Two methodological chapters: one on constitutional theory in general (chapter 1), the other on rules (chapter 4).

A book containing some of the key elements of a general theory of the (constitutional) state, written from the standpoint of analytical theory. Barber defines the state by means of a normatively selective reconstruction of the common understanding of what a state is (putting forward an interpretative constitutional theory, one that takes seriously the point of social institutions).

In chapter 2, Barber defines the state by means of distinguishing it from other relatively similar social entities. The State is characterized by reference to three of its key elements: territory, people and a set of governing institutions. On the one hand, the state makes specific and peculiar claims to authority as a social entity, which imply some form of supremacy claim which has to be grounded on actual experience [22The state s commands must generally be effective, but this effectiveness needs not rest on endorsement of the states claim to exercise authority+ *24: This claim to authority is closedly related to territory; ultimately, people own land at the mercy of the state: the state regulates the acquisition, sale, and use of property. On the other hand, and even more importantly, the state is a peculiar social group [25 The central thesis of this book is that the state should be understood as a social group+ *28 Social groups rely upon an innate psychological need to be included within collectivities, a need that has been likened to hunger or thirst+ *29 Need of complex social groups is closely related to the difficulties in simple groups in dividing up tasks between members; and in ending disagreements about their objectives or membership] [30 Complex social groups may include members who disagree about the overall objective of the group, and may use coercion to secure obedience to group rules. Complex groups are constituted, at least in part, by rules that have been consciously chosen. These rules may have been chosen by some or all members of the group, or the members of the group may have chosen to act within a template of rules created by others. Complex groups have the capacity to include rules in their constitutions which allow for the division of tasks, the resolution of disputes and the regulation of membership *31+ The state clearly has the key attributes of a social group. It has members, in its citizens and subjects, amongst others, and it has rules which bind the group together, in its constitution. It is a complex group, and many of its constitutive rules will exhibit a considerable degree of formalization *33+ There are many social groups that pursue the well-being of their members. What is really peculiar to the state is the way in which it pursues this goal, the demands it makes of its people in the course of its activities [34 which are the important features of the state that are stressed:+ The authority-based accounts of the state certainly bring forward some of its important features. States do issue commands, these commands do take the form of authoritative directives and these directives are of enormeous importance to the people of the state. The ability to produce directives of this type creates the possibility that the state can coordinate action. The possibility of coordination brings with it the possibility of great benefits to people facilitating collective action and solving coordination problems and the possibility of great harm. Models of the state as a social group point to

other important features of the state. They emphasise the interaction between the people of the state in the context of the state that is, their interaction as state members rather than as private individuals and the connection between the people of the state and the institutions of the state. [A clear institutional flavor: in the same way that law is but just one of the possible normative orders, the state is but one of the types of social group: the need of the state is related to the three basic social functions of the law: solving conflicts in an authoritative and final manner, coordinating action to achieve complex social tasks, and providing normative templates with the help of which to organize and structure social relations. A peculiar claim later on [56] The argument for the intrinsic value of citizenship is confined to societies like ours. Not all societies should create a state, and so not all societies need or should strive towards citizenship. Tribal communities and small religious communities might flourish without an institution which functions like the state. And also to be contested, at least in relation to the EU, Whilst global organisations play an important role in many peoples lives, the states role is, generally, more important still. The state remains the broadest and most powerful political institution with which most people engage, and, for most, their contact with international organisations is mediated through it. In chapter 3, Barber considers the key planks of the state. For a state to be a proper state, it is necessary that it has a functioning legal order [37] The complexity of the state of a social group is intimately associated to the requirement of a legal order, with the help of which to address its people. Although Barber quotes it separatedly, the functioning legal order is likely to comprise also people generally know the content of the law and be reasonably confident that it will be upheld by the courts and enforced by the executive. Similarly, the state must have the capacity to issue commands, adjudicate disputes and enforce its decisions. More distinctively (although very relatedly) the state must also maintain the separation of powers, at least in a thin sense [37]. The state ought to promote the well-being of its members [38], as that is a constitutive rule of what is a state, and it must indeed acknowledge that such is its purpose [38]. While this does not in itself distinguish the state from other social groups, what really makes the difference is the broad and distinctive capacities of the state to actually advance the well-being of its members [39]. A state which fails to advance the well-being of its members has not just failed to acquit a moral obligation which applies to it (as an active torturer fails to meet the moral obligation not to torture) it has also failed as a state *40+ *and puzzlingly: it is invariably the case that there is a rule of the states constitution which sets the well-being of its members as its primary purpose. If the state fails to acknowledge that the well-being of its members is its objective, the state will still be a state, but indeed a failing state. These three features of the state are closedly related to the political obligation to obey the law of the state: When it issues purportedly authoritative directives it therefore claims not only that its people ought to act in conformity with these commands, but, additionally, it implies some further explanation of the basis of this obligation. The state implies that there are good moral reasons which apply to the subjects of the directive which render their obedience mandatory. It follows that in

