World Order and EU Regionalism: towards an open approach to New Constitutionalism

Transcription

1 Dr Gerard Strange University of Lincoln, UK World Order and EU Regionalism: towards an open approach to New Constitutionalism Working Paper No.162 October 2009 The views presented in this paper are those of the author(s) and do not necessarily reflect those of the Asia Research Centre or Murdoch University. Working papers are considered draft publications for critical comments by colleagues and will generally be expected to be published elsewhere in a more polished form after a period of critical engagement and revision. Comments on paper(s) should be directed to the author(s) at gstrange@lincoln.ac.uk Copyright is held by the author(s) of each working paper: No part of this publication may be republished, reprinted or reproduced in any form without the permission of the paper s author(s). National Library of Australia. ISSN:

2 INTRODUCTION The political project for European Union is defined by its inherent dialectic as both part of and a distinct response to globalisation. Like other regionalisms, the EU is broadly committed to openness or open regionalism. But the project for European Union has also been defined by its pursuit of a social capitalism and the promotion of the so-called European social model. The dialectic of European Union revolves, at least in part, around the extent to which these purposes can be reconciled, how these two poles interact and condition each other, how this duality of purpose impacts on the internal institutions of the EU and how this process redefines the EU s relation to world order more broadly, as the EU emerges as a global actor able to influence the nature of globalisation. This article seeks tentatively to scrutinise some aspects of this dialectic. Much of the recent critical studies of globalisation and regionalism have been dominated by neo-gramscian scholarship rooted in Coxian World Order theory. The study of regionalism derived from this approach has been organised around the concepts open regionalism and new constitutionalism. A growing secondary literature has sought to apply these conceptualisations through empirical studies of the EU s integrational project. While allegedly committed to critical theory and so open empirical investigation, much of this secondary literature has in fact increasingly proceeded in a non-critical and closed manner on the basis of the overarching assumption that the EU s regionalism is irredeemably defined by the consolidation of neoliberalism (van Apeldoorn et al. 2003: 31-46). This relatively uncritical empirical turn, rooted in what a number of critical scholars have identified as a determinist tendency evident in the conceptualisation of new constitutionalism (Strange 2002; Strange 2006; Rosamond 2008; Parker 2008), signals a need to re-examine and further develop the theoretical foundations of the World Order approach to regionalism (Hettne 2005). This article attempts to contribute to such a research programme. In doing so it argues, first, for a need to historicise the development of EU regionalism in a way that consciously transcends the immediate neoliberal conjuncture. A useful stating point in the development of such an approach is recent work by Bjorn Hettne strongly influenced by the work of Karl Polanyi and his core idea of 'double movement' social transformation. This, I suggest, provides an important basis for constructing a dialectical understanding of EU regionalism as both part of and a political response to (neoliberal) globalisation. 1

3 The paper argues, however, that neo-gramscian approaches to EU regionalism need much more consciously to foreground the politics of contestation within the context of the EU s constitutionalised technologies of governance (Parker 2008). A key purpose of this article is to argue contra- new constitutionalist theory and empirical analysis, that liberal-constitutional governance structures do not in principle rule out progressive interventions by an emergent EU state acting at the behest of alternative social forces, nor does liberal-constitutionalism, per-se, necessarily bias EU governance to a particular project of political economy as some have claimed. Developing a structurationist methodological approach, the paper argues that while EU constitutionalism represents historical structures that condition and constrain social agency they may also serve to facilitate social democratic agency in responding to core constraints of globalised capitalism. It is recognised here that counter-hegemony at the EU level has, to the present, been hampered by the reluctance of the European political class to progress European integration through specifically democratic forms of institution building and strengthening. Equally, the still unresolved crisis over a political constitution for the EU, a crisis attributed by many commentators to the failure of EU policy-makers to open up decision making more decisively to democracy, arguably indicates the effective limits to strategies of depolitisation and elite-determined integration and governance (Rosamond 2006; Baker and Sherrington 2006). THE WORLD ORDER FRAMEWORK The starting point for World Order analysis, following Cox (1981), is the identification of capital accumulation as the predominant but not the singular dynamic structure in the historical development of the contemporary global political economy. In taking this position World Order analysis has consciously sought to develop the Marxist tradition of political economy and historical materialism while equally consciously not limiting the study of world order to categories that define a specifically Marxist historical materialism. As Randall Germain (2007) has emphasised this requires and is designed to encourage, also, an open critical dialogue with alternative traditions within the disciplines of political history and international relations, notably (critical) realism and (critical) liberalism. Methodologically, therefore, World Order analysis has, from the start, taken its cue from the critical 2

