The Genre of Constitutionalization?

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Professor Jan Klabbers is Professor of International Law at the University of Helsinki, and Director of the Academy of Finland Centre of Excellence in Global Governance Research. His previous post introducing the book by Klabbers, Peters & Ulfstein The Constitutionalization of International Law   is available here

So far, the blogging concerning The Constitutionalization of International Law  The  has been fairly sedate. Of course, it is summertime; of course, there was a soccer tournament to focus on; of course, the ICJ’s opinion on Kosovo occupies the international legal community; and perhaps there is a certain idleness and lethargy to be associated with constitutionalism these days, as Jeff Dunoff and Joel Trachtman merrily suggest. But it may also be the case that the approach we espouse gives rise to some unease on the part of readers and therewith elicits few responses, for our approach is difficult to pigeonhole. The kind and generous comments published on EJIL: Talk! suggest as much: they display a certain puzzlement at what it is we aim to do, and some seem to have difficulties in identifying the genre we work in.

That is not surprising, as our genre is indeed uncommon. We do not aim to engage in descriptive sociology – ours is not an enterprise to establish that constitutionalism exists, in some real sense and as a matter of positive international law. Nor do we engage in idealist normative theory pur sang: we do not aim to suggest that constitutionalism is, as a way of organizing the globe, superior to alternatives. Likewise, ours is not a conceptual study in any strict sense of the term: we do not aim to establish the (or, more modestly, a) concept of global constitutional law. We do not aspire to make an argument de lege ferenda about constitutionalization.  And emphatically, we never set out to study the causes of constitutionalism, no matter how much Dunoff and Trachtman might have expected us to.

What we engage in, instead, is a different genre, perhaps most closely related to conceptualism (without, it is hoped, lapsing into Begriffsjurisprudenz) but nonetheless distinct. As the book makes clear – or should have made clear – we ask ourselves what a constitutional world order could look like. This comes with at least two elements which may cause some confusion. First, in light of the circumstance that there are many versions of constitutionalism circulating, it meant that we had to adopt some form of constitutionalism as the one we were interested in exploring. We could have opted for a Stalinist version, but felt such would be silly, as few people would willingly adopt such a version and, more to the point, because it is not the sort of constitutionalism that international lawyers have come to talk about over the last decades.  By the same token, while the realist school of global politics may claim that a Westphalian order is a constitutional order (in that it can be said to constitute global order), we nonetheless did not see the need to explore this version, again largely because it is not what occupies the invisible college of international lawyers. Hence, we took as our starting point the sort of constitutionalism usually invoked by international lawyers, from Verdross to Tomuschat, and from Dupuy to De Wet. This is quite obviously a liberal, western, elitist version of constitutionalism, but for our purposes that is hardly relevant. Or rather, more accurately, it is relevant in the sense that this liberal version is what seems to dominate the debates; hence, there is merit in exploring the possible ramifications of precisely this version, in much the same way as people with an interest in space activities will focus on the US or Russia rather than, say, Austria or Tanzania.

Second, we needed to give some hands and feet to this version of constitutionalism which, in much of the literature, tends to remain remarkably abstract. A brief look at some western liberal constitutions persuaded us that such constitutions tend to come these days with provisions on the institutions of governance and their competences, on law-making, on the judiciary, on membership of the community, and on democracy: as a result, these issues were what we set out to explore, without however claiming that this would exhaust the matter. Moreover though, and relating to the earlier point as well, the very talk of constitutionalism comes with a certain baggage. Constitutionalism is, in one sense at least, a vocabulary with all sorts of connotations, and we felt we could ignore this only at our peril. It is for this reason that we connect constitutionalism to legitimacy: not so much because we feel that the two go hand in hand empirically, or should go hand in hand normatively, but because those who speak the language of constitutionalism tend to mention legitimacy in the same breath: those who invoke constitutionalism tend to suggest that constitutionalism is itself legitimate, and that it helps legitimate governance. It is on this ground that we claim that “a constitutional world order will have to be a legitimate order” (at 43). This does not so much express a normative preference (although we would hardly prefer an illegitimate order) but merely finishes the thought, so to speak – any other construction, however sensible in its own right it may be, would miss the very discussion we aim to contribute to.

That is not to say that there is not some overlap between our genre, such as it is, and other genres. Dan Bodansky is surely correct when claiming that we do not always keep ours neatly separate from others, and that sometimes empirical or normative statements creep in. Correct as this critique is, though, one may wonder whether there are any viable alternatives. What would be the point of studying something that exists only in the minds of international lawyers but with no basis in reality – any reality? In this sense, the conceptual, the normative and the empirical are notoriously difficult, perhaps impossible, to disentangle without lapsing into sterile discussions. Mathematics may work in such a manner, but in the social sciences and humanities this is not an option. John Searle perhaps put it best when denying the comprehensiveness of social constructions: “… there has to be something for the construction to be constructed out of.”[1] In our context, it would be surprising, and not a little arrogant, to claim that all the talk about constitutionalization has no basis in any reality, and is without normative merit.

While our commentators have focused on our discussions on democracy and the role of the judiciary in particular, they have paid remarkably little attention to the chapter on law-making, with the exception of Dunoff and Trachtman claiming that the ‘presumptive law’ endorsed in that chapter would ‘flip’ the classic Lotus position.  This, however, is not really the case: the pertinent chapter underlines that consent remains a serious requirement, and remains the basis of obligation. It is just that in a constitutional order, the expressions of consent can often be presumed, perhaps only to be rebutted. But the very possibility of rebuttal leaves the relevance of consent intact. Instead of turning Lotus on its head, the chapter aims to adapt it to constitutionalist thought, in full realization of the continued relevance of the Lotus doctrine.[2]

Some of the commentators suggest that ours is an uncritical embrace of liberal, top-down constitutionalism. This, however, is mistaken. As explained above, to some extent descriptive, normative and conceptual aspects cannot be kept neatly compartmentalized. More importantly though, there is no inherent tension in writing about constitutionalization, even sympathetically, while simultaneously being critical.[3] At the heart of our book is the idea of taking the ball and running with it: the ball is not of our making, and the trajectory of the run is more or less pre-determined: we set out to explore what constitutionalization could entail, and which direction it could go, if taken seriously. This does not imply a full embrace of constitutionalization; instead, it takes an ongoing discussion and explores its ramifications. We understand that in a scholarly community where human rights lawyers tend to be pro-human rights, and trade lawyers pro-trade, keeping a normative distance from the object of research is perhaps less common than it should be. However, the implicit suggestion that keeping some distance is so uncommon as to invite criticism is decidedly troubling.

[1] See John R. Searle, The Construction of Social Reality (London: Penguin, 1995), at 190.

[2] Ironically, as the author of the law-making chapter as well as quite a few works on the concept of treaty and soft law, I am often accused of being rather too faithful to the Lotus doctrine.

[3] And just for the record (and again not without irony), I am sometimes deemed overly critical of constitutionalization, as reflected in earlier writings. See, e.g., Jan Klabbers, ‘Constitutionalism Lite’, (2004) 1 International Organizations Law Review, 31-58.

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