such a state, political parties should be fighting over the proper direction of state policy and, consequently, when politics is functioning properly, they fight within the bounds set by the states primary purpose *46+ *Consociational systems present a number of problems, and chiefly, that they prevent the emergence of the type of citizenship that Barber considers key and fundamental] The state is distinguished from other social groups in that it lays claim to possess supreme authority over its people (which means that the state plays an integrative function, integrating all other social groups) [45] a function which is fundamental to these other social groups themselves, as they have an easier time justifying their narrower remit, precisely because the state is there to consider the wider picture. Citizenship is the specific type of state membership. It has and must have an aspirational quality; it is, in part, to be understood as the best type of relationship the mass of the people of the state can enter into with that state () It is an institution which particular individuals can enter into; an office of the state *49+ Important distinguishing features of Barbers account: citizenship is not simply concerned with the relation of the state to the individual, it is also concerned with the interaction of the citizenry; citizenship can be rejected, to a degree *50+ The citizen shares in the government of the state [50] and partly as a function of this, is responsible for the actions of the state (key, in contrast to Marshall, is participation; and citizenship is not only a matter of rights, but also of duties (which triggers duties of loyalty, as exist among friends]; as the obligations she has are not only vis a vis the state as such, but also her fellow members: Laws can help instil, or undermine, mutual respect, but an important dimension of citizenship is manifested in the attitudes that citizens adopt towards each other. [NOTA BENE: And one may add that Barber is rather insensitive to the logic of the Rechtsstaat: Social justice may require *that individuals possess particular rights against the state for social benefits]. There may be societies in which it is not necessary for the state to provide healthcare or education to its people because other institutions exist charities and business, perhaps which meet these needs. Having said that, a certain level of social well-being is necessary in order for the creation of citizenship. Citizenship is of fundamental value and importance for four related reasons. Firstly, it is important to have control over your life, to be able to choose projects and relationships you wish to pursue, and to make decisions about how these will be pursued *54: autonomy, nondomination+. Secondly, people must belong to various social groups if they are to flourish. People need groups to pursue projects and schemes and to provide them with support and comfort. Thirdly, moral equality shared by humans (each person is morally important, and no person is of greater moral importance than another). Fourth, the state is necessary for the regulation and integration of these social groups. Chapter 5 The Constitution [contiguity between chapter 5 and 6; perhaps material should have been logically ordered rather differently]

