HANDBOOK ON GLOBAL CONSTITUTIONALISM

RESEARCH HANDBOOKS ON GLOBALISATION AND THE LAW

Elgar Research Handbooks are original reference works designed to provide a broad overview
of research in a given field, while at the same time creating a forum for more challenging,
critical examination of complex and often under-explored issues within that field.
Chapters by international contributors are specially commissioned by the editors, who
carefully balance breadth and depth. Often widely cited, they present expert scholarly anal-
ysis and offer a vital reference point for advanced research. Taken as a whole they achieve
a wide-ranging picture of the state-of-the-art.
The volumes in this series examine the legal dimensions of issues arising out of an increas-
ingly globalized world. Edited by leading scholars in their respective fields, they explore
notions of global justice and global development along with the complexities of international
institutions and private actors operating on a global stage. Taking as their common thread the
impact of globalization on the world in which we live, they are unrivalled in their blend of
critical, substantive analysis and synthesis of contemporary research.
Each Research Handbook stands alone as an invaluable source of reference for all scholars
of globalization. Whether used as an information resource on key topics or as a platform for
advanced study, volumes in this series will become definitive scholarly reference works in the
field.
For a full list of Edward Elgar published titles, including the titles in this series, visit our
website at www​.e​-elgar​.com​.
Handbook on Global
Constitutionalism
SECOND EDITION

Edited by
Anthony F. Lang, Jr.
Professor of International Political Theory, School of International
Relations, University of St Andrews, UK
Antje Wiener
Chair of Political Science especially Global Governance, Faculty of Business
and Social Sciences, University of Hamburg, Germany and By-Fellow,
Hughes Hall, University of Cambridge, UK

RESEARCH HANDBOOKS ON GLOBALISATION AND THE LAW

Cheltenham, UK • Northampton, MA, USA

© Anthony F. Lang Jr. and Antje Wiener 2023

Cover image: Hester Lessard, “Untitled”, July 2020. Photographed by Art Ink Print.

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system
or transmitted in any form or by any means, electronic, mechanical or photocopying, recording,
or otherwise without the prior permission of the publisher.

Published by
Edward Elgar Publishing Limited
The Lypiatts
15 Lansdown Road
Cheltenham
Glos GL50 2JA
UK

Edward Elgar Publishing, Inc.

William Pratt House
9 Dewey Court
Northampton
Massachusetts 01060
USA

A catalogue record for this book

is available from the British Library

Library of Congress Control Number: 2023945102

This book is available electronically in the

Political Science and Public Policy subject collection
http://dx.doi.org/10.4337/9781802200263

ISBN 978 1 80220 025 6 (cased)

ISBN 978 1 80220 026 3 (eBook)

EEP BoX
Contents

List of contributorsviii
Preface and acknowledgmentsxvii

1 Introduction to the Handbook on Global Constitutionalism: protecting

rights and democracy while binding power 1
Anthony F. Lang, Jr. and Antje Wiener

PART I HISTORICAL ANTECEDENTS

2 Global constitutionalism: the ancient worlds 23

Jill Harries

3 Medieval constitutionalism 35
Francis Oakley

4 Global constitutionalism in the early modern period: the role of

empires, treaties and natural law 46
Martine van Ittersum

5 The Enlightenment and global constitutionalism  59

Chris Thornhill

6 Modern historical antecedents of global constitutionalism in theoretical

perspective76
Michel Rosenfeld

PART II POLITICAL AND INTERNATIONAL RELATIONS THEORIES

7 Cosmopolitanism and global constitutionalism 89

Garrett Wallace Brown

8 Liberal theory 101

Iain Ferguson

9 Constructivism and global constitutionalism 115

Jan Wilkens

10 Realist perspectives on global constitutionalism 129

Oliver Jütersonke

11 Critical theory 140

Gavin W. Anderson

v
vi Handbook on global constitutionalism

12 The English School and global constitutionalism 152

Filippo Costa Buranelli

13 Postcolonial global constitutionalism 166

Sigrid Boysen

14 Feminist approaches to global constitutionalism 185

Ruth Houghton

PART III LEGAL THEORIES

15 Natural law at the foundation of global constitutionalism 208

Mary Ellen O’Connell

16 International legal constitutionalism, legal forms and the need for villains 225
Jean d’Aspremont

17 Interactional legal theory, the international rule of law and global

constitutionalism240
Jutta Brunnée and Stephen J. Toope

18 The shifting relationship between functionalism and global constitutionalism 253

Jeffrey L. Dunoff

19 Global constitutionalism and international public authority in the crisis

of liberal internationalism 265
Armin von Bogdandy, Matthias Goldmann and Ingo Venzke

PART IV PRINCIPLES AND PRACTICES

20 Global constitutionalism and the rule of law 294

Mattias Kumm

21 Balance of powers 308

Eoin Carolan

22 Constituent power in global constitutionalism 318

Peter Niesen

23 Human rights as transnational constitutional law 331

Samantha Besson

24 Proportionality as a global constitutional principle 346

Anne Peters

25 Written versus unwritten: two views on the form of an international

constitution363
Bardo Fassbender
 Contents vii

26 Transnational litigation networks: agents of change in the global

constitutional order 373
Jill Bähring

27 Human rights, sovereignty, and the use of force 395

Sassan Gholiagha

PART V INSTITUTIONS AND FRAMEWORKS

28 International judicial review 410

Başak Çalı

29 Legislatures 424
M.J. Peterson

30 Executive and exception 437

William E. Scheuerman

31 Federalism: from constitutionalism to constitutionalization? 448

Thomas O. Hueglin

32 The UN Charter and global constitutionalism? 460

Michael W. Doyle

33 Functionalism, constitutionalism and the United Nations 477

Jan Klabbers

34 The European Union and global constitutionalism 490

Jo Shaw

35 The International Criminal Court and global constitutionalism 508

Andrea Birdsall and Anthony F. Lang, Jr.

36 Global commercial constitutionalization: the World Trade Organization 519

Joel P. Trachtman

PART VI NEW HORIZONS

37 Global constitutionalism and outer space governance 529

Adam Bower

38 The political economy of global constitutionalism 542

Christine Schwöbel-Patel

39 Global religion in a post-Westphalia world 556

Susanna Mancini

40 Constitutionalism and pluralism 568

Neil Walker

Index580
Contributors

Gavin W. Anderson was a Senior Lecturer at the School of Law, University of Glasgow,
having previously taught at the University of Warwick. He undertook graduate studies at
Osgoode Hall Law School, and the University of Toronto. In 2003–4, he was a Jean Monnet
Fellow at the European University Institute, Florence, and he has also been a Visiting Fellow
at the Centre for Comparative Constitutional Studies, University of Melbourne. His recent
research focuses upon the contribution of the global South to debates on global constitution-
alism, and he is the author of Constitutional Rights after Globalisation (Bloomsbury 2005).
Jean d’Aspremont is Professor of International Law at Sciences Po School of Law, Paris and
Professor of Public International Law at the University of Manchester. He is General Editor of
the Cambridge Studies in International and Comparative Law, Director of Oxford International
Organizations (OXIO) and series editor of the Melland Schill Studies in International Law. He
has published widely in the field of international law and international legal theory. His work
has been translated into several languages including Spanish, Portuguese, Russian, Mandarin
Chinese, Hindi, Japanese and Persian.
Jill Bähring is a doctoral student at the Chair of Global Governance and the Chair of Criminal
Law, Criminal Procedure, International Criminal Law and Contemporary Legal History,
both at the University of Hamburg, Germany. Her work focuses on the intersection between
law and political science, especially normative change, with a background in constructivist
scholarship. In her research, she focuses on actors’ normative application of legal provisions
in national and international bodies and how this contributes to the formation of agency. Her
current research project focuses on strategic litigation as a tool for normative change.
Samantha Besson holds the Chair Droit international des institutions at the Collège de
France in Paris and is also Professor of Public International Law and European Law at the
University of Fribourg (Switzerland). She served as a Visiting Professor at the Universities
of Zurich, Lausanne and Lisbon and at Duke, Harvard and Pennsylvania University Law
Schools, and was a Research Fellow at the Wissenschaftskolleg zu Berlin and at the Institut
d’études avancées de Nantes. She also taught in various capacities at the Hague Academy of
International Law where she gave a special course La due diligence en droit international in
January 2020 and will give the general course in July 2027. She is an associate member of the
Institute of International Law and co-chair of the ILA Study Group on the International Law of
Regional Organizations. Samantha Besson’s research interests lie at the intersection of general
international law, European Union institutional law and political and legal philosophy, with
a special focus on human rights law and theory.
Andrea Birdsall is a Senior Lecturer in International Relations at the University of Edinburgh.
Her work lies at the intersection of international relations and international law with a particu-
lar focus on human rights, international criminal justice and global governance. She is author
of The International Politics of Judicial Intervention (Routledge 2009) and a number of

viii
 Contributors ix

journal articles covering topics in human rights, the International Criminal Court and human
rights law in the context of counterterrorism efforts.
Adam Bower is Senior Lecturer (Associate Professor) in the School of International Relations
at the University of St Andrews where he serves as Director of the Centre for Global Law and
Governance and sits on the Steering Committee of the Institute for Legal and Constitutional
Research. Additionally, he is a member of the Centre for Exoplanet Science at St Andrews
and a Fellow of the Outer Space Institute, an international network of transdisciplinary space
experts. His research sits at the intersection of international politics and law and examines how
actors strategically engage with international institutions and how norms and legal rules in turn
shape and constrain future policy choices in often unanticipated ways. Previous and current
work explores these dynamics in the fields of arms control and disarmament, international
humanitarian and criminal law, and the governance of outer space activities.
Sigrid Boysen is Professor of International and European Law at Helmut Schmidt University
in Hamburg (Germany) and serves as editor-in-chief of the international law review Archiv
des Völkerrechts. She has held positions as Associate Professor at Free University Berlin and
Visiting Research Fellow at Princeton University (Woodrow Wilson School of Public and
International Affairs) and at the Institute for Global Law and Policy at Harvard Law School.
Her research focuses on international law, with a particular focus on the theory of international
law, international environmental and economic law and constitutional law.
Garrett Wallace Brown is Professor of Political Theory and Global Health Policy in the
School of Politics and International Relations at the University of Leeds. His research
includes work on cosmopolitanism, globalization theory, global justice, international law,
global constitutionalism and global health governance. He has published widely on issues of
cosmopolitan global constitutionalism and has published Grounding Cosmopolitanism: From
Kant to the Idea of a Cosmopolitan Constitution (Edinburgh University Press 2009), The
Cosmopolitanism Reader with David Held (Polity Press 2010), The State and Cosmopolitan
Responsibilities (Oxford University Press 2019), and Kant’s Cosmopolitics: Contemporary
Issues and Global Debates (Edinburgh University Press 2019).
Jutta Brunnée is Dean, University Professor and James Marshall Tory Dean’s Chair,
University of Toronto. She has published widely in the areas of public international law and
international environmental law. She is co-author of International Climate Change Law (2017),
which was awarded the American Society of International Law’s 2018 Certificate of Merit ‘in
a specialized area of international law’, and of Legitimacy and Legality in International Law:
An Interactional Account (2010), which was awarded the American Society of International
Law’s 2011 Certificate of Merit ‘for preeminent contribution to creative scholarship’. She
was elected Fellow of the Royal Society of Canada in 2013, and Associate of the Institut de
Droit International in 2017. In 2019, she delivered a course on ‘Procedure and Substance in
International Environmental Law’ at The Hague Academy of International Law.
Başak Çalı is Professor of International Law and Director of the Centre for Fundamental Rights
at the Hertie School, Berlin. Her research and teaching focuses on international law with a spe-
cific focus on human rights law and institutions in international law and comparative human
rights law. She is a fellow of the University of Essex Human Rights Centre and a Permanent
Visiting Professor at the Centre for International Courts, University of Copenhagen. Her publi-
x Handbook on global constitutionalism

cations include International Law for International Relations (editor, Oxford University Press
2010), Authority of International Law: Obedience, Respect and Rebuttal (Oxford University
Press 2015), Migration and the European Convention on Human Rights (co-editor, Oxford
University Press 2021) and Secondary Rules of Primary Importance in International Law:
Attribution, Causality, Evidence, and Standards of Review in the Practice of International
Courts and Tribunals (co-editor, Oxford University Press 2022).
Eoin Carolan is a Professor at University College Dublin where he is founding Director
of the Centre for Constitutional Studies. He was awarded the 2011 Kevin Boyle Prize for
Outstanding Legal Scholarship for The New Separation of Powers: A Theory for the Modern
State (Oxford University Press 2009). He is a graduate of Trinity College Dublin and the
University of Cambridge, and a former visiting researcher at Harvard Law School and
University of California, Los Angeles (UCLA) School of Law.
Filippo Costa Buranelli is Senior Lecturer (Associate Professor) in International Relations
at the University of St Andrews, UK, where he is Fellow at the Centre for Global Law and
Governance. He is also Associate Fellow at the Institute for the Study of International Politics
in Milan, Italy, and served as Chair of the English School section at the International Studies
Association from 2020 to 2023. His research interests are international relations theory, inter-
national history, global governance, Eurasian politics and comparative regionalism. His works
have been published in several journals and edited collections, including The Oxford Research
Encyclopaedia of International Relations, International Studies Quarterly, Geopolitics,
Millennium: Journal of International Studies, Problems of Post-Communism, Europe-Asia
Studies, International Politics and International Relations among others.
Michael W. Doyle is a University Professor of Columbia University, with appointments in
international affairs, law and political science. His most recent book is Cold Peace: Avoiding
the New Cold War (W.W. Norton 2023). From 2006 to 2013, Doyle was a member of and
then chaired the United Nations (UN) Democracy Fund, a fund established in 2005 by the UN
General Assembly to promote grass-roots democratization around the world. Doyle previously
served as Assistant Secretary-General and Special Adviser for Policy Planning to United
Nations Secretary-General Kofi Annan. He has been elected to the American Academy of Arts
and Sciences and the American Philosophical Society and been awarded an honorary doctor of
laws degree from the University of Warwick (UK).
Jeffrey L. Dunoff is the Laura H. Carnell Professor of Law at Temple Law School. His
research focuses on public international law, international constitutionalism and interdiscipli-
nary approaches to international law. Professor Dunoff has served as a Visiting Professor at
Harvard Law School, Princeton University, and the Université de Paris (Panthéon-Sorbonne),
and as a Visiting Fellow at the European University Institute, Humboldt University, and the
Lauterpacht Research Centre at Cambridge University. His publications include Ruling the
World? Constitutionalism, International Law, and Global Governance (co-editor with Joel
P. Trachtman 2009), and International Legal Theory: Foundations and Frontiers (co-editor
with Mark A. Pollack 2022). He serves on the editorial board of the American Journal of
International Law and previously served on Global Constitutionalism’s editorial board.
Bardo Fassbender is Professor of International Law, European Law and Public Law at the
University of St Gallen (Switzerland). He studied law, history and political science at the
 Contributors xi

University of Bonn and holds an LLM from Yale Law School and a Doctor iuris from the
Humboldt University in Berlin, where he also completed his Habilitation. He was a Ford
Foundation Senior Fellow in Public International Law at Yale University and a Jean Monnet
Fellow at the European University Institute. Before coming to St Gallen, he held the chair in
international law and human rights law at the Bundeswehr University in Munich. His principal
fields of research are public international law, United Nations law, comparative constitutional
law and theory, and the history of international and constitutional law.
Iain Ferguson is an assistant professor in the Department of Politics and Governance at HSE
University in Moscow. His primary research interests are in the international relations of
global governance. He has published book chapters and journal articles on representations of
international political thought in global governance in-between Western powers (NATO, the
EU, the Western states in the Security Council) and Russia.
Sassan Gholiagha is a postdoctoral researcher at the European New School of Digital Studies
(European University Viadrina Frankfurt (Oder)). He has worked on norms research in
International Relations (IR), security discourses, the Responsibility to Protect, international
criminal law, drone strikes, human trafficking, and drug control. Currently he is involved in
an interdisciplinary project bringing computer scientists and IR scholars together to work on
questions of artificial intelligence, machine learning, and argument mining in the context of
IR scholarship and political debates. His research has been published in journals such as the
International Journal of Human Rights, the Journal of International Political Theory, Global
Constitutionalism, and Global Society. He has also published his work in several edited
volumes. He is the author of The Humanisation of Global Politics – International Criminal
Law, the Responsibility to Protect, and Drones (Cambridge University Press 2022).
Matthias Goldmann holds a chair of International Law at EBS University in Wiesbaden. He
is also a Senior Research Fellow at the Max Planck Institute for Comparative Public Law and
International Law in Germany. Previously, he was Junior Professor of International Public and
Financial Law at Goethe University Frankfurt. He has been Co-Editor-in-Chief of the German
Law Journal since 2017. In 2015, he received a Freigeist Fellowship of Volkswagen Stiftung.
He has published widely on the theory and history of international law, sovereign debt, and
financial regulation.
Jill Harries is the Emeritus Professor of Ancient History at the University of St Andrews. Her
interests include the history of the Roman Empire, the constitutional thought of Cicero and the
relationship of law and constitutionalism to autocracy, and she has been associated with the
St Andrews Centre for Global Law and Governance for many years. Among her publications
are Sidonius Apollinaris and the Fall of Rome (1994), Cicero and the Jurists (2006), Law and
Crime in the Roman World (2007) and Imperial Rome 284–363: The New Empire (2012).
Ruth Houghton is a Lecturer in Law at Newcastle University. Her research centres on public
international law and global constitutionalism, where she utilises feminist methodologies.
She has published in journals such as Global Constitutionalism and the Leiden Journal of
International Law on topics including feminist utopias, manifestos, and democracy.
Thomas O. Hueglin is Professor Emeritus of Political Science at Wilfrid Laurier University in
Canada. His research has been focused on the history of political thought, and on comparative
xii Handbook on global constitutionalism

federalism. Recent book publications are Federalism in Canada: Contested Concepts and
Uneasy Balances (2021), Comparative Federalism: A Systematic Inquiry (with Alan Fenna,
2nd edn, 2015), and Classical Debates for the 21st Century: Rethinking Political Thought
(2008). In 2019, he was the third recipient of the Distinguished Scholar Award (Publius: The
Journal of Federalism, in cooperation with the International Political Science Association). He
is currently writing a book on The Federal is the Political: A Conceptual History of Federalism.
Oliver Jütersonke is an independent researcher, trainer, knowledge broker and conflict
analyst with almost 20 years of professional experience working with civil society, UN
agencies and donor governments in Sub-Saharan Africa and the Asia-Pacific region. He
is also President of Coginta, a Geneva-based NGO working in the fields of security sector
governance, crime prevention and social cohesion. Oliver is a member of the Ethics Review
Board of the International Committee of the Red Cross (ICRC) and serves on the Swiss
Commission for Research Partnerships with Developing Countries (KFPE). Previously, he
was Head of Research at the Centre on Conflict, Development and Peacebuilding (CCDP) at
the Geneva Graduate Institute of International and Development Studies. Oliver is the author
of Morgenthau, Law and Realism (Cambridge University Press 2010; paperback 2012) and
numerous publications on peacebuilding, security-development linkages, and the disciplinary
history of international law and international relations, including in International Studies
Quarterly, Third World Quarterly, Ethics and International Affairs, the Austrian Journal of
Political Science, and Security Dialogue.
Jan Klabbers is Professor of International Law at the University of Helsinki. He holds a doc-
torate – with distinction – from the University of Amsterdam, where he also used to teach.
Main publications include Virtue in Global Governance: Discretion and Judgment (2022),
The Cambridge Companion to International Organizations Law (2022, ed.), An Introduction
to International Organizations Law (2022, 4th edn), International Law (2020, 3rd edn), Treaty
Conflict and the European Union (2008), The Concept of Treaty in International Law (1996)
and, as co-author, The Constitutionalization of International Law (2009).
Mattias Kumm is Inge Rennert Professor of Law as well as Research Professor for ‘Global
Constitutionalism’ at the WZB Social Science Center Berlin and Humboldt University.
His research and teaching focuses on basic issues and contemporary challenges in global,
European and comparative public law. He has held professorial appointments at Harvard, Yale
and the European University Institute (EUI). He is one of the founding co-editors in chief of
the journals Global Constitutionalism (CUP) and Jus Cogens (Springer).
Anthony F. Lang, Jr. is a professor in the School of International Relations at the University
of St Andrews. He founded the Centre for Global Constitutionalism in 2008 and served as
one of the editors of Global Constitutionalism from 2010 to 2016. In 2021, he was named
as the Distinguished Scholar of the International Ethics section of the International Studies
Association. He currently edits the Journal of International Political Theory. He has published
widely in international political theory, including three single-authored books, ten edited
books and numerous articles and chapters.
Susanna Mancini holds the Chair of Comparative Constitutional Law at the University
of Bologna School of Law, and is a vice president of the International Association of
Constitutional Law. She is interested in exploring how race and gender-related social and cul-
 Contributors xiii

tural constructs have shaped the balance of power and privilege in a liberal society, and in the
role of the law in perpetuating and/or combating the marginalization of women and of racial,
religious, sexual and linguistic minorities. Her work explores issue of law and religion, repro-
ductive rights, the partnership of feminism and multiculturalism, self-determination and seces-
sion. Since 2022, she is a member of the Intergovernmental Committee responsible for the
drafting of accords with minority denominations. Her latest publications include Constitutions
and Religion (Edward Elgar 2020), The Conscience Wars (Cambridge University Press
2018, with Rosenfeld), Comparative Constitutional Law: Cases and Materials (with Dorsen
Rosenfeld, Sajo and Baer, West 2022).
Peter Niesen is Professor of Political Theory at Hamburg University and a former member
of the Frankfurt-based Cluster of Excellence ‘Formation of Normative Orders’. With Markus
Patberg, he conducted the DFG research project ‘Reclaiming Constituent Power: Emerging
Counter-Narratives of EU Constitutionalisation’ (2016–21). His research interests lie in inter-
national political theory, Kant, Bentham and animal politics. Among his recent publications
are ‘Reframing civil disobedience: Constituent power as a language of transnational protest’,
(2019) Journal of International Political Theory, 15(1), 31–48 and ‘Two cheers for lost sover-
eignty referendums: Campaigns for independence and the pouvoir constituant mixte’, (2022)
German Law Journal, 23(1), 44–55.
Francis Oakley is the former Edward Dorr Griffin Professor of the History of Ideas at
Williams College, Massachusetts, and President Emeritus of that College. Educated at Oxford
University, the Pontifical Institute of Medieval Studies, Toronto, and Yale University, he is
the author of 15 books and co-editor of three others on topics pertaining to medieval intel-
lectual and religious life and to American higher education. In 2016 the Medieval Academy
of America awarded him its Haskins Medal for his three-volume work, The Emergence of
Western Political Thought in the Latin Middle Ages (New Haven, CT, and London, Yale
University Press 2010–15).
Mary Ellen O’Connell is the Robert and Marion Short Professor of Law and Professor of
International Peace Studies – Kroc Institute, University of Notre Dame. Her research focus is
the international law on the use of force, international dispute resolution and international legal
theory. Her publications include The Art of Law in the International Community (Cambridge
University Press 2019); Self-Defense against Non-State Actors (with C. Tams and D. Tladi,
Cambridge University Press 2019), and The Power and Purpose of International Law, Insights
from the Theory and Practice of Enforcement (Oxford University Press 2008). She has been
a vice-president of the American Society of International Law and chaired the International
Law Association Committee on the Use of Force from 2005–10.
Anne Peters is Director at the Max Planck Institute for Comparative Public Law and
International Law Heidelberg (Germany), and a professor at the universities of Heidelberg,
Freie Universität Berlin, Basel (Switzerland), and a L. Bates Lea Global Law professor at
the Law School of the University of Michigan. She is a member of the Permanent Court
of Arbitration, and an associate member of the Institut de Droit International. Her current
research interests relate to public international law including its history, global animal law,
global governance and global constitutionalism, and the status of humans in international law.
xiv Handbook on global constitutionalism

M.J. Peterson is a Professor of Political Science at the University of Massachusetts, Amherst

(USA). She has held visiting appointments at the University of Maryland, the University of
California Berkeley and the University of Chicago. Her research focuses on international
cooperation through intergovernmental organizations, particularly regarding environmental
issues and management of high seas fisheries and Antarctica, and regulation of human activ-
ity in outer space. She is the author of five books and of articles in the American Journal of
International Law, the American Political Science Review, Global Governance, International
Organization and World Politics.
Michel Rosenfeld is University Professor of Law and Comparative Democracy, Justice
Sydney L. Robins Professor of Human Rights and Director of the Program on Global and
Comparative Constitutional Theory at the Cardozo School of Law of Yeshiva University in
New York City. He was president of the International Association of Constitutional Law and
the founding Editor-in-Chief of the International Journal of Constitutional Law (I.CON).
He is the author of numerous books and articles that have been translated into ten foreign
languages, including The Identity of the Constitutional Subject (2010) and A Pluralist Theory
of Constitutional Justice (2022).
William E. Scheuerman is the James H. Rudy Professor of Political Science and International
Studies at Indiana University, where he teaches political and legal theory. He is the author of
eight books and editor or co-editor of four others. His Between the Norm and the Exception:
The Frankfurt School and the Rule of Law (MIT 1994) won a number of prestigious prizes,
and many of Bill’s articles and books have been translated into Japanese, Portuguese, German,
Spanish, Swedish, and other languages. His latest book (an edited volume), The Cambridge
Companion to Civil Disobedience, appeared in 2021.
Christine Schwöbel-Patel is Professor of Law at the University of Warwick, where she is
co-Director of the Centre for Critical Legal Studies. She is the author of two monographs
Marketing Global Justice (Cambridge University Press 2021) and Global Constitutionalism in
International Legal Perspective (Brill 2011) and editor of Critical Approaches to International
Criminal Law: An Introduction (Routledge 2014). Her research and teaching in international
law are informed by a critical political economy and aesthetics perspective.
Jo Shaw holds the Salvesen Chair of European Institutions at the University of Edinburgh
and is currently Head of Edinburgh Law School. Her research focuses on citizenship and con-
stitutionalism in the European and global context. She is one of the editors of the Cambridge
University Press journal Global Constitutionalism.
Chris Thornhill is Professor of Law at the University of Manchester. Notable among
his recent publications are A Sociology of Constitutions (Cambridge University Press
2011), A Sociology of Transnational Constitutions (Cambridge University Press 2016), The
Sociology of Law and the Global Transformation of Democracy (2018) and Democratic Crisis
and Global Constitutional Law (2021).
Stephen J. Toope is President and CEO of the Canadian Institute for Advanced Research
(CIFAR). He was Vice-Chancellor of the University of Cambridge, Director of the Munk
School of Global Affairs at the University of Toronto, and President, the University of British
Columbia. A former Dean of Law, McGill University and Founding President of the Pierre
 Contributors xv

Elliott Trudeau Foundation, Toope was also Chair of the United Nations Working Group
on Enforced or Involuntary Disappearances. Toope was awarded the American Society of
International Law’s Certificate of Merit ‘for preeminent contribution to creative scholarship’
in 2011. He was appointed an Officer of the Order of Canada in 2015, and elected Fellow of
the Royal Society of Canada in 2019 and Associate Member of the Institut de droit interna-
tional in 2021. His most recent book is A Rule of Law for our New Age of Anxiety (Cambridge
University Press 2023).
Joel P. Trachtman is Professor of International Law at The Fletcher School of Law and
Diplomacy. His books include Advanced Introduction to International Trade Law (Edward
Elgar 2020) and The Future of International Law: Global Government (Cambridge 2013)
among many others. Professor Trachtman has served as a member of the Boards of the
American Journal of International Law, the European Journal of International Law, the
Journal of International Economic Law, the Cambridge Review of International Affairs,
and the Singapore Yearbook of International Law. He has consulted for governments and
international organizations, including the United Nations, the World Bank and the OECD. He
has been a visiting professor at Basel, Hamburg, Harvard, Hebrew, Hong Kong and Pretoria
universities.
Martine van Ittersum is Senior Lecturer in History at the University of Dundee, United
Kingdom. She is the author of Profit and Principle: Hugo Grotius, Natural Rights Theories
and the Rise of Dutch Power in the East Indies, 1595–1615 (Brill Academic 2006). She has
published widely on the history of international law and on the theory and practice of Western
imperialism and colonialism, particularly in the early modern period. Many of her publications
are available at https://​dundee​.academia​.edu/​MartinevanIttersum.
Armin von Bogdandy has studied law and philosophy and is Director at the Max
Planck Institute for Comparative Public Law and International Law and Professor at the
Goethe-University. He is awardee of the Gottfried Wilhelm Leibniz Prize, the Prize of
the Berlin-Brandenburgian Academy of Sciences, awardee of the Premio Internacional de
Investigación ‘Héctor Fix Zamudio’ and the Court Gavel (Mazo) of the Inter-American Court
of Human Rights. He was President of the OECD Nuclear Energy Tribunal, Member of
Science Council and Member of the Scientific Committee of the EU Agency for Fundamental
Rights.
Ingo Venzke is Professor for International Law and Social Justice at the University of
Amsterdam, Director of the Amsterdam Center for International Law (ACIL), and a Fellow at
The New Institute in Hamburg. He is Editor-in-Chief of the Leiden Journal of International
Law. He recently edited Contingency in International Law: On the Possibilities of Different
Legal Histories (Oxford University Press 2021) (together with Kevin Jon Heller).
Neil Walker holds the Regius Chair of Public Law and the Law of Nature and Nations at the
University of Edinburgh, United Kingdom. Previously he was Professor of European Law at
the European University Institute in Florence (2000–8). He has published extensively on the
constitutional dimension of legal order at sub-state, state, supranational and global levels. He
has also published at length on the relationship between security, legal order and political com-
munity. His most recent books are Intimations of Global Law (Cambridge University Press
xvi Handbook on global constitutionalism

2015) and The Scottish Independence Referendum: Constitutional and Political Implications
(co-editor, Oxford University Press 2016).
Antje Wiener holds the Chair of Political Science, especially Global Governance, at the
University of Hamburg, and By-Fellow of Hughes Hall, Cambridge. She was made a Fellow
of the Academy of Social Sciences in the United Kingdom in 2011, and a Member of the
Academia Europea in 2020. Wiener is a founding editor of the interdisciplinary journal Global
Constitutionalism: Democracy, Human Rights, Rule of Law. She is the author of numerous
articles and books including Contestation and Constitution of Norms in Global International
Relations (Cambridge University Press, 2018), A Theory of Contestation (Springer 2014),
The Invisible Constitution of Politics: Contested Norms and International Encounters
(Cambridge University Press 2008) and European Citizenship Practice: Building Institutions
of a Non-State (Westview 1998). She has held visiting fellowships at Edinburgh, Cambridge,
Stanford, Sussex, Victoria, Florence, Wellington, and Oxford, among others. Prior to coming
to Hamburg in 2009 she was Chair of Political Science and International Relations at Queen’s
University Belfast and at the University of Bath. Her current research and teaching interests
are in the fields of international relations theory especially norm contestation research and
climate agency.
Jan Wilkens is a Postdoctoral Researcher in the Synthesis Team at the Center for Earth
Research and Sustainability (CEN) within the Cluster of Excellence ‘Climate, Climatic Change
and Society’ (CLICCS) at Universität Hamburg. His publications include ‘Postcolonialism
in international relations’ in René Marlin-Bennett (ed.), Oxford Research Encyclopedia of
International Studies (2017), ‘Concepts at work in global international relations’, in Piki
Ish-Shalom (ed.), Concepts at Work: On the Linguistic Infrastructure of World Politics (2021,
with Oliver Kessler), and ‘Researching climate justice: A decolonial approach to global
climate governance’, International Affairs 98(1) (2022, with Alvine Datchoua-Tirvaudey).
Preface and acknowledgments