4 history approach of Marxists, such as E.P. Thompson and E. Hobsbawm, and realists, such as E. H. Carr (Cox 1981: 127, 131). In embracing a theoretically and politically pluralistic conceptualisation of historical materialism, Coxian World Order analysis has been concerned with understanding the economics and the politics of accumulation as a dialectically unified process refusing the common tendency within uncritical approaches to isolate or distil economics and politics as separate objectifications and to privilege one or the other as a determining structure or to treat both as essentially autonomous forms of social relations with distinct logics. Instead, World Order analysis approaches the study of social relations through the fluid and more unified lens of historical structures or socially constituted intersubjectivities, a concept through which rigid demarcations between structure and agency, the material and the ideational, and so on, are de-rendered and effectively transcended in favour of an understanding of history in terms of dialectical process. This focus on historical structures deliberately foregrounds the contingent nature of social relations. These are formed through, and constantly changed by, the on-going dialectical interaction between positionally subversive agency and the more dominant intersubjectivities of a given conjecture. The focus on historical structures also distinguishes Coxian World Order analysis from systems-theoretic or equilibrium Marxism, as well as abstract Marxism, in the tradition of Althusser and Poulantzas (Cox 1981). In this latter approach capitalism as a mode of production is theorised in isolation from the other modes in which it is historically embedded (cf. Wallerstein s and Brenner s emphasis on historical capitalism) while, in turn, the state is defined abstractly rather than historically and in subordination to capital. As such, the state becomes a mere subform of capital and its circuit, or as Cox puts it a [mere] region of a singularly conceived capitalist mode of production (Cox 1981: 127). This treatment of material historical structures includes but equally moves beyond traditional Marxism s preoccupation with economic class and class relations within a pure capitalist mode of production, stressing also the wide variety of rules, norms, values, beliefs, ideas and expectations, as well as institutions and formal political power structures which at different historical points seek or serve to stabilise and sustain the more familiar structure of accumulation around class relations, polarities and blocs. This helps to explain why Coxian Marxism has been able to 3

5 make such effective and confident use of concepts, such as hegemony, which have been vital to the elaboration of critical theory but which have been drawn from traditions beyond classical Marxism. Thus, World Order analysis shares with classical Marxism a conception of capital as a process given expression in terms of a definitional logic of constant expansion and requiring, in line with this pure logic, freedom from social, political, spatial and temporal constraint (see Harvey 2004, 2005). Yet equally, World Order analysis seeks also to anchor such abstract theorising within an understanding of definite historical structures which are complexly related to accumulation but through which, alone, the dynamic and flexible logic of capital is brought into material existence in terms of real social relations experienced by historical individuals and groups (see Watson 2005: 68-99). As such, indeterminate historical structures which form the state-society complex can be seen to both 'enfranchise' (legalise, empower, set free) and constrain (embed in non-commodity forms) the logics of capital. FROM PAX AMERICANA AND EMBEDDED LIBERALISM TO OPEN REGIONALISM One such association of historical structures, established under the leadership of the USA at the end of World War Two, is commonly referred to in World Order analysis and in International Relations scholarship as Pax Americana, an order of complex dominance (hegemony) formalised at Bretton Woods in Pax Americana constructed a capitalist world order around a transnational Fordist 'regime of accumulation' stabilised and integrated at the national level around a plurality of relatively autonomous 'modes of regulation' (Lipietz 1987). This order, referred to by Ruggie (1992) as 'embedded liberalism', combined a negotiated 'structure' of transnational economic multilateralism and broadly Keynesian forms of domestic interventionism (Hettne 2002:2). The World Order approach to the study of contemporary regionalism commences from a critical analysis of accumulation, regulation and crisis within the context of change and instability in this complex of historical structures (see, for example, Lipietz 1992; Gamble and Payne 1996: 1-20). Rejecting neo-realist explanations of crisis and change which have foregrounded a logic of as well as a widespread return to nation-state-led protectionism, including the emergence of a new regional protectionism, World Order analysis has primarily focused attention on the 4

6 decisive globalisation of production and exchange initially facilitated by Pax Americana as an underlying cause of the crisis of embedded liberalism. For World Order theorists, economic globalisation alongside political globalisation or the 'internationalisation' of the 'competition' state (Cox 1981: 146-9; Cerny 1997), have been the main processes by means of which increasingly organised and assertive agential capital has been able more decisively to subordinate national political economy to the deeper 'structural' imperatives of the inherently globalised process of capital accumulation, thereby breaking free from the contradictions of Pax Americana and its embedding in national systems of social democracy (see Radice 1999). This has involved a shift towards a post-westphalian system of international and transnational governance. Capturing the post-laissez-faire activism of its 'strong state' logic, this developing order has been described by van Apeldoorn (1999) as a project for embedded neoliberalism. Contra- neo-realism, the World Order approach to regionalism follows from this globalised understanding of the nature of capital accumulation and the constraints this implies for systems of governance. Thus, the general defining characteristic of open regionalism is that policy and governance come to be fundamentally geared towards the elimination of obstacles to trade within the region while, at the same time, nothing is done to raise external tariff barriers to the rest of the world (Payne 2004: 16; Gamble and Payne 1996: 251). The policy imperative towards open regionalism is thus closely linked to the structural dynamics and interests of transnational global capitalism and associated processes defining the internationalisation of the state. As Payne (2004: 16-17) argues, the new (i.e. open) regionalism, far from being in contradiction with globalisation [has, in fact, been] an essential part of the politics of that process (emphasis added). Through the commitment to openness, regionalism is thus to be understood as a crucial means to help achieve the globalist project in a world where there is no longer a single state with the authority and capability to impose its leadership. (Soderbaum 2005: 33). OPEN REGIONALISM AND THE EUROPEAN NEW CONSTITUTIONALISM The most comprehensive attempt to apply World Order analysis and (implicitly) the notion of open regionalism to a specific regional project has been Stephen Gill s highly influential evaluation of the EU through his concept of new 5