Two key statements: Firstly, it is far from clear which rules should be counted as part of the states constitution and which rules act on the state indirectly, mediated through other institutions and groups. Secondly, that state constitutions contain both legal and non-legal rules, and further, that constitutions may include laws drawn from a number of different legal systems. Third legalistic accounts of the state provide a distorted picture of the state *75+ Against Kelsens legalistic account of the state; why? Fundamentally incompatible with the recognition of the plurality of the sources of constitutions *78+ (1) It is quite possible for there to be more than one domestic legal order within the state, these legal rules bound together, but left distinct by, a collection of legal and non-legal constitutional rules UK: Scotland has a distinctive legal system, not acknowledging statutes of Westminster contrary to the Treaty of Union 79 Strange argument about private law rules not being part of the constitution, but reflecting the constitutional identity of the state; indeed that is the argument made by public law scholars in continental Europe, because these laws are instantiations of basic constitutional principles. MacCormick 1953 SC 396, 1953; Gibson v Lord Advocate 1975 SLT 134 (2) It is possible for the state to be partly constituted by non-domestic legal orders: both by international law and, less commonly, by the rules of foreign legal systems 80: An unincorporated rule of international law may still form part of the Constitution if a significant portion of those within the state crucially, those within state institutions treat it as binding on them, and act accordingly 87 How to distinguish the acceptance of the rule from the external imposition of the said rule (3) It is possible for the rules of a foreign legal order to be part of the constitution of the state [Former colonies, at least for a while paying considerable attention to how the law develops] (4) Diceys genius in recognizing that Constitutions are also made up of non-legal rules (contrary to Blackstones legalistic account of the constitution).; unwritten maxims of constitutional morality, system of political morality that underpins the constitutional order, serving to shape constitutional institutions through the force of usage and custom, constitutional conventions; in Marshalls terms, the rules that political actors ought to feel obligated by, if they have considered the precedents and reasons correctly. J J Park The Dogmas of the Constitution, 1832 81 Non-legal rules are an aspect of every functioning constitution, but in an unwritten, political, constitution like that of the United Kingdom, an understanding of these non-legal rules is essential to a plausible account of the constitution (he claims it is non-legal rules that define the office of Prime Minister; if we were to rely on Kelsens account of legal rules constituting the office of Prime Minister, then the institution will be barely existent)

85 Constitutional conventions are customs that have ossified into rules; gained normative force and trigger social disapproval when breached What is meant by a legal and by a non-legal law; and in what sense can Barber really say that legalistic approaches of the state provide a distorted vision of the state when he offers what on all accounts is a legalistic vision and conception of the state; and why the casual treatment of principles (as indeed the emergence of constitutional conventions may not be different from the emergence of principles) [87]. And then the task of identifying the differences between laws and constitutional conventions has caused British constitutional theorists a great deal of trouble [89] The difference between law and convention is one of degree: laws and conventions can be placed upon a spectrum of types of social rules, a spectrum graduated in terms of the formalization of rules. Laws lie at the most formalized end of this spectrum, but there is no single, definable, point at which rules shift from being conventions into being laws. Alongside this argument, it will be contended that conventions can become through judicial intervention, and that conventions can crystallise into laws by becoming increasingly formalized *89+ T.R.S. Allan: In matters of constitutional significance, legal doctrine and political principle are inevitably interdependent and intertwined *91+ But Barber, not all norms that are recognized by courts are legal rules (courts can recognize lists of instructions on the back of a packet of soup, but these are not legal rules); Elliot: conventions reflect underlying constitutional values (but courts may enforce a convention even where there is not a pre-existing legal rule which the convention helps interpret, or which renders the convention of legal significance) *94+ Factortame the Court acting outside of its legal powers, but within its constitutional powers [95]. Reinforced by the possibility that a convention crystallizes into law without the intervention of a law-making body [97] Conventions of ministerial responsibility [98-99+ Power of the Prime Minister to change norms *100+ The Code possesses the union of primary and secondary rules that Hart commended as the core of a legal system *101+ Against Raz: Their claim is that some of the systems that writers like Raz would exclude from the legal world are better thought of as variations on the forms law takes. On their more liberal reading, many formalized, institutionalized, systems of rules would count as law () whilst European law claims supremacy over national law, it does not claim authority to regulate all areas of domestic life, nor does it claim that national law is incorporated within European law *102+ McCormickean twist: The plurality of law means that law recognizes norms that are not legal norms as part of the law; but this implies confusing the source of legal norms and the nature of the laws once institutionalized.