The first edition of this Handbook formally began when the editors were approached by Edward
Elgar about the possibility of putting together a collection of authors to explore what was then
an emerging field of interdisciplinary study. Its informal origins, however, can be traced back
some years to when the editors discovered a shared interest in global constitutionalism. Their
working relationship and friendship over the past 15 years, both in editing the journal Global
Constitutionalism and in reading each other’s work on this topic have given them the ability to
create this Handbook. Discussions, dinners and drinks in Hamburg, St Andrews, and around
the world have created a synergy of ideas for which they are both thankful.
These conversations have continued since the first edition was published and we were
pleased to be asked to edit a second edition.
All the staff at Edward Elgar have been outstanding, but we would especially like to thank
Alex Pettifer, who invited us to put this Handbook together and who has met with us repeat-
edly and been sympathetic to our failure to complete the Handbook on time. Daniel Mather
and Hannah Ross have been extremely helpful in putting together the final version.
We are extremely thankful to Hester Lessard for the artwork that graces the cover of our
second edition.
As editors, we are most thankful to the contributors who have provided such thoughtful,
interesting and provocative chapters. Each one advances our knowledge and they most cer-
tainly do not all agree. We feel that the contestation among the authors in this book reflects the
essentially contested nature of global constitutionalism, something we feel must be at the core
of any scholarship in this area.
In our first preface we noted that we hoped to include chapters on the following topics:
feminism, post-colonialism and international society theory. We are very pleased that this new
edition includes works on these subjects, along with others such as space law, the use of force,
public international law, and many others. As the field of global constitutionalism continues to
become more ‘global’, we believe that this second edition reflects and reinforces that globality.

xvii
1. Introduction to the Handbook on Global
Constitutionalism: protecting rights and
democracy while binding power
Anthony F. Lang, Jr. and Antje Wiener

On 24 February 2022, Russia invaded Ukraine, claiming to protect ethnic Russians within
Ukraine, remove Nazis and nationalists, and protect Russia from an advancing NATO alliance
directed against Russian interests. Russia has been roundly condemned for its intervention
because it violated the core principles of the liberal global order. Ironically, partly as a result
of this invasion, some pillars of the global liberal order have been strengthened; for instance,
the NATO alliance has been more unified in its response, and the European Union (EU) has
been firmer in its use of economic sanctions than in previous conflicts. At the time of drafting
this introduction, it is unclear what the outcome of these events will be.
While this intervention has only begun, another intervention came to ignominious end only
six months before. In August 2021, the United States pulled all its troops out of Afghanistan,
leading the remaining Western alliance to do the same. This intervention had resulted from the
attacks of 11 September 2001. Over the 20 years of this military operation, the United States
and its allies claimed to protect the rights of women, religious minorities and the wider pop-
ulation. Despite years of funding, miliary assistance and high-tech uses of military force, the
Western powers changed very little in the country. At the time of this writing, the Taliban have
returned to power. With radically reduced access to political participation and contestation and
protections of minorities and women worsening, we might ask whether or not this intervention
was for anything other than punishing the Taliban rather than advancing any liberal rights.
Considering these two uses of military force alongside each other, and the reactions of the
international community to them, tells us a great deal. Over the last 15 to 20 years, scholars of
international relations (IR) have been contesting the nature of the liberal world order. When
Donald Trump was elected president of the United States and the United Kingdom pulled out
of the EU, many lamented the collapse of liberal internationalism and the ‘rules based interna-
tional order’. In response, liberal theorists have argued vigorously that this world order needs
to be reconstructed, led by the United States and Europe (Walt 2016; Ikenberry 2020). But
would that reconstruction be one that might bind the power of those states? Or, would it further
embolden them to continue intervening in states that need to be ‘fixed’ in order to conform
more closely to the ideals of the powerful? Is there any way that the liberal goals of human
rights and democracy can be promoted without the powerful taking advantage of those ideals?
Others have responded to this dilemma in different ways. Those sympathetic to liberalism
worry that it is defeating itself internally (Cooley and Nexon 2021). Others have criticized
liberalism more directly. Theorists of ‘Global IR’ have argued that the supposed benefits of the
liberal rule-based order have not been beneficial across the globe (Acharya 2018; Aydinili and
Erpul 2021) as have those seeking to ‘decolonize’ the field of IR (Sabaratnam 2019; Shilliam
2021). Realists have strongly critiqued the pretentions of liberal theorists (Mearsheimer 2019).

1
2 Handbook on global constitutionalism

Can global constitutionalism help here? For some, the global constitutionalist idea is directly
linked to liberalism, particularly in its focus on democracy, human rights and the rule of law
(Kumm 2018). In a recent editorial in the journal Global Constitutionalism, the editors note
that the principles of liberal democratic constitutionalism (LDC) are being used by illiberal
states to undermine those same principles (Eisler et al 2022). Indeed, writing prior to the 2022
invasion, they point to how Russia has used a standard liberal idea, a referendum, to support its
claims to occupy Crimea in 2014 (Ibid. 5), subverting liberalism through its own tools.
With this Handbook we suggest that as an interdisciplinary and relatively young academic
field global constitutionalism provides a way to think more carefully about the dilemmas of the
liberal world order. As the contributions demonstrate, rather than embrace a simplistic idea of
rights and democracy, a constitutional order seeks to promote a rule governed political system
which recognizes the dangers and tensions of political power. As such, it both promotes
institutions that protect rights and give voice to all while also ensuring that no one actor can
dominate the system. Through contestation (Wiener 2014; 2018), separation of powers and
attention to cultural difference, a constitutional order (either domestic or global) provides us
with a different means by which to regulate force and protect the innocent.
The current political developments raise a number of questions which cannot be answered
today, and therefore remain to be addressed by future research, for instance: would a global
constitutional order have prevented Russia from invading Ukraine, or prevented the United
States from invading Afghanistan? We cannot know, for we do not have a fully developed
global constitutional order. We do know, however, that efforts to regulate war and violence
can take institutional form and may well provide new ways of thinking about global politics.
This volume, while not directly addressing the dilemmas of the liberal world order, provides
different insights from within global constitutionalism into the possibilities and potentials of
thinking anew about global politics. The first edition of this Handbook sought to lay out the
historical, thematic and practical dimensions of this idea. This new edition includes nine new
chapters and a number of substantially revised chapters from the previous edition. Across the
entire Handbook, we are pleased to see our authors grappling with the big questions of global
politics, ones that do not necessarily have answers, but which provide new lenses through
which we can see the world. These lenses are captured by questions such as these:
What is global constitutionalism? Drawing on a political idea that finds antecedents in the
history of political thought and coming to fruition with the rise of liberalism, constitutional
ideas had been influential in shaping the emergence of international legal institutions in the
nineteenth and early twentieth centuries, but with the emergence of realist thinking and prac-
tice seemed to have declined. Now, though, core constitutional norms such as the rule of law,
separation of powers and human rights have emerged as crucial to the theories and practices of
global politics. Yet, the rule of law and human rights remain contested by many, especially as
political conflict emerges around asylum, lesbian, gay, bisexual and transgender (LGBTQ+)
rights, indigenous peoples’ rights, democratization and global trade relations. At the same
time an interdisciplinary academic field around the idea of global constitutionalism has
gained momentum, with its own journal, a number of research centres, blogs, and a growing
trans-border constitutional discourse.
But are these ideals shared universally? The diversity of political systems around the world,
many of which seem antithetical to ‘Western’ ideals of democracy and human rights suggest
otherwise. These diverse particularisms challenge the supposed universalism of global consti-
tutionalism. Yet, at the same time, practices of judicial bodies, sharing of judicial opinions,
 Introduction 3

and efforts by activists and others to find common ground suggest not a universal agreement
but a recognition that peoples in diverse contexts are not as opposed to these fundamental
norms as we might assume. As Lang has recently noted in responding to a special issue on
Asian constitutionalism, a ‘practical universalism’ may be emerging through the efforts of
individuals and institutions who see the benefits of protecting rights, promoting democracy
and ensuring institutions such as judiciaries remain robust (Lang 2021).
What benefit is there in proposing new ideas about global constitutionalism in light of
the resurgence of nationalism, sovereignty, and war? As this Handbook demonstrates, as an
academic discipline, global constitutionalism is dedicated to studying both empirical facts and
normative ideals. By studying them in tandem, the interdisciplinary field of global constitu-
tionalism encourages research that explores a more balanced and bottom-up perspective on
constitutional quality in the global realm. In this spirit, this Handbook includes contributions
from a diverse range of authors including those who argue that the international and global
system is becoming more constitutional and those who argue that it should become more
constitutional. So, our efforts here may, in some sense, be proved wrong in the short term
concerning the empirical facts of constitutionalism. However, the editors and the contributors
share the view, in one way or another, that globalization and international legal developments
continue to inch toward a global constitutional order.
In light of these developments the Handbook on Global Constitutionalism addresses three
guiding questions: is the global legal and political order becoming more constitutional? If so,
what explains this change? Is such a change a desirable one? These questions have generated
a range of answers across a number of interrelated disciplines. The Handbook provides some
answers to these questions by asking a select group of leading scholars to examine the idea
of global constitutionalism. This introduction will locate some of the broad themes that have
been constitutive of the debates about global constitutionalism and the ultimate emergence of
an interdisciplinary academic field. In addition, it will provide some historical and theoretical
context for the chapters that follow. The Handbook approaches the field of global constitu-
tionalism through the prism of the practices, processes and principles of constitutionalization
as the starting point for conceptualizing a shared albeit contested idea. We believe that such
a practice-based approach is best equipped to acknowledge the essentially contested nature of
constitutional norms and constitutional narratives because it enables a diversity of understand-
ings to emerge and be subject to further refinement and development. In so doing, we see the
Handbook as a tool for scholars and students alike as they grapple with a rapidly changing
global political and legal order.
A constitutional political and legal order enables and constrains political decision-making.
It places limits on political life through its emphasis on the rule of law. At the same time, it
enables the creation of new institutions and laws in moments of founding and in practices
of interpretation. Four principles or ‘fundamental norms’ make manifest these limiting and
enabling functions: the rule of law, a balance or separation of powers, constituent power,
and rights (Wiener 2008, pp. 65–6; Wiener et al 2012; Rosenfeld 1994). Constitutionalism,
then, sits at the intersection of law and politics. A global constitutional order exhibits some
variation of these constitutional features. A global constitutional order need not mirror in detail
the constitutional orders of Western, liberal democratic states, although there are numerous
overlaps between this tradition and the emerging global constitutional order. Moreover, the
global process continues to evolve; that is, there remains more constitutionalization than con-
stitutionalism at the global level. Global constitutionalism, for instance, exhibits a rule of law,
4 Handbook on global constitutionalism

but governs both the relationships of individuals with each other and with the relationships
of states, international organizations and non-governmental organizations. A global constitu-
tional order exhibits a separation of powers and a balance of those powers, but some powers
are more prominent than others; for instance, there is no real global legislative body, although
there are a number of intersecting sites of law-making and an increasing number of judicial
bodies. A global constitutional order does not have a single, clearly defined pouvoir constit-
uant (constituent power) but various groups, agencies and modes of activism together can be
understood as providing a kind of representative community for the international community
as a whole. And the global human rights regime remains contested by many.
Global constitutionalism as a field of study focuses on these emerging elements of the
international system. It sees constitutionalism as a description and explanation of how the
international legal and political order is changing. It is also a way to normatively evaluate
those changes by valorizing constitutionalism as a means by which rights can be protected
and responsibilities distributed in the global order. The idea that there is a global order with
constitutional features is not necessarily a new claim. Efforts to formalize international law
in the nineteenth and twentieth centuries included discourses of the constitutional nature of
international life. Indeed, the idea that there is a constitution that stretches beyond the specifics
of any one nation state can be found in ancient, medieval and early modern political theories.
However, recent years have seen a more concerted effort to describe, explain and evaluate
the global order through the concepts and ideas drawn from constitutional theory. These
efforts are responses to changes in the EU; in international institutions such as the United
Nations (UN) and its various bodies and committees, especially the UN Security Council
(UNSC); in international judicial institutions such as the International Criminal Court (ICC);
in international law especially with regard to the relevance of international law vis-à-vis
regional and sector-based governance; and last but not least in discourses surrounding human
rights and, in particular, the rapidly expanding literature on the responsibility to protect (R2P)
individual human rights (Bellamy 2007; Brunnée and Toope 2010a; 2010b; Erskine 2013;
Welsh 2013). In academic scholarship, moves toward interdisciplinary work by political
scientists on law, the rise of constructivist IR theories, and overlaps between political and
legal theory have generated important new insights about politics and law at the global level
(Dunoff and Trachtman 2009).
This Handbook seeks to find in this diverse and rapidly growing body of work some clarity
on the nature of global constitutionalism and provide a guide to its foundations, evolution and
potential for future scholarship and practice. The Handbook intends to be a ‘broad church’
that locates global constitutionalism and its related themes in a diverse array of scholarship
and practices. The Handbook is constructed around six parts: Historical Antecedents; Political
and International Relations Theories; Legal Theories; Principles and Practices; Institutions
and Frameworks; and New Horizons. In this second edition, many contributions have been
updated, either with reference to new theoretical developments or new empirical material.
We have commissioned nine new chapters for this volume, which we have organized into
different parts in the following ways: chapters on the social contract and international society
theory in the section on Political and International Relations Theories; chapters on natural
law, international public law, feminism, and postcolonialism in the section on Legal Theories;
a chapter on the use of force and R2P in the section on Principles and Practices; a chapter on
transnational litigation networks in the section on Institutions and Frameworks; and a chapter
on outer space law in the final section on New Horizons. This introduction first elaborates
 Introduction 5

the idea of constitutionalism, exploring its historical antecedents and (contested) normative
principles. It connects this core idea to recent literature that identifies trends and developments
at the global level that exhibits a constitutional character. Second, the introduction explains
in more detail the idea of constitutionalization as a process as opposed to the idea of constitu-
tionalism as an end point. This section highlights the contested nature of constitutionalization,
suggesting that constitutionalism as a political and legal space enables a kind of contestation
that does not (necessarily) descend into conflict but can productively produce new institutions
at the domestic and global level.

HISTORICAL ANTECEDENTS

A constitution is the set of principles and rules that have been rooted in and which govern
a society. Constitutionalism is a political theory that protects individuals from the arbitrary
exercise of power through the rule of law and a separation of powers. A constitution can be
written or unwritten, as in the case of the United Kingdom. In each case, a constitution is
expected to embody the principles of constitutionalism. However, the substance and degree
to which these principles are respected and enforced varies according to tradition and context
(Tully 1995). Almost every country today has a written constitution, although not all countries
are constitutional in this theoretical sense of the term. Also, some states without written con-
stitutions, such as the United Kingdom, are very much constitutional systems. By committing
a country’s political structure and organization to a written text, actors within that order will
be bound in some ways by the need to adhere to the legal system. Constitutions not only limit
power, they also channel it into structures and institutions that govern. In this way, constitu-
tions turn constituent power into constitutional form (Loughlin and Walker 2007).
The first written constitutions appeared in the late seventeenth and eighteenth centuries as
a result of the revolutions in the American colonies and France.1 The purposeful creation of
a constitution was a divergence from the traditional constitutionalism found in places such as
Great Britain. Charles McIlwain notes how the move from the classical and medieval eras to
the modern era assumed that a constitution is a set of customary and evolutionary norms and
principles that govern a society (McIlwain 1958 [2008]). When the American delegates to the
Constitutional Convention came together in Philadelphia in the summer of 1787, they may not
have envisioned that they would be changing the nature of constitutionalism. However, both
they and the French a few years later created a very different understanding of the constitution
and its place in political life, which ensured the protection of rights against the arbitrary power
of the mother country (American) or vested social and political interests (French).
The written constitution has come to be seen as the epitome of constitutionalism. Yet the
latter is a political philosophy that captures more than the existence of a written text. Instead,
it is the broader idea of government in accordance with the rule of law. The rule of law as
manifest in constitutionalism, however, is not a rigid adherence to specific codes or legal texts;
rather, it is an understanding of the law as a bulwark against the arbitrary exercise of power.
The specific tools remain to be agreed by each society. Laws protect individuals and, crucially,
create institutions that will balance and check the powers of individuals. Constitutionalism,

1
Though some might argue that the colonial charters of the Americas provided earlier models of the
written constitution.
6 Handbook on global constitutionalism

then, is the underlying philosophical ideal of a political order defined by four core principles:
the rule of law, institutional balance, constituent power, and rights. Each of these four norms
can be employed to describe, explain and evaluate political life. As constitutionalism becomes
a shared reference within the wider context of global society and global constitutionalism
obtains a meaningful role as a novel approach and idea in international law, IR, and global
governance, the concept moves on towards a new historical period.
A brief history of ideas reveals the various ways in which constitutionalism and related
ideas have been understood. The purpose of this brief historical excursus, however, is not
to tell a progressive narrative in which these moments culminate in a global constitutional
order. Moreover, our intention is not to privilege a liberal story of constitutionalism. Rather,
as ‘antecedents’ the individuals identified here can be seen as providing important insights
into the intersection of law and politics. They are drawn from a broadly conceived ‘Western’
historical tradition whose insights have been invoked at times and places by different figures in
theorizing law at the global level. While we draw upon insights from this historical trajectory,
we fully appreciate and hope to see more of reflections on law and power from other tradi-
tions, especially as those have impacted upon and shaped the Western discourses. As James
Tully has pointed out, to understand the 400 years of constitutional history arising from the
Anglo-American context requires appreciating its intersection with the colonial project and
the ways in which those encounters have shaped its ideas (Tully 1995). Research in the field
of global constitutionalism therefore needs to be fully aware and take better account of diverse
contexts of constitutionalization and how these intersect through both regulatory and custom-
ary practices of constitutionalism (McIlwain 1947). For example, more research on cultural
practices and how they might question regulatory mechanisms of modern constitutionalization
need to be explored in order to better account for cultural diversity (Borrows 1994; Williams
2009). Others have pointed to the ways forms of global governance can be drawn from expe-
riences such as the Iroquois Nations in North America (Crawford 1994).
Even more importantly, by noting these antecedents, we can disabuse ourselves of the idea
that there is something radically new in global politics and law today. Instead, we can see
parallel developments in different times and places when struggles to capture politics in legal
form have taken place. In addition, the brief overview provided here crosses both domestic
and global constitutionalism, for some thinkers looked only to their internal constitutional
orders while others sought to theorize from that internal foundation to regional, international
or global levels.2
In Ancient Greece, the contrasting views of Plato and Aristotle provide two helpful markers
for understanding the relationship between law and politics. For Plato, a constitutional order
can be reduced to the laws that define it. Plato’s view of Law can be found in the Crito and the
Laws. The Crito, Socrates’ explanation of why he refuses to flee Athens as he faces his death at
the hands of the democracy, presents the Law as a moral framework that guides the individual
through their life and serves as something like a father figure to the individuals of the city.
This idea is further refined in the Laws, where Plato presents a theory of laws and law-making.
Underlying this theory of law, however, is a political order framed by virtue, an idea explored
in Plato’s other important political work, The Republic. The politics of virtue are (in)famously

2
Historical context is a vexed methodological problem, and it will certainly not be solved in this
introduction or this Handbook. Martti Koskenniemi (2013) provides one effort to balance progress and
context in the study of international law.
 Introduction 7

institutionalized in Book XII of the Laws, where Plato introduces the ‘nocturnal council’, an
institution designed to ensure that the laws conform to virtue and that they will ensure the role
of law in the upbringing of all persons. While the text has little to say about anything beyond
the community, the nocturnal council does draw upon the expertise of individuals from other
communities, perhaps giving an early intimation of constitutional learning that has become
a more recent prominent dimension of global constitutionalism.
An alternative picture of constitutionalism emerges from Plato’s student, Aristotle. Rather
than a theory of law or law-making, Aristotle explores political life through the nature of its
institutions. Like Plato, Aristotle sees the political system as intimately connected to virtue and
moral education. Yet, for Aristotle, a constitution includes everything from the structure of
law-making to principles of education and location of the city. This comparative study directly
informed his famous work of political theory, The Politics (Aristotle c. 350 BC [1996]; Polin
1998). Aristotle privileges politics over law, seeing in the institutions of political life the tools
for ensuring the good life rather than in the making of laws. As with Plato, Aristotle has much
less to say about anything beyond the polis, though his comparative method does suggest that
understanding the diversity of the global order might help inform the ways in which we read
constitutions.
Neither Plato nor Aristotle theorized political life much beyond the borders of the city state.
Roman theorists of law and politics, however, had more reason to turn beyond the city state
as their political order expanded into an imperial one. In addition, the more formal legalism of
the Roman Republic contributed in important ways to our understanding of what it means to
have a law governed society (Lincott 1999). A Greek statesman who was captured and taken
to Rome, Polybius, explored the centrality of the mixed constitution in the Roman political
system, arguing that its success as an empire relied to some extent on its ability to keep the
different elements of society in balance. The mixed constitution is one in which the different
forms of government – monarchy, aristocracy and democracy – provide a foundation for
political order by reflecting the social interests of different elements in society. The mixed
constitution contributed to the modern idea of the separation of powers, though it is less about
functions than about political classes (Polybius 1979). Polybius’ insights into the mixed con-
stitution are not about Rome’s empire, but about Rome itself; at the same time, his articulation
of the mixed constitution comes in the middle of his description of how the Roman Empire
was able to expand so quickly.
Another important Roman theorist of constitutionalism is Cicero, whose focus reflects
the influence of Plato more than the historical expansion of Rome. Cicero’s Republic stands
as a continuation of Greek thought in many ways, drawing on the importance of virtue and
its relationship to political order. Cicero understands law and politics through the lens of
natural law, which informed the ways in which constitutionalism and political theory more
broadly developed. Writing at the moment when the Roman Republic was collapsing into an
authoritarian rule, Cicero’s reflections on the benefits of a constitutional order are less about
what Rome actually was and more about what he and others hoped it could be. This more
theoretical, idealistic interpretation of Rome greatly influenced the development of law and
particularly the creation of the natural law tradition that shaped so much of medieval legal and
political thought (Cicero 1998).3
3
While a work of literary theory and history, C.S. Lewis’s lectures on medieval and Renaissance
literature use Cicero’s famous passage in the Republic, Scipio’s Dream, as the foundation for the strong
natural law heritage found throughout medieval and Renaissance literature and philosophy (Lewis 1994).
8 Handbook on global constitutionalism

Importantly, though, the history of Rome is one of occupation and expansion. This history
should give us pause to think through the ways in which constitutional developments arise
from imperial practices and the increased size of the empire, as the contribution by Jill Harries
in this Handbook highlights.
This natural law tradition shaped the medieval European understanding of law and politics.
Thomas Aquinas refined the natural law, connecting it with the Christian tradition more
clearly through his elaboration of the divine, eternal, natural and civic law. This framing of the
natural law tradition moved the tradition away from a constitutional framing and more toward
a moral framing, but its influence was felt across the political spectrum of Europe. However,
outside of the theories of natural law, constitutionalism emerged in the legal and political
practices of medieval Europe. The relationships that defined the feudal order in England, for
instance, resulted in a discourse of common law that came to undergird the centrality of the
rule of law as a device to protect emerging agencies. Brian Tierney has pointed to this histor-
ical context as central in understanding constitutionalism (Tierney 1982). Others have looked
to the relationships within the church in medieval Europe, particularly the conciliar movement
in the fifteenth century as an instance in which individuals within the church polity sought
to carve out more space for consultation and shared governance. This largely failed effort at
conciliar governance within the church evolved, Francis Oakley has argued, into a defence
of rights and the centrality of law in seventeenth-century conflicts in England, Scotland and
Wales (Oakley 2003); Oakley’s reflections on the global dimensions of these developments
are found in his contribution to this Handbook. Nicholas of Cusa, who helped articulate the
conciliar ideal in the Catholic Concordance, can be seen as a theorist of constitutionalism in
this context. His ideas, as applied to the ‘global’ institution of the church, in which various
levels of church polity had to be structured in relation to the papacy, might also be read as an
antecedent of not just constitutional theory but of global constitutionalism (Nicholas of Cusa
1443 [1991]). Mary Ellen O’Connell's chapter on natural law draws out some of these historic
themes and puts them into conversation with contemporary international law.
The early modern period saw further developments in constitutionalism. Hugo Grotius,
Thomas Hobbes and John Locke are all seen as crucial in the development of the social
contract tradition and natural rights which came to be so central in constitutional thought.
Although they did not advance arguments for formal written constitutions, and they all had
very different ideas of what constitutes both the social contract and natural right, these three
are often seen as important markers in the development of constitutionalism. Underlying their
accounts, though in very different ways, is a broadly understood theory of natural law that
builds on the ancient and medieval heritage but transfers it into a theory of rights. While rights
have become a dominant discourse in modern constitutional theory, the natural law framework
should not be ignored, for natural law and constitutionalism both provide a framing of law and
politics that describes and evaluates the political and legal. Grotius, of course, theorizes law
and politics at the international level, most famously in The Laws of War and Peace (Grotius
1625 [2005]). Grotius’ account does not conceptualize his approach in constitutional terms,
though his arguments may well have been shaped by ongoing debates in the newly inde-
pendent Netherlands about its constitutional order (Lang 2010). Even more importantly, as
Martine Julia van Ittersum highlights in her contribution to this Handbook, the ways in which
the reliance on written agreements in the conduct of relations between the natives of the East
Indies and the Dutch imperial powers – relations in which Grotius was intimately connected
– allowed for the disenfranchisement of peoples and their loss of rights, a situation that the
 Introduction 9

contemporary ‘fetishism’ of treaties continues to reinscribe. At the same time, the contribution
by Bardo Fassbender in the Handbook explores the nature of the written, as opposed to the
unwritten, constitution, providing an alternative viewpoint on the nature of texts and global
constitutionalism.
Hobbes’s work is rarely seen as constitutional, and he is often seen as a theorist of deci-
sionism rather than a theorist of law. Recent interpretations of his work, however, have
emphasized the importance of the law and principles such as equity in Hobbes’s work, both
of which contribute to an understanding of the social contact, and constitutionalism, as more
nuanced and law bound than previous interpretations of Hobbes have made (Dyzenhaus and
Poole 2012). Some have advanced interpretations of Hobbes that even suggest his ideas about
law and constitutionalism may have something to tell us about a global rule of law (May 2013;
Dyzenhaus 2014; Lang 2017).
Locke, in part because of his influence on the American founders and their written consti-
tution, is perhaps closer to the constitutional tradition than Grotius or Hobbes (Locke 1681
[1988]).4 As noted above, though, it was the revolutions in America and France in the late
eighteenth century that brought on the shift to a written constitution and, importantly, the
idea of a constitution as a device to promote a particular framework of institutions and rights.
However, even while appreciating the importance of the written text as a formal normative
form for political governance, the longer historical context provides a way to understand con-
stitutionalism as both descriptive and normative.
Enlightenment figures further contributed to the philosophy of constitutionalism, though,
again, the focus is less on the written constitution and more on the underlying political and
moral ideas. Montesquieu’s Spirit of the Laws explored constitutionalism in a way that
parallels Aristotle, resulting in a comparative project that sought to delineate the wide range
of elements that form the legal order. In terms of constitutional theory, he is perhaps most
famous for his portrayal of the English constitution as encapsulating a separation of powers
(Montesquieu 1748 [1989]). Montesquieu here builds on the idea of the mixed constitution,
though we now begin to see the slow transformation of this ideal from a theory that reflects
social classes into a theory that defines the functioning of governments. Montesquieu does not
theorize a global or even international legal order, but his ideas about the separation of powers
come to form an important part of the constitutional tradition.
Arising at roughly the same time, though, Emer de Vattel, the Swiss diplomat and interna-
tional legal theorist proposed a European legal and political order in which all states shared
sovereign equality, providing a crucial new way of seeing the international legal order. For
Vattel, equality did not depend on power or size but on a formal understanding of statehood,
a principle that continues to shape and define the international order. While his theories are not
necessarily about global constitutionalism, one might read them instead as a theorization of
a kind of international constitutionalism, one in which law and institutions such as sovereignty
create a proto-constitutional European order (Vattel 1758 [2008]).
Enlightenment ideas continued to ferment in Europe, with both cosmopolitan and com-
munitarian strands emerging. In the work of Immanuel Kant, the idea of law and rules plays
a crucial role in his overarching ethical and political thought, perhaps best captured in his
Theory of Right. Law is not simply a tool to govern society; it constructs the self and the

4
On Locke’s natural law ideas, see ‘Essay on the Law of Nature’ (1663–64) in Locke (1997).
10 Handbook on global constitutionalism

relationships within society in a profound way. Kant addressed international affairs as well,
famously in his essay, Perpetual Peace, where he moves from the importance of republican
states to respect for international law to the intimations of a cosmopolitan political order.
While some have argued that Kant is the modern-day father of cosmopolitanism, both in this
essay and other political works, he is perhaps somewhere between the international constitu-
tionalism of Vattel and later developments in international law that we might identify as global
constitutionalism. That is, with his careful construction of a legal and political order in which
republican states respect international law and welcome strangers in pursuit of a cosmopolitan
right of hospitality, Kant moved the Enlightenment ideals of law and politics a step closer to
a global constitutional ideal (Kant 1990).
While Kant’s cosmopolitanism shapes one version of constitutionalism, G.W.F. Hegel’s
statism and communitarian philosophy shapes another strand. The pinnacle of German ideal-
ism, Hegel’s conceptions of the European (or perhaps German?) state as the epitome of human
development shapes constitutional thinking in a number of ways. By locating the fulfilment
of the human person in the construction of a particular kind of liberal state, Hegel’s theories
create the state as the model form of political community, a model that continues to animate
global public policies which seek to replicate the European constitutional state in situations
of post-conflict and more widely in the developing world. Hegel also theorized a complex
relationship between the sovereign state and its relations with other states, sometimes seeing
in the practice of war the triumph of state agency, and at other times seeing the practice of
legal relations among states as a defining feature of their maturity. Theorists of global ethics
and politics have fruitfully drawn upon Hegel to articulate how perfecting the state can lead to
a more peaceful and just global order, a version, it might be argued, of a global constitutional
order (Hegel 1821 [1991]; Frost 2008).
These conflicting Enlightenment ideals around constitutionalism became a reality with the
American Constitutional Convention in 1787. The shift from the Articles of Confederation to
the Constitution altered the political and legal landscape not just in the United States but in
our understandings of a constitution as a written text by which a state might be governed. The
philosophical underpinnings of that constitution can be found in the series of newspaper arti-
cles written in defence of the newly proposed constitution, which eventually came to be called
The Federalist Papers. These arguments around various elements of the constitution were
written by John Jay, James Madison and Alexander Hamilton, who were building on the ideas
of figures such as John Adams, Thomas Jefferson and Thomas Paine. Together, these thinkers
and political actors helped to define a new political order which relied on an open-ended
political agreement. The interpretation of this text by the influential Supreme Court Justice,
John Marshall, enshrined the idea of judicial review in the American, and soon global, legal
and political context (Amar 2005).
Constitutional theory and practice developed further from these key moments, but they
provide the context from which much later work developed. Sociological theorists of con-
stitutionalism have drawn upon these historical antecedents to develop a range of different
interpretations of constitutional theory (Teubner 2012; Thornhill 2011). Indeed, the Handbook
includes a contribution by one of the leading theorists of sociological approaches to constitu-
tionalism, Chris Thornhill, whose contribution locates these Enlightenment strands in relation
to ideas about global governance and international constitutional developments at that time
and into the modern period. In addition, Michel Rosenfeld’s contribution moves us from the
Enlightenment to the modern period in thinking through the heritage of constitutional thought
 Introduction 11

for both domestic and global constitutionalism today. Indeed, the five contributions on history
in the Handbook demonstrate that there is no simple liberal trajectory for constitutional
thought and, as the global dimensions of those ideas are better understood, we must consider
carefully the ways in which it intersects with imperial and oppressive political dynamics. For
the editors, this does not imply that we should abandon constitutional thought or practice, but,
by understanding and acknowledging these developments, we can appreciate how they func-
tion today and how we might propose alternative configurations to avoid the errors of the past.

