Professor Gráinne de Búrca is Professor of Law at  Fordham Law School, and during 2009-10 is a Straus Inaugural Fellow at NYU Law School.  She was previously Professor of Law at the European University Institute and Lecturer in Law at Oxford University

One of the aims of Ruling the World?, the interesting collection of essays which Jeff Dunoff and Joel Trachtman have assembled, is to try to understand the increasingly common practice of referring to instances of international or transnational governance in constitutional terms.   What does the vocabulary of international constitutionalism signify, and what is it intended to mean?   They argue for clarity on this basic analytical issue, and propose an understanding of ‘international constitutionalism’ in functional terms.   International constitutionalism should, they argue, be understood to refer to norms which enable or constrain the production of international law.   Their account is entirely neutral (international constitutionalism as a process with no particular teleology) and resolutely functional, such that even their description of the normativity of international constitutionalism has an instrumental rationality. Thus they argue that international constitutional norms should be assessed according to “their ability to enable individuals and states to advance the international public policy goals that they aim to achieve”.  

Neil Walker’s concern with international constitutionalism, on the other hand, is with the normative implications of drawing on the language of constitutionalism in the first place to describe the growth and mutation of forms of legal authority across the transnational domain.  The implicit suggestion here, contra Dunoff and Trachtman, is that the development of international constitutionalism is not a natural or a neutral process.  In other words, the decision to frame a development in the language of ‘international constitutionalism’ is a conscious and consequential one, given the symbolic capital of the discourse of constitutionalism and its deep domestic origins. A similar point has recently been made by Stepan Wood and Stephen Clarkson in their rather more sharply critical analysis of ‘supraconstitutional’ regimes such as the NAFTA (“NAFTA Chapter 11 as SupraConstitution“). Like Dunoff and Trachtman, they define international constitutionalism in functional terms but, unlike Dunoff and Trachtman, they do so by reference to what they describe as the function of supraconstitutional regimes in constraining and transforming domestic law and constitutionalism.  Like Neil Walker, they also emphasize the symbolic capital of constitutionalism in noting that almost all of those who use the language of constitutionalism draw on liberal political theory with implicit or explicit reference to concepts such as the rule of law, constraint of power, protection of rights and democratic deliberation. 

Already here, amongst three recent sets of commentators sharing a similar analytical approach to the phenomenon of international constitutionalism, we see three different normative evaluations.   (more…)

Professor Neil Walker is Professor of Public Law and the Law of Nature and Nations at the School of Law, University of Edinburgh

The intense if highly variable focus on constitutionalism in the Ruling the World collection is a reflection of significant changes in global legal relations with which we are only beginning to come to terms. Once upon a time constitutional law was part of a hegemonic pair of dominant legal frames for the Westphalian world. Constitutional law framed the legal authority of states – understood as mutually exclusive sites of sovereign power – while international law was engaged in the relentless and relentlessly precarious business of framing legal authority between states (who were in many respect in unequal or even imperial relations inter se).

 The world has changed. States are very far from being marginal players, but they do not exert the comprehensive legal and political authority they once did. This poses a challenge to international law and constitutional law alike. For each, the post-Westphalian moment both poses a threat and provides an opportunity. International law is in some respects disorientated and decentred by the erosion of state authority. It has to deal with the rise of private power and of forms of supranational authority. It also has to cope with the related matter of the advent of new forms of functional specialisation – of more or less self-contained regimes in such as environmental, trade and criminal law to which states increasingly defer and where general principles of international law are of fading authority. But privatization, transnationalism and fragmentation also afford new opportunities.  A flexible international law can seek to embrace these. If international law has always been about the heterarchical dimension in legal relations – about law between powerful entities – then the new global archipelago offers new possibilities for the adaptation of international law.

For constitutional law the erosion of state authority poses an even more direct challenge. If constitutional law was embedded in the modern state, what happens when the state itself becomes disembedded from its dominant position in the global order? Does constitutional law just become less relevant, ceding ground to the new forms of private and supranational authority? Or, as in the case of the EU or the WTO or the UN, can it become the new framing discourse for each of these entities considered discretely?  Can we think of such supranational organisations in constitutional terms, and can we even begin to think of private or hybrid bodies (such as the internet’s ICANN) in such terms? Can we learn and borrow from state constitutional discourse sufficiently to bridge the legitimacy gap opened up by the erosion of state constitutional authority?  In other words, can the rise of a new constitutionalism be an answer to the decline of the old constitutionalism?

