sign in sign up
<<
Home , Constitutionalism

Global Constitutionalism law into a law of and for the global citizen (Habermas 2006 ). For Habermas, following A n n e P e t e r s Kant, a cons titution deserving that name must be “republican,” established by the citizens to govern their affairs (Habermas 2006 : 130–1). Strands of Global Constitutionalism Because this type of democratic foundation Global constitutionalism comprises different and a global political power to enforce the strands of thought most of which read (or law are lacking on the international plane, reconstruct) some features of the status quo of international law as it stands is only a “proto- global law and governance as “constitutional” ” (Habermas 2006 : 131). and even “constitutionalist” (positive analysis), Fusing Kant, Habermasian discourse theory, and which also seek to provide arguments for and social constructivism, Kleinlein has elabo- their further development in a specific direc- rated a concept of constitutionalization “in, not tion (normative analysis). of international law” (Kleinlein 2011 : 685). Here Constitutionalism claims that the princi ples constitutionalization is perceived as a process of of the , a , funda- identity change and self-entanglement of states mental protection, , and soli- and other international actors. The process of darity, together with and mechanisms constitutionalization has not brought about for- securing and implementing these principles, are mally higher laws, but has merely created a (comparatively) well suited to safeguard and burden of justification (Kleinlein 2011 : 687). promote as much as possible the well-being of Emmerich-Fritsche has traced the emergence of natural persons not only as atomized individuals a “global constitution” in the form of a basic but also in their group relationships. The claim order of principles in positive law, and has diag- of probably all types of global constitutionalism nosed a shift from a law of nations to is that the respective principles, institutions, and global law (Emmerich-Fritsche 2007 : 1034). mechanisms can and should be used as parame- Teubner has highlighted that constitutional ters to inspire strategies for the improvement of theory’s challenge today is both privatization and the of an international legal order and globalization. Constitutionalism must therefore institutions without asking for a world state. move beyond the nation-state, but in a double The starting point of the contemporary sense: into the transnational sphere and into the debate were reconstructions of the founding private sector, for example by obliging transna- treaties of some international organizations as tional corporations to respect human rights. A of those organizations. This type multiplicity of civil constitutions is emerging of reconstruction has been conducted for the through “auto-constitutionalization,” with con- European Union (EU) (Peters 2001 ; Pernice stitutionalization meaning the juridification of 2009 ) and for the World Trade Organization reflexive social processes (Teubner 2012 ). (WTO) (Cass 2005 ; Petersmann 2011 ). In con- A yet different strand highlights the absence trast, the United Nations Charter has been of a single observer standpoint from which reread as “a constitution of the international to assess claims to constitutionalization (epi- community at large” (Fassbender 2009 : 170; stemic pluralism). In that perspective, constitu- Habermas 2006 : 159–65). tionalism beyond the state is less a matter of Habermas has used Kant’s concept of a “cos- positive norms than of a discourse and a vocab- mopolitan status” (weltbürgerlicher Zustand ) ulary with a symbolic value, an “imagination” to demand a transformation of international (Walker 2012). This approach has been further