CONSTITUTIONAL PRINCIPLES

Emerging from these historical antecedents, however, are the four underlying principles of
constitutional theory. The first, and most important, is the rule of law. The rule of law is simply
the idea that a political order should be organized in such a way that decisions result from
a rule-based system that has emerged from a formal legislative process. These two elements
of the rule of law – governance in accordance with law and formal law-making – ensure that
a political order is not controlled by any one agent. The emergence of constitutionalism in the
different historical contexts noted above often comes in response to governance by individuals
who care little or nothing for the consistency and fairness that arise when political life is rule
governed (Bingham 2011). The rule of law is not simply the existence of a legal code, however.
Law must arise from a legislative process that reflects a diversity of interests and allows a com-
munity to not simply create law but engage in the practice of politics. The difference between
the rule of law and rule by law in authoritarian regimes reveals this difference (Ginsburg and
Simpser 2014). That is, the rule of law means a political order that is law governed and a legal
order that results from a fair and representative political process. In this Handbook, Mattias
Kumm’s conceptual clarification around the rule of law moves from philosophical reflections
on the idea to a greater understanding of how it functions in the global realm.
The separation of powers is the next crucial element of a constitutional system. As with
the rule of law, the separation of powers is a device for ensuring that no single political actor
has too much power or can direct the political system to his or her own purposes. As noted
above, the separation of powers can be found in a different way in the ancient idea of the
mixed constitution. Separating powers arose from the need for different social classes to be
represented in the political order. It also represented the different forms of government, in
accordance with Aristotle’s division of ruling according to numbers (monarchy, aristocracy
and democracy). For instance, in the Roman Republic, the democratic form was found in the
legislative assemblies, the aristocratic in the Senate and the monarchical in the consuls. This
evolved in the medieval and early modern period into a separation of functions rather than
classes or forms. This separation also translated into the balance of power in a constitutional
order, as the functions of the legislature, executive and judiciary came to serve different roles
which ensured that no single agent (particularly the executive) could dominate the political
system. Montesquieu has become the most famous theorist in the history of political thought
to develop this idea, though his version of it was based on an idealized conception of the
British constitutional system. The separation of powers provides a means not only to limit
power, however, but also to enable power, to channel it into productive and useful ends. At
times, particularly in the modern-day American political order, a separation of powers can
lead to political dysfunction, especially when political disagreement cannot be resolved in
12 Handbook on global constitutionalism

a productive manner. However, the ideal of the separation of powers is not simply a limiting
device, but also an enabling one. The separation of powers has also led to the emergence and
importance of the judicial branch in constitutional theory and practice. Some would argue
that the judicial branch in many political orders is too strong, leading to an overly legalized
political order (Bellamy 2007). At the same time, most constitutional theories give pride of
place to the judiciary which serves to guard the constitution and ensure the protection of rights.
Eoin Carolan’s contribution to this Handbook, building on his previous work on the sep-
aration of powers in domestic constitutional theory, looks to the idea of a balance of powers
in global constitutionalism, bringing forth an alternative approach to this crucial constitu-
tional ideal. The institutional division of powers found in domestic constitutional theory
provides a starting point for the contributions by William E. Scheuerman on the executive,
M.J. Peterson on the legislature and Başak Çalı on the judiciary. In a different form of the
separation of power, Thomas O. Hueglin takes up the theme of federalism in its historic and
contemporary manifestations. In each of these contributions, however, the authors explore
the ways in which such institutional forms function at a global level, leading to new insights
into the emerging global constitutional order, albeit continuously subject to contestation and
critique by actors throughout the system.
A constitutional order rests upon the people. This idea is sometimes referred to in French as
pouvoir constituant, the heritage of the French Revolution and its theorist, Emmanuel Joseph
Sieyès, better known as Abbé Sieyès. In his pamphlet, What is the Third Estate?, Sieyès (1970)
gave voice to the people and argued for their centrality in the creation of a constitutional
system. The importance of the people in the founding of the constitution translates further into
their continued role in representative government and in allowing them the ability to enact and
change the constitution when necessary. In recent years, particularly among post-Marxist the-
orists, the idea of constituent power has become a device that can be used for political protest
and action across different spheres of the political order, often outside of formal channels. This
participatory tradition in political life can be unpredictable and even dangerous to stability,
so one of the most important challenges for any political order is to turn political action into
governmental form (Loughlin and Walker 2007). Peter Niesen’s account of constituent power
in the Handbook clarifies and advances our understanding of this idea by drawing on some
figures in the history of political thought. Looking to the EU as providing an alternative way
to understand this concept, Niesen develops an important new approach to constituent power.
The final principle that plays a part in constitutional theory is often the most prominent in
‘popular’ conceptions of constitutionalism. Rights, either in a domestic or global context, have
increasingly become part of constitutional theory and practice. The classic legal definition of
rights comes from Wesley Hohfeld, an American theorist of the early twentieth century: rights
are justified demands we make on others (Hohfeld 1918 [1946]). This definition is not the only
or final version, of course, but it does lay out some important features of rights. Rights are not
a form of charity, but are demands we can legitimately make. Further, rights arise in a commu-
nal context and so require some exchange among individuals. Rights are at that intersection of
politics and law where we have located constitutionalism more generally. Many assume that
constitutional theory can be reduced to the protections that rights afford, especially through the
exercise of judicial review. Ronald Dworkin famously argued that rights are trumps in political
life, a basis against which all other practices must be measured (Dworkin 1977). The rise of
human rights since the end of World War II as a prominent discourse of global governance has
made this concept perhaps the most important (though for some, such as the American found-
 Introduction 13

ers, it was derivative of the creation of a functioning political system; see Zink 2013). In this
Handbook, Samantha Besson considers the forms and practices of human rights as contribu-
tory to a global constitutional order. Human rights remain central to such practices in that they
provide a language and political space in which contestation can take place. The work of James
Tully and others has demonstrated how rights can be a resource for thinking through the idea
of global citizenship, without falling into the liberal ideology that shaped early conceptions of
rights, a crucial insight into understanding rights and global plurality.
The point of this overview is not to devise a progressive narrative that indicates how we
moved from under-theorized constitutions to the culmination in the written constitutions of
the United States and France. Instead, the point of this exercise is to highlight the ways in
which various principles of constitutionalism emerged and have been important at different
times and places. As suggested above, any time a community must seek to balance a role for
law and politics, some version of constitutionalism emerges. Emphasizing the diversity of
historical contexts is important if only because we do not believe there is one current theo-
rization of global constitutionalism. Instead, there are a variety of global constitutions, and
a variety of interpretations of those global constitutions. Some argue that for any global order
to be constitutional, it must be tied to a specific constitutional text. Bardo Fassbender has
been a leading proponent of the view that the global constitutional order is to be found in the
UN Charter. He is not a wild-eyed idealist, for he understands that the text is flawed in places
and requires interpretation (Fassbender 2009). He builds upon this foundational work in his
contribution to this Handbook, where he turns to the written constitution, looking to the UN
Charter as an example of why a written text is to be preferred to the unwritten model. Michael
W. Doyle’s contribution to this Handbook, building on recent work he has been doing on
global constitutionalism, also looks to the Charter as a constitutional document, in which he
finds new insights on global governance. Jeffrey L. Dunoff, drawing from resources in both
political science and international law, examines the terrain of functionalism as a possible way
to understand law and institutions such as the UN and the World Trade Organization (WTO)
as spaces of global constitutionalization.
Certain strands in international legal theory have also focused on the way in which judici-
aries and legal texts are coming to define international law in diverse ways. These works see
a ‘constitutionalization’ of international law (Klabbers et al 2009). In his contribution to this
Handbook, Jean d’Aspremont not only surveys some of the efforts to find in positivist interna-
tional law a constitutional theory, but he also helpfully looks to the critics of these approaches
(a category in which he includes himself). His insightful and considered overview reveals that
some of the criticism of the constitutionalization of international law arises from a particular
set of agendas that he critiques, giving us a nuanced assessment from the perspective of pos-
itivist legal theory. Jutta Brunnée and Stephen J. Toope bring their interactional legal theory
to bear upon debates in global constitutionalism in their contribution to the Handbook. Also,
Anne Peters, one of the earliest proponents of global constitutionalism within the sphere of
international law, proposes an understanding of proportionalism, a standard category across
many international legal theories, as a way to see how global constitutionalism functions in
the global legal sphere.
This second edition has a number of contributions which draw out important critical strands
in international legal theory. In their chapter on public international law, Armin von Bogdany,
Matthias Goldman and Ingo Venzke propose the idea of international public authority as a new
way to see international law. Ruth Houghton reflects upon and develops the burgeoning field
14 Handbook on global constitutionalism

of feminist international law as it relates to global constitutionalism. Sigrid Boyson critically

assesses international law and global constitutionalism from a postcolonial perspective, an
important corrective to a tradition of thought so often located solely in European and North
American assumptions about world order.
Another version of global constitutionalism arises from a cosmopolitan reading of
Kant. Jürgen Habermas has made this argument in the context of EU politics, drawing on
Kant’s Perpetual Peace essay to propose an evolution from state, to state international
law, to cosmopolitan law. He builds upon the German idea of ‘constitutional patriotism’ as
a model for how to move toward a global civil society (Habermas 2001; 2006). The idea of
Verfassungspatriotismus that Habermas is deploying is drawn from German constitutional
theory, one which is sceptical of patriotism because of German history. At the same time,
a very strong allegiance to the constitution and respect for the Federal Constitutional Court
(Bundesverfassungsgericht) has arisen in Germany. Respect for the law at the international
level for Habermas means something related to constitutional patriotism. Other theorists have
also drawn on Kant to propose versions of global constitutionalism. Garrett Wallace Brown
draws on not only the Perpetual Peace essay but a wide range of Kant’s work on political phi-
losophy and public law to explore the potential for a global constitutional order. Brown sees
in Kant’s account the possibility for a cosmopolitan constitutional order (Brown 2009). In his
contribution to our Handbook, Brown makes a powerful case that global constitutionalism is
a form of legal cosmopolitanism, and that theorists from both perspectives could learn greatly
from each other.
Others have located constitutionalism in political arrangements rather than primarily in
the rule of law discourse. Jean Cohen, for instance, while writing from the perspective of an
international legal theorist, has proposed a more minimalist account of constitutionalism at
the global level, with more focus on the importance of sovereignty as a principle that should
undergird the international order but which can somehow accommodate moves toward a glo-
balizing structure (Cohen 2012). Theorists drawing from strands in IR theory have proposed
similar constitutional interpretations of the global order. Liberal theorists of IR such as G.
John Ikenberry suggest that the international order is becoming more constitutional as it
adopts ideas about the rule of law and human rights. Ikenberry and others, however, link
this development to the triumph of American and British liberal ideas, which makes their
account less about balance and more about a hegemonic structure imposed from a single
source (Ikenberry 2006). Iain Ferguson explores some of the liberal strands within global
constitutionalism, specifically connecting them to debates in IR theory, providing an important
critical perspective on Ikenberry’s work. A republican literature within IR theory has also
emerged that focuses on how balances and law promote and protect individual agents. These
works draw on sources such as Aristotle, Vattel and the American founders (Onuf and Onuf
1993: Onuf 1998; Deudney 2007). Antje Wiener has drawn upon constructivist theories of IR
alongside wide-ranging interviews with European policy elites to propose the existence of an
‘invisible constitution’ in certain regional and international contexts (Wiener 2008). Drawing
on James Tully’s Public Philosophy in a New Key (Tully 2008a; 2008b), practice-orientated
perspectives on the contested interpretations of fundamental norms have offered novel insights
into the time-space contingency of constitutionalism as a contested narrative itself (Tully et al
2016). Drawing upon constructivist theories of IR and public philosophy this research focuses
on the impact of cultural diversity on variations in the normative structure of meaning-in-use
in distinct constitutional contexts (Milliken 1999). Based on critical discourse analysis, this
 Introduction 15

research adds an inductive approach to global constitutionalism, arguing for the importance
of the interplay of different kinds of norm validation. Jan Wilkens, in his contribution to this
Handbook, summarizes and advances the work of critical constructivism in IR theory and
derives important links with global constitutionalism as a prospective field of study of diver-
sity and constitutional development based on bottom-up regional perspectives. International
society theorists have also contributed to this literature, going back to some brief references in
Martin Wight’s work to more developed accounts of constitutional legitimacy in Ian Clark’s
work and studies of order by Andrew Hurrell and Robert Jackson (Jackson 2003; Clark 2005;
Hurrell 2007; Lang 2014). Filippo Costa Buranelli reflects on this tradition of thought and
updates in relation to new theoretical developments. Another IR theory that held particular
prominence in the twentieth century, realism, is also addressed in this Handbook. By elaborat-
ing on the distinction between legal and political realism, Oliver Jütersonke explores some of
the ways in which theorists such as Hans Morgenthau might be more relevant to understanding
global constitutionalism than might at first glance seem possible.
Engagement with the idea of global constitutionalism continues to develop in the pages of
the journal Global Constitutionalism. From its opening editorial, which set out an agenda for
research on the idea (Wiener et al 2012), to more sceptical engagements with what it means
to talk of such an idea (Brown 2012) and, more recently, about the interrelation between the
‘end of the “west” and the future of global constitutionalism’ (Kumm et al 2017), the journal
has continued to develop the idea and locate it in relation to themes such as democracy, the
rule of law and human rights. As befits an interdisciplinary scholarly journal, the editors have
been open to a range of different theoretical and disciplinary positions on the idea, and these
positions are reflected as well in this Handbook. Indeed, it is the idea of contestation and
constitutionalization, the ongoing development and refinement of the idea, that frames an
important part of the Handbook and which we explain in more detail in the next section.

CONSTITUTIONALISM AND CONSTITUTIONALIZATION

To some research in the field of global constitutionalism entails studying ‘constitutional

practice – and constitutional discourse – at transnational sites of governance’ (Dunoff and
Trachtman 2009, p. 3, original emphasis; compare also Klabbers et al 2009). Others, in turn,
would argue that studying global constitutionalization includes the very constitution of trans-
national sites that obtain their legitimacy through international contestations of constitutional
norms (Benhabib 2007; Isiksel 2010; Liste 2016). The contributions to this Handbook demon-
strate that the specific timing of constitutional practice matters in two ways. First, by turning
to practices that precede these sites of governance, it becomes possible to include a range
of actors who are located at the fringes of international organizations. It follows that global
constitutionalization is not understood as practised by member states of international organi-
zations or international treaty regimes and their government representatives. The conceptual
move allows for the inclusion of a more diverse state-plus actorship which encompasses the
contestations of non-governmental organizations (NGOs), social movements, strategic net-
works and advocacy groups, next to international institutions and state, as constitutive for both
the sites and the fundamental norms of global constitutionalization. Second, the inclusion of
contestatory practices that are located as ‘prior to’, ‘outside of’ or ‘in interaction with’ sites of
global governance allows for research to establish the very transnational quality of an arena
16 Handbook on global constitutionalism

(Tully 1995; 2002; Pettit 2007). This suggests how the practices which are constitutive of
global constitutionalization can be understood as ‘unbound’ from the state (Wiener and Oeter
2011; 2017).
There are some traditional sites in the international order where forms of global constitu-
tionalism can be found. These include the WTO, the UN, the ICC and the EU. The Handbook
includes discussions of these spaces in the contributions from Joel P. Trachtman, Jan Klabbers,
Anthony F. Lang, Jr., Andrea Birdsall and Jo Shaw. In their accounts, these inherently inter-
national spaces have opened up possibilities for considering global political practices that are
constitutional or demonstrate modes of constitutionalization. In so doing, these places, while
certainly sites for powerful agents to control institutions, also reveal places where contestation
can fruitfully take place. For instance, in the critical accounts of the global political economy
offered by Gavin W. Anderson and Christine Schwöbel-Patel, global economic interactions
are revealed as possible sites of resistance and contestation. Sassan Gholiagha writes about
the military force and particularly R2P as a possible site of constitutional development at the
global level. To find constitutionalization in the use of violence is surprising, but Gholiagha
reveals how R2P has become a focal point for norm growth. And, Jill Bähring’s insights on
transnational litigation networks demonstrates how constitutionalization can be found through
the actions of a range of different actors working together in the pursuit of justice, growing
out of simultaneous and unplanned modes of action. Adam Bower points to outer space law,
a body of law that emerged in the 1970s but has now been reinvigorated as the commercial and
military uses of outer space increase, generating new competitions among the great powers.
Bower connects this to the literature on global constitutionalism, suggesting important links
between these bodies of thought.
This centrality of the conceptualization of the place where constitutionalization occurs has
been explored in particular by practice-orientated approaches to norms in IR theory as well
as in public philosophy. While some work with an unproblematic understanding of ‘trans-
national sites of governance’ (Dunoff and Trachtman 2009, p. 3), to others the qualification
of an arena as ‘transnational’ represents a research assumption that remains to be proven by
empirical research. For, if sites are conceptualized as ‘transnational’, the impact of diverse
experiences and expectations must per se remain bracketed. To reverse this analytical brack-
eting, practice-orientated approaches within global constitutionalism allocate norm-generative
practices at a point in time that exists ‘prior’ to constitutional agreements. That is, practices,
principles and agreements are considered to be equally and partially constitutive for the nor-
mative meaning-in-use entailed in and transported by global constitutionalization at any point
in time (Berger and Luckmann 1991; Onuf 1994; Adler-Nissen and Kropp 2015; Sending et
al 2015). The contribution from Susanna Mancini demonstrates that religious traditions can
provide such spaces for contestation, while Neil Walker’s development of the idea of plural-
ism further enhances our understanding of how contestation functions in international legal
orders as they overlap and interact.
To summarize, constitutionalization is a category that describes processes of institutional
ordering which result in terms of constitutional function and quality, and which are therefore
comparable with forms of political and legal order. In turn, as a social practice, contestation
indicates objection to the norms of the latter orders.
Depending on the type of norm, ranging from fundamental norms to organizing principles or
standardized procedures, this disapproval is expressed differently. The mode of contestation,
that is the way contestation is displayed in practice, depends on the respective environment
 Introduction 17

where contestation takes place (i.e. courts, regimes, societal or academic). Several discursive
codes are to be distinguished (i.e. formal, semi-formal or informal). Accordingly, four modes
of contestation can be distinguished with reference to the literatures in law, political science,
political theory and political sociology, respectively (Wiener 2014, p. 1).
At the centre of these contestations are fundamental norms, that is, norms and principles that
are widely shared by the relevant actors, fulfil a constitutional function and are parallel to the
fundamental constitutional principles at the basis of institutional ordering at the national level.
For global constitutionalists, therefore, contestations entail key information about normative
change and indicators of the sites where this change is negotiated.
In contra-distinction to concepts of political and legal order, the trans-border quality of
global constitutionalism crucially depends on concepts of social order and social ordering of
the global realm. Given the trans-border quality as a sine qua non of global constitutionaliza-
tion as a process that is carried by a state-plus actorship which operates across and beyond the
boundaries of national constitutionalism, the central concepts of global constitutionalism have
been evolving in close interrelation with the constitutional ideals and ideas of the previous
centuries. Today’s meanings of the four main elements of modern constitutionalism, that is,
the rule of law, the balance of power, the pouvoir constituant, and rights have changed sub-
sequent to the contestation of fundamental norms. As a relatively recent field of study, global
constitutionalism reflects these contestations. The main concepts for the study of global con-
stitutionalization therefore include contestation (as the constitutive practice of constitutional
substance), fundamental norms (including the rule of law, fundamental rights of individuals
and democracy) as well as state-plus actorship (as the stakeholders with a rightful claim to
regular contestation). While traditions of political and legal order inform the ideas and ideals
of constitutionalism, the trans-border quality of global constitutionalism requires a shift from
modern constitutional ideas towards the way these ideas’ normative meanings have been re-/
enacted over time. That is, in order to address issues of legitimacy, fairness or accountability
in terms of global constitutionalism, research needs to engage with both the given ‘hard’
institutional settings (i.e., international organizations and their respective treaty regimes) on
the one hand, and the ‘soft’ institutions that are re-/enacted through contestatory practices
vis-à-vis fundamental constitutional norms (i.e., the normative structure of meaning-in-use) on
the other. By linking contestation (as a localized activity) with constitutionalization (as a glo-
balized process) it is possible to facilitate a relational account of global constitutionalization
as a mosaic of pluralist constitutional narratives rather than a single encompassing normative
order.

CONCLUSION

In his recent history of global governance, Mark Mazower argues that culture, science, politics
and law each made important contributions to theories of world order in the nineteenth century.
While culture and science are not the focus of this book, law and politics are. Mazower uses
the American conflict over the League of Nations (hereafter, the League) to bring out the dif-
ferent strands of legal and political thinking in the debates about global governance. He points
to the legalism of figures such as Elihu Root and William Howard Taft as advocates of the
arbitration and legalization model of global governance that played such an important role in
creating the judicial institutions and international legal culture of the late nineteenth and early
18 Handbook on global constitutionalism

twentieth centuries. At the same time, he suggests that the ideas of Woodrow Wilson, whose
scholarly work focused on the US Congress, as central to the creation of a parliamentary model
for the League structures, highlighted the importance of deliberation and representation as
more important than law and judicial structures. The Wilsonian legislative and political model
became the foundation for the League, which Mazower argues played an important part in
the American Republicans’ refusal to ratify the League. Certainly, some Republicans such as
William Borah refused the League because it limited American sovereignty, but according
to Mazower, some American resistance came from an insistence on a stronger legal and
judicial institutional governance model rather than the parliamentary and deliberative model
(Mazower 2012).
Had it been a recognized idea at the time, perhaps global constitutionalism might have
allowed a way to ameliorate this conflict. Admittedly, it would not necessarily have prevented
the Ukraine war. However, the response to Russia’s invasion – a strengthened NATO alliance
and a more robust response from the EU – provide hope that constitutionalism and constitu-
tionalization might well benefit from this aggressive act. The unintended effect of Russian
military aggression may therefore result in a renewed assessment of leading liberal principles
and norms on a meta scale scrutinizing them to the benefit of a global order based on liberal
constitutional rights. Global constitutionalism, or constitutionalism, brings together the politi-
cal and legal. Constitutions are founded as political acts but they generate legal structures and
codes. When created, those institutions and legal codes shape and reshape political life and
the deliberations that take place in parliamentary spaces. In so doing, global constitutionalism
can be seen as a framework that brings together law and politics. There is no end point to this
process, however, for it continues on and will continue to be a contested and fruitful subject
of analysis. The contributors to this Handbook provide new insights from history, politics, law
and sociology in the hope of laying some foundations on which to build further research and
inform global public policy. It is our hope as editors that this Handbook will provide new ways
of seeing IR and international law, which can enable new political constellations and insights
in the multiple and contested global orders of today.

REFERENCES
Acharya, A. 2018. Constructing Global Order: Agency and Change in World Politics, Cambridge:
Cambridge University Press.
Adler-Nissen, R. and K. Kropp (2015), ‘A sociology of knowledge approach to European integration’,
Journal of European Integration, 37 (2), 155–73.
Amar, A.R. (2005), America’s Constitution: A Biography, New York: Random House.
Aristotle (c. 350 BC), The Politics and the Constitution of Athens, reprinted S. Emerson (ed.) (1996),
Cambridge: Cambridge University Press.
Aydinli, Ersel and Onur Erpul. 2021. ‘The false promise of global IR: exposing the paradox of dependent
development’, International Theory, 14 (3), 419–59.
Bellamy, R. (2007), Political Constitutionalism: A Republican Defence of the Constitutionality of
Democracy, Cambridge: Cambridge University Press.
Benhabib, S. (2007), ‘Twilight of sovereignty or the emergence of cosmopolitan norms? Rethinking
citizenship in volatile times’, Citizenship Studies, 11 (1), 19–36.
Berger, P. and T. Luckmann (1991), The Social Construction of Reality, London: Penguin Books.
Bingham, T. (2011), The Rule of Law, London: Penguin.
Borrows, J. (1994), ‘Constitutional law from a First Nation perspective: Self-government and the Royal
Proclamation’, University of British Columbia Law Review, 28 (1), 1–47.
 Introduction 19

Brown, G.W. (2009), Grounding Cosmopolitanism: From Kant to the Idea of a Cosmopolitan
Constitution, Edinburgh: Edinburgh University Press.
Brown, G.W. (2012), ‘The constitutionalisation of what?’, Global Constitutionalism, 1 (2), 201–28.
Brunnée, J. and S.J. Toope (2010a), Legitimacy and Legality in International Law, Cambridge:
Cambridge University Press.
Brunnée, J. and S.J. Toope (2010b), ‘The responsibility to protect and the use of force: Building legal-
ity?’, Global Responsibility to Protect, 2 (3), 191–212.
Cicero (1998), The Republic and The Laws, trans. N. Rudd, introduction and notes by J. Powell and N.
Rudd, Oxford: Oxford University Press.
Clark, I. (2005), Legitimacy in International Society, Oxford: Oxford University Press.
Cohen, J. (2012), Globalization and Sovereignty: Rethinking Legality, Legitimacy and Constitutionalism,
Cambridge: Cambridge University Press.
Cooley, Alexander and Daniel Nexon. 2021. ‘The real crisis of global order: illiberalism on the rise’,
Foreign Affairs, December. Available online at: https://​www​.foreignaffairs​.com/​articles/​world/​2021​
-12​-14/​illiberalism​-real​-crisis​-global​-order.
Crawford, N. (1994), ‘A security regime among democracies: Cooperation among Iroquois Nations’,
International Organization, 48 (3), 345–85.
Deudney, D. (2007), Bounding Power: Republican Security Theory from the Polis to the Global Village,
Princeton, NJ: Princeton University Press.
Dunoff, J. and J. Trachtman (eds) (2009), Ruling the World: International Law, Global Governance,
Constitutionalism, Cambridge: Cambridge University Press.
Dworkin, R. (1977), Taking Rights Seriously, London: Duckworth.
Dyzenhaus, D. (2014), ‘Hobbes on the international rule of law’, Ethics & International Affairs, 28 (1),
53–64.
Dyzenhaus, D. and T. Poole (eds) (2012), Hobbes and the Law, Cambridge: Cambridge University Press.
Eisler, J., J. Havercroft, J. Shaw, A. Wiener, and S. Kang, 2022. ‘The pendulum swings back: new
authoritarian threats to liberal democratic constitutionalism’, Global Constitutionalism, 11 (1), 1–8.
Erskine, T. (2013), ‘Normative IR theory’, in T. Dunne, M. Kurki and S. Smith (eds), International
Relations Theory: Discipline and Diversity, 3rd edn, Oxford: Oxford University Press, pp. 36–58.
Fassbender, B. (2009), The United Nations Charter as the Constitution of the International Community,
Amsterdam: Martinus Nijhoff.
Frost, M. (2008), Global Ethics: Anarchy, Freedom and International Relations, London: Routledge.
Ginsburg, T. and A. Simpser (2014), Constitutions in Authoritarian Regimes, Cambridge: Cambridge
University Press.
Grotius, H. (1625), The Rights of War and Peace, reprinted R. Tuck (ed.) (2005), Indianapolis, IN:
Liberty Fund.
Habermas, J. (2001), ‘Why Europe needs a constitution’, New Left Review, 11 (September–October),
5–26.
Habermas, J. (2006), ‘Does the constitutionalization of international law still have a chance?’, in J.
Habermas, The Divided West, Cambridge: Polity Press, pp. 115–93.
Hegel, G.W.F. (1821), Elements of the Philosophy of Right, reprinted A. Wood (ed.) and trans. H.B.
Nisbet (1991), Cambridge: Cambridge University Press.
Hohfeld, W.N. (1918), Fundamental Legal Conceptions: As Applied to Judicial Reasoning, reprinted
1946, New Haven, CT: Yale University Press.
Hurrell, A. (2007), On Global Order: Power, Values and the Constitution of International Society,
Oxford: Oxford University Press.
Ikenberry, G.J. (2006), Liberal Order and Imperial Ambition: Essays on American Power and World
Politics, Cambridge: Polity Press.
Ikenberry, G. John (2020), A World Safe for Democracy: Liberal Internationalism and the Crises of
Global Order. New Haven CT: Yale University Press.
Isiksel, N.T. (2010), ‘Fundamental rights in the EU after Kadi and Al Barakaat’, European Law Journal,
16 (5), 551–77.
Jackson, R. (2003), The Global Covenant: Human Conduct in a World of States, Oxford: Oxford
University Press.
Kant, I. (1990), Political Writings, H.S. Reiss (ed.), Cambridge: Cambridge University Press.
20 Handbook on global constitutionalism

