interaction, and self-legitimation of law and politics. This begs the question as to what processes are carrying out tasks that have traditionally been associated with the modern constitution. This essay argues that the fluidity and complexity of these processes entail that they must lie in the processes of interaction themselves. In particular, it argues that the central 'constitutional substitute' is the individual act of recognizing organizations as having political and legal attributes. For the process of recognition contains two structures which serve to organize and legitimize interaction. Any act of 'constitutional' recognition requires, first, a process of prior evaluation on the part of the observer that requires the organization to justify itself to the observer. The according of recognition, by contrast, entails that the observer respect the organization as having the autonomy to impose and represent itself politically. This respect allow the organization to order legal and political life.