The Enlightenment and Global Constitutionalism Chris Thornhill, University of Manchester

Elements of the Global Constitution There is currently much debate about the precise characteristics of the emerging form of global constitutional law. However, the more mainstream theorists of global constitutionalism, although in themselves divergent, usually organize their outlooks around the claim that international law, at least to the extent that they possess ius-cogens standing, has come to acquire force close to that of a global constitution. As a result of this process, sovereign states are now seen to act as subjects within a system of global legal norms, and they assume a position similar to that of legal persons within national legal orders, defined by classical principles of public law.1 If we accept this international-legal definition of a global constitution, this constitution comprises a series of very distinctive features, which, at first glance, distinguish it from more classical constitutions, rooted in national societies.

First, the global constitution is defined, at a most essential normative level, by the primary authority of international human rights law: in the global constitution, human rights have acquired the status of non-derogable legal norms, and all laws in global society are in some way constitutionally pre-determined by such human rights. This applies in the international dimensions of global society; since the Universal Declaration of Human Rights (1948), and, above all, the Vienna Declaration on the Law of Treaties (1969), there is a legal obligation for states to proportion their actions towards other states to norms extracted from human rights law. This applies in the national dimension of global society; it is increasingly rare for national states to reject international human rights in their internal activities, and even states with strong ‘dualist’ legal traditions adapt their legal and administrative functions to expectations derived from international human rights law.2 Most importantly, however, individual persons in national societies can now, in principle, appeal quite easily to international judicial bodies when their rights are violated by their governments, which means that international courts can reach immediately into national societies and address individual persons as primary rights-holding subjects of international law. Notable in this, in particular, is the fact that the direct penetration of international human rights law creates

1Research for this article was funded by the European Research Council (Advanced Grant 323656-STC). See Jan Klabbers, Anne Peters and Geir Ulfstein, The Constitutionalization of International Law (Oxford: Oxford University Press, 2009), pp. 154, 179. For a general cross section of the global-constitutionalist literature, see Bardo Fassbender, ‘The United Nations Charter as Constitution of the International Community.’ Columbia Journal of Transnational Law 36(3) (1998): 539-619; Pierre-Marie Dupuy, ‘The Constitutional Dimension of the Charter of the United Nations Revisited.’ Max Planck Yearbook of United Nations Law 1 (1997): 1-33; Louis Henkin, ‘Human Rights and State “Sovereignty”.’ Georgia Journal of International and Comparative Law 25 (1995-96): 31-44; 39; Stefan Kadelbach and Thomas Kleinlein, ‘International law – A Constitution for Mankind? An Attempt at a Re-appraisal with an Analysis of Constitutional Principles.’ German Yearbook of International Law 50 (2007). For a nuanced approach, see Anne Peters, ‘Global Constitutionalism in a Nutshell’, in Klaus Dicke et al (eds), Weltinnenrecht. Liber amicorum Jost Delbrück (Berlin: Duncker und Humblot, 2005), pp. 535-550; Ernst-Ulrich Petersmann, ‘Human Rights and International Economic Law in the 21st Century: The Need to Clarify their Interrelationships.’ Journal of International Economic Law 4(1) (2001): 3-39; 22; Mattias Kumm, ‘The Legitimacy of International Law: A Constitutionalist Framework of Analysis.’ The European Journal of International Law 15(4) (2004): 907-931; Laurence R. Helfer, ‘Constitutional Analogies in the International Legal System.’ Loyola of Los Angeles Law Review 37 (2003): 193-238; 237; Alec Stone Sweet, ‘Constitutionalism, Legal Pluralism, and International Relations.’ Indiana Journal of Global Legal Studies 16(2) (2009): 621-645; 637; Bruce Ackerman, ‘The Rise of World Constitutionalism.’ Virginia Law Review 83(4) (1997): 771-797; 777. For an overview, see Chapter 1 in Christine E.J. Schwöbel, Global Constitutionalism in International Legal Perspective (Leiden: Nijhoff, 2011).

2 The UK is a classic example.

1 positive obligations for states in respect of the lateral interactions between different citizens subject to their jurisdiction, such that human rights widely obtain horizontal applicability in national societies, and inter-personal relations in the private domain are subject to juridification through human rights law. On each count, the global constitution is constructed in categories that reject positivist conceptions of state power, and which see positivist sovereignty-centred models of global order as fully discredited, primarily through the limiting force of human rights law.

Second, because of this salience of human rights law, the global constitution is defined, institutionally, by the growing authority of courts and other judicial bodies as constitutional subjects. This is again visible in different dimensions of global society. In the interstate domain, recent decades have seen a dramatic proliferation of powerful courts, which increasingly assume the authority to censure and control the actions of national states, in different functional spheres. Some of these courts – notably, the European Court of Human Rights, the Inter-American Court of Human Rights, and, increasingly, the International Court of Justice – provide protection for human rights as a basic constitutional structure of global society. However, even courts focused on social functions that are not intrinsically defined by human rights, such as the European court of Justice and the Appellate Body of the World Trade Organization, have used human rights jurisprudence to cement their authority over national states. International courts, in short, play a key role in locking national states into a global rights-based constitutional order. In the national domain, further, courts have also acquired greatly expanded authority in recent decades. With variations, most national constitutions contain provisions for very powerful constitutional courts, whose basic function is to police new legislation and to ensure that it is compliant with constitutional norms, including human rights provisions. In most nations, moreover, constitutional courts are expected to preserve a degree of compatibility between national laws and international human rights law, and they act as hinges, linking domestic legislation to a supra-national constitutional order, based in the primary authority of human rights. There are of course exceptions to this tendency, and there remain some polities in which judicial power is weak. Yet, generally, most national polities accord a central constitutional position to the higher judiciary, which then, usually in close interaction with international judicial bodies, controls legislation in accordance with higher-order human rights norms.

