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Cosmopolitan Constitutionalism: A Response to Nico Krisch

Published on December 16, 2009        Author: 

In his post Nico Krisch raises some important points that allow for the clarification of some core ideas. I have little to add to the part of his comments that describe the  “right starting points” and “important insights” but would like to address and hopefully clarify some points that concern the “more problematic turn”. That clarification might not lead to an agreement, but it might help provide a deeper understanding of cosmopolitan constitutionalism and its connection to constitutionalism more generally. My comments will address first the connection between constitutionalism and “the dream of reason” (1)  and second the relationship between constitutionalism and the law and politics divide (2) and, very briefly (3) the claim that international law is different.  Read the rest of this entry…

 
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The cosmopolitan turn in constitutionalism: on the relationship between national constitutional law and constitutionalism beyond the state

Published on December 15, 2009        Author: 

Mattias Kumm is Professor of Law, NYU School of Law. He is currently Visiting Professor of Law and John Harvey Gregory Lecturer on World Organization, Harvard Law School.

The greatest impediment to the understanding of the legitimacy, efficacy and coherence of  global public law is the tradition of democratic constitutionalism, at least if that tradition is imagined within a statist paradigm. It is simply not the case that global public law – the legal practices emerging under the UN Charter, the practices of the ICC, the ECHR, the WTO, or the contemporary conception of customary international law, which no longer mirrors the idea of quasi-universal state consent– are troubled by structural problems of coherence, efficacy or legitimacy of a kind that national law does not suffer from. Statist constitutional thinking distorts the description and assessments of legal practices in three ways. First, it drastically exaggerates the coherence, legitimacy and efficacy of domestic constitutional practices (call this “idealist distortions”). Second, it unilluminatingly casts a general cloud of suspicion over legal practices beyond the state that are imagined as fragmentized, deficient legitimacy-wise and burdened by problems of compliance (call this “faux realism”). Third, it tends to neglect the connection between domestic legitimacy and efficacy and the wider regional or global legal context in which these practices take place (call this “misguided separation”). The legitimacy and efficacy of national and transnational legal and political practices are much more closely connected then conventionally acknowledged.

The legitimacy of the practice of democratic constitutionalism depends in part on the how it relates to the wider legal and political world.  To illustrate the point: National democratically enacted “beggar thy neighbor” policies relating to, say, carbon-dioxide emissions are not legitimate, simply because they were enacted in a democratic process, ultimately authorized by a constitution authorized by “We the People” . If some Pacific Islands were to disappear as a result of global warming and its populations are uprooted at least in part because of domestic environmental decisions made by, say, the US, the US “beggar thy neighbor” decisions are not legitimate merely because they were supported by democratically accountable institutions under the US constitution: Externalities matter. Conversely, imagine a multilateral global climate change Treaty negotiated in Copenhagen enjoying widespread support from rich, poor, southern and northern states, but  suffering from the lack of support of one or two economically important hold-out states.  Now assume that a reformed more participatory UN Security Council Resolution enacted the substantive content of the Treaty as universal obligations, thereby imposing obligations on holdout-states that refused to give their consent to the Treaty: There are circumstances under which the claim that such an imposition of obligations on non-consenting states would be illegitimate because of lack a lack of democratic accountability would be implausible. The comparative advantage in terms of legitimacy might, under some circumstances, be on the side of global law.

 Similiarly, the efficacy of domestic constitutionalism is generally exaggerated. Think of the quotidian “underenforcement” of constitutional provisions (or adminsitartive or criminal provisions) on the one hand and the breakdown of civil order and civil war on the other. Law is a fragile thing, both inside and outside the state. Read the rest of this entry…

 
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