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.
1. Constitutionalism inevitably embraces the “dream of reason”. Nico Krisch is not wrong to associate the idea of cosmopolitan constitutionalism, as he describes it, with “a dream of reason”. That “dream of reason” is, however, hardwired into the very idea of modern constitutionalism and is not a specific feature of cosmopolitain constitutionalism as I describe it. The idea is best described by Alexander Hamilton in Federalist No. 1. There Hamilton lays out what he believes to be at stake in the success or failure of US constitutional project. What is at stake, he claims, is the question “whether societies of men are really capable of establishing good government from reflection and choice, or whether they are forever destined to depend on their political constitutions on accident and force.” After the demise of the idea of a divinely ordained natural order this is the fundamental dichotomy: Either the exercise of public authority is conceived as based on accident, force, will, power, conventions and the whims of history etc. or government based on laws that are reconstructable as the result of reasoned deliberate choices of free and equals. Constitutionalism is the project to establish law and politics as an enterprise of free and equals acting collectively in a deliberate and reasoned manner. The ideas of agency and reason among free and equals give rise to a commitment to the rule of law, participatory political processes and substantive human rights guarantees. How these three ideas are understood, how they are related to one another and what they amount to in institutional terms is itself disputed and has gone through a number of shifts and permutations in the past centuries. My contribution was to have pointed out that these commitments can be understood and interpreted within a statist and a cosmopolitan cognitive frame and that a cosmopolitan frame would do a better job to make sense of a wide range of features of contemporary legal practices both within and beyond the state. But whether that is plausible or not: any idea of modern constitutionalism that takes seriously its roots in the 18th century must insist on the connection of constitutionalism with a certain set of basic commitments derived from the idea of free and equals, who as agents endowed with reason are capable of organizing institutions that allow for collective action to establish justice through law. An idea of constitutionalism that is merely functional or formal, misses this point. Of course such a normatively ambitious understanding of law and politics requires a leap of faith. It has historically been challenged again and again either as inappropriately apologetic of existing legal practices or inappropriately utopian as a critical guide for the revolutionary transformation or progressive development of law and politics. If all you can see are self-interested individuals, groups and states in a perpetual struggle for power, with law little more than a signalling mechanism facilitating the identification of an equilibrium around which a temporary armistice can be organized as a modus vivendi, you have no reason to embrace constitutionalism either domestically or beyond the state. Political scientists in particular generally do not embrace constitutionalism understood as the kind of normative enterprise that Hamilton describes: They tend to focus on the functional and formal characteristics of constitutionalism. What is interesting from a contemporary perspective is that general scepticism with regard to domestic practices has waned in liberal democracies worldwide – the revolutionary and morally ambitious language of liberal democratic constitutionalism has become the lingua franca of domestic law and politics -, whereas beyond the state scepticism remains prevalent and the language of human rights and the rule of law is often regarded as little more than the rhetoric of powerful actors. I have argued in my paper that we have reasons to be more sceptical about domestic constitutionalism in many contexts and should be less sceptical about constitutionalism beyond the state in others and that we have reasons to study more closely the mutual interdependence of both. Cognitive biases tending to idealize domestic practices while simultaneously fostering scepticism about transnational practices tend to cloud our judgment.
2. Constitutionalism and the law/politics divide: Nico Krisch is right to claim that politics – the exercise of public autonomy – is central to the translation of moral requirements into positive law. But he is wrong to claim that cosmopolitan constitutionalism as I describe it overplays the hand of law and undercuts the legitimate and appropriate role of politics in a deeply pluralist world. Nico points out that in my account of cosmopolitan constitutionalism the principle of subsidiarity, for example, is a constitutional principle that provides a normative framework for addressing the question whether an issue is appropriately addressed in a transnational forum or should be left for states to decide. Yet whether a question ought to be decided nationally or addressed in some transnational forum is in many contexts a question over which there is deep disagreement, contestation and genuine political debate, and that is as it should be, Nico insists. If constitutional principles enter the scene, does not law inappropriately colonize the domain of legitimate politics? Isn’t cosmopolitan constitutionalism legalism run amok – denying politics and public autonomy its rightful space?
The short answer is no, or at least not necessarily. The reason is not that Nico is wrong about the scope of the appropriate domain of politics. Nor is he wrong about the remarkably expansive domain covered by constitutional principles. But he is wrong about the relationship between law and politics within the world of constitutionalism more generally, if he believes that the constitutionalization of an issue necessarily implies that an issue has been taken of the table politically and has been handed over to the lawyers. More specifically it is not true that the only function of constitutional norms is to settle an issue and take it off the table politically (1). Instead the function of constitutional norms may also be to provide a common conceptual framework for the contestation of political questions. The existence of a constitutional principle does not yet say anything about the institutions charged with its concretization and specification in concrete contexts generally or the division of labour between political processes and legal review procedures specifically (2).