Klabbers, J., A. Peters and G. Ulfstein (2009), The Constitutionalization of International Law, Oxford:
Oxford University Press.
Koskenniemi, M. (2013), ‘Histories of international law: Significance and problems for a critical view’,
Temple International & Comparative Law Journal, 27 (2), 215–40.
Kumm, Mattias. 2018. ‘On the history and theory of global constitutionalism’, in T. Suami, A. Peters,
D. Venoverbeke and M. Kumm (eds), Global Constitutionalism from European and East Asian
Perspectives, Cambridge: Cambridge University Press, pp. 168–99.
Kumm, M., J. Havercroft, J. Dunoff and A. Wiener (2017), ‘The end of the “West” and the future of
global constitutionalism’, Global Constitutionalism, 6 (1), 1–15.
Lang, Jr., A.F. (2010), ‘Authority and the problem of non-state actors’, in E. Heinze and B. Steele (eds),
Just War and Non-State Actors, London: Routledge, pp. 47–71.
Lang, Jr., A.F. (2014), ‘Global constitutionalism as middle ground ethics’, in C. Navari (ed.),
Ethical Reasoning in International Affairs: Arguments from the Middle Ground, London: Palgrave,
pp. 106–26.
Lang, Jr., A.F. (2017), ‘Global constituent power: Protests and human rights’, in A. Hehir and R. Murray
(eds), Protecting Human Rights in the 21st Century, London: Routledge, pp. 19–33.
Lang, Jr. A. F. (2021), ‘Global constitutionalism: A practical universal’, Global Constitutionalism, 10
(2): 367–75.
Lewis, C.S. (1994), The Discarded Image: An Introduction to Medieval and Renaissance Literature,
Cambridge: Canto.
Lincott, A. (1999), The Constitution of the Roman Republic, Oxford: Oxford University Press.
Liste, P. (2016), ‘Geographical knowledge at work: Human rights litigation and transnational territorial-
ity’, European Journal of International Relations, 22 (1), 217–39.
Locke, J. (1681), Two Treatises on Government, reprinted P. Laslett (ed.) (1988), Cambridge: Cambridge
University Press.
Locke, J. (1997), Political Writings, M. Gouldie (ed.), Cambridge: Cambridge University Press.
Loughlin, M. and N. Walker (eds) (2007), The Paradox of Constitutionalism: Constituent Power and
Constitutional Form, Oxford: Oxford University Press.
May, L. (2013), ‘Targeted killings and proportionality in law’, Journal of International Criminal Justice,
11 (1), 47–63.
Mazower, M. (2012), Governing the World: The History of an Idea, New York: Penguin.
McIlwain, C. (1947), Constitutionalism: Ancient and Modern, Ithaca, NY: Cornell University Press.
McIlwain, C. (1958), Constitutionalism, Ancient and Modern, reprinted (2008), Indianapolis: Liberty
Fund Press.
Mearsheimer, John. 2019. ‘Bound to fail: the rise and fall of the liberal international order’, International
Security, 43 (4), 7–50.
Milliken, J. (1999), ‘The study of discourse in international relations: A critique of research and
methods’, European Journal of International Relations, 5 (2), 225–54.
Montesquieu, Baron C. de Secondat (1748), The Spirit of the Laws, trans. A.M Cohler, B.C. Miller and
H.S. Stone (eds) (1989), Cambridge: Cambridge University Press.
Nicholas of Cusa (1443), The Catholic Concordance, reprinted P. Sigmund (ed.) (1991), Cambridge:
Cambridge University Press.
Oakley, F. (2003), The Conciliarist Tradition: Constitutionalism in the Catholic Church, 1300–1870,
Cambridge: Cambridge University Press.
Onuf, N. (1994), ‘The constitution of international society’, European Journal of International Law, 5
(1), 1–19.
Onuf, N. (1998), The Republican Legacy in International Thought, Cambridge: Cambridge University
Press.
Onuf, N. and P. Onuf (1993), Federal Union, Modern World: The Law of Nations in an Age of
Revolutions, 1776–1814, Madison, WI: Madison House.
Pettit, P. (2007), Made with Words: Hobbes on Mind, Society and Politics, Princeton, NJ: Princeton
University Press.
Polin, R. (1998), Plato and Aristotle on Constitutionalism: An Exposition and Reference Book,
Burlington, VT: Ashgate.
 Introduction 21

Polybius (1979), The Rise of the Roman Empire, trans. I. Scott-Calvert, F.W. Walbank (ed.), New York:
Penguin.
Rosenfeld, M. (1994), ‘Modern constitutionalism as interplay between identity and diversity’, in M.
Rosenfeld (ed.), Constitutionalism, Identity, Difference and Legitimacy: Theoretical Perspectives,
Durham, NC, and London: Duke University Press.
Sabaratnam, M. 2019. ‘Postcolonial and decolonial approaches’, in J. Baylis, S. Smith and P. Owens
(eds), The Globalization of World Politics: An Introduction to International Relations, Oxford:
Oxford University Press.
Sending, O.J., V. Pouliot and I.B. Neumann (2015), Diplomacy and the Making of World Politics, vol.
136, Cambridge: Cambridge University Press.
Shilliam, Robbie. 2021. Decolonizing Politics: An Introduction, Cambridge: Polity Press.
Sieyès, A.E.J. (1970), Qu’est-ce que le Tiers état? éd. Critique (What is the Third State? Ed. Critique),
with an introduction and notes by R. Zapperi, Geneva: Droz.
Teubner, G. (2012), Constitutional Fragments: Societal Constitutionalism and Globalization, trans. G.
Norbury, Oxford: Oxford University Press.
Thornhill, C. (2011), A Sociology of Constitutions: Constitutions and State Legitimacy in
Historical-Sociological Perspective, Cambridge: Cambridge University Press.
Tierney, B. (1982), Religion, Law, and the Growth of Constitutional Thought, 1150–1650, Cambridge:
Cambridge University Press.
Tully, J. (1995), Strange Multiplicity: Constitutionalism in an Age of Diversity, Cambridge: Cambridge
University Press.
Tully, J. (2002), ‘The unfreedom of the Moderns in comparison to their ideals of constitutionalism and
democracy’, Modern Law Review, 65 (2), 204–28.
Tully, J. (2008a), Public Philosophy in a New Key, vol. 1, Cambridge: Cambridge University Press.
Tully, J. (2008b), Public Philosophy in a New Key, vol. 2, Cambridge: Cambridge University Press.
Tully, J., J.L. Dunoff, A.F. Lang, Jr., M. Kumm and A. Wiener (2016), ‘Introducing integral constitution-
alism’, Global Constitutionalism, 5 (1), 1–15.
Vattel, E. de (1758), The Law of Nations, or Principles of the Law of Nature Applied to the Conduct of
Nations and Sovereigns, reprinted with introduction by B. Kapossy and R. Whatmore (eds) (2008),
Indianapolis, IN: Liberty Fund.
Walt, S.K. (2016), ‘The collapse of the liberal world order’, Foreign Policy, June. Available online at:
https://​foreignpolicy​.com/​2016/​06/​26/​the​-collapse​-of​-the​-liberal​-world​-order​-european​-union​-brexit​
-donald​-trump/​.
Welsh, J. (2013), ‘Norm contestation and the responsibility to protect’, Global Responsibility to Protect,
5 (4), 365–96.
Wiener, A. (2008), The Invisible Constitution of Politics: Contested Norms and International Encounters,
Cambridge: Cambridge University Press.
Wiener, A. (2014), A Theory of Contestation, Berlin: Springer.
Wiener, A. (2018), Contestation and Constitution of Norms in Global International Relations,
Cambridge: Cambridge University Press.
Wiener, A. and S. Oeter (2011), ‘Constitutionalism unbound: Introducing theoretical triangulation for
international relations’, unpublished research proposal, Science Foundation of the Hamburg Senate,
University of Hamburg, Hamburg.
Wiener, A. and S. Oeter (2017), ‘Introduction: Who recognizes the emperor’s clothes
anymore?’, International Journal of Constitutional Law, 14 (3), 608–21.
Wiener, A., A.F. Lang, Jr., J. Tully, M.P. Maduro and M. Kumm (2012), ‘Global constitutionalism:
Human rights, democracy and the rule of law’, Global Constitutionalism, 1 (1), 1–5.
Williams, M.S. (2009), ‘Citizenship as agency within communities of shared fate’, in S. Bernstein (ed.),
Unsettled Legitimacy: Political Community, Power, and Authority in a Global Era, Vancouver: UBC
Press.
Zink, J.R. (2013), ‘James Wilson versus the Bill of Rights’, Political Research Quarterly, 67 (2), 253–65.
 PART I

HISTORICAL ANTECEDENTS
2. Global constitutionalism: the ancient worlds
Jill Harries

The Mediterranean world of Greece and Rome from 1500 BCE to the sixth century CE was
a mosaic of widely varying political communities, ranging from tribes to small city-states to
the ‘world-empire’, so called, of Rome. This milieu shaped the political thinkers of classical
Greece and Rome, notably Plato, Aristotle, the Stoics, the historians Polybius and Livy, and
the ever-versatile Cicero, who are among the founders of western constitutional thought.
Despite the importance of the Axial Age for world history (Eisenstadt 1986), nothing will
be said here of the other great civilisations of Antiquity, in Persia (Iran), China or India. One
major difference may also prove instructive. The nation-state, on which so much modern con-
stitutional theory is based, lay in the future. If, therefore, global constitutionalism anticipates a
‘post-national world’, analysis of pre-national modes of ‘constitutionalism’, and, in particular,
the reasons for their failure, should contribute to modern debate.
Modern ‘constitutionalism’, inspired by the examples of the French and American revo-
lutions, incorporates ideals of democracy, human rights and the rule of law (Galligan 2014;
Graber 2014). All these have some echo in the classical past – Athens was where democracy
began (Woodruff 2006) and ideas on legal rights (though not necessarily human rights) and
the rule of law are embedded in Roman Law, as codified in Justinian’s Corpus Iuris Civilis
(529–534 CE). However, such inhibitions on the behaviour of ancient states towards each
other as existed were not based on a codified ‘international order’. Alliances and confeder-
ations were formed from time to time, which entailed the creation of institutions, defined as
a ‘relatively enduring collection of rules and organised practices, embedded in structures of
meaning’ (Marsh and Olson 2009, p. 159), which facilitated cooperation among states. Their
failure was seldom due to flaws in their institutional structure, but rather to various forms of
self-interested activity on the part of member states, which disrupted the workings of the rules
and conventions designed to constrain such behaviour.
Ancient ‘constitutionalism’, therefore, on the ‘global’ or universal level, cannot be dis-
cussed purely in terms of formal structures. For legal agreements between states to work, they
would be expected to conform to the tacitly agreed standards of unwritten law, which preceded
the formation of states. Contrary to the modern focus on a written document, Greeks and
Romans gave precedence to the unwritten, on the grounds that it was based on consent and uni-
versal values, and therefore required no written validation. It follows that the ancients did have
a concept of the rule of law, meaning a system of legal rules and conventions, to which even
the most powerful were subject. However, what happened in practice was often very different.
The meaning of ‘constitution’ (Greek politeia) was also broader than its modern equivalent.
Graeco-Roman political structures evolved out of small, largely autonomous, face-to-face
communities, which did not see ‘the state’ as something separate or ‘other’. ‘Constitutions’
therefore referred to how the community was ‘constituted’ in the widest sense, including
households, and economic and social institutions. The process of ‘coercion by legitimate
force’, of which modern ‘states’ hold a monopoly, was the duty of the community as a whole;

23
24 Handbook on global constitutionalism

those who committed criminal acts damaged ‘the public’ and were subject to the jurisdiction
of ‘the people’.
Ancient constitutional thought was based on the community of citizens (polis or civitas),
and ancient Greeks and Romans extrapolated inter-state legal and constitutional norms and
procedures from what was familiar to them on a smaller scale within their citizen communi-
ties. Indeed, the two were linked; one problem noted by Cicero, as the government – though
not the institutions – of the Roman Republic became increasingly monarchical, was that the
affective relationships between the citizens of a community limited by territory and population
were endangered, if not destroyed, by the ‘internationalisation’ created by the expansion of the
Roman Empire – a development with significant implications for how the Roman res publica
was itself constituted (Hammer 2014).

COSMOS AND POLITEIA

Although much of planet Earth was unknown to the Greeks and Romans of the ancient world
– making the use of the term ‘global’ inappropriate – they shared a concept of the ‘cosmos’,
and thus of what might be termed universality. The ‘cosmos’ was conceived by, among others,
the Stoics, as a single ‘community of citizens’, subject to the universally applicable ‘law of
nature’. Although natural law could be discussed in terms of institutions, such as slavery,
which were held by some to be universally applicable, the Stoics tended on the whole to
discuss natural law in terms of rules applying to the moral conduct of the individual; their
world-city was an abstract, the preserve of a wise elite, and they had neither the power nor the
inclination to give it institutional or constitutional form.
Still, a Stoic could formulate, in his terms, a theory of global constitutionalism. In the
after-hours musings of the Roman emperor Marcus Aurelius (reigned 161–180 CE), compiled
while on campaign in Central Europe in the 170s, all things in the Cosmos (of which Asia and
Europe were small ‘corners’) were related to each other and of the same kind (Meditations
6.37, translated in Haines 2014). The nature of a man is reasonable (logike) and attuned to the
life of the community (politike), but he is also a member of two communities, his own city and
the Cosmos (Meditations 6.44, in Haines 2014). ‘Constitutions’ (Greek politeiai), however,
applied only on the city-state level; could they acquire a ‘global’ dimension? The answer
(Meditations 4.3, in Haines 2014) was to equate the Cosmos itself with the city-state (polis),
the Cosmos being the highest city of all, while the peoples of the other cities were assimilated
to households (oikiai) which both constituted and were contained within the highest city
(Meditations 3.11, in Haines 2014).
From this it followed that it was possible to affirm a common law for the citizens of the
Cosmos-as-city, which would be guaranteed by the divine power, which upheld the cosmos:

All ‘reasonable’ men should obey the laws set down by this city (polis) and constitution (politeia).
If reason was shared by all men, then law (nomos) also is shared by all; if this be so, we are citizens;
if this be so, we are sharers in one constitutional order (politeuma); . . . surely then the whole race
of men is subject to a constitutional order, which they hold in common (Meditations 4.4) . . . ‘there
is one cosmos, one God through all, one substance and one law’. (Meditations 7.9, in Haines 2014)

In summary, a man is a citizen in this great city (the Cosmos), and what is according to its laws
applies equally to every man (Meditations 12.36, in Haines 2014).
 Global constitutionalism: the ancient worlds 25

Marcus Aurelius’ thoughts were those of an emperor who could, in theory, have put them
into practice. In fact, he provides no evidence for the practical application of Stoic univer-
sality beyond philosophical circles. Stoic ideas did affect legal thought and the argument
that justice was innate in man, advanced by Cicero among others (Cicero 1998, Laws, bk
1) allowed a connection to be established between the ‘laws of nature’, the characteristics
common to all people, or to all living things, and international law, the ‘law of all peoples’
(Roman, ius gentium). However, Marcus Aurelius’ ‘laws’ largely concern the moral conduct
of the individual, not the operation of international law. The emperor, a philosopher at night,
was a general by day, leading the Roman armies in a protracted series of campaigns against
the ‘barbarian’ peoples on the Danube, whose incursions posed a threat to Roman security.
‘Barbarians’, be they Celtic or Germanic tribes, or the subjects of the Persian Kings were the
permanent ‘other’ (Hall 1989). Anachronistic stereotypes were common in ancient literature
(Woolf 2011), although, fortunately, much-travelled types, such as the fifth-century BCE
historian Herodotus, produced more nuanced accounts (Gruen 2011) and the divisiveness of
some literary representations did not invariably extend to the realities of diplomatic or per-
sonal relationships. Marcus’ sustained military campaigns against perceived threats to Rome’s
frontiers show the limits of his philosophy; at no point did he ask himself whether the laws of
his Cosmos also applied to the enemies of Rome.

POLITEIA AND THE GREEKS

Beyond philosophical circles, citizen communities in the Graeco-Roman world evolved ties
with, and obligations to, each other. The Greeks’ civilisation from the eighth century BCE
onwards, though largely based round small, autonomous city-communities (poleis) was
located in what they called the ‘Oikumene’, the world ‘inhabited by them’ from the Black Sea
to the coasts of Spain (Malkin 2011). Greeks shared a common alphabet and language, gods,
heroes and their cults (often expressed in localised form), the poems of Homer and the plays
of Euripides. Their aristocracies intermarried, their military theorists and generals developed
comparable systems of warfare. There were networks created by intellectuals, who travelled
between cities educating the young, and artisans, architects and sculptors helped to create
a Greek visual identity, expressed in town planning, monumental structures and artwork.
Greeks abroad could look with confidence for an agora (marketplace) and for temples to gods,
whose names at least were familiar. Crucially, they also shared ideas of how nomima, the laws
and institutions governing the workings of a polis, came into being, often through a named
founder or lawgiver. Through initial acts of colonial foundation, which created ties, not always
harmonious, between ‘mother’ and ‘daughter’ city, and complex networks of trade links, the
Greeks evolved a shared ‘pan-hellenic’ identity; the Mediterranean became a space, which
they ‘shared’ but did not ‘own’. Within this space, the poleis were linked by a further network
of bilateral or multilateral treaties (Streets 1994). While this has echoes in modern ideas of
globalisation, the tensions between the exclusiveness of polis culture, on the one hand, and
the need to cooperate for the security and benefit of all, on the other, were never satisfactorily
resolved.
Citizen communities had their own legal systems and, as noted above, their ‘constitutions’
comprised the ways in which the city community as a whole was ‘constituted’. For example,
the Spartan constitution, ascribed to the legendary lawgiver Lykourgos, defined the powers
26 Handbook on global constitutionalism

of the institutions of government, the kings, council of elders (Gerousia), the five chief
magistrates (ephors) and the Assembly of the People. However, the Spartans also credited
Lykourgos with their distinctive system of education (or social conditioning) and military
training, family life (or lack of it, as boy children were removed from the family house at the
age of 7 years) and the contributory dining clubs (syssitia), where the adult citizen-soldiers
spent much of their time (Hodkinson 2009). The Greek historian Polybius’ famous account
of the Roman politeia (Polybius 1979, bk 6, chs 3–57) ascribed Roman success not only to its
institutions of government but to the efficiency of its organisation and its military establish-
ment (Erskine 2013).
Although many analysts of politeiae avoided extending to a wider sphere their thoughts on
how citizen communities were constituted, Polybius (second century BCE) believed that the
‘fortunes’ of states were interrelated and their conduct regulated by an agreed set of conven-
tions. Of particular concern were the justifications for declaring and making war (the origin
of debates on the ‘just war’); the ending of war through the making of a treaty; the protection
to be afforded heralds and ambassadors; and the use of arbitration to resolve conflict. The
Romans also made limited, sporadic attempts on a rudimentary level to frame inter-state law
(the ius gentium) in terms of the values, such as fides (trust), and procedures, such as the law on
redress (res repetundae), familiar to them from their citizen-law; deditio in fidem, for example,
surrender at discretion, imposed a moral obligation on the victors to show restraint. Inter-state
law therefore occupied an indeterminate middle space between the recognized institutions of
the citizen community and the universality of natural law.

MODERN QUESTIONS, ANCIENT ANSWERS

Martin Loughlin (2010, pp. 49–50), following Paine, has identified four features of modern
constitutions. First, a constitution ‘is a thing – and specifically it is a document’. Second, it is
‘antecedent to a government’ and ‘is not the act of a government but of the people constituting
a government’. Third, a constitution must be comprehensive. Fourth, it has status as ‘funda-
mental law’ and the government must act in accordance with the constitution; the government
cannot alter the constitution, as the power to change the fundamental law rests with the people,
as the constituent power. Modern thinking has further defined the ‘fundamental law’ as both
constitutional norms and positive law based on those norms.
To take the four criteria, with special emphasis on the first two. First, the existence of a
‘document’ implies a single act by the ‘constituent power’. True, many ancient communities
ascribed their ‘constitutions’ to the act of a single lawmaker or nomothete, as the Spartans did
to Lykourgos and some law-codes, such as that of Gortyn in Crete in the sixth century BCE,
were set up in inscriptional form (Davies 1996). Lykourgos’ reforms were not, however,
codified in writing and Sparta, like many Greek poleis, had no written constitution. Moreover,
despite the emphasis on the single lawgiver, many Greeks appreciated that the building of
a constitutional order was an evolutionary process. The institutions of government and society
ascribed to Lykourgos were the product of centuries of evolution at Sparta; the introduction of
the ephors, long after the other three institutions of government, illustrates that a constitution
may not be ‘comprehensive’ at the outset (although it must, for practical reasons, cover all
the functions of government). In Athens, the reforms of their most respected lawgiver, Solon
(circa 594 BCE), who established a Council of 400 and an assembly consisting of four wealth
 Global constitutionalism: the ancient worlds 27

classes, acquired canonical status. However, they resulted, not in democracy, but aristocratic
factionalism, followed by the sole rule of the ‘tyrant’ Peisistratos and, after him, his sons
(546–510 BCE). Only after the ruling family were expelled were the institutions central to the
operation of the Athenian democracy created, and decades of further tinkering by the ruling
assembly were required to empower the demos and remove the last vestiges of aristocratic
control. Later, the Romans too would argue that the best possible constitution could only be
the product of a drawn-out and contested historical process: both Cicero (1998, Republic, bk
2, chs 10–63) and Livy (1971) saw the ‘constitution’ of the res publica in the first century
BCE as being the product of incremental change, initiated by the seven kings (eighth to sixth
centuries BCE) and continued from the fifth century BCE onwards, through repeated conflicts,
sometimes violent, between oligarchic (or senatorial) and popular interests.
Second is Loughlin’s contention that the ‘people’ must be antecedent to the government,
which the constitution authorised by them brings into being. There are problems here con-
cerning how the ‘people’ as a legally constructed entity can predate the constitution, which
embodies the ‘fundamental law’: ‘is there a fundamental law – that which constructs the
people (the original compact) – which lies behind the fundamental law that authorises positive
law?’ (Loughlin 2010, p. 51). Ancient theory and practice had several solutions to this. First,
as we have seen, the ‘constituting’ of citizen communities (including their governments) was
a process, taking place over a period of time; the ‘people’ could thus be both participants in,
and legitimators of, the process of state creation. Second, although the ‘people’ had a crucial
role in some ‘constitutional’ narratives (such as those of Cicero and Livy on early Rome),
identifying a single ‘constituent power’ was problematic. Authority was diffused and con-
tested: tendentious versions of past history and exemplary characters were shaped by contem-
porary issues and agendas; the patrios politeia, the ‘ancestral constitution’, as constructed and
reinterpreted by later generations fuelled Athenian constitutional debate; at Rome a similar
function was performed by the binding and unwritten conventions associated with the mos
maiorum, the ‘customs of our ancestors’ (literally, ‘the greater ones’).
Third, the ancients, like modern constitutionalists, required a fundamental – or ‘higher’ –
law, to predate the formation of human societies and provide the norms, which people (and
peoples) were expected to observe. Unlike moderns, ancient people had no problem with
identifying the source of that law. Its authority derived, not from the ‘people’ or any other
human agency, but from the gods, and the universal values, such as justice and honour or
trustworthiness, which they were expected to uphold. Although the gods are not usually
pressed into service as a tool of analysis in academic debate, for ancient peoples their impact
as guardians, guarantors and enforcers of the universal values associated with natural law and
with justice, was very real. Their authority bore heavily on the oath-maker – still more on
the oath-breaker – their temple sites were the locations for the formation of Greek leagues of
poleis united by shared cults (as well as self-interest), and an assortment of divine protectors
was ritually invoked by the Romans in the formal preliminary stages required for the launch
of the ‘just war’.
28 Handbook on global constitutionalism

DEMOCRATISM AND HEGEMONY: THE FAILURE OF THE

GREEK EXPERIMENT

In his analysis of the Confederation of the American States, James Madison (Madison et al.
1987, Federalist Papers no. XVIII) drew on the analogy of the ancient Greek Leagues, with
a view to analysing their constitutions as leagues of independent cities and the grounds for
their failure. One, the Amphictyonic League, was based at Delphi in the fourth century BCE
and administered by a ‘federal’ council. The member cities were bound by oath to provide
military protection to the rest, as well as protect the shrines and temples of Apollo’s sanctuary,
and could be penalised if they refused. The authority of the organisation derived in part from
its connection with Apollo, or, as Madison put it, ‘the Amphictyons had in their hands the
superstition of the times, one of the principal engines by which government was then main-
tained’ (Madison et al. 1987, p. 160). For various reasons, mostly to do with divisions among
the member states, the League fell victim to the expansionist designs of Philip of Macedon,
the father of Alexander the Great, as Madison noted elsewhere (Madison et al. 1987, p. 281,
Federalist Papers no. XLIII, para. 6), citing Montesquieu, that ‘Greece was undone…as soon
as the King of Macedon obtained a seat among the Amphictyons’).
Madison’s favourite, the Achaean League, (re)founded in circa 280 BCE, was a ‘Union’,
which was ‘more intimate and its organisation much wiser than in the previous instance’
(Madison et al. 1987, p. 161, Federalist Papers no. XVIII). The political thought embodied
in its ‘constitution’, as recalled later, was of more long-term significance than the League
itself. The version of events offered by the historian Polybius, himself an Achaean, therefore
deserves attention, not because of its accuracy in every detail but because Polybius’ rep-
resentation of the Achaean League anticipates many of the ideals, which now underpin global
constitutionalism and thus also offers warnings as to why such idealistic enterprises may fail.
In his analysis of the causes of the Achaeans’ success (as he saw it), Polybius highlighted
the importance of consistency. The Achaeans, he alleged, had been democrats, who cooper-
ated well with others for a long time and were well known for it. In the latter part of the fifth
century, an Achaean delegation had been brought in to advise a cluster of quarrelsome cities
in southern Italy on a constitution for a League and the four cities involved agreed to set up
a meeting place at the temple of Zeus of the Boundaries (Zeus Homaios) and ‘adopt the laws
and customs of the Achaeans’ (Polybius 1979, bk 2, ch. 39).
The Achaeans back in southern Greece were slower off the mark, because, although
a confederacy of democratic cities had existed for a long time, they suffered from the malign
attentions of the Hellenistic monarchs of Macedon from the mid-fourth century, and, like the
Amphictyonic League, failed to hold together. In circa 280 BCE, however, a further group
of five cities established the Achaean League, centred on the Temple of Hera, and over the
next years were joined voluntarily by seven more (Polybius 1979, bk 2, ch. 41, pp. 152–3).
In the Achaean Polybius’ opinion, the ‘allied and friendly community’ of the Achaeans, with
its shared laws, weights, measures and coinage, along with a set of governing institutions,
magistrates, a council (Boule) and law-courts differed from a single city, only in that its inhab-
itants were not surrounded by a single city-wall (Polybius 1979, bk 2, ch. 37). For Madison,
following the Abbé Mably, the League was admirable because its constitution inhibited the
excesses of ‘popular government’; elsewhere: ‘because it was there tempered by the general
authority and laws of the confederacy’ (Madison et al. 1987, Federalist Papers no. XVIII,
p. 162). Polybius, indeed, was more in line with modern western values when he stated,
 Global constitutionalism: the ancient worlds 29

without reservation, that the Achaean League safeguarded freedom of speech, equality and
democracy: ‘It would be impossible to find anywhere a political system or guiding principle,
which allowed more equality (isegoria) or freedom of expression (parrhesia) or which most
closely represented true democracy (alethine demokratia) than that of the Achaean League’
(Polybius 1979, bk 2, ch. 38).
However, all was not as well as might appear for this mini-example of a nascent global
constitutionalism, entailing as it did an ostensibly harmonious alliance of equal and demo-
cratic states. Cooperation, as so often, conflicted with the general Greek desire for autonomia,
rule by their own city laws. Membership of the League entailed the pooling of sovereignty,
as members met in a ruling Council, and the sacrifice of some autonomy for the sake of the
collective interest. Their policy towards cities and powers outside the League was collectively
decided and the armed forces of the League were under the command of generals, first a pair,
initially chosen by the cities in rotation (280–255 BCE) and thereafter a single commander
with wide powers, elected by the League as a whole.
Moreover, it did not follow from the democratic principles on which the League rested,
that the right of self-determination of other states would be honoured. Not all members of
the League were there because they chose to be: ‘This (democratic) constitution found some
of the Peloponnesians ready to adopt it of their own free will; many others were induced by
persuasion and argument to take part, while those who were obliged to accept it by force, when
the time came soon found themselves appreciating its benefits’ (Polybius 1979, bk 2, ch. 38).
And, elsewhere:

(their policy was) to invite other cities to share in their equality and freedom of speech – and to make
war on and subdue all those who, either on their own account or with the help of the kings, tried to
enslave any of the states within their borders. . . . They finally achieved this aim, partly through their
own efforts and partly with the help of their allies. (Polybius 1979, bk 2, ch. 42, pp. 154–5)

Polybius’ account, therefore, acknowledges both the ideal of an inter-state ‘order’ based on
shared values and a shared constitution, and the forces which could potentially undermine its
credibility as a moral force for good. The ‘rightness’ of the League is reinforced by a delinea-
tion of its opponents as ‘the other’. The forced inclusion of other cities is justified not only on
practical but also on ideological grounds; individual members were brought in after the over-
throw or abdication of tyrants or other hostile regimes (Polybius 1979, bk 2, ch. 44, p. 156).
Thus in Polybius’ view, the ‘free’ Achaeans had the ‘right’ to incorporate other states because
they had colluded with the hostile monarchies and with the ‘enslavement’ of other Greeks.
Rivals for power and influence were likewise demonised. The motives of kings (with
whom, as Polybius admits, the League did ally for prudential reasons) were by definition
self-interested (as those of the League were not): ‘kings do not look on anyone as an enemy or
an ally on account of their personal qualities, but always reckon friendship or hostility in terms
of advantage’ (Polybius 1979, bk 2, ch. 47, p. 159, of the League’s diplomatic overtures, led
by Aratus of Sicyon, to Antigonus of Macedon). Particularly suspect was the rival Aetolian
League, whose members, according to the historian, suffered from ‘a perpetual lust for
plunder’, hence their unprovoked attacks on others, ‘who had done them no wrong’ (Polybius
1979, bk 2, ch. 44, p. 156); they were, in Polybius’ eyes, greedy, duplicitous and unprincipled.
Competition for territory, allies and influence, which resulted in successive shifting alliances
and small wars, explains the confrontational rhetoric; and the failure to observe in practice the
‘constitutionalism’ inherent in the values celebrated by Polybius, explains why, despite the
30 Handbook on global constitutionalism

ideals present at its foundation, the Achaean League was bound, in the end, to fall, along with
the other squabbling poleis of Greece, to the superior military power of Rome.
As Madison observed, the fate of the Greek confederacies ‘supplies us with valuable instruc-
tion’. In Madison’s view of the Amphictyonic League, ‘the more powerful members, instead
of being kept in awe and subordination, tyrannised successively over all the rest’ (Madison et
al. 1987, p. 160). Just dealings between cities became a hostage to power-plays: ‘the deputies
of the stronger cities awed and corrupted those of the weaker . . . and judgement went in favour
of the more powerful party’ (ibid.). This was not new. Referring to the failure of the Hellenic
League, brought together in 481 BCE to coordinate the ultimately successful resistance to
Xerxes’ invasion of Greece, Madison complained of ‘the inefficiency of the Union, the ambi-
tion and jealousy of its most powerful members and the dependent and degraded condition
of the rest. The smaller members, though entitled by the theory of their system to revolve in
equal pride and majesty around the common center, had become, in fact, satellites of the orbs
of primary magnitude’ (ibid.).
Such abuses of power subverted the constitutional order, which underpinned successful
cooperative relationships between poleis. In celebrating the democratic character of the
Achaean League, Polybius opened the way for ‘democratisation’, expanding the reach of the
League through the imposition of a democratic system on others for their own good. Moreover,
the (alleged) superior virtue of the Achaean League as a successful democratic ‘union’ jus-
tified the incorporation of unwilling cities, and the use of coercion on weaker communities
by the superior collective strength of the League. The assertion of exceptionalism, based on
unexamined assumptions of moral superiority, was maintained by a denial of the subjectivity
of opponents and enemies, precluding any concession that their conduct might have been, in
its own terms, either rational or principled.