In my own essay in the collected volume, I ask this question of the EU. My answer is a mixed one. Modern state constitutionalism, I argue, involves a fusion of number of framing registers. (more…)

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.  (more…)

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. (more…)

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. (more…)

David Schneiderman is Professor of Law and Political Science at the Faculty of Law, University of Toronto. His publications include Constitutionalizing Economic Globalization: Investment Rules and Democracy’s Promise (Cambridge University Press, 2008).

Dunoff and Trachtman’s edited volume is a welcome addition to the growing literature exploring linkages between constitutionalism and globalization. With few exceptions, the volume is confined to contributions that consider constitutionalism ‘beyond the state’ as a development to be lauded and defended. Most of these authors, as David Kennedy observes in his contribution, draw on constitutionalism not only for the purposes of “discovery” but for promoting a “project” (40). The editors, in their opening essay (see here and here) and post on EJIL-Talk! (to which I will confine my comments) choose to weigh in on the “discovery” side by adopting a “functional” approach to international constitutionalization. This seemingly has the advantage of being largely descriptive, taking the birds-eye view, about the lay of the land in an age of economic globalization. 

There is an advantage to adopting a functional approach. It enables Dunoff and Trachtman to describe phenomenon only now coming clearly into view. It facilitates tracing the outlines of an international constitutional order that is only partial – a constitution, as has been said of the EU, of bits and pieces. It is one preferable to the “check-list” approach Deborah Cass, for instance, adopts in her book on The Constitutionalization of the WTO. Generating an exhaustive list of criteria drawn from national constitutional systems surely disqualifies most emerging non-state forms of constitutionalism both below and above national state levels. Methodologically, then, this is a sound way to proceed. (more…)

Professor Jeffrey Dunoff is Charles Klein Professor of Law & Government at the Beasley School of Law, Temple University. Professor Joel Trachtman is Professor of International Law at the Fletcher School, Tufts University.

How should we understand international constitutionalism?  This question has many descriptive, conceptual, and normative components:  Is international legal constitutionalism concerned with rules or with institutions – with substance or with process?  Is international constitutionalism a European ploy to remake the world in its image, or to restrain the power of the U.S.?  Perhaps most importantly, does international legal constitutionalism suppress useful political discourse and contention, or does it establish the necessary conditions for productive global politics, and the necessary safeguards against government overreaching? 

Our recent book, Ruling the World? Constitutionalism, International Law, and Global Governance (RTW) addresses these and related questions.  The volume examines constitutional debates at various sites of global governance, including the UN, EU, WTO and elsewhere, and analyzes commonalities and differences in these debates.  It also examines the relationships between international and domestic constitutional orders, the challenges of constitutional pluralism, and the puzzle of democratic legitimacy.   RTW explores the fundamental assumptions and critical challenges in contemporary debates over international constitutionalization and sets out a comprehensive framework for understanding these debates.

RTW‘s essays make clear that the answers to the questions can only be developed within specific contexts and in relation to specific constitutional provisions.  Constitutions are not received at Mt. Sinai, but are created by people with varying visions, experiences, and interests.  Moreover, because the state is not the exclusive unit either of social interaction or of governance, constitutional orders exist above and below the state, in accordance with the principle of constitutional subsidiarity.   It follows that constitutionalization is not a one-size-fits-all affair, and that constitutionalization at the international level will inevitably be different, in terms both of substance and process, from constitutionalization at any national level. 

