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. Furthermore the stability and success of democratic constitutional reforms on the national level are often dependant on the wider legal and political context in which they take place. Think about Romania in 1956 or Hungary in 1968, Iran in 1956 or Nicaragua in 1980s: All these countries unsuccessfully sought democratic reforms during the Cold War in the face of hostile superpowers. Also think about the claim made by the Bush Administration that the incidents of terrorism on Sept. 11 required the U.S. to fight a global war on terror, unconstrained in time or space: This gave rise to claims of executive power, basically unchecked by constitutional constraints. Constitutionalism is clearly a practice that is rich in presuppositions. But it is not plausible to believe that those presuppositions generally hold within the state, but not outside of it. As a general account of international relations “Realism” deserves to count as the post WWII utopian statist fantasy par excellence. On the other hand it clearly matters what the predominant ideological paradigms and constitutional structures of states, in particular the most powerful states, looks like, to be able to asses what type of law beyond the state has a chance to be regarded as legitimate and efficacious.
The cosmopolitan paradigm that I argue for in the chapter of the Dunoff/Trachtman book does not claim that international law is inherently legitimate, nor does it embrace a simple international legalism that suggests that everyone has an innate disposition to follow international law. What it does insist on, however, is that the statist paradigm falsely suggests that on the state level questions of legitimacy and efficacy are resolved, whereas they are not once we enter the domain beyond the state. The cosmopolitain paradigm of constitutionalism that is argued for in that article does not suggest to transplant the idealizations of domestic constitutional practice on to the level beyond the state. It does suggest, however, that a commitment to the idea of individuals as free and equals requires a way of thinking about law’s authority, legal efficacy, legitimacy and coherence that does not simply assume that there is a fundamental difference between state law and law beyond the state. The idea of constitutionalism, if it is to provide a plausible account of coherent, legitimate and effective law among free and equals, needs to be conceivd within a cosmopolitain paradigm. The article goes some way to describe what that might mean in positive, constructive terms. Here it must suffice to point out what needs to be left behind: The statist paradigm of democratic constitutionalism, along with its idealist distortions concerning state law, faux realism with regard to law beyond the state, and misguided fundamental separation between state law and law beyond the state.