Pub Date : 2020-01-30DOI: 10.1017/9781108751483.003
T. Poole
Locke used the term ‘federative’ to designate the foreign relations power of the commonwealth. The argument builds on Locke’s intuition, sourced from Cicero, that this power is concerned centrally with the capacity to effect compacts (alliances) with other political associations. One advantage of the perspective that ensues is that this compact-making power is demonstrably a juridical idea. It is an idea, moreover, that is open to the possibility of reciprocity and, by extension, the development of truly juridical structures of mutual recognition. In contrast to rival theories which have war or enmity as the focus of foreign relations, the federative theory relies on the generative properties of compact-making and serves as such to de-centre war from this central position within the external constitution. The federative offers the prospect of escaping the paradox of the sovereign state, based on law and peace internally, but geared to prerogative and war externally, and unites the object of the internal and external aspects of the constitution—peace—and the means of achieving that object—law.
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Mobility, in its many different forms – its restriction and its excesses, for individuals and for corporations – lies at the heart of many pressing challenges for contemporary constitutionalism. The legal treatment of mobility, however, is fragmented across many different specialized fields – from immigration law, to tax law, to international arbitration – to which constitutionalist concerns are rarely central. This paper aims to address this lacuna by sketching the contours of an ‘outward-facing constitutionalism’ which could provide the conceptual and normative means to scrutinize the constitutional implications of the regulation of ‘access’ and ‘exit’ for both individuals and corporate actors. In its first part, it contrasts the recognition of the legally constructed character of borders and jurisdictional boundaries in critical scholarship, with the ubiquity of unquestioning determinations of ‘inside’ and ‘outside’ in judicial practice. The second part of the paper, then, approaches the question of the character and effects of constitutional boundaries by way of a case study on mobility. Taken together, these two parts reveal the intertwined relationship between these two themes – showing how constitutionally relevant boundaries are often constituted through their effect on mobility, and how mobility can itself only be grasped in terms of legal boundary-crossings.
{"title":"Constitutionalism and Mobility: Expulsion and Escape among Partial Constitutional Orders","authors":"J. Bomhoff","doi":"10.2139/ssrn.3417239","DOIUrl":"https://doi.org/10.2139/ssrn.3417239","url":null,"abstract":"Mobility, in its many different forms – its restriction and its excesses, for individuals and for corporations – lies at the heart of many pressing challenges for contemporary constitutionalism. The legal treatment of mobility, however, is fragmented across many different specialized fields – from immigration law, to tax law, to international arbitration – to which constitutionalist concerns are rarely central. This paper aims to address this lacuna by sketching the contours of an ‘outward-facing constitutionalism’ which could provide the conceptual and normative means to scrutinize the constitutional implications of the regulation of ‘access’ and ‘exit’ for both individuals and corporate actors. In its first part, it contrasts the recognition of the legally constructed character of borders and jurisdictional boundaries in critical scholarship, with the ubiquity of unquestioning determinations of ‘inside’ and ‘outside’ in judicial practice. The second part of the paper, then, approaches the question of the character and effects of constitutional boundaries by way of a case study on mobility. Taken together, these two parts reveal the intertwined relationship between these two themes – showing how constitutionally relevant boundaries are often constituted through their effect on mobility, and how mobility can itself only be grasped in terms of legal boundary-crossings.","PeriodicalId":436873,"journal":{"name":"The Double-Facing Constitution","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134191067","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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