7 constitutionalism. This approach was pioneered by Gill in a set of articles written in the 1990s (notably Gill 1992, 1998). Gill subsequently extended the approach to the analysis of global governance (Gill 2000, 2002). The conceptualisation of world order in terms of new constitutionalism has since been taken up as a theoretical framework for more empirically focused studies by a number of neo-gramscian IPE scholars (for example, van der Pijl 1998; van Apeldoorn 1999, 2000, 2002; Graz 2003; Kelly 2005; Plewhe et al. 2005; Shields 2003, 2007; Bieler 2006; Parker 2008). Grounded in Cox s broader theoretical framework (as outlined above) new constitutionalism is underpinned by an historical materialist conceptualisation of globalisation in which the capitalist mode of production is identified as the dominant historical structure in contemporary world order. Analytically new constitutionalism has focused primarily on the importance of elite transnational class agency and political/ideological as well as institutional interventions by these elites as the basis for the reproduction of the capitalist mode of production on a global scale. In the context of the global crisis of welfare capitalism and US hegemony, a global elite is said to have emerged as a conscious collective actor in the international political economy, strongly opposed to social democracy and committed to the neoliberalisation of world order and the freeing up of the global market in the interest of unconstrained capital accumulation. This is recognised as requiring deregulation out of social democracy and embedded liberalism but also new forms of re-regulation that give primacy to and defend the market order, through which capital exerts its dominance. So as to prosecute this project, the global elite has formed into a transnational capitalist class organised around overlapping (in terms of membership and objectives) transnational associations with increasingly embedded political influence (Robinson and Harris 2000). These associations include the Mont Pelerin Society (first convened by Friedrich von Hayek in 1947) (Plewhe et al. 2005), the International Chamber of Commerce (Kelly 2005), the Trilateral Commission (Gill 1990) and the World Economic Forum (WEF) (Graz 2003) as well as regional groupings such as the European Roundtable of Industrialists (van Apeldoorn 2000; 2003). As Harvey (2005) has shown, this capitalist class configuration has been highly significant because, from its bases in the upper echelons of transnational corporations, privileged talking shop conferences and social get-togethers, it has come, during an extended period of policy crisis, uncertainty and change, both to 6

8 penetrate and redefine core institutions of the broader political class (setting up well funded independent think tanks, research institutes and private colleges and subsequently influencing the universities, the media and political parties and thence civil society, culture and common-sense more generally) (see also Gamble 1979, 2001). As such, it has all the characteristics of an hegemonic project, including leadership by organic intellectuals, identified by Gramsci (for a useful, if brief, discussion see van Apeldoorn 1999: 15-16). For Gill and the new constitutionalists, European regionalism has been an important means of facilitating the elite s global project and of disarticulating potential sources of opposition to it by establishing a supra-national governance framework beyond the nation state (regarded as the central political form around which social democracy was able to develop) designed to institutionalise neoliberalism in line with the structural imperatives of capital and thereby weaken the policy autonomy of the nation state and of labour. The lynch pin of the EU s new constitutionalism has been the legal and institutional embedding of the single market undertaken since the mid 1980s and culminating in monetary union in the Euro zone. Such deep European economic integration, or hard constitutional governance, Gill maintains, serves to lock in through constitutional mechanisms, a macroeconomic policy bias in favour of neoliberalism, thereby foreclosing progressive alternatives. The most significant aspect of monetary union and constitutionalism more generally is seen to be the manner in which it depoliticises policy, substituting the rule of money, the market and rule-bounded technical governance for discretionary, democratic politics. In this way, new constitutionalism is said to have removed policymaking, particularly macro-economic management the bedrock of social democracy - from the realm of contestable politics (see Burnham 2001: ). For Gill, the Single Market, the Maastricht convergence criteria, the Stability and Growth pact and finally monetary union (under the auspices of a European Central Bank granted independence from direct democratic accountability and constitutionally committed to prioritising monetary stability) are the key aspects of the EU s new constitutionalism. Moreover, EU constitutionalism exists within and forms part of neoliberal world order. As such it needs to be seen in terms of the role it plays in reinforcing the institutionalised deflationary bias of the wider Bretton Woods institutions postembedded liberalism. Thus, like the IMF's structural adjustment programmes, the 7

