The Normativity of International Constitutionalism?

Professor Gráinne de Búrca is Professor of Law at  Fordham Law School, and during 2009-10 is a Straus Inaugural Fellow at NYU Law School.  She was previously Professor of Law at the European University Institute and Lecturer in Law at Oxford University

One of the aims of Ruling the World?, the interesting collection of essays which Jeff Dunoff and Joel Trachtman have assembled, is to try to understand the increasingly common practice of referring to instances of international or transnational governance in constitutional terms.   What does the vocabulary of international constitutionalism signify, and what is it intended to mean?   They argue for clarity on this basic analytical issue, and propose an understanding of ‘international constitutionalism’ in functional terms.   International constitutionalism should, they argue, be understood to refer to norms which enable or constrain the production of international law.   Their account is entirely neutral (international constitutionalism as a process with no particular teleology) and resolutely functional, such that even their description of the normativity of international constitutionalism has an instrumental rationality. Thus they argue that international constitutional norms should be assessed according to “their ability to enable individuals and states to advance the international public policy goals that they aim to achieve”.

Neil Walker’s concern with international constitutionalism, on the other hand, is with the normative implications of drawing on the language of constitutionalism in the first place to describe the growth and mutation of forms of legal authority across the transnational domain.  The implicit suggestion here, contra Dunoff and Trachtman, is that the development of international constitutionalism is not a natural or a neutral process.  In other words, the decision to frame a development in the language of ‘international constitutionalism’ is a conscious and consequential one, given the symbolic capital of the discourse of constitutionalism and its deep domestic origins. A similar point has recently been made by Stepan Wood and Stephen Clarkson in their rather more sharply critical analysis of ‘supraconstitutional’ regimes such as the NAFTA (“NAFTA Chapter 11 as SupraConstitution“). Like Dunoff and Trachtman, they define international constitutionalism in functional terms but, unlike Dunoff and Trachtman, they do so by reference to what they describe as the function of supraconstitutional regimes in constraining and transforming domestic law and constitutionalism.  Like Neil Walker, they also emphasize the symbolic capital of constitutionalism in noting that almost all of those who use the language of constitutionalism draw on liberal political theory with implicit or explicit reference to concepts such as the rule of law, constraint of power, protection of rights and democratic deliberation.

Already here, amongst three recent sets of commentators sharing a similar analytical approach to the phenomenon of international constitutionalism, we see three different normative evaluations.  Dunoff and Trachtman view the existence and naming of international constitutionalism in entirely neutral terms, as neither intrinsically good nor bad, pursuing no particular teleology, and to be assessed purely in functional terms.  The act of constitutional naming, in other words, contains no particular normative promise or threat.  Stepan and Clarkson on the other hand view the project of international constitutionalism – supraconstitutionalism, in their terms – as one whose goal is to constrain domestic lawmaking and democratic processes. Focusing in particular on the international investment context they argue that, far from being neutral, the supraconstitutional project is politically loaded and ideologically skewed, even while it seeks to cloak itself in the veneer of legitimacy derived from liberal-political constitutional discourse.  Neil Walker, by comparison, presents the project of using constitutional discourse to frame developments in the transnational domain as neither intrinsically neutral nor fundamentally ideologically skewed, but rather as one which raises and even begs the legitimacy question.  In other words, the very act of describing a transnational process or entity in constitutional terms has legitimacy implications – it unavoidably draws on the domestic reservoir of constitutional discourse with the attendant suggestion of responsible self-government.   Far from answering the normative questions, the application of constitutional language to the global domain raises them.   His most optimistic suggestion is that the discourse of constitutionalism, despite its fading national hold, could represent a critical ideal – a kind of standard of fair and responsible government to which global governance could aspire.

 Consider these three accounts in the context of the European Union, which is viewed by many as one of the most prominent examples of constitutionalism beyond the state.   A classic example of the first, neutral and functional account of EU constitutionalism was given some years ago by Jean-Claude Piris, one of the inside actors of the European integration process, in his paper “Does the European Union have a Constitution? Does it Need one?”. The essence of his argument was that the EU already had an operative constitutional charter, in a functional sense similar to that described by Dunoff and Trachtman, which needed some reforms but did not need any grand renaming, and should not be considered in ‘state-like’ constitutional terms.

 The second argument  –ie that EU constitutionalism is not neutral but is ideologically skewed (in particular towards economic neo-liberalism) is more often heard amongst civil society groups and activists than academics, although there are a number of scholarly accounts of EU constitutionalism which resonate with the Stepan/Clarkson critique of NAFTA (see e.g. Andy Storey, ‘The European Project: Dismantling the Social Model, Globalising Neoliberalism’ in (2006) Irish Review, 34 drawing on Stephen Gill, Power and Resistance in the New World Order, Palgrave Macmillan, 2^nd edn, 2008.   For a challenge to this vision of EU constitutionalism, see Laurent Pech “The European Project: Neither Neoliberal, nor Socialist” (2007) Irish Review.

The third analysis offered by Neil Walker, however, offers the best account of the dilemma of the European Union today.  The EU, although undoubtedly a constitutional system of rules in the functional sense, sought to reach beyond the ‘legal and institutional’ registers of constitutionalism to the societal and popular register, in its attempt to adopt the Treaty Establishing a Constitution for Europe in 2005.  The abandonment of this Constitution project has not returned the EU to some notional pre-constitutional state, but the failure of the overt political and public process of ‘discursive constitutionalism’ has clearly placed the question of the contested social legitimacy of the European integration process at centre stage again.   Whether the trajectory of the EU offers lessons for other less deeply integrated sites of transnational governance or not remains unclear, but it unquestionably highlights the fact that the process of constitutional naming, and the thickening of constitutional discourse, is likely to raise and sharpen rather than to ease or to resolve the question of the legitimacy of governance beyond the state.