Public Law

2012

Publication Review
The Constitutional State
N.W. Barber
Reviewed by Marinos Diamantides
Subject: Constitutional law
*P.L. 162 This book comes at a time when constitutional legalism appears to have lost
much relevance compared to accounts of unrestrained pure politics. It argues that
polarising the debate over the primacy of norms over facts and vice versa is unhelpful.
We must begin anew from Aristotle's thesis that states exist to promote their members'
well-being; this aim is pursued through action bound by social norms including
constitutional conventions and laws which differ only in the extent of their formalization (p.103); if states fail to make us happier it is either because the rules are not
followed or because they are qualified by hidden, deeply internalised rules. In the
process, Barber engages the most prominent views of the state and public law in a way
that is accessible and original. Hence the book will appeal to students as well as to
scholars seeking a mid-way between rule-fetishism and apocalyptic scenarios about the
end of constitutionalism.
Barber has no sympathy for fundamentalist constitutionalists who assume that anyone
working outside of their school is mistaken (p.2). Instead his contention is cheerfully
ecumenical. There are many different ways of doing constitutional theory: all are
valuable (p.2). The key to his ecumenism is assuming that interpretive constitutional
theory is primus inter pares in the sense that all other valuable approaches presuppose an interpretive account of the phenomena they study. His thesis aspires to
universal explanatory power but the word ecumenical has specific cultural connotations
and so, I suspect, does his project. Whereas fundamentalist constitutional theorists
pontificate, Barber aspires to the more modest position of consensus maker qua primus
inter pares. Less Pope and more Eastern Christian Patriarch or Anglican Archbishop.
Building on Searle's notion that collective we-intentions precede I-intentions (p.28),
Barber's central thesis is that the state should be understood as a complex social
group (i) whose membership and the respective rights and obligations are rule-based
(p.25); (ii) that intends to advance members' well-being through rules which have, at
least in part, been consciously chosen by at least some members of the group (p.31).
This tackles the problematic hypothesis of naturally occurring individuals in Hobbes:
primitive people, like dogs and ants, could not have reduced we-intentions into Iintentions as we do (p.28). The logic of this formulation is not dependent on its
historical accuracy in any objective sense and that is fine at least from a post-modern
view of time whereby history is the past in so far as it is historicised in the present. In
postmodern approaches, however, linear objective time is not jettisoned in favour of
subjective time, but of analysis of the relatively stable structures of present
discourses, which Barber does not offer. Moreover, change between different discursive

structures occurs not smoothly or gradually but in abrupt shifts. Because Barber
dedicates no time for re-interpreting the history of the modern state he offers us few
clues as to: (i) the specific retroactive and anticipatory interpretations of the past and
future state that frame his atemporal logic; (ii) the political, social and economic
contexts of *P.L. 163 the shifts between the discourses about the state that he
examines, namely: Kelsen's--for whom the state was a creature of law, shutting out
social and political aspects of its construction (p.122)--and Carl Schmitt's where the
state was collapsed with its pathological--paranoid-schizoid--manifestation (p.122).
In other words, Barber promotes an interpretative model premised on the absolute
liberty to reinterpret holistically our history without doing so himself. As a result of this
jumping to conclusion, his atemporal thesis may be misunderstood as a-historical.
The singular--but, alas, ambiguous--exception in Barber's no-history approach is the
reference to Aristotle's (host) city-state as an ancestor of our modern state.
Instead of historicising this reference in a way that would be telling for the present,
however, Barber reverts to a linear view of time as if he is anxious to be seen as
Aristotle's interlocutor. Hence between the ancient polis and the modern state there is
only natural growth and linear evolution and: it is relatively easy to imagine how
[Aristotle's] understanding of the state might have evolved in response to growth in
territory and population (p.32). This assertion begs the question of the numerous shifts
in the discourses around the state over millennia especially after the impact of theology
and the emergence of public law as a discreet subject. For the above reason one is left
wondering whether Barber's attempt at an imminent understanding of the concept of the
state may unconsciously be more neo-Aristotelian than Aristotelian, and hence, subject
to the metaphysics it purports to bypass. For example, the book is replete with medical
metaphors following the Aristotelian view that political science should study the tasks of
the politician as similar to that of the physician. While Aristotle explains that the state
exists for the sake of the good life, Barber's state exists for the benefit of their
members qua satisfaction of their needs. Because a needs discourse is missing in
Aristotle the reader may be excused for locating Barber's discourse in utilitarian
morality.
Barber's approach to salus populi as transparent needs that can be reasonably met in
a healthy state is problematic because it obscures the impact of Christian soteriology
on modern politics. How else did we arrive at Oakeshott's definition of the modern state
as a sanatorium from which no patient may discharge himself by choice of his own?
Arguably this widespread neurosis is explained precisely because in our times, lacking
an Aristotelian conception of the good life, there is no benchmark for political health-hence everything is pathological. We are pragmatic about the pursuit of happiness but
the pragma of this pragmatism is infinitely substitutable and, thus, only ever attests
to its absence. Only once I substituted Barber's universal needs with the need to
stabilise western neurosis did I realise the true sense in which his constitutionalism can
be said to be therapeutic. If the modern state is an inescapably neurotic space,
constitutional theory such as Barber's offers us a way to cope. In psychoanalytic
sessions the patient ultimately learns to cope with contradiction and limitation. A
related task of constitutional theory per Barber is to monitor and explain the inevitable
mismatch between the expectations of the political body and its leadership. Now,
psychoanalysis has been accused of conformism and so could Barber's approach. Indeed,
upon finishing the book I asked myself: do we need to look beyond the state model?