9 EU's monetary stabilisation policy has operated, in the absence of automatic fiscal stabilisers, to impose supply-side market discipline, particularly on labour interests. As such, the prioritising of monetary discipline or 'sound finance' has become the key aspect of the new constitutionalism's anti-social democracy. From Hard Constitutionalism to Soft Governance: the New Competitiveness Discourse According to the new constitutionalists, what follows from the institutionalisation of monetarist macroeconomics in Europe through currency union is the neoliberalisation of the microeconomic policy environment and its social policy hinterland. This has been evident in the emergence of what Bastian van Apeldoorn has referred to as the new competitiveness discourse. This discourse, Apeldoorn argues, was initially sponsored by transnational elite business organisations notably the European Roundtable of Industrialists (ERT). But in the structural context of the single market and monetary union, as well as the emergence of a more unified globalist perspective from transnational capital itself, particularly following the completion of the Uruguay Round of GATT in 1994 and the formation of the World Trade Organisation (WTO), this discourse has emerged as a dominant framework in the formation of EU-level labour market and social policy. The new competitiveness discourse is said to impose a set of benchmarks on the policy-making process, which reflect short-term perspectives on profit making of transnational corporations (TNCs), and effectively rule out alternatives to the preferred neoliberalism of transnational elites. Co-opted into this discourse, the European Commission has become increasingly complicit in the institutionalisation of disciplinary neoliberalism. The negative consequence for social democracy and the left, Apeldoorn (2000: ) claims, has been the extreme weakness of organised labour within the Euro-polity. Once established as new meta- historical structures, the institutionalised constraints imposed by the EU s new constitutionalism can thus be seen to largely determine the parameters for the subsequent elaboration of policy discourses. Both Gill and Burnham utilise a Foucauldian theory of power to emphasise how disciplinary neoliberalism comes to define such discourses within an assumed and presupposed common sense, a pervasive intersubjectivity that dominates the practical problems faced by the policy community as well as the social relations constitutive of individual actors and groups in capitalist civil society (Gill 2008: ). For Gill, 8

10 the imperatives of transnational market discipline thus come to delimit conceptions of the possible (Hay and Rosamond 2002: ) and mark the dominance (if not triumph) of neoliberal ideology. Indicating the pervasiveness of neoliberal ideology and policy change, market discipline comes to define not only high politics but perhaps more significantly the common-sense of many aspects of everyday life (Hoogvelt 1996; Sum, N-L. and Jessop, B. 2008). Thus, the fundamental claim of new constitutionalism is that neoliberal global and regional governance involves the construction of depoliticised macro-level structures which, acting as constraints on democratic politics, lock in neoliberalism and close off progressive policy choices at the micro level. While policy discourses may be articulated, through soft governance (Parker 2008), in progressive, open and apparently social democratic terms, such as through the EU s open method of policy coordination (OMC), the structural constraints of hard new constitutionalism means that neoliberal policy choices come necessarily to prevail despite the apparent pluralism of decentralised policy articulation. An example is provided by third way discourse. As a post-neoliberal discourse, the third way has generally been articulated in terms of a language of social inclusion and full employment. But given the macrolevel constraints on monetary and fiscal policy, inclusion has been focused on depoliticised competitive market processes requiring labour flexibility over wages and employment. Social security reform, likewise, has come to be dominated by policies designed to encourage competitive labour market participation among groups of unemployed workers (Glyn 2000). Given these constraints, third way discourses have become severed from the wider contestation of macroeconomic management that was once evident in EU-level social democratic interventions, particularly those associated with the Delors European Commission in the late 1980s and early 1990s and associated interventions at the national level notably in Sweden, France and Germany (see Strange 2002; Westergaard 1999; Clift 2000; Storey 2008). At the EU level, the decisive break with macroeconomic contestation came with the 1997 Amsterdam treaty employment chapter, which, while committing the EU to the development of a coherent employment policy, nevertheless prioritised supply-side labour market flexibility over active demand-side coordination. This chimed strongly with the Blairite version of the third way, but as Payne (2005) and Clift (2000) have noted the third way thus became unanchored from more radical attempts to rearticulate the European social 9

