Reforming the World in Our Own Image: A Critique of Liberal Constitutionalism

Over the contest hovers, as in all ages, a concept of society formulated and fostered by intellectuals. This is not a reflection of reality, but a goal and hope of good men.

P.E.Corbett, Law and Society in the Relations of States (1951)

The conviction in a linear teleology of progress is fundamental to modernity – and to liberal democracy, its exemplary political formation. The supposition is that history has a telos, and that telos is liberalism. Yet in this era of profound disorientation, against the backdrop of increasing attention to the rise of ‘illiberal’ democracies, history is, as Wendy Brown has commented, becoming ‘both weightier and less deterministic’. The idea that law has evolved to some higher state of reason from which pinnacle it can trump over politics and ideology has proved an imaginative cul-de-sac. Attention to history is important, not to reinforce an artificial progress narrative, but to engender consciousness of the fluidity of politico-legal discourse and its capacity to change (see Martin Loughlin, Sword and Scales (2000), at 225-6).

In To Reform the World, Guy Fiti Sinclair has written a book of astonishing reach and intricacy. Its scope brings to mind the words of Woody Allen, ‘Can we actually “know” the universe? My god, it’s hard enough finding your way around Chinatown’. Yet this is not a book purporting to provide a blueprint for global order. One of the most interesting and insightful contributions of the book, and something that sets it apart from other international legal work on global governance, is its resistance to normative conclusions. Sinclair has developed a work of critical history, mapping the ‘constitutional growth’ of international organizations, yet without presenting this development as in any way teleological. Instead, the effect of the book is to debunk quietly yet powerfully any idea of the inevitability of any particular theory of global governance.

A theory that is never expressly critiqued, yet clearly in the frame, is that of liberal constitutionalism in global governance. Sinclair’s critical engagement occurs not on the already saturated theoretical plane, nor as a doctrinal exercise demonstrating how public law discourse permeates the practice of treaty drafting, adoption, interpretation or reform. Instead, his focus is on the everyday discursive level – the ‘rationalities’ and ‘technologies’ of power – tracking the deployment of constitutional discourse in the everyday practice of international organizations, namely the International Labour Organization, UN peacekeeping and the World Bank. The picture that clearly emerges is of international constitutionalism as a scholarly movement – yet with an international bureaucratic wing. The book reveals how the international civil servant has deployed the metaphor of constitutional growth to carry the logic of liberal reform into international organizations through a range of public-law related discourses, doctrines and techniques of interpretation.

As David Kennedy has remarked, the handy thing about the language of ‘constitutionalism’ is that it ‘gives the feeling things are settled’. Yet Sinclair also reveals the paradox of international constitutionalism in that, far from entrenching structures and procedures, it has more often been deployed in the international arena to legitimize flexibility and the capacity to change. The metaphor of ‘constitutional growth’ is shown to have been present in ILO discourse almost from the outset, with the ‘living’ character of the organization and the need to adapt to social conditions repeatedly invoked as justifications for its expanding competence. To ILO Legal dviser and later Director-General C Wilfred Jenks, the ILO’s constitutional practice was based on a ‘dynamic interpretation of [its] Constitution’ through which the ‘flexible character’ of that Constitution had been repeatedly demonstrated (as noted by Sinclair on page 105 of To Reform the World). In the UN context, UN Secretary-General Dag Hammarskjöld came to envisage the emergence of an international constitutional system in sociological and spiritual terms as a process of creative, pragmatic experimentation that required and would necessarily lead to an expansion of the powers and prerogatives of his own office. Through ‘constitutional means and techniques’, peacekeeping was effectively invented during Hammarskjöld’s term in office, with one of his successors Boutros Boutros-Ghali remarking on the ‘genius’ of the UN Charter in being able to accommodate it.

Though the constitutional vernacular offers itself as an escape from politics, innocent of ideology, values and cultural disposition, Sinclair’s contribution is to expose the political stakes of constitutionalism. Sinclair demonstrates the extent to which law is deeply implicated in the structures and processes of international ordering, becoming ‘a repository of values, principles and purposes’, while remaining ‘responsive to political aspirations and capable of serving as an instrument for their realization’. Like Neil Walker, he seems to ask:

‘[i]s this in the final analysis not just one more hegemonic move on behalf of a holistic constitutional vision, one that illegitimately downplays its [liberal] democratic pedigree?’

Sinclair shows how UN peacekeeping carried forward and adapted attitudes, assumptions and practices that had emerged over a long period of colonial policing by European powers.

While their names do not appear in the text, it is interesting to read the book alongside an analysis of the work of McDougal and Lasswell. The more flexible approach to international legal obligation and the centrality of bureaucratic decision-makers to the international legal process is often associated with the ‘policy’ consciousness of the New Haven School. Michael Reisman, the School’s more contemporary architect, has described it as a ‘scheme of cultural anthropology’, in recognition that much of modern international law is a product of individuals performing decision-making functions. The School’s aim is to clarify a value-based scientific method to guide the decision-maker with the goal of understanding and influencing decision-making in ways that would precipitate desired social outcomes. Sinclair’s text takes a critical and historical perspective on this scheme of anthropology for international bureaucrats. Just as the New Haven School itself has been criticized as a vehicle for Western cultural imperialism, attributing values and interests to the international community that closely matched the utopian policy prescriptions of the American idealists in the post-World War II era, so Sinclair exposes the politics of international bureaucratic legal authority in practice, with the link between scientific expertise and legal authority sustained by a liberal rationality of power premised on the superiority of Western social, economic and scientific knowledge over that possessed by the rest of the world.

I finish then on a provocative note. Robert Frost described a liberal as someone too broadminded to take his own side in a quarrel. The image is of a fairly narrow debate, ‘self’ pitted against ‘self’, Western intellectual pitted against Western intellectual, albeit here separated by the passage of time. Indeed, as far as this is a critical history of Western intellectual thought and action, the danger is that the historical narrative creates something of a ‘palimpsest’, rewriting and reinterpreting past events as a function of the perspectives and values of the class, culture, gender, and crisis experience of each successive (liberal) historian (see W Michael Reisman, ‘On the Causes of Uncertainty and Volatility in International Law’). Sinclair’s gaze as critical legal historian is focused chiefly on the decision-makers, with less attention given to the subjects of decision-making or indeed other actors in international society. His invitation is to set aside the presumption that the hard work of international civil servants as necessarily an apolitical good serving naturally progressive and beneficial ends and consider empirically what these legal justifications produce for real people in the world. In this sense, the true lesson of the book is to open ourselves up to the range of perspectives. World-making should not ultimately correspond to a ‘single, stable and integrated ideology’, but must occur through a process of ‘agonistic pluralism’. It is only when status and voice is given to local populations, NGOs and even illiberal states as participants in global governance that we can also be attentive to and weigh up the possible benefits, as well as costs, of their work, their actions and their arguments.