Third, the global constitution is defined, to a large extent, by a weakening of certain classical-constitutional concepts of democratic legitimacy: notably, constituent power and national sovereignty. At least at the level of political-normative rhetoric, classical constitutions extracted their legitimacy from the idea that they were authorized by a national sovereign people, and that the will of this people, in the form of a constituent power, established the constitution as a Grundnorm for the entire polity, providing a substantial and procedural basis for all subsequent legislative acts. Owing to the increasing primacy of international human rights law, however, the exercise of national sovereignty and national constituent power has been reduced in scope. The idea that founding norms are created by national political collectives, standing outside the law, has been replaced by the acceptance that some legal norms, declared in existing international conventions (i.e. human rights), have a claim to constituent authority, and that constitutional norms created in national societies cannot contradict the basic norms (i.e. human rights) of global constitutional law. The national constitution, thus, is always a constitution within a constitution. In addition, it is widely acknowledged that national courts, linked to the international judicial system, will assume a central position in any process of constitution making, and that courts can obtain force close to that of a constituent power, often extracting norms from the international arena to solidify ongoing processes of constitutional

2 foundation.3 On this basis, in fact, courts, traditionally construed as holders of constituted power and acting within limits defined by national constitutions, have commonly become holders of constituent power, and, both nationally and domestically, they play a role at least equal to that of democratically mandated legislatures in establishing ground-rules for legal and political organization.

Overall, therefore, if we are prepared to identify a unified global constitution in contemporary society, its primary characteristics, both nationally and outside nation states, are that: (1) it is defined by the primacy of international human rights law; (2) judicial bodies acquire authority not foreseen in classical constitutional doctrine; (3) the constituent power of the nation is a weak constitutional resource, and it is partly exercised by institutions using constituted power: the distinction between constituent and constituted power is diminished. On each of these grounds, notably, the emergent global constitution is widely counter-posed to more classical models of constitutionalism. Indeed, amongst the otherwise very distinct accounts of global constitutional law, one point of increasing convergence is the claim that global constitutional law is not the same as classical constitutional law, and it draws legitimacy for law from unfamiliar sources.4

Enlightenment constitutionalism: A distant mirror? Despite the alleged novelty of the system of global constitutional law, however, many features of this system are not entirely dissimilar to the core elements of classical constitutional theory, conceived within the longer period of the Enlightenment. Indeed, the basic principles of global constitutionalism appear in many ways, not solely as a rupture with, but also as an extension of, the normative designs that underpinned classical constitutions.5 i. Elements of a global constitution: Basic rights For example, first, the idea that certain basic rights are established as primary constitutional norms, which no act of a public authority can violate, was clearly established in the constitutional doctrines of the Enlightenment. During the Enlightenment, the theory of rights was mainly elaborated as an account of the obligations of domestic political systems, and its primary objective was to ensure that persons in society were not exposed to depredatory acts by persons in positions of public power. For this reason, Enlightenment constitutional doctrines attached particular weight to rights covering private practices in society (for example, rights concerning freedom of ownership, freedom from unjustified fiscal extraction, freedom of scientific inquiry and religious belief), and they used the theory of rights to construct a basic definition of the legitimate state. Accordingly, the later Enlightenment converged around the claim that a legitimate state is a state that does not arbitrarily intrude on such privately held rights.6 However, in many cases, this theory of rights was not restricted to national political institutions. On the contrary, it was clearly linked to a theory of the state as an actor amongst other states, obligated to globally valid norms. In

3 See Chris Thornhill, ‘Rights and Constituent Power in the Global Constitution.’ International Journal of Law in Context 10(3) (2014): 357-396.

4 For one exemplary expression of this claim see Rainer Wahl, ‘Die Rolle staatlicher Verfassungen angesichts der Europäisierung und der Internationalisierung’, in Thomas Vesting and Stefan Korioth (eds.), Der Eigenwert der Verfassungsgeschichte. Was bleibt von der Verfassung nach der Globalisierung? (Tübingen: Mohr, 2011), pp. 355-378; 356.

5 In agreement see Mauro Cappelletti, ‘Nécessité et légitimité de la justice constitutionnelle.’ Revue internationale de droit comparé 33(2) (1981): 625-57; Stephen Gardbaum, ‘Human Rights as International Constitutional Rights.’ The European Journal of International Law 19(4) (2008): 749-768.

3 anticipation of recent accounts of global constitutionalism, in fact, the Enlightenment was defined by a reaction against positivist theories of state, especially against theories produced during the longer aftermath of the Reformation and in the religious wars of the sebbenteenth century, which were intended to solidify the power of national states, in distinction from religion, around the principles of sovereignty and majesty.7 The assumption of a clear disjuncture between domestic and global society was not a dominant part of the legal systematics produced by the Enlightenment, and the idea that a state is constitutionally legitimate to the extent that it recognizes uniform rights contained strict implications for the legitimacy of state in its external functions. As a result, the Enlightenment it spelled basic out principles of global constitutionalism.