ROME: LAW AND PARTNERSHIP

Rome’s most durable models of cooperation invoked the principle of consent, based on what
were taken to be universally agreed values. Cicero’s definition (1998, On the Republic, bk 1,
ch. 39, p. 19) of a legally constituted ‘people’ (populus), as opposed to a ‘multitude’ was that
it was ‘brought together in a partnership’ (sociatus), based on legal consent and for the benefit
of all; the populus thus came into being simultaneously with its being ‘constituted’ as a legal
entity, although no document or written law marked the moment. In citing ‘justice’ with the
gods, as guarantors of ‘natural’ law, Cicero underlined the importance of observing an agreed
set of moral and cultural norms, which applied to relationships between individuals and com-
munities alike. Moreover, he phrased the relationship in terms, which, for Romans, carried
significant legal connotations. A relationship of partnership between individuals or between
peoples had to be based on mutual advantage, and trust (fides), with obligations created for
both sides. Breach of faith was thus both a legal and a moral failure. It was characteristic of
their legalistic approach to relationships with other states that the Romans described their
allies as socii, partners; this was a more inclusive term (despite its drawbacks in practice)
than the Greek equivalent, symmachoi, ‘those who fight alongside us’, emphasising as it did
both the security and the reciprocity of a relationship grounded in law (for the facts of allied
subordination, see Lavan 2013, pp. 35–53, 61–72). When, in 91–88, the socii went to war with
Rome, seeking equal recognition (or, failing that, total separation), the concession of Roman
 Global constitutionalism: the ancient worlds 31

citizenship to all allied communities south of the Po would have been eased by the conscious-
ness that they were, in some sense, partners already.
Several decades after Cicero’s death, the historian Livy elucidated his view of the con-
ventions governing inter-state relations in his history of the foundation and rise of Rome. At
the core of this were the procedures enshrined in the ‘fetial law’ (ius fetiale), a set of actions
prescribed by ritual, the performance of which ensured that the wars engaged in by the Romans
were ‘just’ (Livy 1971, bk 1, ch. 32, pp. 69–70; cf. Cicero, 1998, On the Republic, bk 2., ch.
31). The process was ascribed to the third or fourth king of Rome (late seventh century BCE,
135), and some detail, such as the tight timescale of just over a month, reflects its origins in
Rome’s dealings with neighbouring states. However, the surviving text probably dates from
the late Republic and incorporates some assumptions from that period. According to the
priestly formula, the ius fetiale covered the journey of the Roman envoy, the fetial priest or
his delegate, the pater patratus, to the offending state, the statement of the grievance and the
process of negotiation. If the negotiation failed (and was formally declared to have failed), the
envoy returned to receive further instructions at Rome. After debate and agreement by Senate
and people a state of war was formally declared through a further prescribed set of words and
actions.
The Romans’ ‘just war’ was framed in terms of correct legal procedure, which ensured that
a declaration of war would conform to the requirements of law and justice. The process initi-
ated by the fetial envoy was analogous to what was recognised in Roman law as ‘restitution’
(res repetundae), where the aggrieved party sought restitution and perhaps compensation for
losses inflicted by the defendant. It therefore mimicked the course of a lawsuit: the complaint
was lodged (the envoy’s journey); there was a hearing between the parties (the negotiation
between the plaintiff, Rome, and the defendant, the allegedly offending state); the judges
(the Roman Senate and people) reached their verdict; and, after due process has ensured a
‘just’ outcome, war was declared. This process also precluded any waging of an undeclared
or deniable war, a course consistently repudiated by the Romans as deceitful and therefore
incompatible with honour and good faith.
The upholding of trust (fides) as a necessary precondition for effective dealings between
states is central to Livy’s account. The gods appear as guarantors of fides: a king who deceit-
fully manipulates the fetial ritual later perishes in his palace when it is struck by lightning;
Roman soldiers who fail to fight, having taken an oath to do so, ‘will find themselves at war
with the gods’ as well as the human enemy (Livy 1971, bk 3, ch. 2, cf. also bk 2, ch. 46);
a dissident tribal leader who insults Roman envoys by claiming, in their presence, to be ‘una-
vailable’, is outwitted when the envoys call a sacred tree (and its associated gods) to witness
his breach of diplomatic etiquette (Livy 1971, bk 3, ch. 25). Even when the Romans have the
power to get away with it, as when they expropriate a territory made the subject of arbitration
by two lesser cities, the considerations, which should have prevented them are highlighted: the
action was criminal in itself and set a worse precedent; friends would be alienated, the honour
and reputation of Rome damaged (Livy 1971, bk 3, ch. 71).
In the absence of institutions with the authority to uphold an international order, the gods,
backed by the facts of history, substituted as enforcers. For Livy, breaches of fides between
states led inevitably to catastrophe, the more so when every institution of the res publica
was complicit in wrong-doing. In circa 390 BCE, Rome breached the ‘unwritten law of all
mankind’ (Livy 1971, bk 5, ch. 37) in the weeks preceding her defeat by the Gauls at the battle
of the river Allia (circa 390 BCE). Envoys sent to negotiate with the invaders violated the
32 Handbook on global constitutionalism

ius gentium (Livy 1971, bk 5, ch. 36) and attacked the Gauls without warning. The Senate,
on hearing of this, allowed collective self-interest to override justice, referring the case to the
people instead; the populus, for its part, failed to punish the offenders for this breach of both
the ius fetiale and the ius gentium, and instead elected them to high office. The result was the
virtual annihilation of Rome’s army by the Gauls, the Sack of Rome and the mass murder of
senators; the anniversary was commemorated thereafter as a Day of Ill-omen (dies nefastus).
Collective guilt brought down total disaster on the whole community.
Livy’s perspective on the enforcement methods of the gods as guarantors on the interna-
tional order will not impress the modern reader. However, resort to the gods was in part an
acknowledgement that if states were to be able to negotiate and communicate with each other,
declare war formally, make peace and then abide by the treaties which ended the conflict and
prevented its resumption in the future, some authority was required with not only moral but
also (or so it was believed) coercive powers. Modern ideas of global constitutionalism invoke
the desirability of consent; so might the Romans have done, had they believed that consent
alone was enough.

CONCLUSION

All peoples, who lived round the ancient Mediterranean, subscribed to a set of values, which
they held to be universal and applicable to everybody, based on natural law and the ius
gentium. These were held to predate the founding of cities. Despite the veneration accorded
to individuals, credited with the creation of law-codes and city constitutions, many influential
Greeks and Romans believed that successful and stable ‘constitutions’ emerged as the result
of an evolutionary process. Popular endorsement or acquiescence was expected but the role
accorded the ‘people’ by such elite writers as Cicero fell far short of that of the pouvoir con-
stituant of modern thought.
Expressing the values shared by all, in the context of communities’ dealings with each
other, were a set of unwritten rules and conventions, such as those guaranteeing (as a rule) the
safety of envoys, in exchange for their correct behaviour, the declaration of war, which must
be ‘just’, and the making of peace. However, there was little constraint on how wars were
conducted, and victory, because it ‘proved’ divine favour, was its own justification. Cities
were sacked, even after a formal surrender, whole populations massacred, enslaved or trans-
planted to new sites (sometimes along with their ‘conquered’ gods), atrocities committed with
the deliberate intention of inspiring terror. While reservations over the excessive use of force
or violence were expressed, the use of extreme cruelty was justified, if proved, by the gods’
granting of victory, to be ‘just’.
The early Greeks created a network of small states with a common culture, which cooper-
ated in various ways, while jealously guarding their autonomy. The tensions created by the
pooling of sovereignty, usually for purposes of joint security, made Greek alliances inherently
unstable, although many lasted for centuries. They failed for multiple reasons: because the
external threat was removed; or because dominant city-states abused their power, so that
hegemony was perverted into leadership based on coercion, not consent, and democracy
into the expansionist ideology of democratisation. However, it was the Greeks first, not the
Romans, who formulated ideas of universality and who analysed the reasons why leagues
between peoples succeed and why they fail.
 Global constitutionalism: the ancient worlds 33

The Romans’ observance of technicality, as in the ritual of the ius fetiale, reflected a culture
in which respect for law, and the sense of the connection of law with the universal divine order,
was ever present. Once established, in their own eyes, as an imperial people, the Romans,
unlike the feuding Greeks, had no incentive to formulate (or observe) conventions on how
to deal with equals. After creating ‘wastelands’ over centuries of warfare and conquest, the
Romans under the Empire capitalised on their success in war by imposing a new world order,
the pax Romana (Morris 2015, pp. 32–52) based on military dominance, discreetly exercised,
and active support for the continuing power of local oligarchies. This was combined with the
gradual incorporation of the conquered peoples into their citizenship, with its access to the
benefits and remedies of Roman law, but the variety of indigenous cultures was retained along
with local applications of legal pluralism. Roman autocracy gave rise to an era of stability,
security and prosperity, which endured for hundreds of years; the price for the governed was
forfeiture of autonomy and self-determination.

REFERENCES
Cicero, M.T. (1998), The Republic and the Laws, trans. N. Rudd, introduction and notes by J. Powell,
Oxford: Oxford University Press.
Davies, J. (1996), ‘Deconstructing Gortyn: when is a code a code?’, in L. Foxhall and A.D.E. Lewis
(eds), Greek Law in its Political Setting: Justifications not Justice, Oxford: Oxford University Press,
pp. 33–56.
Eisenstadt, S.N. (ed.) (1986), The Origins and Diversity of Axial Age Civilisations, Albany, NY: State
University of New York Press.
Erskine, A. (2013), ‘How to rule the world; Polybius Book 6 reconsidered’, in B. Gibson and T. Harrison
(eds), Polybius and His World. Essays in Memory of F.W. Walbank, Oxford: Oxford University Press,
pp. 231–46.
Galligan, D. (ed.) (2014), Constitutions and the Classics: Patterns of Constitutional Thought from
Fortescue to Bentham, Oxford: Oxford University Press.
Graber, M. (2014), A New Introduction to American Constitutionalism, Oxford: Oxford University Press.
Gruen, E. (2011), ‘Herodotus and Persia’, in E. Gruen (ed.), Cultural Identity in the Ancient
Mediterranean, Los Angeles, CA: Getty Research Institute, pp. 67–85.
Haines, C.R. (2014), Marcus Aurelius, Meditations, Cambridge, MA: Harvard University Press.
Hall, E. (1989), Inventing the Barbarian; Greek Self-definition through Tragedy, Oxford: Oxford
University Press.
Hammer, D. (2014), Roman Political Thought: From Cicero to Augustine, New York: Cambridge
University Press.
Hodkinson, S. (ed.) (2009), Sparta: Comparative Approaches, Swansea: University of Wales Press.
Lavan, M. (2013), Slaves to Rome: Paradigms of Empire in Roman Culture, Cambridge: Cambridge
University Press.
Livy (1971), The Early History of Rome, trans. A. de Selincourt, London : Penguin.
Loughlin, M. (2010), ‘What is constitutionalism?’, in P. Dobner and M. Louglin (eds), The Twilight of
Constitutionalism?, Oxford: Oxford University Press, pp. 47–69.
Madison, J., A. Hamilton and J. Jay (1987), The Federalist Papers, I. Kramnick (ed.), London: Penguin.
Malkin, I. (2011), A Small Greek World: Networks in the Ancient Mediterranean, New York: Oxford
University Press.
Marsh, J.G. and J.P. Olson (2009), ‘Elaborating the “New Institutionalism”’, in R.E. Goodin (ed.),
Oxford Handbook of Political Science, Oxford: Oxford University Press, pp. 159–75.
Morris, I. (2015), War: What Is It Good For? The Role of Conflict in Civilisation from Primates to
Robots, London: Penguin.
Polybius (1979), The Rise of the Roman Empire, trans. I. Scott-Kilvert, London: Penguin.
34 Handbook on global constitutionalism

Streets, G.A. (1994), ‘Conceptualizing international law in Thucydides’, American Journal of Philology,
115 (1), 51–73.
Woodruff, P. (2006), First Democracy: The Challenge of an Ancient Idea, Oxford: Oxford University
Press.
Woolf, G. (2011), ‘Saving the barbarian’, in E. Gruen (ed.), Cultural Identity in the Ancient
Mediterranean, Los Angeles, CA: Getty Research Institute, pp. 255–71.
3. Medieval constitutionalism
Francis Oakley

In framing a government which is to be administered by men over men, the greatest difficulty lies in
this: you must first enable the government to control the governed; and in the next place oblige it to
control itself. A dependence on the people is, no doubt, the primary control in government, but experi-
ence has taught the necessity of auxiliary precautions. (Hamilton et al. 1788 [2009], p. 264)

If we take as point of departure this pithy summation by James Madison, we are bound to
concede that for much of the period of European history labelled by stubborn historiographic
convention as ‘medieval’, it was the grinding challenge of controlling the governed rather
than any luxurious preoccupation with the government’s controlling itself that dominated the
thinking of those who were called upon to rule. The government involved was monarchical.
In these respects, the early-medieval centuries marked no great departure from the millennial
monarchical past. In terms, of its antiquity, its ubiquity, its wholly extraordinary staying
power, the institution of kingship can lay strong claim to having been the most common form
of government known, worldwide, to humankind. In this respect, as Cerfaux and Tondriau
once put it, the classical era of city-states becomes, world-historically speaking, no more than
a ‘republican parenthesis’ (Cerfaux and Tondriau 1957), an isolated republican island whose
shores were lapped by an all-encompassing monarchical sea. Consigned thereby to merely
provincial status are the constitutionalist, consensual, representative, republican and demo-
cratic forms that bulk so large on our contemporary political landscape, and to which those
of us concerned with constitutional history and political philosophy have characteristically
devoted the bulk of our attention. In so doing, we have tended to take for granted the drainage
of legitimacy from the age-old ideological pattern that, in one form or another, had for long
millennia sustained the monarchical institution. Yet, in terms of its ubiquity and longevity,
that ideological pattern can lay credible claim to having been nothing less than the political
common sense of humankind; and like the institution of kingship itself, that common sense
turns out to have been deeply embedded in the sacred and thoroughly informed by it. For, ‘that
kings are sacred,’ it has been well said, is ‘an anthropological and historical truism’.1
All of which is worthy of mention in the present context because that millennial sacrality
was to constitute a formidable obstacle to the maturation of notions of constitutionalist con-
straint. How could it not have done so? Sacral kingship was grounded right across the globe
in one or other form of cosmic religiosity to which the very distinctions that Westerners are
accustomed to making between nature and supernature, between animate and inanimate,
between nature, society and man were almost wholly lacking. In the context of that cosmic
religiosity, after all, the most fundamental responsibilities of the sacral king extended far
beyond the realm of what we are accustomed to defining as the ‘political’, extending into the
very preservation of the natural order by a complex system of ritual and taboo, the prevention

1
For the claims made here about the archaic sacral kingship and its extraordinary staying power,
and for full references to the pertinent scholarly literature, see Oakley (2006, 2010). The words cited
above are from Gilbert (1987).

35
36 Handbook on global constitutionalism

of natural catastrophe, and the ‘harmonious integration of man and human society with nature’
(Oakley 2006, p. 15; 2010, p. 21).
Clearly a sharp break with that way of apprehending the ‘political’ was a necessary presup-
position for the emergence of the sort of constitutional forms and processes that the editors of
this Handbook have identified in their introduction (Chapter 1). Also, the key factor precipitat-
ing that break was the impact of the biblical vision of God as one, omnipotent, and transcend-
ent on the way in which the realms of nature and society came to be understood. That vision of
God was very much at odds with the archaic notion of an immanent divine continuum linking
humankind with nature and the political order with the cosmos. As a result, it came across
time to undermine the cosmic religiosity that was itself the very foundation for the archaic
pattern of sacral kingship and for the understanding of the political order as in some sense ‘the
embodiment of the cosmic totality’. The desacralizing process thus initiated was accelerated
by the revolutionary New Testament separation of religious from political loyalties and by the
demotion of the polis to the status of a merely secular entity.
However, given the complex (and compromising) accommodations that the Church Fathers
made with archaic patterns of thinking that complex process of desacralization took an
unconscionably long time to gain any real intellectual and social traction. In the Byzantine
East and, for long centuries, in the Latin West, the ‘political’ continued to be comprehended
as embedded in the sacred or, to put it in Christian terms, as something pertaining ultimately
to the order of redemption (Oakley 2006, 2010). The legislation of the Emperor Justinian
(527–65) extended into almost every nook and cranny of ecclesiastical life, and he did not
hesitate to embrace the ancient, Hellenistic notion that God had sent the emperor to serve for
men as himself an ‘incarnate law’ (nomos empsychos; lex animata). In the early-medieval
Latin West, as in the Eastern Empire throughout its history, a priestly character was attributed
to king and emperor alike, who (in this like bishops) were anointed in a sacramental rite
derived from the ancient Near Eastern ritual for the transference of someone from the realm of
the profane into that of the sacred, and whose office, bestowed it was thought by gift of God,
came to be markedly clericalized and described in terms that were not merely theocentric but
(increasingly) Christocentric in nature. By the eleventh century, indeed, the German emperor
was being referred to as the ‘Vicar of Christ’, a title which the medieval popes were later to
take over and monopolize.
They succeeded in doing so, however, only after the onset of the Gregorian reform of the
church in the late-eleventh century had begun to subvert the early-medieval theopolitical order
(Oakley 2012). Proclaiming that ‘the age of priest-kings and emperor-pontiffs’ was over,
the Gregorians moved to extrude monarchs from the ranks of the clergy and to declare the
German emperor to be simply a layman and nothing more. While this revolutionary attempt
to desacralize monarchy was not wholly successful, it was successful enough to open the way
for subsequent attempts to subject European kings to the rule of law and eventually to secure
that subjection by (constitutional) measures short of force. The more so in that the Gregorian
upheaval marked the onset of what eventually amounted to a Europe-wide civil war, several
centuries of intermittent but widespread struggle between the ecclesiastical and temporal
authorities – tension not simply between competing ideals but between rival governmental
structures, secular and religious, both of which contrived to limit each other’s effective power.
It was between the hammer and the anvil of those competing authorities that Western political
freedoms were eventually to be forged. Medieval constitutionalism was the product of many
mutually supportive factors, by no means all of them religious in nature, but whatever the
 Medieval constitutionalism 37

strength of those factors, without the Christian insertion of the critical distinction between
the religious and political spheres and without the instability engendered by the clash of
rival authorities, it is extremely unlikely that the Middle Ages would have bequeathed to the
modern world any legacy of limited, constitutional government.
Of the three principles that the editors in Chapter 1 of this Handbook identify as making
manifest the limiting and enabling functions of a constitutional and legal order, the principle
of the separation of powers was to emerge only in the post-medieval period, though it should
be acknowledged that related notions of mixed monarchy were far from being foreign to
the thinking of late-medieval political theorists. As to the emergence of the other two – the
insistence on the rule of law and the role to be played by the constituent power of the governed
– medieval developments may properly be said to have made a powerful contribution.
The first of those principles presupposed two things. First, the degree to which the Gregorian
reformers succeeded in sponsoring a desacralization of the royal office and person, and the
degree to which kings came to be entangled in a network of feudal relationships of the type
that had grown up in early-medieval Europe. The contractual nature of the feudal relationship
between lord and vassal, the bilateral nature of the feudal contract, and the legal possession
by the vassal of a ‘right of resistance’ against a faithless and arbitrary lord were significant
enough. Their significance, however, was immensely enhanced if the lord in question hap-
pened to be the king. Whereas in Japan, where the emperor was, it seems, too sacred a figure to
be drawn into the nexus of contractual feudal relationships, in Europe the feudal pyramid cul-
minated, not in a mere generalissimo akin to the Japanese shogun, but in the person of the king
himself. Without his involvement in the feudal hierarchy, without his assumption of the role
of paramount lord, bound legally by his contractual relationship with his principal subjects,
feudalism would have lacked the enduring constitutional significance which it eventually
attained. However, because of that involvement, the king was now burdened with the further
weight of legal obligations and restrictions that such a relationship involved: the subordination
to feudal law; the rights and liberties guaranteed to his vassals (including, in the absence of
specific consent to freedom from non-customary taxation); and the undermining presence of
a legal right of resistance to his commands should those commands be judged illegitimate. As
a result, the legacy of European feudalism was profoundly constitutionalist in nature.
At the heart of that feudally mediated legacy lay insistence on subordinating the executive
power to the norms of justice, civil no less than natural or divine. When in the late-eleventh
century the Gregorian church reformers launched their attack on the sacral claims and priestly
pretensions of the German monarchs, they did not hesitate, by appealing to those norms, to
justify even the deposition of kings. Also, more than once in the course of subsequent history
ecclesiastics proved willing to combine with the great feudal magnates of the realm in order
to wrest from their king some sort of formal recognition of his obligation to govern with their
advice and consent, and in accordance with the laws of the land. The role played by Stephen
Langton, Archbishop of Canterbury, in uniting the English barons and leading their opposition
to the policies of King John is only the most important of those instances; the Magna Carta, the
great charter of liberties to which John appended a reluctant signature in 1215, only the best
known of such end products (Holt 1992).
It is easy, of course, to read far too much into the Magna Carta and much that is not there has
at one time or another been read into it. There was in fact little in it that was entirely novel and
much that reflected assumptions about the power of kings that were no more than Europe-wide
feudal commonplaces. However, precisely because of that, the Great Charter stands as an
38 Handbook on global constitutionalism

eloquent witness to the importance of the feudal contribution to the development of Western
constitutionalism. To the older Christian belief that the king was responsible for the welfare of
his people and, in some vague sense, accountable if he failed in that responsibility, and to the
novel Christian insistence on separating the realm of the political from that of the religious,
feudalism now added the precise legal conviction that the king was bound by the laws and
customs of his kingdom. Admittedly, the characteristically feudal enforcement mechanism
described in the last chapter of the Charter was nothing less crude than a legalized resort to
arms against a recalcitrant king, and again, pride of place was given to laws and customs that
protected the property rights of the baronial aristocracy. However, in the absence of explicit
consent, those same rights blocked the free exercise of royal taxing powers in the absence of
which no king could aspire to despotic authority. In the thirteenth and fourteenth centuries
it was above all the need to obtain that explicit consent, especially from the wealthy corpo-
rate bodies that were springing up all over Europe, which led rulers to create representative
assemblies. It was those assemblies, at first very much in the service of royal power, that were
ultimately to provide the means whereby the theoretical legal limitations on executive power
that most accepted might be enforced without resort to the armed violence that most deplored
(Cam et al. 1955; Marongiu 1968; Blockmans 1998).
Whereas it was the persistent tension between temporal and ecclesiastical structures of
authority that helped promote the subjection of kings to law, it was, perhaps ironically,
the marked degree of interaction from the twelfth century onwards between political and
ecclesiological thinking, between attempts to theorize the nature of the national polity and
analogous attempts to theorize the nature of the international church, that helped nudge along
the development of the representative mechanisms that were to make possible the eliciting of
quasi-popular consent to the policies of the executive power even in large territorial kingdoms
and in the universal church itself. ‘It was assuredly no accident’, the great French historian
Marc Bloch once observed, that representative institutions

originated in states which were only just emerging from the feudal stage and still bore its imprint. Nor
was it an accident that in Japan, where the vassal’s submission was much more unilateral and where,
moreover, the divine power of the emperor remained outside the structure of vassal engagements,
nothing of the kind emerged. (Bloch 1964, vol. 2, p. 452; see also Hall 1962)

We can only agree that it would be hard to imagine the emergence of such representative
bodies without the prior presence of feudal arrangements of the specifically western European
type. We must also insist, however, on the importance of other factors equally lacking in
Japan but no less vital to the shaping of the representative procedures that lie today at the very
heart of the political process in the modern, liberal-democratic and constitutionalist regimes
characteristic of so many large territorial states. Central among such factors is the legacy of
Roman law, greatest of the Roman intellectual achievements, the recovery during the eleventh
century of the full body of that law (Corpus juris civilis, Krueger et al. 1879–81), the profound
influence it came to exert on the almost contemporaneous shaping of a parallel body of equally
transnational law governing matters ecclesiastical (the Corpus juris canonici), and the particu-
lar ways in which the medieval lawyers, so many of them doctors of both laws, chose to apply
those parallel modes of legal thinking which became themselves so intricately intertwined that
modern scholars often refer to some of their crucial principles as ‘Romano-canonical’.
On the face of it, of course, there may seem to be something odd about such a suggestion.
The systematization of Roman law had taken place in the sixth century CE under imperial
 Medieval constitutionalism 39

rather than republican auspices. It was the work of an official legal commission charged with
that task by none other than the Emperor Justinian (527–65) himself. That commission was
demonstrably inclined to select or shape the ancient texts with which it was dealing in such
a way as to minimize the republican memories that many of them conveyed and to maxi-
mize whatever in them was supportive of its imperial master’s autocratic proclivities. That
such a body of law should in any way serve to sponsor the development of representative
machinery designed to enable the eliciting of (quasi-) popular consent to royal policies would
seem counter-intuitive. Certainly, the survival and cultivation of the Roman legal tradition at
Byzantium had no such effect. Representative institutions were to remain as foreign to the
political life of the Byzantine Empire as they had been to that of its ancient Roman forerun-
ner. It is revealing, moreover, that when the ‘new monarchs’ of early-modern Europe were
striving in their respective national kingdoms to eliminate traditional feudal obstacles to their
exercise of an absolute executive power, their lawyers and propagandists were able to find
much support in the texts of the Roman law, deploying on behalf of their royal masters such
celebrated absolutist tags as ‘the prince is unfettered by the law’ and ‘what pleases the prince
has the force of law’. In so doing, they were following in the footsteps of their late-medieval
canonistic predecessors who had pursued their own legal efforts to vindicate the absolutist
pretensions of their papal masters.
On that matter, however, as on others, what we find in an ancient text depends very much
on what we bring to it or are looking for. When the lawyers of the medieval West approached
the Roman legal texts, unlike their Byzantine counterparts or many of their Renaissance suc-
cessors they appear, on balance, to have been impressed less by the absolutist formulations of
the late imperial period than by the republican spirit that was so often reflected side by side
with those formulations. In particular, they appear to have been impressed by the principle that
the political scientist Charles Howard McIlwain once described as ‘the true essence of Roman
constitutionalism’, the principle that it is in the people itself that one must seek ‘the ultimate
source of legal authority’ (McIlwain 1958, p. 51). The legacy of the twelfth-century civilians
(experts in the Roman or civil law) passed on to later commentators turns out to have been
ambivalent or bifurcated in nature. In later centuries, it remained open to development both
in the direction of monarchical absolutism and in the direction of a constitutionalist emphasis
on the monarch’s subordination to the law and his obligation to foster the well-being of his
subjects.
Something similar may be said about the legacy of the twelfth-century Decretists (those
who commented on Gratian’s Decretum, the foundation stone of medieval canon law) to
the canonists of the thirteenth and fourteenth centuries. Given the fallout from the upheaval
engineered by the Gregorian reformers, the protracted temporal-spiritual conflict that ensued
and the ecclesiological issues that came to the fore during its course, it is not surprising that
one dominant theme for the Decretists should have been the elaboration of notions of papal
sovereignty over the universal church. In the late-twelfth century, the Roman legal notion of
sovereignty having found its way into the ecclesiastical tradition, the pope was coming to
be referred to not only as ‘the ordinary judge of all’ but even, borrowing now from ancient
terminology, as a ‘living law’ (lex animata) and, by virtue of having the laws within his breast
(omne jus habet in pectore scrinio), as the universal church’s supreme legislator (Pennington
1988).
That duly acknowledged, it should also be recognized that Decretist thought, like its civilian
counterpart, was also bifurcated in nature. It responded to St Paul’s insistence that ecclesiastics
40 Handbook on global constitutionalism

were given their power to build up the church, not to destroy it, and reflected also the degree
to which the early texts that were incorporated in Gratian’s great work pictured the church as
a community of believers participating in the decisions that affected them and in the choice of
the officials who were to lead them. While conceding vast powers to the pope, therefore, the
canonists were anxious to prevent the abuse of those powers and were led ‘to seek in the con-
sensus of the whole Christian community in the indefectible Church guided by the Holy Spirit,
norms of faith and order which could define the limits within which the pope’s supreme leg-
islative and judicial powers were to be exercised’ (Tierney 1966, p. 11). Hence, their concern
with the functions and powers of general councils representing the universal church and the
relationship they bore to papal functions and prerogatives. Hence, too, their preoccupation
with the proto-constitutionalist elements in the Roman law that linked popular consent with
public authority, and, again, the creative contribution they were to make to the development
of those viable representative mechanisms in the absence of which the eliciting of consent in
the universal church and in large territorial kingdoms would have been impossible. By the
thirteenth century, the canonists had begun to teach that the pope (acting alone) was bound
by the decisions reached by pope and council (acting together) on matters concerning the
faith and well-being of the church. By the fourteenth century, an increasing number of them
were being led to insist that a pope guilty of heresy or of criminally endangering the overall
well-being or common good of the church (status ecclesiae) could be brought to judgement
by a general council acting alone and, if necessary, corrected or even deposed. Before the first
two decades of the fifteenth century were over, the general council of Constance (1414–18),
a great international assembly that has been compared with the Congress of Vienna and even
the United Nations itself, by taking its stand on that teaching and by deposing two rival claim-
ants to the papacy (including John XXIII whom the fathers at Constance viewed as the ‘true
pope’), had succeeded finally in bringing to an end the scandal constituted by the Great Schism
of the West (1378–1417). In terms of the emergence of European constitutionalism this was
a supremely important development and we will return to it later (Oakley 2003). Before doing
so, however, it is upon the more technical and innovative canonistic contribution to theories of
representation that we must focus our attention.
The need that representative assemblies initially met was the need of the ruler to secure for
his policies as large a degree of public support as possible. It was a need that all rulers have
felt, but one felt with particular acuteness by medieval rulers – and by popes as well as kings.
The impact of feudalism, the political conditions of the day and, above all, if he really hoped
to see his policies implemented, the dependence of the ruler (financial and otherwise) upon the
more powerful men and more privileged (often corporate) groupings among his subjects all
conspired to increase his need to maximize the degree of consent among them to his policies.
How was that to be done? In a small city-state, where it was possible to assemble in one place
at least the more important citizens, the problem could be solved by much the same means as
those utilized by the city-states of the classical world. However, that was out of the question in
larger territorial kingdoms or, for that matter, in the international church where, between the
thirteenth and eighteenth centuries, hard-pressed rulers turned for such purposes to the new
mechanism of the representative assembly. Representation can mean more than one thing. In
particular, and simplifying considerably, it can mean either ‘personification’ – the symbolic
embodiment in its ruler or its ‘natural leaders’ of the authority of the community – or it can
mean the conscious and legal delegation of that authority by the community to the persons who
were to represent it – make it present. It is in the latter sense of the term that the new assem-
 Medieval constitutionalism 41

