Taking Constitutionalism Beyond the State

In recent years, the idea that constitutional modes of government are exclusive to states has become the subject both of sustained challenge and of strong defence. This is due to the development at new regional and global sites of decision‐making capacities of a scale and intensity often associated with the demand for constitutional governance at state level, to the supply at these same new sites of certain regulatory institutions and practices of a type capable of being viewed as meeting the demand for constitutional governance, as well as to a growing debate over whether and in what ways these developments in decision‐making capacity and regulatory control should be coded and can be constructively engaged with in explicitly constitutional terms. The aim of the article is threefold. It asks why taking the idea and associated ethos and methods of constitutionalism ‘beyond the state’ might be viewed as a significant and controversial innovation, and so in need of explanation and justification – a question that requires us to engage with the definition of constitutionalism and with the contestation surrounding that definition. Secondly, taking account of the various arguments that lie behind these definitional concerns, it attempts to develop a scheme for understanding certain key features of constitutionalism and of its post‐state development that is able to command broad agreement. Thirdly, and joining the concerns of the first two sections, it seeks to identify the key current tensions – or antinomies – surrounding the growth of post‐state constitutionalism with a view to indicating what is at stake in the future career of that concept.