This can be seen, theoretically, in the earlier Enlightenment, in the works of Leibniz. Leibniz proposed an ethics of statehood, which clearly relativized national sovereignty as a source of authority, and which claimed that all states are subject to universally binding natural laws.8 To be sure, Leibniz did not deny that laws originate in the acts of states. However, he argued that acts of state volition are only binding if they reflect the ‘formal reason of justice’.9 It is, he explained, ‘abhorrent to reason’ that law should be simply founded in the will of the state, exercised as prerogative;10 it is only when a state exercises a rational will, proportioned to principles of rational legal order, that powers of governance are legitimate. Leibniz’s thinking was thus shaped by an intense hostility towards the rupture between law and morality and reason and will in the more positivistic accounts of legal force that had developed during the very early Enlightenment. Law only contains legitimate obligations, he explained, if it is in conformity with the highest principles of reason and harmony, inherent in the metaphysical foundations of the universe. On these grounds, he concluded that ‘natural law’ does not ‘differ from divine moral law’.11 God might have a greater facility than humans in acting in accordance with moral laws, he acknowledged; indeed, the divine will, as a perfect will, must be perfectly compliant with natural law. However, the rationally necessary content of justice is identical for both human and divine beings: justice, in fact, is external both to human minds and to divine minds, and all creation (including God) can be held accountable to the principles which rational justice contains.12 For this reason, clearly,

6 This perspective has its origins in Lockeian theories of rights, but it can be seen as culminating in the 1791 amendments to the American Constitution.

7 This tendency is usually associated with Bodin and Hobbes. For broad discussion of this point see Reinhart Koselleck, Kritik und Krise. Ein Beitrag zur Pathogenese der burgerlichen Welt (Freiburg: Alber, 1959), esp. 101

8 Leibniz was keen to relativize the Hobbes-inspired claims to sovereignty of the German princes. See Gottfried Wilhelm Leibniz, De jure suprematus ac legationis principium Germaniae, in: edited by the Zentralinstitut für Philosophie an der Akademie der Wissenschaften der DDR, planned for over 80 vols. (Berlin: Akademie-Verlag, 1923–),4/2: pp. 3-270; 557, 64

9 Gottfried Wilhelm Leibniz, ‘Méditation sur la notion commune de la justice’, in: Georg Mollat (ed.), Rechtsphilosophisches aus Leibnizens ungedruckten Schriften (Leipzig: Robolsky, 1885), pp. 56-81; p. 59

10 Gottfried Wilhelm Leibniz, ‘Monita quaedam ad Samuelis Pufendorfii principia’, in: Leibniz, Opera Omnia, edited by L. Dutens, in 6 vols. (Geneva: de Tournes, 1763), IV/3: 275-283; 280.

11 Gottfried Wilhelm Leibniz, ‘Observationes de principio juris’, in: Leibniz, Opera Omnia, edited by L. Dutens, in 6 vols. (Geneva: de Tournes, 1763), IV/3, pp. 270-5; 270.

12 Gottfried Wilhelm Leibniz, ‘Méditation sur la notion commune de la justice’, in: Georg Mollat (ed.), Rechtsphilosophisches aus Leibnizens ungedruckten Schriften (Leipzig: Robolsky, 1885), pp. 56-81; 60.

4 the laws of single states approach their highest perfection as they approach the closest proximity to the mind of God: as their legal order becomes global.13

These ideas were later developed further by Christian Wolff, who claimed that the state misuses its authority wherever it fails adequately to appreciate that it is bound to recognize the legal subjectivity of its addressees.14 In Wolff’s thought, the rationalist-metaphysical doctrines of the early Enlightenment constructed a definition of the single human being as a legal subject, endowed qua subject with rights defined under higher law, upon which no act of state can legitimately encroach; this idea still underpins global legal theory today. However, the ethics of statehood in the Enlightenment obtained its most consistently globalist expression in the works of Kant. Kant claimed that the legal actions of political collectives (states) need to be evaluated by the same rational-ethical standards that are applied to the actions of single persons, and both persons and states acquire legitimacy in their actions only insofar as they comply with principles expressing a rational will.15 Consequently, Kant argued that the ideal or legitimate political order is a state in which citizens exist under a republican constitution, in which the exercise of power is determined by generalized laws, rationally extracted from the ‘pure source of the concept of law’,16 and defined by ‘greatest agreement’ with the categorical imperatives of practical reason. As a result, a legitimate state exists in relation of direct analogy to a self-legislating rational human being: it constitutes itself as legitimate by regulating its operations in accordance with formal ‘laws of freedom’ and by avoiding the pursuit of purposes, which it cannot reflect as compatible with principles of rational necessity.17 On this basis, clearly, Kant indicated that the laws of a legitimate state have a universal character. The laws of the legitimate state are laws that all rational citizens in domestic society must recognize as legitimate, and in which citizens recognize conditions of their own freedom. In addition, however, the laws of the legitimate state must prevent the state from acting in instrumental fashion towards other states. The rational laws of the legitimate state, in fact, form basic premises for a global constitution, distilled from the idea of rational human freedom, and regulating, equally, both the domestic and the international actions of a state. Indeed, Kant specifically elaborated the idea that legitimate laws of one state and the legitimate laws of a community of states would, necessarily, express the same injunctions. He saw laws derived from the pure source of reason, sanctioning conditions of rational freedom, as providing the foundation for an ‘idea of federality, which should gradually be extended to all states’, and which secures a ‘state of freedom’ for all states, ‘in accordance with the idea of international law’.18

13 It is no coincidence that Leibniz also attempted an early formalization of international law. See Gottfried Wilhelm Leibniz, Codex Juris Gentium (Hannover: S. Ammonus, 1693).

