Taking constitutionalism beyond the state

In recent years, the idea that constitutional modes of government are exclusive to states has become the subject of sustained challenge. This is due to the development in regional and global sites of regulatory institutions and practices which meet criteria normally associated with constitutional governance, as well as to the growing tendency towards the affirmative or critical conceptualisation of these existing or alternative post-state institutions and practices in constitutional terms. The aim of the essay is threefold. It asks why taking constitutionalism beyond the state might be viewed as an innovation worthy of comment and in need of explanation and justification, a question that requires us to engage with the definition of constitutionalism and with the contestation surrounding that definition. Secondly, and on the basis of these definitional concerns and conclusions, it specifies and elaborates upon the main dimensions of constitutionalism and of its post-state development. Thirdly, and joining the concerns of the first two sections, it seeks to identify the key current tensions – or antinomies – surrounding the growth of post-state constitutionalism with a view to identifying what is vitally at stake in the future career of this concept.

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