blies, which became prevalent all over Europe – at the provincial as well as the national and
international levels – were representative (Cam et al. 1955; Marongiu 1968; Blockmans 1998).
As long as the leading men of the day – the great feudal magnates in secular society and
the bishops and abbots in ecclesiastical – could claim successfully to represent by personifi-
cation those whom they ruled, the need for the newer institutional machinery was not felt. It
was entirely feasible, for instance, for a king to assemble at his court the great barons of the
realm, or the bulk thereof, or even for a pope to summon the bishops of the universal church
to assemble in general council. However, as a multitude of corporate bodies began to emerge
in the eleventh and twelfth centuries – cathedral chapters, international religious orders, urban
communes and the like – entities whose cooperation bishops or barons could not claim to
guarantee, it became necessary to seek their consent in less indirect fashion, and especially so
in matters pertaining to property rights and taxation.
It was in the Iberian peninsula that the first unambiguous signs of a response to that need
made themselves evident when, in the Kingdom of Léon, chosen representatives of the towns
were summoned to participate along with the magnates and bishops of the realm in the delib-
erations of the great representative assembly or cortes that was held in 1188. In the thirteenth
century the same practice came to be followed in some at least of the cortes assembled in the
kingdoms of Castile, Aragon, Catalonia and Valencia. In that and subsequent centuries compa-
rable representative assemblies came into existence across Europe, from Sweden in the north
to Sicily in the south, and from Portugal, England and France in the west to Poland, Bohemia
and Hungary in the east. It was in the context of these new ‘parliamentary’ developments that
the civilians and canonists contrived to make their contributions. The former did so largely by
a direct evocation of the Roman public law, the latter by a creative manipulation and develop-
ment of Roman private law – notably of certain elements embedded in the law of corporations
(Marongiu 1946, 1962; Congar 1958; Post 1964; Tierney 1982).
As far as public law was concerned, and as far as it touched upon the sovereignty of emperors
and the putatively ‘popular’ derivation of their authority, the legacy of the revived Roman law
and of its canonistic counterpart, far from serving solely to buttress the claims of those attrib-
uting to the ruler’s power of an absolute nature, was, as we have already suggested, ambivalent
in nature. Coping as they had to in the twelfth and thirteenth centuries with a mounting tide
of litigation involving monastic and cathedral chapters, collegiate churches and other eccle-
siastical corporations, the canonists had necessarily had to grapple with the means whereby
such corporate bodies could have their say in court. Similarly, given the increasing financial
pressures ecclesiastical superiors were having to impose on those corporate bodies, some way
had to be found to afford the latter a measure of ‘due process’. In their effort to solve such
problems the canonists were led to explain ‘the collegial structure of the church in terms of
the Roman law of corporations’ just as they had previously explained ‘the doctrine of papal
leadership [in the church] in terms of the Roman law of sovereignty’ (Tierney 1982, p. 19).
A corporation (universitas) is an association which the law recognizes as being constituted
of one or more persons, as possessing various rights and duties, and as being capable of
acting as a single (if fictive) person in matters legal. Corporate bodies of one sort or another
had proliferated in the Roman world, and the Romans had developed a sophisticated body of
law to regulate their activities. However, the doctrine of agency they had developed to make
possible the delegation of authority by corporate principal to an agent charged with the task of
representing that principal in negotiations with a third party was defective. All that delegation
did was to establish an obligation between the third party and the agent, not directly with the
42 Handbook on global constitutionalism

principal. In the late twelfth century, however, the canonists perfected the doctrine of agency
in such a way that a corporation acting as a principal and by decision of the greater (or ‘greater
and wiser’ part of its members (Congar 1958; Moulin 1958; Post 1964; Tierney 1982) could
delegate to a proctor or attorney whom they needed to represent them in court what we today
would call ‘powers of attorney’, that is, full and sufficient power (plena et sufficiens potestas)
to see through to definitive conclusion the business at hand. This was done in such a way that
the corporate body involved (the principal) would be legally obligated to honour the commit-
ments which its legal representative had undertaken on its behalf (Post 1964).
Where routine corporate litigation was involved, these highly technical procedural moves
did not extend beyond private law. Nonetheless, they were to prove full of promise for
developments taking place in the constitutional arena. There the great creative turning point
came when those same canonists were moved to take a further and less obvious step. They
did so when they began to treat the universal church, and the general council representing it,
as corporate entities in a quite technical fashion (Tierney 1982). As a result, they were led to
extend the now-established mechanism of representation by explicit legal delegation from the
restricted realm of private law to the broader public constitutional sphere. By so doing, they
were fashioning viable mechanisms whereby such corporate bodies as cathedral chapters or
religious orders could be summoned to send to provincial or general councils of the church
proctors (attorneys) or representatives possessed of legally delegated authority to give their
advice and consent to policy changes or taxation initiatives that touched the interests of their
‘constituents’. Thus, as early as 1215, Pope Innocent III summoned from every part of Europe
proctors possessed of plena et sufficiens potestas to represent convents and cathedral chapters
at the Fourth Lateran Council, one of the most important of medieval general councils. In
effect, these representatives were plenipotentiaries whose decisions were legally binding upon
their ‘constituents’. Not long after that, practices of a similar kind began to make their appear-
ance in the national monarchies of Europe, with the ‘community of the realm’ being envisaged
as a great corporation united in pursuit of common ends and capable of representation by dele-
gates possessed not of limited mandates but of the same full and sufficient power to deal with
the matter at hand in a manner that would bind their constituents to the consent given on their
behalf. These the rulers summoned from the towns, communes and (in England) shires for
the purposes of seeking their counsel, support and agreement in connection with the arduous
governmental tasks confronting them and the financial burdens attendant upon their policies.
During the course of the two centuries ensuing, and as representative assemblies of one sort
or another (provincial as well as national) made their appearance all over Europe, national
monarchs and territorial princes became accustomed to making use of the Romano-canonical
principles and procedures we have been discussing. Embarking, as they were, on increasingly
vigorous and ambitious governmental activities whose success depended upon the cooperation
of their subjects, they needed more than ever to obtain from those subjects and for the mounting
taxation needed to finance their efforts the consent of governed, the consent, that is, not only
of the baronage but also of the increasingly powerful corporate and propertied groups in the
land. In the thirteenth century, however (though this was later to change), the type of consent
involved was not such that it could be called ‘political’, let alone ‘democratic’ – the type of
consent that expresses the sovereign will of the people and implies some sort of limit on the
reach of the ruler’s prerogatives. True instead to its roots in private law and the specifications
of legal due process, and especially so at the outset, that form of consent remained very much
consultative and procedural in nature. Thus, the governmental case for the necessity of the
 Medieval constitutionalism 43

proposed action was discussed and, as it were, ‘tried’ in the assembly. What was involved was
in many ways akin to the process that occurs today when the state, in preparation for example
for the construction of a highway, exercises the legal right to take by eminent domain pieces
of property that lie athwart the proposed highway corridor. The action involved pertained
rather to the matter of legality rather than that of political legitimacy. Behind the appeal to the
Romano-canonical maxim Quod omnes tangit, often cited in writs of summons to representa-
tive assemblies, lay an essentially traditional commitment to the view that

all whose rights were touched by an issue should have every opportunity to prepare the defence of
their rights, to take advantage of all means within the law and to consent to the court’s decision on the
legality of the rights only after a full defence…discussion and debates had taken place. (Post 1964,
p. 180)

The consent to the decision itself, however, was in effect compulsory. Similarly, behind the
persistent effort by rulers to insist that representatives to parliamentary-style assemblies should
come, not with limited mandates from the constituents whose rights were being touched, but
with ‘full and sufficient power’ lay the long-standing need of the court to ensure that the agent
or attorney (that is, representative) had the requisite power to conclude the business at hand
in such a way that his conclusion or consent would automatically enjoy the legally binding
concurrence of his principal (that is, constituents). So much was this the case with early rep-
resentative assemblies that they functioned less as an instrument of constitutional restraint on
executive power than as a tool of government, a means whereby the ruler could more easily
achieve his goal. Hence, one modern i­nvestigator of the English medieval parliament was
moved to coin the felicitous description: ‘Self government at the king’s command.’
Given the growing prevalence of representative assemblies, however, the accumulation
across time of experience on the part of the representatives, and the fluctuations in strength
between rulers and the communities from which they were demanding consent, it is readily
comprehensible that by the end of the fourteenth century representative procedures should
have begun to function less exclusively in the interest of the ruler. They had come to involve,
instead, attempts on the part of representatives to control not simply the granting of taxes but
also the way in which those taxes were to be expended, as well as efforts to interfere in the
choice of those who were to function as ministers and advisers to the ruler. In effect, consent of
a procedural-consultative nature was now deepening into consent that was genuinely political
and sovereign. At one time or another in the later Middle Ages most representative assemblies
were able to make their weight felt in a whole range of governmental activities, especially in
the legislative process. Also, the English parliament, old insular claims to the contrary, was
far from being alone in using the power of the purse, its control of taxation, to impose con-
stitutional constraints in order to limit the ruler’s freedom of action. By the fifteenth century,
the cortes of Aragon had become notably successful in its efforts to do precisely that. I have
already suggested that it was the instrumentalities of representation that were eventually to
provide the means whereby the theoretical subjection of the executive power to the rule of law
could be enforced without recourse to armed violence. However, it cannot be claimed that this
happy outcome was really achieved on a stable and continuing basis during the Middle Ages.
The meetings of medieval representative assemblies were too intermittent, the restraints they
were able to impose too dependent on special circumstances. By the sixteenth and seventeenth
centuries, moreover, the age of their grandeur was over. Almost everywhere in Europe the
power of the prince was in the ascendant, monarchical absolutism was coming to be regarded
44 Handbook on global constitutionalism

as the ‘modern’, fashionable thing, the most civilized governmental form, and the constitu-
tional theories and practices inherited from the medieval past were now being dismissed as
archaic hindrances to the achievement of efficient government.
It is in part because of such developments that a particular importance attaches to the great
international general councils of the Latin Church that were assembled during the course of
the fifteenth century. More dramatically than any other, those representative assemblies exem-
plified in practice medieval constitutionalist aspirations. A similar importance attaches to the
Conciliar theorists who so influenced the work of those councils, and in whose writings those
aspirations found their clearest, most explicit and most notable expression. As John Neville
Figgis put it, the Conciliar theorists ‘raised the constitutionalism of the past three centuries to
a higher power, expressed it in more universal form, and justified it on the grounds of reason,
policy and Scripture’ (Figgis 1960, p. 48). As a result, in the sixteenth and seventeenth cen-
turies, in England as well as in Scotland and France, long after the Conciliarist programme
of transforming the papal monarchy into a constitutionalist regime had ceased to be a viable
possibility, and at a time when national constitutionalist traditions had fallen into decay or
were teetering on the brink of desuetude, Conciliarist ideas still retained the power to fuel
the arguments and strengthen the resolution of hard-pressed constitutionalists or advocates of
resistance to tyranny, Protestant no less than Catholic. Thus, in the Vindiciae contra tyrannos,
the most celebrated and influential piece of constitutionalist literature spawned in the late
sixteenth century by the French Religious Wars, its anonymous Protestant author argued that if

it is demonstrated by the reasoning of almost all the doctors, and by the decrees of councils – and by
their very actions – that a council may by right depose…a pope who, for all that, boasts himself to be
king of kings, and blazons that claim that he is superior to the emperor as the sun is to the moon, and
who even arrogates to himself the authority to discharge kings and emperors at will, who then can still
doubt that the public council of any kingdom may depose and discharge not only a tyrant, but a king
who is ruinous to the kingdom on account of his madness. (Brutus 1579 [2003], p. 164)

REFERENCES
Bloch, M. (1964), Feudal Society, 2 vols, trans. H.H. Manyan, Chicago, IL: University of Chicago Press.
Blockmans, W. (1998), ‘Representation (since the thirteenth century)’, in C. Allmand (ed.), The New
Cambridge Medieval History, vol. 7, Cambridge: Cambridge University Press, pp. 29–64.
Brutus, S.J. (1579), Vindicae contra tyrannos (Defences against Tyrants), trans. G. Garnett (ed.) (2003),
Cambridge: Cambridge University Press.
Cam, H.M., A. Marongiu and G. Stöckl (1955), ‘Recent work and present views on the origin and devel-
opment of representative assemblies’, in H.M. Cam, A. Marongiu and G. Stöckl (eds), Relazioni del X
Congresso Internazionale di Scienze Storiche, 6 vols, Rome, pp. 1–101.
Cerfaux, L. and J. Tondriau (1957), Un concurrent du Christianisme: La culte des souverains dans
la civilisation Gréco-Romain (A Competitor of Christianity: The Cult of Rulers in Graeco-Roman
Civilization), Tournai: Desclée.
Congar, Y.M.J. (1958), ‘Quod omnes tangit ab omnibus tractari et approbari debet’ (‘What touches all
by all should be deliberated upon and approved’), Revue d’histoire de droit français et étranger, 36,
210–59.
Figgis, J.N. (1960), Political Thought from Gerson to Grotius, 1414–1625: Seven Studies, New York:
Harper Torchbooks.
Gilbert, M. (1987), ‘The person of the king: ritual and power in a Ghanaian state’, in D. Cannadine
and S. Price (eds), Ritual and Royalty: Power and Ceremonial in Traditional Societies, Cambridge:
Cambridge University Press, pp. 299–330.
 Medieval constitutionalism 45

Hall, J.W. (1962), ‘Feudalism in Japan: a reassessment’, Comparative Studies in Society and History, 5
(1), 15–51.
Hamilton, A., J. Madison and J. Jay (1788), The Federalist Papers, reprinted I. Shapiro (ed.) (2009),
New Haven, CT: Yale University Press.
Holt, J.C. (1992), Magna Carta, 2nd edn, Cambridge: Cambridge University Press.
Krueger, P., T. Mommsen and R. Schoell (eds) (1879–81), Corpus Juris Civilis (The Body of Civil Law),
3 vols, Berlin: Weidman.
Marongiu, A. (1946), ‘Il principio fondamentale della democrazia nell XIII secolo’ (‘The fundamental
principle of democracy in the 13th century’), Paideia, 1 (5), 257–62.
Marongiu, A. (1962), ‘Il principio della democrazia e del consenso nel XIV secolo’ (‘The principle of
democracy and consent in the 14th century’), Studia Gratiana, 8, 555–75.
Marongiu, A. (1968), Medieval Parliaments: A Comparative Study, trans. S.J. Woolf, London: Eyre and
Spottiswoode.
McIlwain, C.H. (1958), Constitutionalism: Ancient and Modern, Ithaca, NY: Cornell University Press.
Moulin, L. (1958), ‘Sanior et major pars: Notes sur l’évolution des techniques électorales dans les ordres
religienses’ (‘The greater and wiser part: notes on electoral techniques in the religious orders’), Revue
historique de droit français et étranger, 4th series, 36, 391–530.
Oakley, F. (2003), The Conciliarist Tradition: Constitutionalism in the Catholic Church, 1300–1870,
Oxford: Oxford University Press.
Oakley, F. (2006), Kingship: The Politics of Enchantment, Oxford: Blackwell.
Oakley, F. (2010), Empty Bottles of Gentilism: Kingship and the Divine in Late Antiquity and the Early
Middle Ages (to 1050), New Haven, CT: Yale University Press.
Oakley, F. (2012), The Mortgage of the Past: Reshaping the Ancient Political Inheritance (1050–1300),
New Haven, CT: Yale University Press.
Pennington, K. (1988), ‘Law, legislation, authority, and theories of government, 1150–1300’, in
J.H. Burns (ed.), The Cambridge History of Medieval Political Thoughts, Cambridge: Cambridge
University Press, pp. 424–53.
Post, G. (1964), Studies in Medieval Legal Thought: Political Law and the State, 1100–1322, Princeton,
NJ: Princeton University Press.
Tierney, B. (1966), ‘Medieval canon law and western constitutionalism,’ Catholic Historical Review,
52 (1), 1–17.
Tierney, B. (1982), Religion, Law, and the Growth of Constitutional Thought, Cambridge: Cambridge
University Press.
4. Global constitutionalism in the early modern
period: the role of empires, treaties and natural
law
Martine van Ittersum

INTRODUCTION

Written treaties have become sacrosanct in modern international law. Printed volumes filled
with agreements between sovereign rulers and/or states have rolled from the presses in
Western Europe since the seventeenth century. Textbooks on international law inform us that
it was the rise of positivism in the nineteenth century – a strong preference for treaties and
international conventions as sources of law – which signalled the birth of modern international
law. Indeed, the entire edifice of world courts that has come into existence in the twentieth and
twenty-first centuries – the Permanent Court of Arbitration, the International Court of Justice,
the International Criminal Court, and so on – rests on written agreements between states. The
same applies, of course, to the establishment of the League of Nations (1920) and the United
Nations (UN) (1945) and their subsidiaries (Shaw 1995, pp. 21–100; Lesaffer 2012; for a very
different account of the origins of modern international law see Koskenniemi 2001, 2012;
Anghie 2005). No wonder, then, that when the UN adopted the ‘Declaration on the Rights
of Indigenous Peoples’ in 2007, it included a clause affirming the right of native peoples ‘to
the recognition, observance and enforcement of treaties, agreements and other constructive
arrangements concluded with States or their successors and to have States honour and respect
such treaties, agreements and other constructive arrangements’ (United Nations 2007, art. 37).
Indigenous activists and their white supporters pushed for the inclusion of this clause in the
UN Declaration. They have long embraced intercultural dialogue and treaty-making as the
way forward.
This chapter offers a critique of the recent fetishism of treaties, particularly the lazy and
mistaken assumption that treaties are ironclad guarantees for indigenous rights. It explores
the relationship between European expansion overseas, treaty-making and natural law in the
early modern period, focusing in particular on the Dutch jurist Hugo Grotius (1583–1645).
The man hailed in the twentieth century as ‘father of international law’ was known in his
own time for his steadfast support of the Dutch East India Company or VOC (Verenigde
Oostindische Compagnie). His understanding of natural law, particularly the notion of pacta
sunt servanda (treaties must be performed), cannot be separated from his justification of
Dutch empire-building in the East Indies. There was nothing equal about the VOC’s treaty
relationship with the inhabitants of the Spice Islands (that is, the present-day Maluku Islands
in Indonesia). Grotius knew this. Indeed, he vigorously defended these unequal treaties in
his De Indiis (On the Indies) – written 1604–08 but only published in the nineteenth century
as De Jure Praedae (On the Law of Prize and Booty) (Grotius 2006) – and, of course, in
his De Jure Belli ac Pacis (On the Law of War and Peace), first published in 1625 and

46
 Global constitutionalism in the early modern period 47

reprinted many times afterwards (Grotius 2005). The VOC and the native inhabitants of the
Spice Islands were bound together in a protection/tribute exchange. The VOC’s role was to
shield the islanders from foreign invasions, particularly attacks by the, allegedly, ‘tyrannical’
Spanish and Portuguese. In return, the islanders were obliged to sell all their produce to the
VOC – in perpetuity and for a fixed price determined by the VOC. Crucially, it was up to the
VOC to monitor indigenous performance of the treaties. If it deemed the natives deficient in
any way, it could punish them as transgressors of the natural law, waging a ‘just war’ against
them. By these means, the VOC became, first, co-ruler in the Spice Islands, and, subsequently,
a full-fledged sovereign (Wilson 2008; Borschberg 2010, 2011). For similar developments
in the case of the English East India Company, see Stern (2012) and Stern and Wennerlind
(2014). The history of treaty-making, then, is closely connected with that of Western imperial-
ism and colonialism. It is certainly no panacea for the protection of indigenous rights.
James Tully, who served on the Canadian Royal Commission on Aboriginal Peoples from
1991 until 1995, is far more positive about the role (to be) played by treaties in relations
between the aboriginal and non-aboriginal peoples of Canada. In the next section, we examine
both Tully’s pronouncements on treaty-making in his magisterial Public Philosophy in a New
Key (2008) and recent contributions to the debate by historians. The role which written doc-
uments have played in European relations with native peoples since 1500 is the focus of two
essay volumes edited by the historian Saliha Belmessous: Native Claims: Indigenous Law
against Empire, 1500–1920 (2012) and Empire by Treaty: Negotiating European Expansion,
1600­–1900 (2015). Not surprisingly, the contributors disagree about the question whether, and
to what extent, aboriginal peoples were able to ‘negotiate’ or ‘resist’ empire. The third section
provides a short overview of the eventful life and career of Hugo Grotius, while the subsequent
section focuses on his justification of Dutch expansion overseas. There is a clear connection
with his conceptualization of the Dutch Revolt against Philip II of Spain and Portugal. In cases
of divided sovereignty, so Grotius argued, the entities acting as co-rulers – be they the States
of Holland or the VOC – were entitled to punish transgressors of the natural law – be they
Philip II of Spain and Portugal or the VOC’s native allies – and to wage a ‘just war’ against
them. By these means, co-rulers could acquire all the ‘marks of sovereignty’, resulting in
Dutch independence in Europe and the establishment of a colonial empire overseas. The fifth
section presents a case study: the role of treaties in the violent Dutch conquest of the Banda
Islands between 1609 and 1621. I argue that, in the European encounter with ‘the other’,
treaty-making should not be seen as an alternative to conquest and war, but as integral to the
process of ‘dispossessing the native’.
This has important implications for our understanding of modern-day global constitution-
alism, which functions as an extension of international law and which relies upon textual
guarantees in its support of the rule of law. Significantly, there has been little engagement with
indigenous rights in the secondary literature on global ­constitutionalism – with the notable
exception, that is, of a recent editorial in the eponymous journal. Critiquing the current state
of the field of global law and governance, the editors of Global Constitutionalism point out
that ‘indigenous peoples have been dispossessed of and removed from their life ways and
ecosystems in which Homo sapiens co-evolved for 150,000 years in the name of development
and progress’, and argue for the alternative paradigm of ‘eco-social constitutionalisation’,
which includes ‘learning from and with indigenous peoples and their earth ways’ (Tully et
al. 2016, pp. 9, 12). However well-­intentioned, this conceptualization threatens to resurrect
the hoary dichotomy of the Roussean ‘noble savage’ living in harmony with nature versus the
48 Handbook on global constitutionalism

depraved, yet simultaneously ‘civilized’, city dweller (Pagden 1982, 1994). It is a well-known,
and misleading, trope in Western culture, which tells us nothing about day-to-day interactions
between indigenous communities and, for example, transnational corporations (TNCs), or
about the various strategies adopted by TNCs to either persuade or force these communities
to comply with their demands. Nor is it unprecedented for TNCs to operate as ‘shadow
sovereigns’ (Tully et al. 2016, p. 7). In the days of Grotius, both the Dutch and English East
India companies operated as corporations alongside – and often in competition with – the two
corporate bodies known as the Dutch and English states (Stern 2011; see also Pettigrew 2015).
Paramount state sovereignty, either as a reality or as a norm in international law, is a recent
phenomenon. Sadly, it has not worked for many native peoples in their power struggles with
TNCs. We may want to find out why that is. Could it be that the written culture that is so
crucial for the functioning of modern states and modern corporations puts native peoples at
a disadvantage?

INDIGENOUS PEOPLES AND TREATY-MAKING

In Public Philosophy in a New Key, James Tully boldly re-conceptualizes relations between
the First Nations and other inhabitants of Canada on the basis of five fundamental principles:
‘mutual recognition, intercultural negotiation, mutual respect, sharing and mutual responsi-
bility’ (Tully 2008, p. 229). He assigns an important role to treaty-making in the process of
reconciliation between the aboriginal and non-aboriginal peoples of Canada:

Specific types of relations are agreed to, written down as treaties, put into practice, reviewed and
renewed. It is not a once-and-for-all agreement, as in social contract theories, nor an accord frozen in
a constitutional document. It is a conversation between the members of Aboriginal and non-Aboriginal
cultures in all walks of life over the time they live together and share the land. (Tully 2008, p. 239)

He makes a point of explicitly rejecting a world view which justified the colonial relationship
in the nineteenth and twentieth centuries. The so-called ‘stages’ theory of history ranked
Europeans at the top – as, supposedly, bearers of civilization – and consigned aboriginal
peoples to the most primitive stage, as, allegedly, living in a state of nature, totally devoid
of government or territorial rights. This understanding of European–native relations has not
survived the collapse of European empires after the Second World War. As Tully notes, abo-
riginal peoples around the world demand that the process of decolonialization be extended to
them as well (Tully 2008, pp. 227–8).
Tully urges both the First Nations and other inhabitants of Canada to recognize each other
as ‘equal peoples who govern themselves and their lands by their own laws and cultures’. He
claims to take his cue from early modern treaty-making, a period of time when, allegedly,
Europeans and natives were evenly matched and treated each other as equals. He realizes that
the treaty system has suffered from constant abuse. He nevertheless values what he considers
the original intentions behind early-modern treaty-making, namely, to settle differences ‘by
means of discussion and consent, without interfering in the internal government of either
society’ (Tully 2008, p. 226; see also Economist, 2015).
Unfortunately, few historians of European overseas expansion will recognize Tully’s recon-
struction of events. Prior to 1800, European explorers, traders, settlers and colonial officials
did not exactly embrace the principles of equality and non-interference, either in their own
 Global constitutionalism in the early modern period 49

societies or in their dealings with aboriginal peoples. It is a moot point whether Tully’s belief
in an idealized past will prove an aid or a hindrance to his efforts to improve the lot of the First
Nations.
Historians have entered the debate about treaty-making past and present through the work of
Saliha Belmessous, editor of Native Claims: Indigenous Law against Empire, 1500–1920 and
Empire by Treaty: Negotiating European Expansion, 1600–1900 (Belmessous 2012, 2015).
The two essay volumes raise the important question of whether treaties between Europeans and
indigenous populations around the world can be read as alternatives to conquest and war, and,
possibly, as the means by which indigenous peoples have sought to turn the tide of Western
imperialism and colonialism. Belmessous notes in her introduction to Empire by Treaty that
‘today great expectations are placed on treaties for the resolution of conflicts over indigenous
rights in postcolonial settler societies’ (Belmessous 2015, p. 15). In his concluding remarks,
Paul Patton goes so far as to argue that the treaty relationship reflects a desire ‘on all sides’ to
legitimize settler sovereignty ‘by reference to the consent, however belated or hypothetical, of
… indigenous peoples’ (Belmessous 2015, p. 268). Not all contributors to Empire by Treaty
are so sanguine about the ability of native peoples to negotiate or resist empire. In her essay
chapter on territorial conflict and alliance-making in pre-1800 South America, Tamar Herzog
convincingly shows that treaties were ‘instruments of containment’ aimed at realizing ‘ – to
the degree that this was possible – the subjection of all things indigenous’ (Herzog 2015,
pp. 78–9). Dane Kennedy points out in his H-net review of Empire by Treaty that the history
of treaty-making raises serious concerns about the legitimacy of settler sovereignty, since
‘indigenous consent was often coerced’ (Kennedy 2015). The issue of meaningful consent is,
indeed, a crucial one.

