Constitutionalism in 3D: mapping and legitimating our lawmaking underworld

Corkin, Joseph (2013) Constitutionalism in 3D: mapping and legitimating our lawmaking underworld. European Law Journal, 19 (5) . pp. 636-661. ISSN 1351-5993 [Article] (doi:10.1111/eulj.12019)

Abstract

This article proposes a method for conceptualising the way lawmaking has ebbed away from our national parliamentary-governmental complexes: horizontally, towards unelected officials, in a process of bureaucratisation; vertically, towards the EU, in a process of Europeanisation; and laterally, towards private actors that are left to regulate themselves, in a process of privatisation. The combined effect has been to diffuse lawmaking across many very diverse actors that interact in dense constellations across a 3D governance space described by these axes. The descriptive innovation of analysing these processes together points also to a common normative challenge; that of finding new ways to legitimate the outer reaches of this governance space, furthest removed from our traditional constitutional structures and the reasonably neat (electoral) lines of accountability they offer back to us. A tentative solution is proposed in creatively rethinking administrative and constitutional law while remaining faithful to the philosophical core of classical constitutionalism.

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