The State in Action How and in what sense the state can possess intentions and undertake actions [104]; liberal suspicion towards the sociological, crypto-collectivistic attribution of intentions to the state, and in general, to social groups: the discussion by Le Bon and Durkheim of group mentality and collective imagination begins to look worryingly mysterious, possessing a disturbing whiff of the magical *107+ Barber is interested in a view which is essentially compatible with the recognition that groups are collections of people and are dependent for their existence and

functioning on their members *107+ Some of the descriptive terms we apply to individuals also may be applicable to social groups () holists may have used terms which are normally considered to possess a psychological aspect in a metaphorical or analogous sense *107; 108: enough points of similarity to justify the use of the terms in a metaphorical sense; the application of the same term in each context] From this, Barber concludes that groups behave in ways that resemble persons: they appear to hold intentions, have attitudes towards people and things, and act. And we tend to think of social groups in this fashion; we conceptualise the group, and not simply the people who comprise the group, as possessing these features But even here the key role of rules (and thus of law) transpires: As the rules that constitute the group become more complex, the intentions of the group may also become more complicated. The group can intend to achieve a diverse collection of things through a diverse collection of mechanisms and processes *110+; (1) rules formalized in the constitution; (2) but sometimes such rules are to be constructed in the whole context of the constitution; (3) and sometimes they are to be derived from an unconscious or unreflected practice of the members of the group. But action of any group may be rather complicated by the fact that the action can be accidental from the standpoint of the rules; it is in this sense that the group may end up being liable even if there was no intention of breaching specific norms The state advances its claims through its law-applying officials, but it can also make claims through other mechanisms. The state can additionally make claims through legislation produced by its law-making bodies, and through its Constitution, however that document was created and enacted. The state can also make claims through its executive officers acting in their official capacity () The sources of the claims of the state may consequently be wider than the sources of the claims of law *116+ The state may be indecisive, it may be unable to form clear intentions, or it may hold conflicting intentions which prevent it from acting. The state may make mistakes: the intentions it adopts may be foolish, or the actions it undertakes in pursuit of those intentions may be misdirected or counterproductive *116+ The neurotic state: makes persistent errors and makes no efforts to correct them [120] Based on Bions analysis of group behavior: *1+ group members are inappropriately dependent on the group leaders (as in the totalitarian state); [2] in democracies, political parties stirring up unrealistic expectations, which will only be realized when they gain power; [3] fight-flight: identification of the other as a threat, and violent reaction as response to that alleged threat [119-120] Then he claims that Schmitt was prey to the paranoid-schizoid attitude: Schmitts state does not merely identify others as enemies when and if it is threatened, its identity requires that it manufacture an enemy- whether or not this other group actually poses a threat. Without an enemy Schmitts state ceases to exist *122+ It is unclear the extent to which Schmitts sovereign can be an institution rather than a person *122+

Responsibility and Continuity of the State: If the group has a personality that transcends the individuals that compose it, and if it can act in the name of others, must be responsible for actions that can be attributed to it, one way or the other. Not in legal, economic sense, but in a moral sense (as the legal responsibility is not the issue of the chapter or indeed of the book128- beyond a few cautionary remarks at the end of the chapter, little will be said about the circumstances in which compensation should be paid or apologies should be issued by states [128] Capacity of the state: A group posseses rational unity when it forms and preserves intentions over time, and acts upon these intentions (a functioning state must exhibit some level of rational unity to avoid collapsing into anarchy) (the state may be inconsistent, and there may even be good reasons for its inconsistency; but that is no good reason to exempt the state from responsibility as long as it is inconsistent) [131] (the state, as Veitch has argued, can be used to discharge responsibility, to undertake the dirty jobs making it impossible to trace them back to any concrete individual). But members of the group bear responsibility by virtue of their membership [133: so much so that they can be responsible, as members of the state, for actions which were undertaken many years ago; unlike a subject, the citizen possesses a capacity to participate in, and consequently to influence, the decisions of the state () Citizens are most obviously responsible for those actions they support, but they are also responsible for actions they oppose or they are neutral towards [134; the moral problem being here the difficulty of renouncing citizenship if there is no other citizenship on offer that the citizen can op to] The capacity of the state is again closely related to law and institutions. It is because the state has laws that govern institutions that it can act in a meaningful way; nations, in contrast, have serious problems in deploying action in a similar way, even roughly similar way. The Continuity of the States; Against Kelsens understanding, for two reasons (1) comparatively minor events be turned into epochal ones (Factortame for example, left unaffected the membership of the state, its territory, the bulk of its institutions, and the bulk of the laws which accommodate and limit such unconstitutional action 140); (2) fails to understand radical changes if they can be reconciled with a stable Grundnorm (as in Canada or Australia, where only apparently the grundnorm was left unchanged) [140/141] If Kelsen was the standard, the relative ease with which the Grundnorm can be broken creates the risk that it will be too easy for states to shed responsibility for their past actions. It is hard to believe that a state which has recently completed a vicious and unjust war could escape responsibility and start afresh by simply adopting a new constitution in violation of the provisions of the old; at the same time that it remains implausible to claim that an oppressed region that has been granted independence by an imperial power remains directly responsible for the abuses undertaken in its territory by the former colonial/imperial regime *141+ Even if a new state is not responsible for previous wrong deeds, it may have a responsibility to deal with them, to provide solutions that take seriously into account the fact that these wrongs were indeed committed [143]. PLURALISM