11 model (notably those associated with Delors, Jospin and Lafontaine) and became more a means by which neoliberalism achieved hegemonic consolidation in Europe (see Payne: 2005; Parker 2008). In terms of the neo-gramscian conceptual language deployed by Gill, new constitutionalism globally and in the EU thus represents both a top-down macrogovernance strategy ( passive revolution ) establishing the institutional framework of depoliticisation and a more directly hegemonic bottom up or micro-level strategy of consolidation through trasformismo by means of which fractured subaltern interests are at least partially drawn in to the neoliberal project through fragmentary incorporation and by broader concessions to selected interests, while marginalised groups such as the precariously employed and the unemployed are reconstituted around more coercive mechanisms designed to reflect the competitive logic of market discipline (Gill 2008: ). For new constitutionalists, such has been the dominance of neo-liberalism in its consolidation phase that now, both internationally and [within advanced nation states], any notion of an alternative to the global rule of capital has become utterly unrealistic and discredited neoliberal reforms having become thoroughly locked in and subsequently normalised, in the Foucauldian sense, at the discursive level (van Apeldoorn et al. 2003: 38). TOWARDS A CRITIQUE OF NEW CONSTITUTIONALISM New constitutionalism and specifically its critical approach to EU integration as a form of governance and institution building within world order, beyond the state, has much to commend it. As was indicated above, Gill s pioneering theoretical contribution has given rise to a rich seam of empirical research from neo-gramscian IPE scholars and others. In particular, new constitutionalism has drawn its critical clarity as a research programme from an explicit confrontation with orthodox regional integration theory (Bieler 2005). Key has been the distinction new constitutionalism has drawn between state form and content (see for example van Apeldoorn 2001: 71, 2002: and 34-44). New constitutionalism argues that traditional functionalist and neo-functionalist accounts of integration give excessive emphasis to state form. This leads to a neglect of the socio-political and ideological content and purpose of core integrational processes, such as monetary union and labour market reform, and thus to an underdevelopment of critical perceptions of regional governance change. Neglect of the ideological and political purpose of governance change leads, then, to a 10

12 misleadingly a-political perception of such institutional transformations as merely technocratic and pragmatic responses to changing conditions of economic growth and stability. In such accounts, regionalism is conceptualised as purely a rational response to general, trans-class imperatives and constraints such as financial (in) stability, changing trade patterns, changing scales of production and market processes. The neo-gramscians and new constitutionalists achievement has been effectively to critique orthodoxy by focusing on the ideologically-informed content and purpose of regionalism as well as foregrounding global capitalist relations of production and agential class analysis and struggle as fundamental to a satisfactory study of regionalism and more specifically conflict-based change in regional political economy (van Apeldoorn 1999). Equally, however, recent events as well as research have focused attention on significant weaknesses in the new constitutionalist approach. The current world economic crisis and the sudden return to pre-eminence of Keynesian-inspired forms of macroeconomic intervention as well as the opening up of intellectual and policy discourses to the ideas of Keynes and even Marx provides evidence of how the dominance and coherence of neoliberalism can easily be overdrawn. Perhaps the most fundamental criticism of new constitutionalism is that it has been precisely guilty of imparting too great a sense of coherence, structure and hegemony to neoliberalism. Despite a claimed adherence by its advocates to a dialectical understanding of the relationship between structure and agency, and to an historical reading of structures as contingent intersubjectivities subject to on-going contestation and change, new constitutionalist research has tended in practice to conceptualise both global and regional governance purely as a set of determining and constraining structures, more or less beyond challenge. As a consequence, critical analysis of the policy process and of policy formation within the new constitutionalist framework has come, contra-orthodoxy, to focus too exclusively on neoliberal policy content while relatively neglecting a dialectical assessment of and engagement with the new EU political structures themselves be this at the level of hard constitutional governance or softer, more discursively open governance frameworks (Strange 2002, 2006; Parker 2008). Rather, constitutionalism is characterised singularly as a set of neoliberal governance-based interventions against progressive agency and social democracy. 11

13 In contrast to this largely negative assessment, others on the left have sought to engage more openly, if critically, with the principles of constitutionalism and more specifically constitutionalised regional governance and its policy implications. Three significant contestations which help to open up new constitutional analysis can be identified: first, around the principles of constitutionalism, notably the rule of law; second around conceptualisations of the new competitiveness and third, around the nature, implications and purposes of monetary union and more particularly the manner in which monetary union has been negatively evaluated in new constitutionalist work as an attempt to remove macroeconomic management from democratic politics through rule bonded governance and depoliticisation. CONTESTING CONSTITUTIONALISM In a recent critique of new constitutionalism Parker notes that constitutionalism per-se represents nothing more than a general mode of governing technology that in itself embodies no specific ideological content or purpose. As such it provides a governance framework capable in principle of hosting a variety of accumulation strategies, embodying differing ideological rationalisations and modes of policy and regulation, including liberal democratic and social democratic modes of regulation. As Parker goes on to note: [Stephen] Gill s contention that the Law facilitates the capitalist form of the relationship between capital and labour offers only a partial picture. While private property and contractual law may provide the necessary condition on which capitalism relies, the legal manifestations of a liberal political theory have for a long time extended beyond this paired down libertarian vision. For example, the so-called fundamental freedoms of association and expression are arguably constitutive of social and economic rights. For Parker, it is the contestability and political plurality of constitutionalism as a general mode of governance rather than its conjunctural capture by neoliberalism that needs to be foregrounded in critical theory-based evaluations of EU regionalism and as he rightly notes, there are many on the liberal democratic left who in point of fact have had no difficulty in accepting the progressive nature on liberal constitutionalism as a broad governance mode. Indeed, as earlier critiques of new constitutionalism have similarly noted (Strange 2006), there is an established radical tradition of constitutional thought alongside the more recent neoliberal one, drawing on classic works such as Thomas Paine s The Rights of Man, which has its roots in the 12