Our contribution to Ruling the World? (see here and here) urges a functional approach to international constitutionalism.  (more…)

We thank Alison MacDonald for her illuminating and extremely useful perspective on the developments in the approach of the British courts to adjudication based on international law. In many respects the changing attitude toward international law,  headed by the House of Lords under the unmistakable leadership of Lord Bingham, has provided an example for other national courts (NCs) to follow, starting in 2004 with the so-called Belmarsh Detainees judgment, that stunning 8-1 majority declaration that found the detention of foreign suspected terrorists incompatible with the Human Rights Act.  Such leadership is critical to change the status quo not only within a jurisdiction but also regionally and perhaps even globally (and no doubt, as MacDonald suggests, it facilitated a mutually reinforcing relationship between the House of Lords and the ECtHR).

Other useful observations of MacDonald’s that are worth highlighting include the reference to the Court of Appeal’s blend of interpretive biases as leading – as often is the case – to conceptual confusion (in this case between customary and conventional international law); the inclusion of the Divisional Court’s “bright line” rationale characterizing the division of responsibilities between domestic and international courts followed by a brief documentation of the principle’s growing impracticality and obsolescence, and the description of how NCs continue to emphasize the importance of continuity and their fealty to their traditional role even as they venture further and further into the international legal sphere. This is an excellent example of how low visibility, incremental change can achieve a great deal at relatively low political cost.

We thank Professor Akande for his thoughtful review of our main arguments presented in our recent EJIL essay. We reproduce a number of his points below and respond to each of them in turn. A fuller treatment of a number of the issues that Akande raises can be found in several of our recent publications in this area (see Benvenisti 2008, Benvenisti & Downs 2009, and Benvenisti & Downs forthcoming 2009). (more…)

Last month, Professors Eyal Benvenisti and George Downs posted a summary of their latest EJIL article – “National Courts, Domestic Democracy and the Evolution of International Law”  - which set out the issues discussed in that article (available here) in the context of the authors’ scholarship in this area. The article impressively surveys trends regarding the extent to which domestic courts will defer to the executive branch in the area of foreign affairs. It also considers what the authors see as growing inter-judicial cooperation which enhances the increasing boldness of courts not only with regard to their executives but also in reviewing the policies of international organizations. The article argues that unlike the position nearly two decades ago, domestic courts are increasingly abandoning their traditional deference to the executive when dealing with questions of foreign affairs. The evidence for this assertion is not set out in this article but is considered elsewhere by Professor Benvenisti. The comments by Alison MacDonald here on this blog support this assertion, at least as far as English courts are concerned. Benvenisti and Downs find the reasons for this change of judicial attitude in changes in assumptions which had previously underpinned the idea that foreign policy ought to be the preserve of the executive. The assumptions which are now being undermined are said to be that: (i) the boundary between domestic and foreign affairs was well defined with both being distinct; (ii) the executive was best placed to protect the domestic interest in international affairs and (iii) international interaction should be as free of legal restraints as possible. The changes in these assumptions seem to be persuasive in explaining a change on the part of domestic courts with regard to judicial intervention in foreign affairs. Even if the change of assumptions did not precede a change in attitude, increased judicial intervention would not be consistent with these assumptions. Benvenisti &Downs’ (B&D) arguments regarding the changes in the relationship between national courts and domestic executives and the use of international law by national courts to restrain their executives are plausible but are not always compelling, nor do they always follow logically from the evidence.

Judicial Oversight of Foreign Policy and Judicial Embrace of International Law do not always go together

One of the themes which underlines the article seems to be an assumption that a move away from deference to the executive in foreign affairs will usually be a move towards engagement with international law and vice versa. This point can be seen in the opening sentence of the abstract of the article: “National courts are gradually  abandoning their traditional policy of deference to their executive branches in the field of foreign policy and beginning more aggressively to engage in the interpretation of international law.” However, the two do not necessarily go together and have not always gone together in domestic judicial practice. (more…)

As our readers will know, EJIL has been publishing Symposia issues to commemorate the 20th Anniversary of its founding.

In Issue 4 of its Anniversary Year, EJIL plans to publish a selection of reactions to articles which appeared in its three Anniversary Symposia in Issues  1-3 and the three Anniversary Articles which will feature in those issues. We will select the best of the Blog, but also invite readers of the blog who may be interested in writing a reaction to pieces which were not featured on the blog to contact the Editor in Chief (joseph.weiler {at} nyu(.)edu). Reaction pieces should be in the range of 3000 words.