14 Christian Wolff, Grundsätze des Natur- und Völckerrechts (Halle: Renger, 1754), p. 59

15 See Hermann Cohen, System der Philosophie, Zweiter Theil. Ethik des reinen Willens (Berlin: Bruno Cassirer, 1904), p. 269.

16 Immanuel Kant, Zum Ewigen Frieden, in: Werkausgabe, edited by Wilhelm Weischedel, in 12 vols. (Frankfurt am Main: Suhrkamp, 1976), XI: pp. 195-251; 205.

17 Immanuel Kant, Metaphysik der Sitten, in: Werkausgabe, edited by Wilhelm Weischedel, in 12 vols. (Frankfurt am Main: Suhrkamp, 1976), VIII: pp. 309-634; p. 437.

18 Kant, Zum Ewigen Frieden, pp. 211-212.

5 Given the anti-positivist conceptual tendency of the Enlightenment, it is no surprise that the Enlightenment also had globalist implications in the sphere of practical law making. In fact, the main state constitutions created during, and as a result of, the Enlightenment, also accentuated the importance of international law, effectively assuming a position within a global constitution, and defining global constitutional norms as essential corollaries of their own normative content.

To illustrate this, for example, the constitutions created in the French Revolution, often seen as a sovereigntist or even as a primarily nationalist revolution, displayed a clearly internationalist spirit, and their authors saw legitimate national constitutions as obtaining validity from their position in a wider, global system of norms. The theory of national sovereign government underpinning the French Revolution was based in a doctrine of national self-determination, which defined each national state as a locus for the exercise of strictly defined rights, and which perceived all states as bound to respect the prior rights of persons both within their own territories and within the territories of other nations. This was expressed in the constitutions of both 1791 and 1793; Art 119 of the latter expressly recognized the inviolability of national territory. However, this obtained clearest expression in Abbé Grégoire’s draft for a Declaration of the Rights of Nations, which was presented in the National Convention in June 1793, shortly before the endorsement of the Jacobin Constitution. On one hand, this document provided a classical internal account of national sovereignty – it insisted (Art. 6) that each nation had the right to organize and change the forms of its government, and that each nation was protected from external intervention (Art. 7). At the same time, however, this document linked the exercise of national sovereignty to a rights-based construction of international society. As a result, it insisted that only governments ‘based in equality and liberty’ had claim to legitimacy (Art. 8), and that national states had an obligation to create constitutions in conformity with international law.19 On these grounds, the sovereign exercise of constituent power in single states was conceived as part of an emergent international order, in which the principle of nationhood, far from projecting a condition of normatively unchecked sovereign power, imagined national states as elements in a global legal system: nationalism and international law were inseparable, and the constituent force of national societies could only be exercised under international law.20

Still more emphatically, the constitutions established during the longer period of revolution in America (1776-1791) were also justified through reference to international law: that is, to the law of nations and the law of treaties.21 Arguably, in fact, the American Republic came

19 See Willhelm Grewe (ed.), Fontes Historiae Iuris Gentium (Berlin: de Gruyter, 1988), II: pp. 660-61. The early years of the revolution were punctuated with decrees regarding rights under international law. As in the USA, this insistence on international rights was designed, not lastly, to protect the Republic from depredation by other international actors. See for example Robespierre’s proposition of April 1793, which compared international abuse of rights by states to the exercise of private violence by brigands and bandits. This is cited in Robert Redslob, ‘Völkerrechtliche Ideen der französischen Revolution,’ in Festgabe für Otto Mayer. Zum siebzigsten Geburtstage dargebracht von Freunden, Verehrern und Schülern (Tübingen: Mohr, 1916), pp. 271- 301; 286. The reciprocity between national rights and international rights was also central to the thought of Condorcet. See Marquis de Condorcet, ‘La nation française à tous les peuples’, in Condorcet, Oeuvres in 12 vols. (Paris: Firmin Didot frères, 1847), XII: pp. 507-27; 527.

20 See Boris Mirkine-Guetzévitch, L’influence de la revolution française sur le développement du droit international dans l’Europe orientale (Paris: Hachette, 1929), pp. 14, 17, 23.

21 For basic comment, see Peter Onuf and Nicholas Onuf, Federal Union, Modern World. The Law of Nations in an Age of Revolutions, 1776-1814 (Madison, Wis.: Madison House, 1993), pp. 108, 113.

6 into being – initially – as a construct under international law, and the new polity acquired a personality under international law before it had acquired an internal constitutional personality. Strikingly, early advocates of American independence in the 1770s focused their argument around categories of international law to explain the position of America as a sovereign state. Jefferson’s Declaration of Independence itself was in itself a declaration in international law, and it enunciated the claims to national self-determination of the American colonies under concepts of rights expressly derived from the law of nations.22 During the longer period of revolution, then, international law retained vital importance as a means for protecting the emergent American state from potential international adversaries or from engagement in perilous military conflicts.23 Throughout this time, American national sovereignty was typically defined in reference to rights and obligations prescribed under international law.24 This significance of international law was ultimately reflected in the constitutional practice of the early American Republic. The Federal Constitution of 1787-89 expressly bound Congress to recognition of international law (Art 1, 8, 10). The Judiciary Act of 1789 reinforced this obligation in the Alien Tort Statute, and it spelled out the principle that American law was subject to the law of nations. Subsequently, early opinions of the Supreme Court declared that ‘the Court is bound by the law of nations which is part of the law of the land.’25 In some of the most important cases decided by John Marshall, notably Murray v. Schooner Charming Betsy (1804), Rose v. Himely (1808), and Brown v. United States (1814), affirmative reference was made to foreign and international law as the basis for final ruling.26 In each respect, in short, international law was internalized within the national polity, and it became a vital internally legitimating foundation for the exercise of national sovereignty.

