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Functionalism’s Shortfalls or How to Depoliticize Global Constitutionalism

Published on December 11, 2009        Author: 

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. Read the rest of this entry…

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