(1) Of course there are constitutional norms whose function is to settle an issue to ensure that it’s off the table for the purposes of ordinary politics. Think about the institutional provisions relating to the functioning of the legislature in national constitutions or the rules governing the working of the legislative process in the European Union or the UN Charters provisions on the make-up and procedure to be used by the UN Security Council. Here constitutional norms take the form of relatively concrete rules embodied in a canonical text. These texts help establish the legal framework for the political process. The domain of constitutional law and the domain of ordinary politics are relatively clearly separated. Interpretative issues might arise at the margins and other political procedures might be used to change constitutional rules, but for the purpose of ordinary politics these norms serve to remove certain kind of political disputes from the political agenda by embodying them in a legal norm that settles potentially contentious issues.
(2) But a great many constitutional norms do not fit that description. Think about the principle of subsidiarity, a constitutional norm relating to jurisdiction, explicitly canonized in the European Union and implicitly part of international law, or so I argue. Think about due process guarantees, free movement provisions in multilateral trade law agreements, the more general substantive human rights guarantees (including, perhaps a general right to liberty or a general principle of non-discrimination). These types of norms share two features. First they cover a very large domain: A great many political decisions fall within their scope. Whenever the European Union acts outside of the domain in which it has exclusive jurisdiction questions of subsidiarity are raised. Whenever a legislature restricts someone liberty the question arises whether such an infringement can be justified, every legal rule makes distinctions that are in principle susceptible to discrimination analysis. Here the function of constitutional norms is clearly not to take a relatively clearly defined domain of issues off the table. Here its function is to provide a standard that political actors should take into account when making policy decisions. Second, on application these standards require engagement with a wide range of empirical questions and policy trade-offs. Constitutional analysis of these norms in concrete contexts requires the analysis and assessment of policy questions relating to whether a measure furthers of legitimate purposes, qualifies as the least restrictive of equally effective means and whether the policy trade-offs it incorporates strike an appropriate balance between the competing concerns. In that sense constitutional analysis involves complex forms of policy assessment. Not surprisingly courts generally do not conceive of themselves as the only actor involved in the concretization and specification of these norms. In constitutional practice it is characteristic that political and legal actors conceive of eachother as partners in an enterpise of norm-concretization or specification. Courts will give some degree of deference or “margins of appreciation” – in many contexts very significant – to determinations made by political actors in this regard taking into account the relevant comparative institutional adavantages.
The domain of law and politics, then, overlaps. To some extent law is politics: It involves complex forms of policy assessments. But the converse is also true. Politics is law: Politics is, among other things, a process in which the constitutional norms are rendered concrete and specified. Not surprisingly it is a characteristic feature of modern constitutionalism, described by constitutional theorists in the US as well as the EU, that legal and political institutions are, to some extent, partners in a joint enterprise of norm concretization. In this way, too, cosmopolitan constitutionalism is perfectly compatible with widespread accounts of domestic constitutionalism.
3. But is there not something distinctly different about law within and law beyond the state, that should make us hesitant to apply the constitutional framework to both? Nico Krisch claims that there are more ‘gaps’ in international law and a greater diversity of values. I doubt that. First, I would, along with Dorkwkin, take jurisprudential issue with the idea that law has gaps either domestically or internationally. But we might restate the claim in a way that sidesteps difficult jurisprudential issues. Nico might claim that international law is more indeterminate than national law. That is also something I would disagree with. Constitutional law in particular is paradigmatically so full of highly abstract clauses that I doubt there is anything in the normative structure of international practice that makes it more indeterminate than national practice. Nor is it the case, I believe, that differences in the institutional structure exacerbates the indeterminacy concern on the international level. But perhaps its not the normative or institutional structure of international law that makes it seem more indetermninate. Perhaps the highly indeterminate nature of constitutional norms in the domestic context are tolerable and give a sense of greater determinacy because there is a deeper background consensus that guides the engagement with those norms. Isn’t international society inherently more deeply divided and pluralistic than any national society? Probably. But I’m less sure that has great implications for the assessment of the determinacy or indeterminacy of the relevant norms. The reason is that international norms do not have the depth of national norms – many of the most divisive issues within a society that are subject to legal regulation are regulated only nationally. When it comes to redistribution, taxes, church and state, morality etc. what international law has to bring to the table is still comparatively thin. Certain kind of deep disagreements that exist among and between societies are simply not particularly relevant for the engagement with international law. There might be a greater degree of pluralism across the international community then in any national community. But I’m less sure that there is more pluralism regarding the kinds of issues that international law addresses. Sure, there is disagreement there too. But, when I compare it to the disagreement that characterizes US constitutional scholars and Supreme Court Justices, for example, I’d be hesitant to conclude that international lawyers, wherever they might be from, agree any more deeply about more basic issues. More, of course, would need to be said. I say more about this in the article. But we should be more hesitant to invoke “pluralism” and “conflict” as arguments against the adoption of a constitutional cognitive frame in international law, when we feel comfortable enough to embrace it domestically, notwithstanding deep and persistent political rifts in domestic societies along the lines of class, ethnicity, nationality or faith.