Both conceptually and practically, in sum, the Enlightenment developed many core principles of global constitutional law, reacting, like contemporary patterns of global constitutionalism, against earlier lineages of voluntaristic political reflection. In both the conceptual reflections and he practical achievements of the Enlightenment, in fact, national self-legislation and international law were perceived as closely interlinked parts of an implicitly formed transnational constitution.

22 See David Armitage, ‘The Declaration of Independence and International Law.’ The William and Mary Quarterly, 3rd series 59(1) (2002): 39-64; 42.

23 See Stewart Jay, ‘The Status of the Law of Nations in Early American Law.’ Vanderbilt Law Review 42 (1989): 819-849; p. 837; Anthony D’Amato, ‘The Alien Tort Statute and the Founding of the Constitution.’ The American Journal of International Law 82(1) (1988): 62-67; 65.

24 See for example James Wilson, ‘Lectures on Law’, in Robert Green McCloskey (ed), The Works of James Wilson (Cambridge, Mass.: Harvard University Press, 1967[1791]), pp. 69-707; 153. For comment, see Francisco Forrest Martin, The Constitution as Treaty. The International Constructionalist Approach to the U.S. Constitution (Cambridge: Cambridge University Press, 2007), p. 8; Sarah H. Cleveland, ‘Our International Constitution.’ The Yale Journal of International Law 31(1) (2006): 1-125; 35, 38.

25 The Nereide, 13 U.S. (9 Cranch) 388 (1815). For general comment see Benjamin Munn Ziegler, The International Law of John Marshall. A Study of First Principles (Chapel Hill: University of North Carolina Press, 1939), p. 333. This principle is for course still fiercely contested and forms an important element in foreign-policy debate in the USA. On the side in favour of Marshall’s view see Richard B. Lillich, ‘International Law in U.S. Courts.’ Journal of Transnational Law & Policy 2(1) (1993): 1-22; 2.

26 For comment on these cases see Steven Calabresi and Stephanie Dotson Zimdahl, ‘The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision.’ William and Mary Law Review 47(3) (2005): 743-909; 763-771.

7 ii. Elements of a global constitution: The rise of courts If the legal and constitutional doctrines of the Enlightenment contained very evident principles of global constitutionalism, this is not as clearly the case for theories of judicial power in the Enlightenment. In some respects, it is difficult to see the Enlightenment, at least in its practical-constitutional outcomes, as providing a model to support the later global rise of strong judicial authority. Most notably, for example, the French Revolution was driven in part, by a deeply ingrained contempt for judicial power, and leading revolutionaries openly associated judges with the corrupt practices of corporations, which had dragged against the systematic organization of governmental power through the seventeenth and eighteenth centuries. Notably one of the first political acts in the revolution was the suspension of the parlements, which had acted as the highest courts under the Bourbon monarchy. In this respect, in fact, the policies of the revolutionaries after 1789 formed a deep continuum with the earlier policies of the French kings, who had also attempted repeatedly to restrict the independent authority and influence of judicial corporations.27 Accordingly, the constitutions created during the revolution also contained clauses that strictly limited the scope of judicial authority, placing courts within a sharply ordered separation of powers, and which definedsaw the elected legislature as the basic focus of legal and political unity and obligation for the new republic. In France, consequently, the idea of the essential unity between the nation and its legislature remained pervasive for centuries after 1789, and it was only diluted through much later processes (in the 1970s), in which courts acquired powers to place horizontal checks on legislative acts.28

Outside France, however, the Enlightenment had a very strong judicial dimension, and it clearly promoted the rise of strong independent courts. At a conceptual level, for example, theorists of the Enlightenment placed particular emphasis on the consistency of the judiciary as a cornerstone of the legitimate state. Very early theoretical motifs of the Enlightenment were already identifiable in the judicial opinions of Edward Coke, who argued that the courts had the obligation to defend a judicially constructed common-law constitution against all exercise of political prerogative.29 Later, tellingly, Locke saw the existence of impartial judges as the first foundation of the state; he even saw the need for uniform judicial functions, in a quasi-sociological perspective, as the initial force that elevated human society above the state of nature.30 This idea was later taken up by Adam Smith, who also saw the need for judicial uniformity as a singularly dynamic force in human societal evolution.31 In more general practical terms, further, judicial reform was placed at the very centre of the European Enlightenment. In most countries, the principles of natural law extracted from moral philosophy were used to promote extensive reform of the judicial apparatus, focused on the imposition of uniform legal codes across the localized judicial patchwork persisting

27 The tension between the French monarchy and the parlements, a long-running contest in early modern France, came to a head in the May Edicts of 1788, in which the king ordained before the Assembly of Notables that the parlements should be replaced with a single plenary court to register all laws, and that the privileges of the courts should be suspended and a uniform judicial structure imposed throughout France.

