Nico Krisch is Professor of International Law at the Hertie School of Governance, Berlin
We tend to fill voids with what we know. When we are thrown into unfamiliar spaces, we try to chart them with the maps we possess, construct them with the tools we already have. Working with analogies, extending and adapting existing concepts, seems usually much preferable to the creation of ideas and structures from scratch, not only because of the risks involved in the latter, but also because of our limits of imagination.
When we try to imagine the postnational space, it is not surprising then that we turn for guidance first to the well-known, the space of the national. The postnational, no doubt, is unfamiliar territory; the shape of its institutions, of allegiances and loyalties, of influence and power, submission and resistance is – sometimes radically – different from what we are familiar with. In Ruling the World?, David Kennedy nicely points out how little we actually know about this space, and how much anxiety this can provoke.
The global constitutionalist project seems to rescue us from this anxiety, it appears as a promise to structure the global level in a similar way to what we know from home. It returns to us a feeling of agency in the face of external circumstances, of reason when confronted with an institutional morass created through power, path dependence or mere accident. And it bears the promise that key political values, such as rights or democracy, will not be neglected simply because we are talking about issues beyond the nation state.
When it comes to spelling out what this means, however, the constitutionalist promise often gets watered down. It turns into constitutionalism with a small ‘c’ , into a quest merely for some stronger rights protection and a few more judicial review mechanisms, all part of a process of ‘constitutionalisation’ without a clear end goal. Samantha Besson’s paper in Ruling the World? highlights the gap between such approaches and what she rightly sees as a much more demanding domestic tradition of constitutionalism, but she too is the victim of adaptive preferences. Because the strong unitary, hierarchical element in constitutionalism clashes with the fragmented, chaotic structure of global governance, she quickly reinterprets ‘constitutionalism’ so as to make it fit – as a softer, more accommodating, broadly pluralist notion. Normatively, this may point into the right direction (I have defended a pluralist position elsewhere too, see here), but the link with ‘constitutionalism’ as we know it becomes very weak indeed.
Glossing over the extent of the challenge would not be Mattias Kumm’s style. In his paper in this volume (see Mattias’ EJIL:Talk! post here) - the focus of my short piece – it certainly is not, for it sets him on a ‘revolutionary’ path and promises us nothing less than a ‘Copernican turn’ in thinking about constitutionalism. Read the rest of this entry…