THE LIFE AND TIMES OF HUGO GROTIUS

Before we turn to Grotius’ justification of Dutch expansion overseas and its relation to the
importance of treaty-making, a short overview of his eventful life and career is in order. The
connections Grotius made between the struggle for Dutch independence and the creation of
a colonial empire overseas cannot be divorced from his own political career in Holland in the
1600s and 1610s.
Grotius was born into a prominent regent (that is, patrician) family in Delft on Easter
Day 1583. Just two years earlier, the Dutch States General had abjured Philip II of Spain
and Portugal as the ruler of the Low Countries and created a new state, the Dutch Republic.
Grotius started his professional life as a private solicitor, at the tender age of 16. In 1604, the
VOC directors asked him to write a defence of the company’s privateering campaign in Asian
waters, particularly its aggressive attacks on Portuguese ships and fortresses. Grotius was
happy to oblige, and completed his De Indiis in 1607–08. This treatise of 163 folios remained
in manuscript for another two-and-a-half centuries. At the directors’ request, Grotius did
publish chapter 12 of De Indiis separately in 1609 as Mare Liberum/The Free Sea or ‘The
Right Which the Hollanders Ought to Have to the Indian Trade’. He continued to support the
VOC in word and deed for the rest of his life, negotiating on the company’s behalf with the
English East India Company (EIC) in 1613 and 1615, for example (Grotius 2004, 2006; van
Ittersum 2006; Nellen 2015, pp. 1–164).
50 Handbook on global constitutionalism

Thanks to the patronage of Johan van Oldenbarnevelt, de facto political leader of the Dutch
Republic and a friend of Grotius’ father, he was quickly appointed to a number of high-level
political positions at the provincial and federal level. He became Advocate-Fiscal (that is,
public prosecutor) of Holland in December 1607 and Pensionary (that is chief legal adviser) of
the town of Rotterdam in June 1613. In the latter capacity, Grotius joined the Rotterdam dele-
gation in the States of Holland. In May 1617, he became a member of the Holland delegation
in the Dutch States General, the federal government of the Dutch Republic. By all accounts,
it was a meteoric political career. Grotius would undoubtedly have succeeded Oldenbarnevelt
as political leader of the Dutch Republic, had it not been for religious troubles that brought
the rebel state to the brink of collapse during the Twelve Years Truce (1609–21). Orthodox
Calvinists squared off against the so-called ‘Remonstrants’, followers of the Leiden theologian
Arminius. Although Arminius’s followers were a minority in the Dutch Reformed Church,
they enjoyed the support of the States of Holland, in particular of Oldenbarnevelt and Grotius.
The theological bickering developed into a major political crisis that endangered the existence
of the Dutch Republic. Prince Maurice of Orange, commander-in-chief of the country’s naval
and military forces and Stadtholder (that is, governor) of six of its seven provinces, could not
stand idly by. In August 1618, he sought to break the political deadlock by means of a regime
change, which landed Grotius in prison for almost three years. In view of his close association
with Oldenbarnevelt – executed in May 1619 – he was lucky to escape with his life (Tex 1973;
Nellen and Trapman 1996; Nellen 2015, pp. 165–293).
Yet Grotius’ political career was far from over. In March 1621, he escaped from Loevestein
Castle in a book trunk. He headed south to Paris, where he lived as an exile for many years and
received a pension from the French Crown. As a quid pro quo, he dedicated De Jure Belli ac
Pacis (1625) to Louis XIII of France. Cardinal Richelieu was eager to tap Grotius’ in-depth
knowledge of Dutch overseas expansion and commercial governance, and sought to involve
him in the establishment of a French East India Company. Yet Grotius was unwilling to burn
his bridges behind him. For a long time he believed that he would be reinstated as Pensionary
of Rotterdam once Prince Maurice’s younger brother and heir, Prince Frederic Henry, had
established himself in power. Grotius returned to Holland in October 1631 in order to force
a breakthrough in the negotiations about his possible rehabilitation. His ostentatious visits to
Rotterdam and Amsterdam badly backfired, however. In April 1632, the States of Holland
exiled him once more and put a price of 2,000 guilders on his head. The definitive breach
with his homeland came after two unhappy years in Hamburg. Grotius accepted the offer
of the Swedish chancellor Axel Oxenstierna to become the resident Swedish ambassador in
Paris. In the context of the Thirty Years War this was an important and sensitive position;
after the death of King Gustavus Adolphus, the Swedish armies in Germany were essentially
kept afloat by French subsidies. It was Grotius’ job to maintain good relations with the French
ally, particularly Cardinal Richelieu. He discharged this task for nearly ten years, albeit with
uneven success, owing to French opposition to his appointment. He was finally recalled by
the Swedish government in January 1645 and arrived in Stockholm five months later. He
refused to become one of Queen Christina’s privy counsellors, however, and took the first ship
back to France. After a storm-ridden voyage across the Baltic, his ship was wrecked off the
Pomeranian coast in August 1645. Although Grotius safely reached the shore, he died at an
inn in Rostock, aged 62. He was buried in the family crypt in the New Church in Delft (Nellen
2015, pp. 293–763; van Ittersum 2010).
 Global constitutionalism in the early modern period 51

HUGO GROTIUS AND TREATY-MAKING

Grotius vigorously defended Dutch expansion overseas in several publications, including De

Jure Belli ac Pacis, and in memoranda written for the VOC directors, the States of Holland
and Dutch States General. His understanding of natural law, particularly the notion of pacta
sunt servanda (treaties must be performed), was crucial in this respect. The VOC engaged in
a protection/tribute exchange with its native allies, thus inserting itself as a co-ruler in, for
example, the Spice Islands (Grotius 2005, 2006; van Ittersum, 2006; Clulow 2009; Benton and
Clulow 2015). Both Grotius and the VOC directors presented this arrangement as a war of lib-
eration, pitting the VOC and its native allies against the ‘tyrannical’ Spanish and Portuguese.
As Grotius put it in De Jure Praedae: ‘The Dutch sailor knows that he is fighting in defence
of the law of nations while his foes are fighting against the fellowship of mankind; he knows
that they fight to establish despotism, but that he himself is defending his own liberty and the
liberty of others’ (Grotius 2006, p. 483).
Under natural law, so Grotius argued, the VOC was allowed to act as judge and executioner
in its own cause. This went beyond self-defence. Both on the high seas and in Asian territo-
ries, the VOC was entitled to punish any transgressor of the natural law. In the first instance,
the VOC went after European competitors, particularly the subjects of the King of Spain and
Portugal, who, allegedly, showed little respect for the freedom of trade and navigation man-
dated by natural law. Not coincidentally, the Dutch Republic was fighting a war of independ-
ence against the same ruler. Yet natural law was equally applicable to the company’s native
allies – or so Grotius and the VOC directors thought. If native allies did not keep their side of
the bargain – by sabotaging the company’s efforts to monopolize the spice trade, for example
– they were liable to punishment by the VOC in a ‘just war’. A case in point is the company’s
violent subjugation of the Banda Islands, a group of tiny islands west of New Guinea. On
various occasions, the Bandanese sought to sell nutmeg and mace to Asian merchants and
the English East India Company, in spite of treaties to the contrary concluded with the VOC.
Grotius wholly endorsed the company’s efforts to punish Bandanese ‘rebels’, resulting in the
archipelago’s subjection to Dutch rule by 1621 (van Ittersum 2006, pp. 359–483; Weststeijn
2014).
It is important to realize that Grotius’ understanding of the situation in the Banda Islands
was not very different from the way he conceptualized the Dutch Revolt against Philip II of
Spain and Portugal. For Grotius, divided sovereignty was the norm, both in Asia and Europe.
He saw clear parallels between the way the VOC acted as co-ruler in the Banda Islands and the
way the States of Holland became fully sovereign and independent as a result of its ‘just war’
against Philip II of Spain and Portugal. Allegedly, the Habsburg ruler and his representatives
in the Low Countries had exceeded their constitutional powers by imposing taxes without
the consent of the Dutch States General and the various provincial assemblies. The States of
Holland and other provincial assemblies were justified in their decision to take up arms against
Philip II, acquiring all the marks of sovereignty in the process. In this train of thought, it was
the States of Holland that, acting in its capacity as co-ruler, punished Philip II for his failure
to respect the (unwritten) Dutch constitution and for breaking his contractual relationship with
his Dutch subjects. Similarly, the VOC took up arms in the Banda Islands in order to ensure
(what it considered to be) the proper performance of contracts, becoming the islands’ sole
ruler in the process (Borschberg 1994, 2011, pp. 78–105; Van Ittersum 2016; Waszink 2020).
52 Handbook on global constitutionalism

A CASE STUDY OF TREATY-MAKING AND ARMED CONFLICT

IN THE BANDA ISLANDS, 1609–211

Located 2,000 kilometres east of Java, the Banda Islands – a group of seven small islands,
including one volcano, the Gunung Api – are now a forgotten backwater in the Republic
of Indonesia. It used to be very different. For centuries, the islands were part of an Asian
trading network connecting the island of Java with the Philippines and the South China Sea.
Merchants from ports on Java’s north coast visited on a regular basis, exchanging rice from
Java and textiles from the Indian subcontinent for nutmeg and mace. They brought Islam
as well. As elsewhere in Southeast Asia, state development was slow in the Banda Islands.
Confederations of villages competed with each other, primarily ulilima (a group of five vil-
lages) and ulisiva (a group of nine villages). Orangkayas (aristocrats, generally with wealth
from trade) met on the island of Nera in order to reduce conflict between villages and negotiate
trade deals. Although the Bandanese successfully played off Javanese merchants against each
other, they had become dependent on the spice trade for their livelihoods. Not much was left
of the islands’ original subsistence economy by the time the first Europeans arrived in the
sixteenth century (Gupta 1987; Reid 1988, vol. 1, pp. 11–13, 90–96, vol. 2, pp. 1–61, 114–73;
Knaap 2004).
Nutmeg, mace and cloves had reached Europe via ports in the Middle East during the
Middle Ages. One of the aims of European expansion into Asia was to cut out Muslim mid-
dlemen and establish direct trade links with the Spice Islands. The Portuguese were the first to
reach the Banda Islands. However, they were not able to establish a military presence there, in
sharp contrast with the Moluccas and Ambon, where they built and garrisoned fortresses. Nor
did the Portuguese obtain any special trading privileges in the Banda Islands, trading on the
same footing as Javanese merchants (Vlekke 1944, pp. 68–90; Villiers 1981).
The situation in the Banda Islands changed completely when the VOC appeared on the
scene. Swift Dutch penetration of Southeast Asia went hand-in-hand with naked aggression
against both Portuguese and indigenous shipping. The voyage of Pieter Willemszoon Verhoef
(1573–1609) – the VOC’s so-called Fourth Voyage (1607–12) – was crucial in tipping
the balance of power in the Banda Islands. For the first time, the Bandanese had to accept
a European military presence in their country. Dutch fortresses were established on Nera in
1609, on Pulo Way in 1616 and on Great Banda (also known as Lonthor) in 1621. Yet indig-
enous inhabitants had no intention of surrendering without a fight, and took up arms against
the VOC. A complex situation was complicated even further by the presence of merchants
and mariners employed by the EIC, eager to secure their own trading interests (Foster 1933;
Masselman 1963; Chaudhuri 1965; Keay 1993; Loth 1995a; Milton 1999; Knaap and Teitler
2002; Locher-Scholten and Rietbergen 2004).
By establishing fortresses in Asia, the VOC sought to tighten up the protection/tribute
exchange with its native allies and strengthen its position as a co-ruler in these territories. The
Bandanese saw things differently, of course. As Adam Clulow notes, the orangkayas ‘had
long been accustomed to finding security by playing off foreign powers’ (Clulow 2016, p. 30).
Until Verhoef’s arrival in the archipelago, they had treated the VOC as simply one more
merchant bidding for their produce. If and when the VOC failed to supply the trade goods

1
For a fuller account, see van Ittersum (2016).
 Global constitutionalism in the early modern period 53

they required, such as textiles and rice, they had been at liberty to sell their nutmeg and mace
to somebody else, and frequently did. Verhoef was determined to change that. His murder in
May 1609 suggests that many Bandanese objected to a close military alliance with the VOC,
and were desperate to avoid the construction of a Dutch fortress. Did they suspect that, ulti-
mately, it would result in a complete loss of indigenous sovereignty (Purchas 1905–07, vol. 2,
pp. 534–9; van Opstall 1972, pp. 94–105, 267–9)?
Thanks to the presence of William Keeling (1577/78–1620) in the Banda Islands in spring
1609, followed by visits of other EIC merchants and commanders, native opponents of the
VOC were confident that they could play off the English against the Dutch and thus regain
control of the situation. The Bandanese suffered from internal divisions, however. According
to the Dutch Governor-General Laurens Reael (1583–1637), they governed themselves
‘entirely in a democratic fashion [populariter], like a republic’ (van Opstall 1979, p. 197) – not
exactly a compliment in the seventeenth century. It may explain why they dismissed Keeling’s
suggestion to surrender their sovereignty to the King of England. Only in April 1616, when
VOC commander Jan Dirckszoon Lam (d. 1626) was about to launch an all-out assault, did
the inhabitants of Pulo Way enact a ceremony formally acknowledging James I of England
as their protector. It failed to stop Lam’s conquest of the island, but it did create a very useful
precedent for the EIC. Eight months later, Nathaniel Courthope had little difficulty persuading
inhabitants of Pulu Run – many of whom were refugees from Pulo Way – to repeat the cere-
mony and sign a treaty with him (Foster 1905, pp. 328–9, 1933, pp. 261–7; Stapel 1939, vol.
3, p. 99; Loth 1995a, pp. 713–14; van Goor 2015, p. 281).
Meanwhile, VOC officials continued to sign contracts with the Bandanese as well, primarily
with inhabitants of Rosengain and Great Banda. From the VOC perspective, the conquests of
Nera and Pulo Way in 1609 and 1616, respectively, had turned local populations into company
subjects. By concluding treaties with inhabitants of Rosengain and Great Banda, both Lam
and Reael sought to obtain native recognition of the changed status of Nera and Pulo Way,
secure a steady supply of nutmeg and mace for the VOC, and completely isolate Pulo Run and
its inhabitants, who had sided with the English. Although Reael failed to launch a successful
invasion of Pulo Run in the spring of 1617 and 1618, he used all other means at his disposal
to make life difficult for Courthope and his indigenous allies. He forbade any contact between
Bandanese allies of the VOC and inhabitants of Pulo Run, for example. The wavering loyalties
of the Bandanese proved to be the Achilles heel of his strategy. In summer 1618, Reael signed
a truce treaty just with the ‘orangkayas and magistrates’ of Selamon, not with any other vil-
lages on Great Banda. Those villages had effectively sided with the inhabitants of Pulo Run
(Heeres and Stapel 1907, pp. 66–9 (treaty with the Bandanese of 10 August 1609), 122–4
(treaty with the Bandanese of 3 May 1616), 127–30 (treaty with the Bandanese of 30 April
1617), 133–5 (treaty with the Bandanese of 25 June 1617), 160–61 (treaty with the Bandanese,
March 1621?), 162–70 (treaty with the Bandanese of 9 May 1621; Foster 1933, pp. 261–70;
Stapel 1939, vol. 3, pp. 102–4).
From the Dutch perspective, the next logical step was to conquer and pacify Great Banda.
More nutmeg trees grew on Great Banda than on all the other islands of the archipelago com-
bined. The inhabitants of Pulo Run were crucially dependent for their survival on foodstuffs
and water reaching them from Great Banda. That is, a Dutch conquest of the island would make
it impossible for the English to continue in actual possession of Pulo Run. And so it turned out
to be. Inhabitants of Great Banda repulsed Lam’s expeditionary force in June 1618, but were
soundly defeated by the Dutch Governor-General Jan Pieterzoon Coen (1587–1629) three
54 Handbook on global constitutionalism

years later. The Treaty of Defence, concluded by the VOC and EIC in London in June 1619,
proved an unexpected benefit in pacifying the archipelago. Since the companies were now
officially allied, neither the EIC merchants in Bantam and Jakarta, nor the few Englishmen
left at Pulo Run, dared to interfere with Coen’s invasion plans, or offer any support to the
Bandanese (Loth 1995a, pp. 724–7; Van Goor 2015, pp. 433–65).
Coen’s brutal conquest of Great Banda is an inconvenient truth for many current global
historians, eager to ascribe agency to indigenous peoples through various forms of ‘negotiat-
ing’ and ‘resisting’ empire. Yet the power differential between Europeans and certain native
groups in Asia and the Americas is something that we ignore at our peril. At the time, many
Bandanese clearly underestimated the VOC’s determination to secure a monopoly of the spice
trade and the enormous resources which it could marshal against a weak, isolated polity. There
were plenty of areas in the pre-modern world where Europeans struggled to get a foot in the
door, yet the Banda Islands was not one of them (Meuwese 2012; Clulow 2013, 2016).
Coen’s punitive expedition resulted in the near-total destruction of Bandanese society.
Forty-eight orangkayas were captured, tried and executed on his order. Their relatives –
approximately 789 old men, women and children – were shipped off to Batavia (modern-day
Jakarta), the VOC headquarters in Asia, where they were put to work as slaves. In the end,
there were only about 1,000 of an estimated 15,000 original inhabitants left on the Banda
Islands. The arable land on Great Banda was divided into plots called perken, and distributed
among European tenants. Many of these so-called perkeniers were former VOC soldiers.
Together with company officials, they would form the upper crust of the new colonial society
for centuries to come. In cultivating and harvesting the valuable spices, they could dispose of
a large labour force of slaves, imported by the VOC from all parts of Asia. The Dutch con-
quest marked a fundamental break with the past (Hanna 1978; Niemeijer 1994, pp. 2–24; Loth
1995b, pp. 13–35; Winn 2010, pp. 365–89; Van Goor 2015, pp. 433–66).

CONCLUSION

So was there such a thing as empire by treaty? Our analysis of Grotius’ justification of Dutch
expansion overseas and our case study of Anglo-Dutch imperial competition over the Banda
Islands suggests that, yes, treaties played an important role in the rise of Western imperialism
and colonialism. Written documents were no alternative to conflict and war, but an essential
part of it. Europeans used treaties to make claims to trade and territories in early modern Asia,
Africa and the Americas and to (violently) contest the claims of others, be they indigenous
peoples or European competitors. Armed violence was the ever-present and none-too-subtle
threat at the negotiating table, both in Europe and overseas. Grotius was well aware of this,
twice negotiating face-to-face with EIC representatives about the Dutch and English claims
to the Spice Islands. His understanding of divided sovereignty and its implications, combined
with the natural law notion of pacta sunt servanda (treaties must be performed), made it pos-
sible for him to justify the struggle for Dutch independence and the establishment of a VOC
empire in Asia in very similar terms. Just as the States of Holland could punish Philip II of
Spain and Portugal for transgressing the (unwritten) constitution of the Low Countries and
become fully sovereign in the process, so the VOC could punish the inhabitants of the Banda
Islands for their failure to abide by the delivery contracts and conquer their territory in a
‘just war’. The VOC directors and their personnel in the East showed themselves to be quick
 Global constitutionalism in the early modern period 55

studies. It is also important to note that relations between human beings, whether as individ-
uals or as groups, were ordered hierarchically in most pre-modern societies. The growth of
capitalist economies and the substantial increases in literacy rates in north-western Europe in
the period 1500–1800 ensured that both English and Dutch colonial officials, merchants and
settlers would seek to preserve such hierarchical relations in writing. Of course, aboriginal
peoples have sought to use legal procedures of various kinds, including the European courts,
to contest the meaning of written documents and to offer their own readings (Economist 2016).
Still, the decks were heavily stacked against them in the past, and currently remain so.
Will a turn towards global constitutionalism remedy the situation? It depends on what this
would mean in practice. At the time of writing, aboriginal peoples seem to be on the receiving
end of global constitutionalism. Unlike TNCs, most indigenous communities do not have the
financial wherewithal to hire the best lawyers in order to overturn years, if not centuries, of
jurisprudence favouring Western settlers and capitalist economics. In many areas of the world,
aboriginal peoples are faced with TNCs acting as de facto sovereigns – think of the position
of Royal Dutch Shell in the Niger Delta, for example (Obi and Rustad 2011). National gov-
ernments tend to treat indigenous communities as simply one more interest group clamouring
for attention, and their complaints as actionable in domestic courts only. So far, no state has
supported aboriginal peoples in appealing their cases to the international courts in The Hague.
These courts have yet to take a single case brought by indigenous communities. There is no
parity between states and aboriginal peoples in modern international law. Unless and until this
changes, unequal treaties will remain the norm, even today.

REFERENCES
Anghie, A. (2005), Imperialism, Sovereignty and the Making of International Law, Cambridge:
Cambridge University Press.
Belmessous, S. (ed.) (2012), Native Claims: Indigenous Law against Empire, 1500–1920, Oxford:
Oxford University Press.
Belmessous, S. (ed.) (2015), Empire by Treaty: Negotiating European Expansion, 1600–1900, Oxford:
Oxford University Press.
Benton, L. and A. Clulow (2015), ‘Legal encounters and the origins of global law’, in J.H. Bentley,
S. Subrahmanyam and M.E. Wiesner-Hanks (eds), The Cambridge World History, Cambridge:
Cambridge University Press, pp. 80–100.
Borschberg, P. (1994), Hugo Grotius’ Commentarius in Theses XI: An Early Treatise on Sovereignty, the
Just War, and the Legitimacy of the Dutch Revolt, Berne: Peter Lang.
Borschberg, P. (2010), The Singapore and Melaka Straits: Violence, Security and Diplomacy in the 17th
Century, Singapore: NUS Press.
Borschberg, P. (2011), Hugo Grotius, the Portuguese, and Free Trade in the East Indies, Singapore:
NUS Press.
Chaudhuri, K.N. (1965), The English East India Company: The Study of an Early Joint-Stock Company
1600–1640, New York: Taylor & Francis.
Clulow, A. (2009), ‘European maritime violence and territorial states in early modern Asia, 1600–1650’,
Itinerario, 33 (3), 72–94.
Clulow, A. (2013), The Company and the Shogun: The Dutch Encounter with Tokugawa Japan, New
York: Columbia University Press.
Clulow A. (2016), ‘The art of claiming: possession and resistance in early modern Asia’, American
Historical Review, 121 (1), 17–38.
Economist (2015), ‘On the electoral war-path’, The Economist, 19 September.
56 Handbook on global constitutionalism

Economist (2016), ‘I’ll see you in court: indigenous groups are suing loggers, miners and pipeline-builders’,
The Economist, 6 February.
Foster, W. (ed.) (1905), The Journal of John Jourdain, 1608–1617, describing his experiences in Arabia,
India, and the Malay Archipelago, Cambridge: printed for the Hakluyt Society.
Foster, W. (1933), England’s Quest of Eastern Trade, London: A. and C. Black.
Grotius, H. (n.d.), Ms. BPL 917, Leiden University Library, Leiden.
Grotius, H. (2004), The Free Sea, trans. R. Hakluyt, D. Armitage (ed.), Natural Law and Enlightenment
Classics, Indianapolis, IN: Liberty Fund.
Grotius, H. (2005) The Rights of War and Peace, R. Tuck (ed.), 3 vols, Indianapolis, IN: Liberty Fund.
Grotius, H. (2006) Commentary on the Law of Prize and Booty, trans. G.L. Williams, M.J. van Ittersum
(ed.), Indianapolis, IN: Liberty Fund.
Gupta, A.D. (1987), ‘The maritime trade of Indonesia, 1500–1800’, in A.D. Gupta and M.N. Pearson
(eds), India and the Indian Ocean, 1500–1800, Calcutta: Oxford University Press.
Hanna, W.A. (1978), Indonesian Banda: Colonialism and Its Aftermath in the Nutmeg Islands,
Philadelphia, PA: Institute for the Study of Human Issues.
Heeres, J.E. and F.W. Stapel (eds) (1907), Corpus diplomaticum Neerlando-Indicum: verzameling van
politieke contracten en verdere verdragen door de Nederlanders in het Oosten gesloten, van privilege-
brieven aan hen verleend, enz, 6 vols (1907–55), vol. 1: 1596–1650, The Hague: Martinus Nijhoff.
Herzog, T. (2015), ‘Struggling over indians: territorial conflict and alliance making in the heartland
of South America (seventeenth to eighteenth centuries)’, in S. Belmessous (ed.), Empire by Treaty:
Negotiating European Expansion, 1600–1900, Oxford: Oxford University Press, pp. 78–100.
Keay, J. (1993), The Honourable Company: A History of the English East India Company, London:
HarperCollins.
Kennedy, D. (2015), ‘Review of Saliha Belmessous (ed), Empire by Treaty: Negotiating European
Expansion, 1600–1900’, H-Diplo, H-Net Reviews, accessed 18 April 2017 at https://​www​.h​-net​.org/​
reviews/​showrev​.php​?id​=​43387.
Knaap, G. (2004), Kruidnagelen en Christenen: De VOC en de bevolking van Ambon, 1656–1696
(Cloves and Christians: The Dutch East India Company and the People of Ambon, 1656–1696), 2nd
edn, Leiden: KITLV.
Knaap, G. and G. Teitler (ed.) (2002), De Verenigde Oost-Indische Compagnie Tussen Oorlog en
Diplomatie (The Dutch East India Company Caught between War and Diplomacy), Leiden: KITLV.
Koskenniemi, M. (2001), The Gentle Civilizer of Nations: The Rise and Fall of International Law,
1870–1960, Cambridge: Cambridge University Press.
Koskenniemi, M. (2012), ‘A history of international law histories’, in B. Fassbender and A. Peters
(eds), The Oxford Handbook of the History of International Law, Oxford: Oxford University Press,
pp. 943–71.
Lesaffer, R. (2012), ‘Peace treaties and the formation of international law’, in B. Fassbender and A.
Peters (eds), The Oxford Handbook of the History of International Law, Oxford: Oxford University
Press, pp. 71–94.
Locher-Scholten, E. and P. Rietbergen (eds) (2004), Hof en Handel: Aziatische Vorsten en de VOC,
1620–1720 (Commerce and Courts: Asian Princes and the Dutch East India Company, 1620–1720),
Leiden: KITLV.
Loth, V.C. (1995a), ‘Armed incidents and unpaid bills: Anglo-Dutch rivalry in the Banda Islands in the
Seventeenth Century’, Modern Asian Studies, 29 (4), 705–40.
Loth, V.C. (1995b), ‘Pioneers and Perkeniers: the Banda Islands in the 17th century’, Cakalele: Maluku
Research Journal, 6, 13–35.
Masselman, G. (1963), The Cradle of Colonialism, New Haven, CT: Yale University Press.
Meuwese, M. (2012), Brothers in Arms, Partners in Trade: Dutch-Indigenous Alliances in the Atlantic
World, 1595–1674, Leiden: Brill Academic.
Milton, G. (1999), Nathaniel’s Nutmeg: How One Man’s Courage Changed the Course of History,
London: Hodder and Stoughton.
Nellen, H. (2015), Hugo Grotius: A Lifelong Struggle for Peace in Church and State, 1583–1645,
Leiden: Brill Academic.
Nellen, H. and J. Trapman (eds) (1996), De Hollandse jaren van Hugo de Groot (1583–1621) (The Dutch
Career of Hugo Grotius (1583–1621)), Hilversum: Verloren.
 Global constitutionalism in the early modern period 57

Niemeijer, H.E. (1994), ‘“Als eene Lelye onder de doornen”: Kerk, kolonisatie en christianisering op de
Banda-eilanden 1616–1635’ (‘Like a lily among thorns: church, colonization and Christianising in the
Banda Islands, 1616–1635’), Documentatieblad voor de Geschiedenis van de Nederlandse Zending
en Overzeese Kerken, 1 (1), pp. 2–24.
Obi, C. and S.A. Rustad (eds) (2011), Oil and Insurgency in the Niger Delta: Managing the Complex
Politics of Petro-Violence, London: Zed Books.
Pagden, A.J. (1982), The Fall of Natural Man: The American Indian and the Origins of Comparative
Ethnology, Cambridge: Cambridge University Press.
Pagden, A.J. (1994), European Encounters with the New World: From Renaissance to Romanticism,
New Haven, CT: Yale University Press.
Pettigrew, W.A. (2015), ‘Corporate constitutionalism and the dialogue between the global and local in
seventeenth-century English history’, Itinerario, 39 (3), 487–501.
Purchas, S. (1905–07), Hakluytus Posthumus or Purchas his Pilgrimes, Contayning a History of the
World in Sea Voyages and Lande Travells by Englishmen and Others, 20 vols, Glasgow: Maclehose.
Reid, A. (1988), Southeast Asia in the Age of Commerce, 1450–1680, 2 vols, New Haven, CT: Yale
University Press.
Shaw, M.N. (1995), International Law, 3rd edn, Cambridge: Cambridge University Press.
Stapel, F.W. (ed.) (1939), Geschiedenis van Nederlands Indië (History of the Dutch East Indies), 6 vols,
Amsterdam: Zutphen.
Stern, P.J. (2011), The Company-State: Corporate Sovereignty and the Early Modern Foundations of the
British Empire in India, Oxford: Oxford University Press.
Stern, P.J. (2012), ‘Corporate virtue: the languages of empire in early modern British Asia’, Renaissance
Studies, 26 (4), 510–30.
Stern, P.J. and C. Wennerlind (eds) (2014), Mercantilism Reimagined: Political Economy in Early
Modern Britain and Its Empire, Oxford: Oxford University Press.
Tex, J. den (1973), Oldenbarnevelt, trans. R.B. Powell, 2 vols, Cambridge: Cambridge University Press.
Tully, J. (2008), Public Philosophy in a New Key, 2 vols, Cambridge: Cambridge University Press.
Tully, J., J.L. Dunoff, A.F. Lang, Jr., M. Kumm and A. Wiener (2016), ‘Introducing integral global
constitutionalism’, Global Constitutionalism, 5 (1), 1–15.
United Nations (2007), ‘United Nations Declaration on the Rights of Indigenous Peoples’, 13 September,
accessed 18 April 2017 at http://​www​.un​.org/​esa/​socdev/​unpfii/​documents/​DRIPS​_en​.pdf.
Van Goor, J. (2015), Jan Pieterszoon Coen, 1587–1629: Koopman-Koning in Azië (Jan Pieterszoon
Coen, 1587–1629: Merchant and Sovereign in Asia), Amsterdam: Boom.
Van Ittersum, M.J. (2006), Profit and Principle: Hugo Grotius, Natural Rights Theories and the Rise of
Dutch Power in the East Indies, 1595–1615, Leiden: Brill Academic.
Van Ittersum, M.J. (2010), ‘The long goodbye: Hugo Grotius and the justification of Dutch expansion
overseas (1604–1645)’, History of European Ideas, 36 (4), 386–411.
Van Ittersum, M.J. (2016), ‘Debating natural law in the Banda Islands: a case study in Anglo-Dutch
imperial competition in the East Indies, 1609–1621’, History of European Ideas, 42 (4), 459–501.
Van Opstall, M.E. (ed.) (1972), De Reis van de Vloot van Pieter Willemsz Verhoef naar Azie, 1607–1612
(The Voyage of Pieter Willemsz Verhoef to the East Indies, 1607–1612), 2 vols, The Hague: Martinus
Nijhoff.
Van Opstall, M.E. (1979), ‘Laurens Reael in de Staten-Generaal, het verslag van Reael over de toestand
in Oost-Indië’ (‘Laurens Reael addresses the Dutch States General: Reael’s report on the Dutch
empire in the East Indies’), in M.E. van Opstall (ed.), Nederlandse Historische Bronnen, The Hague:
Martinus Nijhoff, pp. 175–213.
Villiers, J. (1981), ‘Trade and society in the Banda Islands in the sixteenth century’, Modern Asian
Studies, 15 (4), 723–50.
Vlekke, B.H.M. (1944), Nusantara: A History of the East Indian Archipelago, Cambridge, MA: Harvard
University Press.
Waszink, J. (2020), ‘Hugo Grotius on the agglomerate polity of Philip II’, History of European Ideas,
46 (3), 276–91.
Weststeijn, A. (2014), ‘The VOC as a company-state: debating seventeenth-century Dutch colonial
expansion’, Itinerario, 38 (1), 13–34.
58 Handbook on global constitutionalism

Wilson, E. (2008), The Savage Republic: De Indis of Hugo Grotius, Republicanism and Dutch Hegemony
within the Early Modern World-System, c.1600–1619, Leiden: Martinus Nijhoff.
Winn, P. (2010), ‘Slavery and cultural creativity in the Banda Islands’, Journal of Southeast Asian
Studies, 41 (3), 365–89.
5. The Enlightenment and global
constitutionalism
Chris Thornhill1

ELEMENTS OF THE GLOBAL CONSTITUTION

There is currently much debate about the precise characteristics of the emerging form of
global constitutional law. However, the more mainstream theorists of global constitutional-
ism, although in themselves divergent, usually organize their outlooks around the claim that
general norms of international law, at least to the extent that these norms possess ius-cogens
(peremptory-norm) standing, have come to acquire force close to that of a global constitution.2
As a result of this process, sovereign states are now widely seen to act as subjects within
a system of global legal norms, and they assume a position similar to that of legal persons
within national legal orders, defined by classical principles of public law. If we accept the defi-
nition of a global constitution which claims that binding norms of international law form the
constitutional superstructure for global society as a whole, this constitution comprises a series
of very distinctive features, which, at first glance, distinguish it from more classical consti-
tutions; that is, from constitutions that are rooted in national societies, that extract legitimacy
from a clearly identified constituent power, and that articulate a relatively clear hierarchy of
norms to shape the use of national governmental power.3
First, the global constitution is defined, at a most essential normative level, by the primary
authority of international human rights law; in the global constitution, human rights have
acquired the status of non-derogable legal norms, and all laws in global society are in some
way constitutionally predetermined by such human rights. This applies in the dimensions of
global society that are determined by interstate interactions. Since the Universal Declaration of
Human Rights (1948)4 and, above all, the Vienna Convention on the Law of Treaties (1969),5
there is a legal obligation for states to proportion their actions towards other states to norms

1
Some of the research for this chapter was funded by the European Research Council (Advanced
Grant: 323656-STC).
2
See Klabbers et al. (2009, pp. 154, 179). For a general cross-section of the standard
global-constitutionalist literature, see Fassbender (1998), Dupuy (1997), Henkin (1995–96, p. 39),
Kadelbach and Kleinlein (2007). For a nuanced approach, see Peters (2005), Petersmann (2001, p. 22),
Kumm (2004), Helfer (2003, p. 237), Stone Sweet (2009, p. 637) and Ackerman (1997, p. 777). For an
overview, see Schwöbel (2011, ch. 1).
3
This idea of the constitution was popularized in the American and French revolutions. See
pp. 66–72 below. The notion that a constitution needs to be founded by a constituent power, however,
still remains strong in contemporary debate. See, for example, Loughlin (2013).
4
http://​www​.ohchr​.org/​EN/​UDHR/​Documents/​UDHR​_Translations/​eng​.pdf, accessed 8 May
2017.
5
https://​treaties​.un​.org/​doc/​Publication/​UNTS/​Volume​%201155/​volume​-1155​-I​-18232​-English​
.pdf, accessed 8 May 2017. In Arts 53 and 64, the Vienna Convention designated certain norms and
certain basic rights as having inviolable status for global society.