14 revolutions and political reactions of the 17 th and 18 th centuries. Core 20 th century thinkers on the left, such as the Marxist historian E.P. Thompson, in part reflecting this tradition, supported the general principle of constitutionalism. For Thompson, the liberal state was progressive because it involved a constitutionalisation of state power as well as capital and labour, Constitutionalism established general rules and obligations around claims associated with the market such as rights of private property, competition and trade, while it also sought to legitimate and codify the state s claims against private agents as well as to clarify and rationalise the limits of such claims. This was against an historical context characterised more by the arbitrary exercise of political power by and against private agents. While liberal constitutionalism thus helped to liberate commercial interests from arbitrary power, of equal importance, for Thompson, was that liberal constitutionalism subjected capital to the more universal interest embodied in the principle of the rule of law. This challenges an important claim, made by new constitutionalists, that liberalism enables an effective privatisation of the law in the interests of capital, implying, as this does, a mere shift of arbitrary rule from monarch to capital (see Gill 2006). While acknowledging the apparent paradox of the legalised exploitation of workers liberal constitutionalism gave rise to in emerging market society, Thompson nevertheless emphasised the historical importance of the codification of legal limitation inherent in constitutionally determined law and liberalism s attack on the arbitrary or over-zealous exercise of right defined as market power. Hence Thompson (1977: 266) concluded that despite the substantive injustices associated with the commodification of labour in the new market society of the late 18 th century, the liberal state s foundational principle - liberty under the rule of law - represented a fundamental human progress, or, as he categorically states, an unqualified human good, a restraint on the state favouring liberty but also a restraint on capital which legitimised labour struggle and which therefore gave labour purchase on public power. In terms of more recent politics, constitutionalism emerged as a significant centre-left critique of strong state Thatcherism in the mid to late 1980s under the campaigning leadership of cross-party reform groups such as Charter 88. Likewise, since the late 1980s, significant sections of the British trade union movement have enthusiastically supported the EU s emerging constitutional approach to the protection of workers, 13

15 notably the codification of workers and citizen s rights, which built on the Delors inspired 1988 social charter. For British unions in general, the social charter represented an important political and legal mechanism for defending workers against the negative effects of excessive market forces unleashed at the national level by neoliberal policy. For many modernising British unions notably the centre-left GMB - the EU s charter provided a welcome opportunity to begin to challenge the largely hostile attitude traditionally displayed by the British union movement towards legal interference in industrial relations, 1 and to consider, in more positive terms, the role of law in the defence and embedding of both collective and individual workers rights. Democracy, Knowledge and the Rule of Law Against such positive engagements, new constitutionalism has emphasised how the rule of law may be used to constrain unlimited democracy (the idea that any government claiming a democratic mandate should be able to enact whatever legislation it likes) embedded at the national level and its adherents have identified Hayek as a key advocate of such constitutional limitations on the exercise of state power (Gill 2000; 2006). More specifically, given the context of this article, new constitutional analysis has claimed that Hayek s early support for a European federal constitutionalism links to his concern to identify means of constraining democratic regulation of the market and the freedom of capital (see Bonefeld and Burnham 1997; Bonefeld 2002). The approach of the new constitutionalists contrasts with that of other leading commentaries on Hayek s work both liberal and left-leaning which have emphasised much more the ambiguity of the rule of law as a constraining principle and which have recognised also the progressive role it can serve in open democracies (see, for example, Brittan 1980; Gamble 1996). Samuel Brittan, for example, in arguing against Hayek s extreme market constitutionalism and for a social market economy (a conceptualisation Hayek regarded as oxymoronic), makes the observation that the rule of law does not rule out all that Hayek would like it to. Brittan contrasts Hayek s minimalist, free-market, approach to his own more pragmatic concern for the management of market processes and outcomes in ways that are consistent with liberty and the evolution of knowledge (discussed below) as well as a developed welfare state, albeit one consistent with the maintenance of market relativities (see 14