Legal Pluralism 145 Legal pluralism resulting from disagreement about the constitutional ordering of the state (which essentially boils down to an institutional confrontation) or about the existence of the state (whether one state is really independent or not) [In both cases there is an element of institutional pluralism, certainly) 145 A legal order can contain multiple rules of recognition that lead to the order containing multiple, unranked, legal sources. These rules of recognition are inconsistent, and there is the possibility that they will, in turn, identify inconsistent rules addressed to individuals. In addition, pluralist orders lack a legal mechanism to resolve the inconsistency; there is no higher constitutional body that can resolve this dispute through adjudication or legislation. There is a need of showing that these kind of legal orders are something else than mere transitory aberrations, that pluralism can actually explain a relevant legal, political and constitutional practice. 146 Anthropological/Sociological approach: Pluralism typical of imperial legal systems, and the way in which they accommodated religious and tribal law; Kelsen pointed to conflicts of law as a means of reconciling unity and diversity 147 Are there really genuine contradictions that we can speak of? Kelsen 148 Legal systems always contain norms that solve conflicts; but what if they do not, or if the ranking rules are themselves inconsistent? 149 Logical principle of non-contradiction (it is a logical principle necessarily part of all legal systems; the fundamental assumption of non-contradiction is part of any serious interpretative effort; judges solve case holding only one of the rules in clash. 149 Barber says that it is far from obvious that logical principles should be applied to ethical issues; and even less so to systems of law; even if the maxim decreeing that all that is not forbidden is permitted is a prima facie principle of every legal system, it is certainly not a necessary rule of a legal system. It is possible, if difficult, to imagine a system functioning without such a rule 156 Against Fullers claim that non-contradiction is attractive, claim that there could be ethical reasons for endorsing contradictory rules Analysis of the famous Rhodesian case, fully bracketed from the substantive implications of the dispute [159-164]; Legal Pluralism in the European Union: Assumes the constitutional analysis of national constitutional courts, which is underpinned by the idea that there are two distinct and very different legal orders *165+ Over time they have moved together, the boundaries of each becoming blurred. It would be a mistake to say that they have become, or will become, a single legal order *168+ Why: Enormeous amount of norms untouched by Europe, Institutions created by national rules

Constitutional Pluralism because the European Union stands somewhere between confederation and federation; uneasily sitting between the two. In some respects, the selfunderstanding of the Union is closer to that of a federation than to that of a confederation. But (1) the Union does not claim that there exists a unifying constitution that empowers, or purports to empower, both the Community institutions and the institutions of the Member States; there is no single Constitution that delegates power to both European and national institutions [177]; The Union does not claim to exercise control over the extent of its territory [178]; The Union does not claim to exercise control over the acquisition of citizenship of the Union [178] The claims made by the Union consequently present a fundamental challenge to the identity of the Member States [180] But the paucity of the Unions executive branch in itself demonstrates that the Union lacks the capacity to take effective action to back its claim to exert authority [180]