28 For comment see Pierre Rosanvallon, La Démocratie inachevée. Histoire de la souveraineté du people en France (Paris: Gallimard, 2000).

29 See Case of Proclamations [1610] EWHC KB J22 (01 November 1610)

30 John Locke, Two Treatises of Government (Cambridge: Cambridge University Press, 1960 [1689]), p. 350.

31 Adam Smith, Lectures on Jurisprudence, edited by R.L. Meek, D.D. Raphael and P.G. Stein (Oxford: Oxford University Press, 1978 [1762-66]), p. 347.

8 from the feudal era, and, above all, on the abolition of private justice and patrimonial courts.32 Indeed, one central objective of the legal theorists of the Enlightenment, especially in the Holy Roman Empire, was to establish a judicial system that was indifferent to confessional distinctions, allowing justice to be dispensed equally to persons affiliated to different religious denominations.33 The longer aftermath of the Enlightenment was then dominated still more intensively by processes of judicial reform, and through the early nineteenth century most of Europe (and much of Latin America) was exposed to far- reaching processes of legal systematization through the enforcement of Napoleonic civil law.

The centrality of judicial politics to the constitutional practices of the Enlightenment, however, was most obvious in the USA: judicial politics played an important role in each stage of the foundation of the American Republic – in the gradual gaining of independence from Great Britain, in the writing of the Constitution, and in the consolidation of the Republic as an early nation state. First, prior to the Declaration of independence in 1776, courts in different American colonies had already begun to assert the right to defend certain common-law principles, construed as natural rights, against the acts of the Westminster parliament, and to refuse to enforce certain English statutes on this basis.34 Judicial power was thus an early factor in the collective rejection of colonialism, and, whilst still acting under colonial law, American courts assumed a distinctive position in the projection of an informal constitution, which American revolutionaries eventually committed themselves to defend. The legacy of Coke was clearly very widely felt throughout the revolutionary period. Second, during the writing of the Constitution, provisions for judicial power were clearly influenced by this background. The constitution had the – in the eighteenth century – unusual feature that it established a Supreme Court, whose powers were defined under the Supremacy Clause and the Judiciary Act, and which was accorded authority to review federal statutes for compliance with the Constitution and generally to entrench core provisions of the Constitution. Third, most importantly, the powers of judicial review allotted to the Supreme Court were extended substantially during the first decades of the new Republic. Through the 1790s, a number of cases came before the court in which the court consolidated its entitlement to strike down federal laws, and, eventually, the court also assumed competence to strike down state laws on grounds of unconstitutionality. Under John Marshall, most notably, Justices on the Supreme Court began to claim that it was their duty to protect the constitution as a system of higher-ranking rights. This view in fact became central to Marshall’s jurisprudence, and he argued that the constitution was a superior, paramount law for the nation, and that the Supreme Court, speaking for the ‘original and supreme will’ of the people,35 was obliged to obstruct any act that appeared repugnant to the constitution’. Progressively, therefore, judicial constitutions evolved in the USA as bodies with distinctive nation-building capacities, imposing the constitution as a coherently centralized set of norms across the tenuously linked domains of the new

32 In Prussia, for example, Samuel Cocceji used principles of natural law to insist on the need for a formally independent judiciary, separate from the executive body of the state, which could ensure that the functions of law were systematically defined and implemented. See Samuel Cocceji, Jus civile controversum, new edition, in 2 vols (Leipzig: Weidmann, 1791-99 [1713-18].), I; p. 159.

33 See Johann Jacob Moser, Von der teutschen Religionsverfassung, in: Neues deutsches Staatsrecht, in 20 volumes (Stuttgart: Mezler, 1762–82), 7: p. 285

34 Nathan Boone Williams (1940), ‘Independent Judiciary Born in Colonial Virginia.’ Journal of the American Judicature Society 24 (194): 124-127.

35 Charles F.Hobson, and Fredrika J. Teute (eds), The Papers of John Marshall, in 9 vols. (Chapel Hill: University of North Carolina, 1990), VIII, p. 182

9 Republic, and in fact instituting a system of rights, in which the constitution itself was recognized as the fulcrum of the sovereign nation. Whereas revolutionary France opted for a political system based, at least in principle, in the sovereign will of the people, revolutionary America opted for a constitutional model based in the sovereignty of law, secured by courts.

Both conceptually and practically, therefore, the Enlightenment also consolidated the second pillar of global constitutionalism. Indeed, the contemporary abstraction of judicial power as a repository of the sovereign will of society was clearly pre-figured in the judicial politics of the late eighteenth century. iii. Elements of a global constitution: Weakening of constituent power It is now widely argued that the main distinction between global constitutional law and the patterns of constitutional law created in the Enlightenment is that classical constitutional law was centred on the doctrine of constituent power and national sovereignty, whereas, in global normative systems, the role of collective national agency as a source of founding norms is necessarily reduced.36 This construction of classical constitutionalism is shaped in particular by a reception of the constitutional doctrines of Jean-Jacques Rousseau and Emmanuel-Joseph Sieyès. Sieyès, most notably, stands out as the primary constitutional architect of the Enlightenment era, and he played a role in writing most constitutions of revolutionary and Napoleonic France. Conceptually, Sieyès built a doctrine of constitutional legitimacy on Rousseau’s earlier theory of the general will, and he used this doctrine in order to legitimate the assumption of constitution-making power by the Third Estate in Versailles in summer 1789. To this end, he argued that a legitimate constitution must be created by the nation as a whole, assembled as a constituent power, and that all laws derive their authority from the fact that they are authorized by the original decisions of the constituent power.37 On this basis, there appears to exist a very distinctclear caesura between contemporary constitutional norms, based in part in generalized principles of international law, and the models of public law endorsed in the Enlightenment. Above all, it is clear that the specifically national dimension of constituent power – that is, the belief that a particular national collective can spontaneously determine the higher-order rules of its collective life – has been eroded through the growing force of transnational norms, and, in particular, by the presumption that national constitutions are only valid if inserted into an overarching system of basic rights.