16 also Gray 1988). For Brittan, like Hayek, the rule of law provides an important framework for defending property and market freedoms against collectivist interference with market processes, but it does not and should not, he insists, imply non-intervention by the state in the spheres of macroeconomic, redistributive and welfare policy (Brittan 1980: 31-46). Likewise, there have been a number of significant interventions on the left which have largely recognised the efficacy of the rule of law both as defence for liberty and a market sphere against unlimited democracy but also as a framework for progressive forms of government intervention (see for example Elson 1988; Gamble 1996). As Gamble notes, Hayek s main claim for liberty, a claim which became increasingly foregrounded in his later works, notably Law Legislation and Liberty, is that it serves a universal purpose without which the progressive evolution of any civilisation becomes impossible, namely the production and dissemination of knowledge through catallaxies. 2 In turn, the preservation of liberty requires law, at least in Hayek s view (this distances Hayek from libertarian neoliberalism). For Hayek law is necessary in order to define and protect decentralised private domains in which individual freedom of action (catallaxy) is assured (objectified private property is included in this domain but equally cannot be reduced to an objectification). Law will be innocuous and non-coercive and consistent with catallaxy if it takes the form of general rules known to all and applicable, in principle, equally to all since it then becomes merely part of the general environment against which individuals can make their own choices for action based on their unique understandings, skills and objectives. Thus the rule of law is an important component not just of market freedoms and processes, but also of catallaxic action more generally (for example, the game of football a game of known rules involving teams but also individuals with unique talents is a catallaxy every bit as much as the market). But, chiming with Brittan s criticism of Hayek, what the doctrine of the rule of law cannot prescribe is the content of such general rules: what the general rules are, how such rules are to be determined, by whom and for what social purposes. This leaves the doctrine of the rule of law open to a wide range of ideological and political purposes and projects, including the minimalist market model advocated by Hayek as well as scaled down versions of the social market model, as advocated by Brittain. But the rule of law can equally be incorporated into more radical, democratically determined and egalitarian projects that seek to frame the market and other 15

17 catallaxies, so that they serves socially determined ends, but without overruling or overriding the creative, decentralised processes of trial and error and discovery inherent in catallaxies. One example of such a model is Diane Elson s conceptualisation of a socialised market incorporating strong stakeholding institutions at the point of production and market-consistent welfare systems, such as a basic income guarantees, alongside broader commitments to collective provision (Elson 1988). A similar model informs Alain Lipietz s conception of socialised capitalism institutionalised through forms of negotiated involvement (discussed below). In this sense, at least, democracy need not necessarily be constrained by the rule of law in the way new constitutionalism claims but, rather, may potentially be facilitated by it in a variety of ways. To summarise, against the determinist and reductionist tendencies within new constitutionalism, it needs to be emphasised that there is nothing inherently depoliticising about the principles of constitutionalism. Constitutionalism represents a mode of governance which gives emphasis to general rules, but what constitutes the rules and what purposes they serve is inherently ambiguous as is the relationship of such rules to more directly democratic forms of discretionary governance. While constitutionalism may come to serve particular objectives during conjunctural moments of ideological dominance, the efficacy of constitutionalism lies in its more universal appeal to the rule of law as such. Furthermore, constitutionalism, including European constitutionalism, may serve to promote more specific forms of progressive, legally based regulation including the progressive regulation of labour rights and property claims (as emphasised by Thompson) as well as providing a general framework for redistributive policy (the rule of law does not rule out redistributive interventions to correct market outcomes). Finally, the rule of law may be a means of legally framing the market so as to promote general macro objectives of a progressive kind, for example, rules relating to a variety of environmental targets may encourage particular forms of market innovation serving broad, democratically agreed, ends such as more sustainable forms of development. CONTESTING THE NEW COMPETITIVENESS An important claim of the new constitutionalist analysis, as was noted earlier, is that hard forms of constitutionalism, notably monetary union, serve to lock-in a neoliberal bias to the wider articulation of policy at the level of the EU s soft 16

18 governance structures. This is evident, it is claimed, in the EU s employment policy as articulated through the apparently pluralistic and inclusive open method of coordination. In practice, employment policy presupposes a discourse of constraint dominated by the overarching imperative of competitiveness. While not foreclosing employment policy as such the open method of coordination serves to justify marketbased approaches, as favoured by elites, focused on labour flexibility. Elites are able to dominate the EU s employment strategy, despite the relative inclusiveness of the open method of coordination, by evoking the logic of international competitiveness (Cammack 2007a: 13). The imperative of competitiveness associated with globalisation and the internationalisation of finance, production and the state, has been generally recognised as a starting point in much of the literature in critical comparative political economy, notably in analyses developed initially by the Paris regulation school as well as pluralistic versions of competition state analysis. 3 What is nevertheless rejected by such structurationist approaches is the determinist notion, evident in the new constitutionalism, that competitiveness necessitates political neoliberalism and is incompatible with more progressive modes of regulation. Instead, what is emphasised in critical CPE is the contestability of the logics of competitiveness, albeit around alternative models of post-fordist capitalism. Similarly, constructivist analyses of globalisation and regionalism have emphasised how the framing of policy discourse in terms of competitiveness In Towards a New Economic Order, Lipietz argued that the move from national social democratic projects associated with Fordism and the era of embedded liberalism represented as much an opportunity for the left as it did a hindrance. For whilst neoliberal restructuring and global competitiveness may have become the central features of post-fordist production this did not, for Lipietz, mean that the political left should move to the defence of outmoded national models. Indeed for Lipietz, the crisis of Keynesian national political economy was to be welcomed in so far as it forced labour movements to abandon what, in crisis, had become highly defensive and reactionary modes of labour representation focused on national political economy. Lipietz s key point was that globalisation meant that social democracy, if it was to survive, had to be fully integrated with the new world order, its survival depending on its success as a form of competition state. This did not rule out welfarism but it did subordinate national welfare objectives, such as sustained 17

