THE CONSTITUTIONAL STATE. N. W. Barber. (1) Oxford: Oxford University Press, 2010. Pp. xiii + 199. $100.00 (Cloth).
A description of any social institution such as the state will be shaped (and limited) by the conceptual apparatus chosen by the investigator. This is an obvious point; different priorities and methodologies will highlight different features and generate different explanations. Where some features are illuminated, others are correspondingly left in shadow. When it comes to describing the state, we would expect a political scientist to ask different questions and work with different concepts than, say, a sociologist. And a lawyer? Academic lawyers who examine the state have often focused on what Nick Barber calls legalistic accounts: they examine rules, and the commands that the rules instantiate, and the nature of the authority by which the commands are made. These legalistic accounts of the state include the enduring contributions of Hans Kelsen and Max Weber, as well as the strain of Oxford analytical legal philosophy exemplified by the work of H. L. A. Hart, Joseph Raz, and Leslie Green. These studies attend closely to the vertical relationship between the state and its members (typically, its citizens) constituted by legal rules. In setting out his own account of the state--an account that is self-consciously more interdisciplinary in method--Barber acknowledges these intellectual debts and identifies several points of disagreement (and agreement) with them, but his focus is predominately on those features of the state that have been left neglected or under-explained in these more legalistic accounts.
Barber's proposal is to consider the state as a social group and, specifically, a group that uses rules (legal and nonlegal) to relate members not only--or even predominantly--to the governing institutions, but to each other. This approach to the state necessitates first coming to terms with the nature of social groups generally and how the state qualifies as a social group (chapter 2), the forms of membership in that social group (chapter 3), and the rules that bind the members to the state and to each other (chapters 4-6). With the main concepts thus articulated, Barber carries on in chapters 7-10 to test drive his model. Is it intelligible, he asks, to attribute intentions and actions to the state (chapter 7)? If it is, to what extent (and in what sense) can states be responsible for their actions? To what extent do current members of the state share that responsibility, and what should be required of them as a consequence? Does it lessen responsibility if the actions in question took place several lifetimes ago (chapter 8)? In the book's final grouping of chapters (9-10), Barber addresses the claims of legal and constitutional pluralism, particularly in the context of the European Union.
All of this is preceded by an opening chapter that addresses methodology in constitutional theory--a free-standing essay that ought to be required reading for any serious student of constitutional theory. Barber surveys rival approaches to constitutional theory, including historical, critical, interpretive, and political. Although he argues for the priority of interpretive theory (in the sense that other approaches presuppose an interpretive account) (pp. 2-5), he nevertheless insists that other approaches to constitutional theory are "all ... valuable, all ... compatible, and all play a part in our understanding of the nature and functioning of constitutions" (pp. 1-2). In keeping with Weber, Hart, and John Finnis, Barber works from the postulate that it is the task of the constitutional theorist to identify the "central case" of the constitutional institution under investigation (p. 8). Identifying the central case cannot be a merely descriptive enterprise, because it requires the theorist to evaluate the criteria by which centrality will be assessed. It is inescapable that theorists begin with some "ethical framework which gives content to the good and the bad, and then use this to identify features of importance" (p. …