However, if we look beneath the surface of doctrines of constituent power that emerged in the Enlightenment it becomes apparent that, in this respect too, there remain important lines of continuity between contemporary and classical constitutional theory. On one hand, first, it is erroneous to assume that the theory of national constituent power was native to France, or that Sieyès was its sole exponent. As was clearly recognized in contemporary discourse,38 this doctrine had been developed in revolutionary America some time before the Estates-General met in Versailles. Ultimately, then, this doctrine was spelled out in the

36 Jeremy A. Rabkin, Law without Nations? Why Constitutional Government requires Sovereign States (Princeton: Princeton University Press, 2007), p. 70; Dieter Grimm, Die Zukunft der Verfassung (Frankfurt am Main: Suhrkamp, 1991), p. 31; Martin Loughlin, ‘In defence of Staatslehre.’ Der Staat 48(1) (2009): 1-27.

37 Sieyès saw the nation (people) as ‘the origin of everything […] the law itself’: Emmanuel-Joseph Sieyès, Qu'est-ce que le Tiers-Etat?, second edition. (Paris, 1789), p. 79.

38 Marquis de Lafayette [Marie-Joseph Paul Yves Roch Gilbert du Motier], Mémoires, correspondences et manuscrits, in 12 vols. (Brussels: Hauman et Comp, 1839), VII, p. 50.

10 Federalist Papers, especially by Alexander Hamilton.39 Notable in the emergence of this doctrine in the America context are two particular points. First, the doctrine of constituent power was clearly linked to preconditions regarding the importance of judicial constitutions, and courts were envisioned as institutions that would entrench and protect the decisions of the constituent power in subsequent constitutional practice. In particular, courts would protect constituent power as a system of rights, and they would strive to prevent the passing of laws that might violate the rights contained in the constitution. Second, as discussed, in revolutionary America the idea of constituent power of the people was first formulated as part of an attempt to protect and consolidate a body of already existing rights, derived from a fusion of the English common law and the natural-law ideals of the Enlightenment. As a result of this, the constituent power was conceived as a focus of norm- setting agency, which merely re-articulated principles contained in an already implied constitutional order, and which secured legitimacy for the laws that it produced on this pre- determined normative foundation. In post-revolutionary America, then, this secondary character of the constituent power was clearly underlined by the fact that the new Republic was immediately placed within an overarching system of international law. On each of these counts, the exercise of constituent power in and after the American revolution was perceived as the realization of an already (albeit inchoately) given body of constitutional rights, and the normative constraining of constituent power by a higher order of norms, based in universal rights, was already clearly in evidence. The idea that constituent power expressed a moment of radical constitutional foundation was never very strong.

In revolutionary France, although usually seen as the site of a radically voluntaristic construction of constituent power, similar tendencies can be observed. To be sure, in post- 1789 France, no strict entrenchment of the constitution ent was envisaged, although Sieyès did toy with the idea of introducing an early constitutional court in his drafts for the 1795 constitution.40 Despite this, nonetheless, the theory of constituent power in the French Revolution, like its shadow in America, quite evidently understood legitimate constituent power as a mode of constitutional agency that was subject to prior norms, and proportioned to the realization of principles of natural law. For example, Sieyès clearly placed his understanding of the constituent power at the core of a doctrine of rights-based juridical equality, in which the assertion of this power was synonymous with the allocation of equal rights to all persons in society.41 More importantly, then, in the white heat of revolution, Robespierre rephrased this notion, claiming that basic rights were always implied as restrictions on the volitional exercise of constituent power, and that the constituent power could only legitimately express a founding political will if it willed rights. In 1793, Robespierre concluded that constituent power could only acquire legitimacy if it projected constitutional laws within the constraints of an implied system of rights, and – most notably – if these rights were constructed as rights with universal or global validity. He explained this principle in the following terms: ‘The Declaration of Rights is the constitution of all peoples; other laws are by their nature changeable, and subordinate to it. It must be present to all spirits, it must shine at pinnacle of your public code, and its first article must be the formal guarantee of all rights of man.’42 As in revolutionary America, therefore, the

39 James Madison, Alexander Hamilton, and John Jay, The Federalist Papers (London: Penguin, 1987 [1787- 88]), p. 327.

40 Michel Troper, Terminer la révolution. La constitution de 1795 (Paris: Fayard, 2006), pp. 525, 537

41 Sieyès argued that the nation, as constituent power, is a people ‘all equal in rights’: Emmanuel-Joseph, Sieyès, Préliminaire de la constitution: Reconnaissance et exposition raisonnée des droits de l'homme & du citoyen (Versailles: Ph.-D. Pierres, 1789), p. 19.