The Encyclopedia of Political Thought, First Edition. Edited by Michael T. Gibbons. © 2015 John Wiley & Sons, Ltd. Published 2015 by John Wiley & Sons, Ltd. DOI: 10.1002/9781118474396.wbept0421 2 developed into a social constructivist account as constitutionalization (Klabbers, Peters, & (Diggelmann & Altwicker 2008 ). Ulfstein 2011 ). Constitutionalization in this scholars have espoused sense is an evolution from an international a “functional approach” which highlights order based on some organizing principles, the enabling, constraining, and supplemental such as state sovereignty and consensualism, to func tions of and sees con- an international legal order which acknowl- comitant dimensions of constitutionalization edges and has creatively appropriated princi- of international law (Dunoff & Trachtman ples and values of constitutionalism. 2009 ). Cons titutional functions are also the When transposed to the international level, focus of “compensatory constitutionalism” constitutionalist principles have been and must which calls for the development of global con- to some extent be modified, as well as their stitutional law as a strategy to compensate for modes of implementation. Also, the relevant the de-constitutionalization of domestic gover- legal rules need not necessarily be united in one nance (Peters 2006 ). The argument here is that single document called “world constitution.” globalization and global governance have put the The scattered legal texts and the case law state and state constitutions under strain. Global together might form a body of international problems have compelled states to transfer pre- constitutional law which is a specific subset of viously typically governmental functions, such the international legal order, and which has a as guaranteeing human security, freedom, and particular normative status. equality, to “higher” levels, and to nonstate actors The agents of this (putative) process of con- acting in a transboundary fashion. This has led stitutionalization are the international law- to governance which is exercised beyond the makers as political actors, and also academics. states’ constitutional confines. National constitu- Overall, constitutionalization is both a process tions are, so to speak, hollowed out; traditional and an accompanying discourse. constitutional principles become dysfunctional or empty (Peters 2007 ). In consequence, if the C r i t i q u e achievements of constitutionalism are to be pre- served, compensatory constitutionalization on Criticism has been raised both against the the international plane is required. diagnosis of constitutionalization (as a legal A related concept is that of “multilevel consti- process), and against constitutionalism as a tutionalism” (Cottier & Hertig 2003 : 299, 301). discourse and intellectual framework. One Here, the idea is that all layers of governance objection is that the identification of a process should be considered, as a whole, as one overall of constitutionalization in international law constitutional system, and that constitution- (and of the de-constitutionalization of national alism should focus on how the constitutional governance through globalization) is descrip- functions can be secured. tively false. There is, according to this Focusing on the interface between domestic objection, no real trend of constitutionaliza- and international law, Kumm has elaborated a tion; the international legal order remains “cognitive framework” of “cosmopolitan con- minimalist, soft, and fragmented, because the stitutionalism” which, he claims, is not radi- international legal process is basically undem- cally different, conceptually, from domestic ocratic, and because the enforcement of inter- constitutionalism (Kumm 2009 ). national law is deficient. In particular, the typical formal quality of constitutional law, its Current Constitutionalization normative supremacy over other law, is lack- ing with regard to international law. Neither in International Law international ius cogens nor international law Parts of international law have recently evolved as a whole ranks over and trumps contrary in a way that can be described and interpreted (domes tic) norms. 3

In any case, the (putative) constitutionaliza- their interplay), and that it opens a normative tion process is lopsided. It is mainly driven by horizon for reform aspirations. academics and to some extent by international It is important, however, that constitutional- courts, but not by and treaty- ists not give up attempting to explain and under- makers. This means that constitutionalization stand, through a creative rereading, international is either an academic artifact, or – if it is real – law as it stands, and to engage with real interna- raises the normative problem of democratic tional practice. Global constitutionalism should legitimacy vis-à-vis an undemocratic gouver- not become a self-contained discourse detached nement des juges . from legal . Only then will it be able to A more fundamental epistemic critique is uncover structural (“constitutional”) deficiencies that constitutionalization in international law of international law (such as the democratic def- has so far not only failed to take place but is icit of the international legal process), will it intrinsically impossible, because the precondi- allow an assessment of them in a new light, and tions are lacking in the international sphere will it facilitate constructive criticism. (such as the lack of political power of global Global constitutionalism is decoupled from governance institutions). a singular legal and political order. In sub- Various types of normative critique are stance, the constitutional principle of plu- direct ed both against the legal process and ralism calls for accepting as much diversity as against the accompanying discourse. The sup- possible in the various spheres. This means posedly constitutionalist principles might be that different standards (e.g., of fair trial), in too general and imprecise to solve any concrete different regimes (e.g., in the UN as opposed political problem or to guide legal reform. This to in the EU) should be mutually recognized as seductive vagueness might even hinder the long as a minimal threshold is not undercut. elaboration of concrete suggestions for concrete Of course, the question remains where this problems. Also, the discourse might be too standard lies, and most of all who defines it. Eurocentric, too rooted in nineteenth-century Ultimately, the normative and practical power . of international law does not depend on the Finally, a fundamental pluralist critique is use of the concepts of constitution and consti- that the political, economic, intellectual, and tutionalism, but rather on concrete institu- moral diversity of the world population makes tions, principles, rules, and enforcement. constitutionalism both unachievable and illegitimate. Any constitutional arrangement SEE ALSO: Constitutionalism ; Constitutional would be imposed by one group on another, Law, ; Democracy; Governance ; and would thus be perceived as an imperial Human Rights ; International Institutions ; tool rather than as an expression of common International Law ; Legitimacy ; Rule of Law ; self- (Krisch 2010 : ch. 2). Sovereignty

