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The Genre of Constitutionalization?

Published on August 10, 2010        Author: 

Professor Jan Klabbers is Professor of International Law at the University of Helsinki, and Director of the Academy of Finland Centre of Excellence in Global Governance Research. His previous post introducing the book by Klabbers, Peters & Ulfstein The Constitutionalization of International Law   is available here

So far, the blogging concerning The Constitutionalization of International Law  The  has been fairly sedate. Of course, it is summertime; of course, there was a soccer tournament to focus on; of course, the ICJ’s opinion on Kosovo occupies the international legal community; and perhaps there is a certain idleness and lethargy to be associated with constitutionalism these days, as Jeff Dunoff and Joel Trachtman merrily suggest. But it may also be the case that the approach we espouse gives rise to some unease on the part of readers and therewith elicits few responses, for our approach is difficult to pigeonhole. The kind and generous comments published on EJIL: Talk! suggest as much: they display a certain puzzlement at what it is we aim to do, and some seem to have difficulties in identifying the genre we work in.

That is not surprising, as our genre is indeed uncommon. We do not aim to engage in descriptive sociology – ours is not an enterprise to establish that constitutionalism exists, in some real sense and as a matter of positive international law. Nor do we engage in idealist normative theory pur sang: we do not aim to suggest that constitutionalism is, as a way of organizing the globe, superior to alternatives. Likewise, ours is not a conceptual study in any strict sense of the term: we do not aim to establish the (or, more modestly, a) concept of global constitutional law. We do not aspire to make an argument de lege ferenda about constitutionalization.  And emphatically, we never set out to study the causes of constitutionalism, no matter how much Dunoff and Trachtman might have expected us to. Read the rest of this entry…

 
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Constitutionalization and International Law-making

Published on July 13, 2010        Author: 

Professor Jan Klabbers is Professor of International Organisations Law, Director of the Centre of Excellence in Global Governance Research and Deputy Director of the Erik Castren Institute of International Law and Human Rights at the the University of Helsinki.

The main question underlying the recent book byAnne Peters, Geir Ulfstein and I – The Constitutionalization of International Law  – is this: presuming that international law is indeed, as many contend, constitutionalizing, then what would international law come to look like? Given that there are a number of issues constitutional regimes usually address (political institutions of the community, membership, judicial organization, law-making, and procedures for the making of decisions), we wondered how these would, could or should be addressed in a constitutionalizing international legal order. Our aim was not to demonstrate that constitutionalization is actually going on – we simply presume it is, and leave the demonstration to others. Nor did we set out to sketch an ideal global constitutional order: this is a task perhaps best left to moral philosophers. Instead, we decided it might be interesting to take the claim of constitutionalization seriously and try to figure out what its consequences would be for international law.

The book’s first chapter is dedicated to ‘setting the scene’. It discusses globalization and a number of other current and related phenomena, such as the fragmentation of international law. One of the main points of the opening chapter is to establish that, in a world of well over six billion people, divided into 200 states and a handful of major religions, cultures, and ethical traditions (not to mention their widely divergent situations, giving rise to widely diverging interests), full agreement on all political topics is unlikely. In other words: the chapter recognizes that we live in a world of value pluralism, which entails that constitutionalism has to be pluralist as well: it has to respect and accommodate pluralism.

Second, a constitutional order needs to be a legitimate order. Now, legitimacy is a term which has been, and is, much abused, and while the chapter tracks the legitimacy debate to some extent, the main point for present purposes is simply this. Hypothetically, a constitutional order can be ran in many fashions – depending on one’s definition of constitutionalism, there may be no inherent contradiction between constitutionalism and enlightened dictatorship or rule by aristocracy, or even foreign rule or empire. Yet, these are not versions of constitutionalism we would subscribe to. Instead, the idea of a constitution carries overtones of political legitimacy: a constitutional order is a legitimate order, and a legitimate order is one where all relevant stakeholders are involved in governance, in one way or another. Read the rest of this entry…

 
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