11 theory of constituent power that resulted from the French Enlightenment was not conceived in a legal-constitutional vacuum, and the idea, set out by Sieyès, that the constituent power must stand radically before the law was always softened by the idea that the constituent power is ius always pre-defined by a corpus of rights: it always creates a constitution within a constitution. In fact, although the theory of constituent power appears to belong to the more voluntaristic end of the spectrum of Enlightenment political thinking, it was clearly determined by ideas of the rational will, which can be found on the works of Leibniz and Kant. Notably, the great precursor of the theory of national constituent power, Rousseau, stood between voluntarist and rationalist theories of legitimate order, and he argued that a political order becomes legitimate if it is willed by a collective will (a constituent power) that is inherently rational and can be generalized for all persons: by a will that wills rights.43

On this basis, the common claim in global constitutional theory that there is a deep contradiction between the volitional sovereignty of national peoples in classical constitutionalism and the overarching force of global constitutional law only has a qualified validity. In the theories of the Enlightenment, national constituent power was seen as an integrated part of a global system of rights, to which, then, it was required to give effect. The conflict between constituent power and global constitutionalism is the product of a later tradition of post-Enlightenment reflection, which imputed a more strictly nationalist, locally historicized foundation to the decisions of the constituent people.44 The Enlightenment, however, did not see a deep conflict between constituent power and global norms, and it always perceived constituent power as a pattern of agency that brings reality to a high-order system of rights.

Constitutionalism and the abstraction of political system Overall, it is observable that, both conceptually and practically, many aspects of what is today perceived as global constitutionalism already existed in classical constitutional theory, the defining components of which were formulated during the Enlightenment. In many respects, the theory and practice of global constitutionalism appears, not as a rupture with classical constitutionalism, but as its extension and even as its necessary corollary. In fact, this is not only the case if we observe constitutionalism as a simple positive phenomenon. Global constitutionalism also appears as a natural extension of classical constitutionalism if we observe trajectories of constitutional norm construction, not only as positively constructed institutional systems, but as refractions of sociological processes.

Most notably, if approached sociologically, we can observe that the primary feature of classical constitutionalism was that it reacted to a series of deep-lying processes, which shaped the structure of European and other societies, in the longer wake of the collapse of feudalism. Notably, the basic diction of classical constitutionalism produced a series of concepts in which political institutions learned to aarticulate legal norms in order to authorize their use of power, above the interwoven patchwork structure of late-medieval corporatism, and to stabilize their functions in the context of increasingly extensive, functionally differentiated, centralized societies. The constitutional idea that the state was

42 Maximilen Robespierre, ‘Discours sur la Constitution’ in Robespierre, Oeuvres, vol. 9. (Paris: Presses Universitaires de France, 1957), pp. 495-510; 507.

43 Rousseau states, accordingly: ‘Il y a souvent bien de la différence entre la volonté de tous et la volonté générale; celle-ci ne regarde qu’à l’intérêt commun; l’autre regarde à l’intérêt privé, et n’est qu’une somme de volontés particulières:’ Jean-Jacques Rousseau, Du contrat social et autres oeuvres politiques (Paris: Garnier, 1975), p. 252

44 See Carl Schmitt, Verfassungslehre (Berlin: Duncker und Humblot, 1928), p. 76.

12 founded in a national constituent power, above all, allowed national political systems to project their power as authorized by all society, and as applied to persons who were conceptually implicated in the production of this power. This meant that political institutions were able increasingly to presume collective authority in society, to produce laws with claim to collectively binding force, and to define their authority as higher than that of the local/corporate institutions which had historically been located between the state and individual persons in society. As a result, this concept provided a diction of abstraction for political power, and it made it possible for increasingly expansive national societies to construct reserves of power in a form that could be stored in central institutions, and easily transmitted, authorized, and reproduced across very different societal locations. IN short, the expansion and differentiation of early modern societies stimulated a need for political institutions (i.e. states) that could circulate power relatively easily across long geographical and temporal distances. Constitutions, centred around the concept of constituent power, made this possible.

In some respects, if viewed literally, the rise of global constitutionalism reflects a process which is diametrically opposed to the formative dynamic underpinning classical constitutions. If classical constitutions distilled a diction of abstraction for political power I which power could be easily utilized by states, global constitutionalism clearly enacts a process in which states forfeit their classical position as dominant centres of political power and authority. However, if we observe the process of political abstraction in the Enlightenment from a more sociological standpoint, as a process in which the political system of society was constructed at a heightened level of extension and generality, something similar can be identified in contemporary society, defined increasingly by global constitutionalism. Notably, in the form of global constitutional law, political power is increasingly abstracted into a form defined by global rights, which means that it can be distributed easily, at a high level of iterability, across the rapidly widening functional and geographical spaces which global society contains, and underpins the emergence of a political system which is able more simply to replicate and reproduce its power across the fissures between national states, which defined the structure of high modern society. If classical constitutionalism produced a diction of abstraction (constituent power) for the political system in the transition from early modern to modern society, global constitutionalism re-enacts this same process, and it constructs a diction of abstraction (rights) for the political system as the units of political power that characterized high modern society (states) are superseded as dominant actors. In both respects, constitutional norms are specifically formulated and cemented as institutions that stabilize the form of political power at a new level of reproducibility, and which allow the political system of society to construct and circulate political power in increasingly abstracted form, attuned to its own increasingly differentiation and expansiveness. Seen from a macro-sociological perspective, therefore, the continuity between classical and global constitutionalism appears greater than even their literal conceptual and objective similarities indicate.

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