No; but we should accept that the state is unable to provide salvation. *P.L. 164
Because when the people of a state are encouraged to believe that state institutions
can accomplish the impossible they are invariably disappointed (p.119).
Kelsen and Schmitt represent the kind of pathologies that can be developed if our
neurotic relation to the state is not maintained courtesy of Barber's analysis. Kelsenians
must reconcile themselves to the fact that a legal order can contain multiple rules of
recognition and so contains multiple, unranked, inconsistent legal sources--a situation
that no higher constitutional body is able to resolve through adjudication or
legislation (p.146). Principles of logic in particular the principle of non-contradiction are
not necessarily part of the substance of all normative orders (p.149); I fully agree. But
we should not hurry to presume that people everywhere suffer the same neurosis as we
do. It is possible, if difficult, to imagine a legal system where the principle of noncontradiction might not form part of a legal system (p.152). In this connection I think
Barber's work will benefit maximally if he actually considered other articulations of law
and politics where what he dares to imagine is or was someone else's reality.
For Barber, Schmitt merely described a pathological state. States may be by their
very nature, destined to fall into dysfunctional forms of behaviour. [Marked by]
Inappropriate dependency on leaders and excessive hostility towards outsiders But: let
us hope that, like individuals, the neurosis of the state can be mitigated of even
cured (p.123). [T]o be pathological, this attitude must be maintained over time. A
healthy state can make an error and take action on the basis of that error (p.120,
emphasis added). A pathological state is a miserable one (p.105). But who can tell, and
how, whether these conditions are met? I have no objection to his example of North
Korea (p.110); but is the United Kingdom not a bellicose state over sufficient time? If
so, is it failing to meet our needs? Or is the fact that it is not failing proof that British
shortcomings are only ever momentary lapses? Perhaps, every time we have a public
apology for such things as support of the slave trade, colonialism etc. or a public
enquiry without legal repercussions on non-defensive wars leading to mass-scale death
and destruction, the slate is wiped clean? If so, constitutional process is more like
expiatory magic and less like a psychoanalytic session (as the British rubric for enquiries
says there are lessons to be learnt--again and again and again ). Can the constitutional theorist or official truly act as a detached analyst? And is the financial cost of
such processes analogous to the hefty fee that must be paid to a therapist as a
condition of a successful treatment, when the spoils of war are far greater?
I think that the neo-Aristotelian view of the constitutional state modelled after the
therapeutic professions is problematic in that these are not concerned with justice in the
inter-relational sense that many modern people think public law should be. Does a state
like Iraq have a chance to provide its members with an environment in which trauma
will not lead to pathological outcomes? In some cases, Barber says, the possibility of a
healthy state is foreclosed either because the constitution lies about the state's true
aims or because the nation is in denial over how their formal rules are in reality
qualified and limited in their application by rules that are deeply internalised but
which the group can only become conscious of at the price of realising that it is
failing (p.111). Barber is performatively illustrating his argument; The United Kingdom
intends to be run (more or less) democratically to provide healthcare for and
education to its *P.L. 165 members (p.110). Unfortunately, neither the victims of

British aggression nor the looters of August 2011 are spoken for here.
Where Barber sees reasons for optimism others see a comprehensive lack of compass.
Among them some--like Scott Veitch whose work Barber examines somewhat superficially at p.132--wish to shift the discourse of absolute but pragmatic power to one of
unlimited responsibility. Because Barber's typology of responsibility does not include the
hyperbolic conception on which Veitch's thesis rests (that the state performs a kind of
ethical laundering of individual human actions), he does not recognise its full strength.
For Barber ethical laundering is not a function of the state but the result of a mistaken subjective belief (p.132). Citizens have a form of role responsibility although this
diminishes with time (p.133). Apart from being subject to an expiry date citizen
responsibility is ambiguously defined: now it requires close implication in the state's
actions and so it concerns officials (p.133); now direct personal responsibility for the
actions of the state is one of the characteristic features of citizenship (p.134). What
gives? When a person believes that their state is about to embark on a radically
misguided course of action, she may wish to resign her membership although [e]
scaping from the state can be surprisingly difficult (p.134, emphasis added). In this
regard, the reader may want to complement the reading of Barber's book with scholarship that takes this difficult freedom not as peripheral but as the issue for our times.
Marinos Diamantides
School of Law, Birkbeck, University of London
P.L. 2012, Jan, 162-165
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