19 economic growth and full employment, to economic success in globalised markets. From this view, the globalisation of competitiveness under post-fordism necessitated universal reform, yet the imperative of the competition state did not altogether imply the universalisation of its dominant neoliberal form. Social democratic reform meant, instead, embracing a third way, described by Lipietz as negotiated involvement. While critiquing the convergence criteria of the Maastricht treaty, Lipietz nevertheless maintained that the extension of deep regionalism, including monetary union, represented the best hope for an embedded social democracy or a successful, organic radicalisation of the third way (Lipietz 1996; Leborgne and Lipietz 1990). In the absence of European integration around a socially inclusive economic model (negotiated involvement) Lipietz anticipated, at best, a polarisation of EU economies around successful quality/knowledge exporting economies (progressive post-fordism) and flexible/casualised labour economies (negative post-fordism). Outside a politically unified Europe, neoliberalism would tend to hold sway by establishing inter-european competition between these two conflicting models. Given the formalised single market and capital mobility across Europe such model divergence between national economies would tend to instigate a competitive race to deregulate. As a new political intervention, EU regionalism offered no guarantees for the left, not least because, as a political project, open to social democratic social forces, it remained largely nascent, especially in relation to its development of supra-national democratic structures. However, in various exercises in utopian realism, precisely of the form recommended by Coxian critical theory (Cox 1981: 130), Lipietz sought to conceptualise tentative possibilities for the left that the successful pursuit of a politicised European integration made feasible, in principle. From this view, European regionalism appeared as the new political frontier within international politics providing a partially realised and partially conceptual space through which the social principles geared towards tackling the emerging practices of globalisation (new regulatory mechanisms, new conceptions of welfarism, the re-organising of industrial relations around new forms of flexible work and the new division of labour etc) could begin to be articulated. Thus rejecting national models, Lipietz argued that European integration made possible what had previously been unfeasible, namely, the forging of a common European (social) space, enabling strong Europe to act in 18

20 solidarity with its periphery, while opening up to the east for the general good (Lipietz 1996: 374). Thus, Lipietz s vision of Europe was one that took up the post-fordist regulatory challenge to neoliberalism in the same manner as Polanyi s conception of the politicised nation-state did in relation to classical liberalism (Polanyi 1944). In this respect, regionalism represents a distinct transformation from the basic unit-sum sovereignty of the traditional state-system of nationhood. To quote Lipietz (1992: 140): Harmonized ecological regulations; united capital taxation and labour norms; Europe-wide social welfare insurance; more extensive inter-regional net transfers on the transnational European scale; maintenance of air chamber between regions or nations which want to keep a particular aspect of a satisfactory social compromise this simply means the building of a European grand compromise, to be negotiated between citizens residing in Europe. And this means no less than building a nation. To summarise, it is characteristic of Lipietz that while he identifies, and critiques, dominant neoliberal interventions within the process of EU integration, he nevertheless invites us to imagine the possibilities for and benefits of an alternative inherent in integration as such and that he insists that progressive interventions must start from the new reality and efficacy of the regional level where, by comparison to the national level, new opportunity structures have largely emerged. In advocating deep regionalism, Lipietz is not arguing that the nation-state is being replaced by regionalism, in the manner that some contemporary traditions, such as cosmopolitanism, often argue (Held and McGrew 2002; Held 2003). Rather, his point is that the state is being transformed as a consequence of globalisation and competition and that regionalism is a fundamental aspect of that transformation, a new terrain on which the politics of contestation must develop post- globalisation and post- Fordism. Strategic Orientation and the Dialectic of Competitiveness and Social Compromise Lipietz s form of dialectical critique can also be found in other more recent accounts of the state vis-à-vis regionalism. For example, Bieler has recently sought to apply Jessop s work on state theory to an understanding of EU regionalism (Bieler 2005: 468-8; 2006). Jessop (1990; 2003) has argued for a definition of the state in strategicrelational terms as a structurally constrained but non-determined actor. The state and 19