Conclusion References Constitutionalization in international law is a Cass , D. Z. ( 2005 ) Constitutionalization of the matter of degree. It is an ongoing, but not World Trade Organization . Oxford : Oxford linear, and often disrupted and sometimes University Press . Cottier , T. and Hertig , M. ( 2003 ) “ The Prospects of reversed process. It is not all-encompassing, 21st Century Constitutionalism ,” Max Planck but accompanied by antagonist trends. It is a UNYB , 7 , 261 – 328 . merit of the cognitive framework of global Diggelmann , O. and Altwicker , T. ( 2008 ) “ Is There constitutionalism that it allows for a novel Something Like a Constitution of International understanding of existing legal practice Law? A Critical Analysis of the Debate on World (both international and national, especially in Constitutionalism,” ZaöRV , 68 , 623 – 50 . 4

Dunoff , J. L. and Trachtman , J. ( 2009 ) Ruling the Peters , A. (2006 ) “Compensatory Constitutionalism: World? Cambridge : Cambridge University The Function and Potential of Fundamental Press . International Norms and Structures ,” Leiden Emmerich-Fritsche , A. ( 2007 ) Vom Völkerrecht Journal of International Law , 19 , 579 – 610 . zum Weltrecht . Berlin : Duncker & Humblot . Peters , A. ( 2007 ) “ The Globalization of State Fassbender , B. (2009 ) The United Nations Charter Constitutions .” In J. Nijman and A. Nollkaemper as the Constitution of the International (Eds.), New Perspectives on the Divide between Community . Leiden : Nijhoff . National and International Law . Oxford : Oxford Habermas , J. ( 2006 ) “ Does the Constitutionalization University Press , pp. 251 – 308 . of International Law Still Have a Chance ?” In C. Petersmann , E.-U. ( 2011 ) “ Multilevel Trade Cronin (Ed. and Trans.), The Divided West . Governance in the WTO Requires Multilevel Cambridge : Polity , pp. 115 – 210 . Constitutionalism.” In C. Joerges and E. U. Klabbers , J. , Peters , A. , and Ulfstein , G. (2011 ) Petersmann (Eds.), Constitutionalism, Multilevel The Constitutionalization of International Trade Governance and International Economic Law , expanded ed . Oxford : Oxford University Law, 2nd ed. Oxford : Hart , pp. 5 – 57 . Press. Teubner , G. (2012 ) Constitutional Fragments: Kleinlein , T. (2011 ) Konstitutionalisierung im Societal Constitutionalism and Globalization . Völkerrecht: Konstruktion und Elemente einer Oxford : Oxford University Press . idealistischen Völkerrechtslehre . Berlin : Springer . Walker , N. (2012) “Constitutionalism and Pluralism Krisch , N. (2010 ) Beyond Constitutionalism: The in Global Context .” In J. Komárek and M. Avbelj Pluralist Structure of Postnational Law . Oxford : (Eds.), Constitutional Pluralism in the European Oxford University Press . Union and Beyond . Oxford : Hart . Kumm , M. ( 2009 ) “ The Cosmopolitan Turn in Constitutionalism: On the Relationship between Further Reading Constitutionalism In and Beyond the State .” In J. L. Dunoff and J. P. Trachtman (Eds.), Ruling the Dobner , P. and Loughlin , M. (Eds.) (2010 ) The World? International Law, Global Governance, Twilight of Constitutionalism? O x f o r d : O x f o r d Constitutionalism . Cambridge : Cambridge University Press . University Press , pp. 258 – 326 . Peters , A. ( 2009 ) “ Humanity as the A and Ω of Pernice , I. ( 2009 ) “ The Treaty of Lisbon: Multilevel Sovereignty,” EJIL , 20 , 513 – 44 . Constitutionalism in Action ,” Columbia Journal Peters , A. ( 2011 ) “ The Security Council’s of European Law , 15 , 349 – 407 . Responsibility to Protect ,” International Peters , A. (2001 ) Elemente einer Theorie der Organisations Law Review , 8 , 1 – 40 . Verfassung Europas . Berlin : Duncker & World Summit Outcome Document , UN Doc Humblot . A/RES/60/1 of October 24 , 2005 .