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Neil Walker
The point of departure of this paper is an attempt to make sense of the growth of flexibility within and around the EU as a new stage in the development of cosmopolitan public law. A new conceptual framework is suggested under the label of cosmopolitan metaconstitutionalism. Metaconstitutionalism is a type of legal discourse which has the same object of reference as constitutional law, but which, unlike constitutional law, is not nested in the state and does not look to the state as its fundamental source of validity. Rather, metaconstitutional law, notwithstanding the often competing claims made on behalf of the state through its traditional constitutional discourse and representations of sovereignty, always claims a higher or deeper normative authority, purporting variously to authorise, instruct, influence, supplement or supplant state law. Metaconstitutional law belongs to a post-Westphalian world - a world in which the state is no longer the unrivalled unit of political authority and in which state constitutional law and traditional international law, the juridical supports of the Westphalian system, are no longer the dominant forms of public law. Metaconstitutional law comes in many forms, including, in its most developed forms, the `meta-state' law of the EU itself, and, at the `meta-meta' level, the legal relationships between states and meta-states, and between these and the other emergent polities - Schengen, Euroland, Council of Europe, GATT/WTO etc., - associated with the new pattern of flexibility and multi-dimensionality in public law. The paper concludes by examining the spectrum of possible relationships between different constitutional and metaconstitutional sites and addressing how the legitimacy of public law might be sustained or recovered within this rapidly changing configuration of authority.