59
60 Handbook on global constitutionalism

extracted from human rights law. This applies in the national dimension of global society; it is
increasingly rare for national states to reject international human rights in their internal activ-
ities, and even states with strong ‘dualist’ legal traditions adapt their legal and administrative
functions to expectations derived from international human rights law.6 Most importantly,
individual persons in national societies can now, in principle, appeal quite easily to inter-
national judicial bodies when their rights are violated by their governments, which means
that international courts can reach immediately into national societies and address individual
persons as primary rights-holding subjects of international law. Notable in this, in particular,
is the fact that this direct penetration of international human rights law creates positive obliga-
tions for states in respect of the lateral interactions between different citizens subject to their
jurisdiction, such that human rights widely obtain horizontal applicability in national societies,
and relations in the private domain are subject to juridification through human rights law.7 On
each count, the global constitution is constructed in categories that reject positivist concep-
tions of state power, and which see positivist sovereignty-centred models of global order as
fully discredited, primarily through the limiting force of human rights law.
Second, because of this salience of human rights law, the global constitution is defined,
institutionally, by the growing authority of courts and other judicial bodies as constitutional
subjects. This is again visible in different dimensions of global society. In the interstate
domain, recent decades have seen a dramatic proliferation of powerful courts, which increas-
ingly assume the authority to censure and control the actions of national states, in different
functional spheres. Some of these courts – notably, the European Court of Human Rights, the
Inter-American Court of Human Rights and, increasingly, the International Court of Justice
– provide protection for human rights as a basic constitutional structure of global society.
However, even courts focused on social functions that are not intrinsically defined by human
rights, such as the European Court of Justice and the Appellate Body of the World Trade
Organization, have used human rights jurisprudence to cement their authority over national
states. International courts, in short, play a key role in locking national states into a global
rights-based constitutional order. In the national domain, further, courts have also acquired
greatly expanded authority in recent decades. With variations, most national constitutions
contain provisions for very powerful constitutional courts, whose basic function is to police

6
The UK is a classic example. Consider in particular the impact of the judgment of the Strasbourg
court, Smith and Grady v UK (1999) 29 EHRR 493, which found the UK both guilty of discrimination
against homosexuals and of offering inadequate judicial remedies in human rights cases. This ultimately
led to a deep constitutional shift in UK administrative law, exemplified especially in R (Daly) v Home
Secretary [2001] UKHL 2.
7
This is seen in the case law of supranational courts. See, for one example, the Strasbourg case
X and Y v Netherlands App no 8978/80 (ECtHR, 26 March 1985). This principle is at the centre of the
jurisprudence of the Inter-American Court of Human Rights, which has defined human rights obligations
of individuals in the following terms: ‘The individual has acquired the status of a real active and passive
subject of international law. The individual be an active subject of obligations as regards human rights,
and also individually responsible for non-compliance with them’: Juridical Condition and Rights of the
Undocumented Migrants, Advisory Opinion OC-18, September 17, 2003, Inter-Am. Ct. H.R. (Ser. A)
No. 18/03 (2003) 16. Among a vast sea of cases in domestic courts see as an example the claim obiter
(Nicholls LJ) in the UK case Campbell v MGN Ltd – [2004] 2 All ER 995: ‘What human rights law has
done is to identify private information as something worth protecting as an aspect of human autonomy
and dignity. And this recognition has raised inescapably the question of why it should be worth protect-
ing against the state but not against a private person.’
 The Enlightenment and global constitutionalism 61

new legislation and to ensure that it is compliant with constitutional norms, including human
rights provisions. In most nations, moreover, constitutional courts are expected to preserve
a degree of compatibility between national laws and international human rights law, and
they act as hinges, linking domestic legislation to a supra-national constitutional order, based
on the primary authority of human rights. There are, of course, exceptions to this tendency,
and there remain some polities in which judicial power is either relatively weak or subject to
retrenchment. Current examples of this are Venezuela and, to an increasing degree, Poland and
Hungary. Yet, generally, most national polities accord a central constitutional position to the
higher judiciary, which, usually in close interaction with international judicial bodies, controls
legislation in accordance with higher-order human rights norms.8
Third, the global constitution is defined, to a large extent, by a weakening of certain
classical-constitutional concepts of democratic legitimacy; notably, constituent power and
national sovereignty. At least at the level of political-normative rhetoric, classical constitutions
extracted their legitimacy from the idea that they were authorized by a national sovereign
people, and that the will of this people, in the form of a constituent power, established the
constitution as a Grundnorm (basic standard) for the entire polity, providing a substantial
and procedural basis for all subsequent legislative acts. Owing to the increasing primacy of
international human rights law, however, the exercise of national sovereignty and national
constituent power has been reduced in scope. The idea that founding norms are created by
national political collectives, standing outside the law, has been replaced by the acceptance
that some legal norms, declared in existing international conventions (that is, human rights),
have a claim to constituent authority,9 and that constitutional norms created in national soci-
eties cannot contradict the basic norms (that is, human rights) of global constitutional law.10
The national constitution, thus, is always a constitution within a constitution. In addition, it
is widely acknowledged that national courts, linked to the international judicial system, will
assume a central position in any process of constitution-making, and that courts can obtain
force close to that of a constituent power, often extracting norms from the international arena
to solidify ongoing processes of constitutional foundation (see Thornhill 2014). On this basis,
courts, traditionally construed as holders of constituted power and acting within limits defined
by national constitutions, have commonly become holders of constituent power, and, both

8
For surveys of this development in different regions see Prempeh (2006); Zhu (2010, pp. 625–53);
Navia and Ríos-Figuero (2005). For critical reflections on this process see Hirschl (2007, p. 723). More
generally see, Hirschl (2004); Ferejohn (2002, pp. 41, 44); Schneiderman (2008); Nicol (2010, ch. 4).
9
In most constitutions created since 1945, international law has assumed de facto constitutional
force. Examples among the post-war constitutions are West Germany, Japan and Italy; examples from
the 1970s are Portugal and Spain; examples from the 1980s and 1990s are Brazil, Colombia, Paraguay,
Russia, Poland, Ghana and South Africa. More recent examples are Ecuador, Bolivia and Kenya.
10
This assumption is clearly articulated in constitutionalist accounts of international law. See the
argument in Peters (2014). Yet, this argument is also quite unmistakably enunciated in most national con-
stitutions, and most national constitutional courts interpret domestic public law to align it to international
human rights law. For the most indicative example (albeit one among many), see the reflections in the
South African Constitutional Court in S v Makwanyane and Another (1995) (declaring the death penalty
unconstitutional). Here, the Court noted the ‘paucity of home-grown judicial precedent upholding
human rights, which is not surprising considering the repressive nature of the past legal order’. They thus
concluded: ‘It requires courts to proceed to public international law and foreign case law for guidance
in constitutional interpretation, thereby promoting the ideal and internationally accepted values in the
cultivation of a human rights jurisprudence for South Africa.’
62 Handbook on global constitutionalism

nationally and domestically, they play a role at least equal to that of democratically mandated
legislatures in establishing ground-rules for legal and political organization.
Overall, therefore, if we are prepared to identify that global society as a whole possesses
a relatively unified and normatively consistent constitution, its primary characteristics, both
nationally and outside nation-states, are that: (1) it is defined by the primacy of international
human rights law; (2) judicial bodies acquire authority not foreseen in classical constitutional
doctrine; (3) the constituent power of the nation is a weak constitutional resource, and it is
partly exercised by institutions using constituted power – the distinction between constituent
and constituted power is diminished. On each of these grounds, notably, the emergent global
constitution is widely counter-posed to more classical models of constitutionalism, based on
the supremacy of the popular will as the origin of legitimate law. Indeed, among the otherwise
very distinct accounts of global constitutional law, one point of increasing convergence is the
claim that global constitutional law is not the same as classical constitutional law and it draws
legitimacy for law from unfamiliar sources.11

ENLIGHTENMENT CONSTITUTIONALISM: A DISTANT MIRROR?

Despite the alleged novelty of the system of global constitutional law, however, many features
of this system are not entirely dissimilar to the core elements of classical constitutional theory,
conceived within the longer period of the Enlightenment. Indeed, the basic principles of global
constitutionalism appear in many ways, not solely as a rupture with, but also as an extension
of, the normative designs that underpinned classical constitutions.12

Elements of a Global Constitution: Basic Rights

For example, first, the idea that certain basic rights are established as primary constitutional
norms, which no act of a public authority can violate, was clearly established in the consti-
tutional doctrines of the Enlightenment. During the Enlightenment, the theory of rights was
mainly elaborated as an account of the obligations of domestic political systems, and its
primary objective was to ensure that persons in society were not exposed to depredatory acts by
persons in positions of public power. For this reason, Enlightenment constitutional doctrines
attached particular weight to rights covering private practices in society (for example, rights
concerning freedom of ownership, freedom from unjustified fiscal extraction, and freedom of
scientific inquiry and religious belief), and they used the theory of rights to construct a basic
definition of the legitimate state.13 Accordingly, the later Enlightenment converged around the
claim that a legitimate state is a state that does not arbitrarily intrude on such privately held
rights.14 However, in many cases, this theory of rights was not restricted to national political

11
For one exemplary expression of this claim see Wahl (2011, p. 356). For variations on this position
see Teubner (2012, pp. 160–61); Krisch (2010, p. 17); Kingsbury (2012, pp. 210–12). For this view in
classical expression, see Kahn (2000, pp. 2, 5, 18).
12
In agreement see Cappelletti (1981, pp. 625–57); Gardbaum (2008, pp. 749–68). See also through-
out Brunkhorst (2014).
13
See historical-sociological discussion of this process in Böckenförde (1999, p. 20).
14
This perspective has its origins in Lockeian theories of rights, but it can be seen as culminating in
the 1791 amendments to the American Constitution.
 The Enlightenment and global constitutionalism 63

institutions. On the contrary, it was clearly linked to a theory of the state which positioned the
national state within an international environment, arguing that each state is merely one actor
among other states, so that each state is obligated to globally valid norms. In anticipation of
recent accounts of global constitutionalism, the Enlightenment was deeply marked by a reac-
tion against positivist theories of state; much of the moral-rationalist political philosophy of
the Enlightenment was founded in a rejection of the quasi-positivist theories produced during
the longer aftermath of the Reformation and in the religious wars of the seventeenth century,
which were intended to solidify the power of national states, in distinction from religious
institutions. Such early positivist theories, reflected in the works, first, of Hobbes and Bodin,
and, later, of Pufendorf and Thomasius, had emphasized the essential foundation of the state
in positive-voluntaristic principles of political sovereignty. Accordingly, they deliberately
denied that universal rational norms could generate reliable and enduring state institutions.15
By contrast, as discussed below, leading theorists of the Enlightenment opposed purely volun-
taristic theories of the state, and they tended to see the state’s legitimacy as resulting from its
compliance with generalizable norms. In consequence of this, the assumption of a clear dis-
juncture between domestic and global society was not a dominant part of the legal systematics
produced by the Enlightenment, and the idea that a state is constitutionally legitimate to the
extent that it recognizes uniform rights contained strict implications for the legitimacy of state
in its external functions. As a result, the Enlightenment already spelled out basic principles of
global constitutionalism.
This can be seen, theoretically, in the earlier Enlightenment, in the works of Leibniz. Leibniz
proposed an ethics of statehood, which clearly relativized national sovereignty as a source of
authority, and which claimed that all states are subject to universally binding natural laws.16
Leibniz did not deny that laws originate in the acts of states. However, he argued that acts
of state volition are only binding if they reflect the ‘formal reason of justice’ (Leibniz 1885,
p. 59). It is, he explained, ‘abhorrent to reason’ that law should be simply founded in the
will of the state, exercised as prerogative (Leibniz 1763a, p. 280); it is only when a state
exercises a rational will, proportioned to principles of rational legal order, that powers of
governance are legitimate. Leibniz’s thinking was thus shaped by an intense hostility towards
the rupture between law and morality and reason and will in the more positivistic accounts
of legal force that had developed during the very early Enlightenment. Law only contains
legitimate obligations, he claimed, if it is in conformity with the highest principles of reason
and harmony, inherent in the metaphysical foundations of the universe. On these grounds, he
concluded that ‘natural law’ does not ‘differ from divine moral law’ (Leibniz 1763b, p. 270).
God might have a greater facility than humans in acting in accordance with moral laws, he
acknowledged; indeed, the divine will, as a perfect will, must be perfectly compliant with
natural law. However, the rationally necessary content of justice is identical for both human
and divine beings: justice, in fact, is external both to human minds and to divine minds, and
all creation (including God) can be held accountable to the principles which rational justice

15
This tendency is usually associated with Bodin and Hobbes. For broad discussion of this point
see Koselleck (1959, esp. p. 101). See the polemical claims about this in Hunter (2001). Hunter declares
sympathy for the anti-metaphysical secular positivism of the early Enlightenment, and he accuses Kant
of returning to neo-scholastic natural law in order to overcome it (p. 323).
16
Leibniz was keen to relativize the Hobbes-inspired claims to sovereignty of the German princes.
See Leibniz (1923, pp. 3–270, 64).
64 Handbook on global constitutionalism

contains (Leibniz 1885, p. 60). For this reason, clearly, the laws of single states approach their
highest perfection as they approach the closest proximity to the mind of God: as their legal
order becomes global.17
These ideas were later developed further by Christian Wolff, who claimed that the state
misuses its authority wherever it fails adequately to appreciate that it is bound to recog-
nize the legal subjectivity of its addressees (Wolff 1754, p. 59). In Wolff’s thought, the
rationalist-metaphysical doctrines of the early Enlightenment constructed a definition of the
single human being as a legal subject, endowed qua subject with rights defined under higher
law, upon which no act of state can legitimately encroach; this idea still underpins global
legal theory today. However, the ethics of statehood in the Enlightenment obtained its most
consistently globalist expression in the works of Kant. Kant claimed that the legal actions of
political collectives (states) need to be evaluated by the same rational-ethical standards that
are applied to the actions of single persons, and both persons and states acquire legitimacy
in their actions only insofar as they comply with principles expressing a rational will (see
Cohen 1904, p. 269). Consequently, Kant argued that the ideal or legitimate political order is
a state in which citizens exist under a republican constitution, in which the exercise of power
is determined by generalized laws, rationally extracted from the ‘pure source of the concept of
law’ (Kant 1795 [1977], vol. 11, p. 205), and defined by ‘greatest agreement’ with the cate-
gorical imperatives of practical reason. As a result, a legitimate state exists in relation of direct
analogy to a self-legislating rational human being: it constitutes itself as legitimate by regu-
lating its operations in accordance with formal ‘laws of freedom’ and by avoiding the pursuit
of purposes, which it cannot reflect as compatible with principles of rational necessity (Kant
1797 [1977], vol. 8, p. 437). On this basis, clearly, Kant indicated that the laws of a legitimate
state have a universal character. The laws of the legitimate state are laws that all rational citi-
zens in domestic society must recognize as legitimate, and in which citizens recognize condi-
tions of their own freedom. In addition, however, the laws of the legitimate state must prevent
the state from acting in instrumental fashion towards other states. The rational laws of the
legitimate state form basic premises for a global constitution, distilled from the idea of rational
human freedom, and regulating, equally, both the domestic and the international actions of
a state. Indeed, Kant specifically elaborated the idea that legitimate laws of one state and the
legitimate laws of a community of states would, necessarily, express the same injunctions. He
saw laws derived from the pure source of reason, sanctioning conditions of rational freedom,
as providing the foundation for an ‘idea of federality, which should gradually be extended to
all states’, and which secures a ‘state of freedom’ for all states, ‘in accordance with the idea of
international law’ (Kant 1795 [1977], vol. 11, pp. 211–12).
Given that the rationalist moral philosophy of the Enlightenment was strongly driven by
a hostility to positivism and political voluntarism, it is no surprise that the Enlightenment also
had globalist implications in the sphere of practical law-making. The main state constitutions
created during, and as a result of, the Enlightenment, also accentuated the importance of inter-
national law, effectively assuming a position within a global constitution, and defining global
constitutional norms as essential corollaries of their own normative content.
To illustrate this, for example, the constitutions created in the French Revolution, often seen
as a sovereigntist or even as a primarily nationalist revolution, displayed a clearly internation-

17
It is no coincidence that Leibniz also attempted an early formalization of international law. See
Leibniz (1693).
 The Enlightenment and global constitutionalism 65

alist spirit, and their authors saw legitimate national constitutions as obtaining validity from
their position in a wider, global system of norms. The theory of national sovereign government
underpinning the French Revolution was based on a doctrine of national self-determination,
which defined each national state as a locus for the exercise of strictly defined rights, and
which perceived all states as bound to respect the prior rights of persons both within their own
territories and within the territories of other nations. This was expressed in the constitutions
of both 1791 and 1793; Article 119 of the latter expressly recognized the inviolability of
national territory. However, this obtained clearest expression in Abbé Grégoire’s draft for
a Declaration of the Rights of Nations, which was presented in the National Convention in
June 1793, shortly before the endorsement of the Jacobin Constitution.18 This document pro-
vided a classical internal account of national sovereignty – it insisted (Art. 6) that each nation
had the right to organize and change the forms of its government, and that each nation was
protected from external intervention (Art. 7). At the same time, however, this document linked
the exercise of national sovereignty to a rights-based construction of international society. As
a result, it insisted that only governments ‘based in equality and liberty’ had claim to legitimacy
(Art. 8), and that national states had an obligation to create constitutions in conformity with
international law (see Grewe 1988, pp. 660–61).19 On these grounds, the sovereign exercise of
constituent power in single states was conceived as part of an emergent international order, in
which the principle of nationhood, far from projecting a condition of normatively unchecked
sovereign power, imagined national states as elements in a global legal system; nationalism
and international law were inseparable, and the constituent force of national societies could
only be exercised under international law (see Mirkine-Guetzévitch 1929, pp. 14, 17, 23).
Still more emphatically, the constitutions established during the longer period of revolution
in America (1776–91) were also justified through reference to international law, that is, to the
law of nations and the law of treaties.20 Arguably, the American Republic came into being –
initially – as a construct under international law, and the new polity acquired a personality
under international law before it had acquired an internal constitutional personality. Strikingly,
early advocates of American independence in the 1770s focused their argument around cate-
gories of international law to explain the position of America as a sovereign state. Jefferson’s
Declaration of Independence was in itself a declaration in international law, and it enunciated
the claims to national self-determination of the American colonies under concepts of rights
expressly derived from the law of nations (see Armitage 2002, p. 42). During the longer period
of revolution, then, international law retained vital importance as a means for protecting the
emergent American state from potential international adversaries or from engagement in
perilous military conflicts (see D’Amato 1988, p. 65; Jay 1989, p. 837). Throughout this time,
American national sovereignty was typically defined in reference to rights and obligations

18
This is printed in Grewe (1988, vol. 2, pp. 660–61).
19
The early years of the revolution were punctuated with decrees regarding rights under interna-
tional law. As in the USA, this insistence on international rights was designed, not lastly, to protect the
Republic from depredation by other international actors. See, for example, Robespierre’s proposition of
April 1793, which compared international abuse of rights by states to the exercise of private violence
by brigands and bandits. This is cited in Redslob (1916, p. 286). The reciprocity between national rights
and international rights was also central to the thought of Condorcet. See Marquis de Condorcet (1847,
p. 527).
20
For basic comment, see Onuf and Onuf (1993, pp. 108, 113).
66 Handbook on global constitutionalism

prescribed under international law (see Wilson 1791 [1967], p. 153).21 This significance of
international law was ultimately reflected in the constitutional practice of the early American
Republic. The Federal Constitution of 1787–89 expressly bound Congress to recognition of
international law (Art 1, 8, 10). The Judiciary Act of 1789 reinforced this obligation in the
Alien Tort Statute, and it spelled out the principle that American law was subject to the law of
nations. Subsequently, early opinions of the Supreme Court declared that ‘the Court is bound
by the law of nations which is part of the law of the land’.22 In some of the most important
cases decided by John Marshall, notably Murray v. Schooner Charming Betsy (1804), Rose v.
Himely (1808) and Brown v. United States (1814),23 affirmative reference was made to foreign
and international law as the basis for final ruling.24 In each respect, international law was
internalized within the national polity, and it became a vital internally legitimating foundation
for the exercise of national sovereignty.
Both conceptually and practically, in sum, the Enlightenment developed many core
principles of global constitutional law, reacting, like contemporary patterns of global
constitutionalism, against earlier lineages of voluntaristic political reflection. In both the
conceptual reflections and the practical achievements of the Enlightenment, in fact, national
self-legislation and international law were perceived as closely interlinked parts of an implic-
itly formed transnational constitution.

Elements of a Global Constitution: The Rise of Courts

If the legal and constitutional doctrines of the Enlightenment contained very evident princi-
ples of global constitutionalism, this is not as clearly the case for theories of judicial power
in the Enlightenment. In some respects, it is difficult to see the Enlightenment, at least in its
practical-constitutional outcomes, as providing a model to support the later global rise of
strong judicial authority. Most notably, for example, the French Revolution was driven in
part by a deeply ingrained contempt for judicial power, and leading revolutionaries openly
associated judges with the corrupt practices of corporations, which had dragged against the
systematic organization of governmental power through the seventeenth and eighteenth cen-
turies. Notably one of the first political acts in the revolution was the suspension of the parle-
ments, which had acted as the highest courts under the Bourbon monarchy. In this respect, the
policies of the revolutionaries after 1789 formed a deep continuum with the earlier policies
of the French kings, who had also attempted repeatedly to restrict the independent authority
and influence of judicial corporations.25 Accordingly, the constitutions created during the

21
For comment, see Forrest Martin (2007, p. 8); Cleveland (2006, pp. 35, 38).
22
The Nereide, 13 U.S. (9 Cranch) 388 (1815). For general comment see Munn Ziegler (1939,
p. 333). This principle is of course still fiercely contested and forms an important element in
foreign-policy debate in the USA. On the side in favour of Marshall’s view see Lillich (1993, p. 2).
23
Murray v. The Charming Betsy, 6 U.S. 2 Cranch 64 64 (1804); Rose v. Himely, 8 U.S. 4 Cranch
241 241 (1808); Brown v. United States, 12 U.S. 8 Cranch 110.
24
For comment on these cases see Calabresi and Dotson Zimdahl (2005, pp. 763–71).
25
The tension between the French monarchy and the parlements, a long-running contest in early
modern France, came to a head in the May Edicts of 1788, in which the king ordained before the
Assembly of Notables that the parlements should be replaced with a single plenary court to register all
laws, and that the privileges of the courts should be suspended and a uniform judicial structure imposed
throughout France.
 The Enlightenment and global constitutionalism 67

revolution also contained clauses that strictly limited the scope of judicial authority, placing
courts within a sharply ordered separation of powers, and which defined the elected legislature
as the basic focus of legal and political unity and obligation for the new republic. In France,
consequently, the idea of the essential unity between the nation and its legislature remained
pervasive for centuries after 1789, and it was only diluted through much later processes (in the
1970s), in which courts acquired powers to place horizontal checks on legislative acts.26
Outside France, however, the Enlightenment had a very strong judicial dimension, and it
clearly promoted the rise of strong independent courts. At a conceptual level, for example,
theorists of the Enlightenment placed particular emphasis on the consistency of the judiciary
as a cornerstone of the legitimate state. Very early theoretical motifs of the Enlightenment
were already identifiable in the judicial opinions of Edward Coke, who argued that the courts
had an obligation to defend a judicially constructed common-law constitution against all
exercise of political prerogative.27 Later, tellingly, Locke saw the existence of impartial judges
as the first foundation of the state; he even saw the need for uniform judicial functions, in
a quasi-sociological perspective, as the initial force that elevated human society above the state
of nature (Locke 1689 [1960], p. 350). This idea was later taken up by Adam Smith, who also
saw the need for judicial uniformity as a singularly dynamic force in human societal evolution
(Smith 1762–66 [1978], p. 347). In more general practical terms, further, judicial reform was
placed at the very centre of the European Enlightenment. In most countries, the principles
of natural law extracted from moral philosophy were used to promote extensive reform of
the judicial apparatus, focused on the imposition of uniform legal codes across the localized
judicial patchwork persisting from the feudal era, and, above all, on the abolition of private
justice and patrimonial courts.28 Indeed, one central objective of the legal theorists of the
Enlightenment, especially in the Holy Roman Empire, was to establish a judicial system that
was indifferent to confessional distinctions, allowing justice to be dispensed equally to persons
affiliated to different religious denominations (see Moser 1762–82, p. 285). The longer after-
math of the Enlightenment was then dominated still more intensively by processes of judicial
reform, and through the early nineteenth century most of Europe (and much of Latin America)
was exposed to far-reaching processes of legal systematization through the enforcement of
Napoleonic civil law.
The centrality of judicial politics to the constitutional practices of the Enlightenment,
however, was most obvious in the USA: judicial politics played an important role in each
stage of the foundation of the American Republic – in the gradual gaining of independence
from Great Britain, in the writing of the Constitution, and in the consolidation of the Republic
as an early nation-state. First, prior to the Declaration of Independence in 1776, courts in dif-
ferent American colonies had already begun to assert the right to defend certain common-law
principles, construed as natural rights, against the acts of the Westminster parliament, and to
refuse to enforce certain English statutes on this basis (Boone Williams 1940). Judicial power
was thus an early factor in the collective rejection of colonialism, and, while still acting under

26
For comment see Rosanvallon (2000).
27
See Case of Proclamations [1610] EWHC KB J22 (1 November 1610).
28
In Prussia, for example, Samuel Cocceji used principles of natural law to insist on the need for
a formally independent judiciary, separate from the executive body of the state, which could ensure that
the functions of law were systematically defined and implemented. See Cocceji (1713–18 [1791–99],
p. 159).
68 Handbook on global constitutionalism

colonial law, American courts assumed a distinctive position in the projection of an informal
constitution, which American revolutionaries eventually committed themselves to defend.
The legacy of Coke was clearly very widely felt throughout the revolutionary period. Second,
during the writing of the Constitution, provisions for judicial power were clearly influenced by
this background. The Constitution had the – in the eighteenth century – unusual feature that it
established a Supreme Court, whose powers were established under the Supremacy Clause and
the Judiciary Act, and which was accorded authority to review federal statutes for compliance
with the Constitution and generally to entrench core provisions of the Constitution. Third,
most importantly, the powers of judicial review allotted to the Supreme Court were extended
substantially during the first decades of the new Republic. Through the 1790s, a number of
cases came before the court in which the court consolidated its entitlement to review federal
laws, and, eventually, the court also assumed competence to strike down state laws on grounds
of unconstitutionality. Under John Marshall, most notably, Justices on the Supreme Court
began to claim that it was their duty to protect the constitution as a system of higher-ranking
rights. This view in fact became central to Marshall’s jurisprudence, and he argued that
the Constitution was a superior, paramount law for the nation, and that the Supreme Court,
speaking for the ‘original and supreme will’ of the people (Hobson and Teute 1990, p. 182),
was obliged to obstruct any act that appeared repugnant to the constitution. Progressively,
therefore, judicial institutions evolved in the USA as bodies with distinctive nation-building
capacities, imposing the Constitution as a coherently centralized set of norms across the
tenuously linked domains of the new Republic, and instituting a system of rights, in which
the Constitution itself was recognized as the fulcrum of the sovereign nation. Whereas revolu-
tionary France opted for a political system based, at least in principle, on the sovereign will of
the people, revolutionary America opted for a constitutional model based on the sovereignty
of law, secured by courts.
Both conceptually and practically, therefore, the Enlightenment also consolidated the
second pillar of global constitutionalism. Indeed, the contemporary abstraction of judicial
power as a repository of the sovereign will of society was clearly pre-figured in the judicial
politics of the late eighteenth century.

Elements of a Global Constitution: Weakening of Constituent Power

It is now widely argued that the main distinction between global constitutional law and the
patterns of constitutional law created in the Enlightenment is that classical constitutional law
was centred on the doctrine of constituent power and national sovereignty, whereas, in global
normative systems, the role of collective national agency as a source of founding norms is
necessarily reduced (Grimm 1991, p. 31; Rabkin 2007, p. 70; Loughlin 2009). This construc-
tion of classical constitutionalism is shaped in particular by a reception of the constitutional
doctrines of Jean-Jacques Rousseau and Emmanuel-Joseph Sieyès. Sieyès, most notably,
stands out as the primary constitutional architect of the Enlightenment era, and he played a role
in writing most constitutions of revolutionary and Napoleonic France. Conceptually, Sieyès
built a doctrine of constitutional legitimacy on Rousseau’s earlier theory of the general will,
and he used this doctrine in order to legitimate the assumption of constitution-making power
by the Third Estate in Versailles in summer 1789. To this end, he argued that a legitimate con-
stitution must be created by the nation as a whole, assembled as a constituent power, and that
all laws derive their authority from the fact that they are authorized by the original decisions
 The Enlightenment and global constitutionalism 69

of the constituent power.29 On this basis, there appears to exist a very distinct caesura between
contemporary constitutional norms, based in part in generalized principles of international
law, and the models of public law endorsed in the Enlightenment. Above all, it is clear that
the specifically national dimension of constituent power – that is, the belief that a particular
national collective can spontaneously determine the higher-order rules of its collective life –
has been eroded through the growing force of transnational norms, and, in particular, by the
presumption that national constitutions are only valid if inserted into an overarching system
of basic rights.
However, if we look beneath the surface of doctrines of constituent power that emerged in
the Enlightenment it becomes apparent that, in this respect too, there remain important lines
of continuity between contemporary and classical constitutional theory. First, it is erroneous
to assume that the theory of national constituent power was native to France, or that Sieyès
was its sole exponent. As was clearly recognized in contemporary discourse (Marquis de
Lafayette 1839, p. 50), this doctrine had been developed in revolutionary America some time
before the Estates-General met in Versailles. Ultimately, then, this doctrine was spelled out
in the Federalist Papers, especially by Alexander Hamilton (Madison et al. 1787–88 [1987],
p. 327). Notable in the emergence of this doctrine in the American context are two particular
points. First, the doctrine of constituent power was clearly linked to preconditions regarding
the importance of judicial institutions, and courts were envisioned as institutions that would
entrench and protect the decisions of the constituent power in subsequent constitutional
practice. In particular, courts would protect constituent power as a system of rights, and they
would strive to prevent the passing of laws that might violate the rights contained in the con-
stitution. Second, as discussed, in revolutionary America the idea of constituent power of the
people was first formulated as part of an attempt to protect and consolidate a body of already
existing rights, derived from a fusion of the English common law and the natural-law ideals
of the Enlightenment. As a result of this, the constituent power was conceived as a focus of
norm-setting agency, which merely re-articulated principles contained in an already implied
constitutional order, and which secured legitimacy for the laws that it produced on this
predetermined normative foundation. In post-revolutionary America, then, this secondary
character of the constituent power was clearly underlined by the fact that the new Republic
was immediately placed within an overarching system of international law. On each of these
counts, the exercise of constituent power in and after the American revolution was perceived
as the realization of an already (albeit inchoately) given body of constitutional rights, and the
normative constraining of constituent power by a higher order of norms, based on universal
rights, was already clearly in evidence. The idea that constituent power expressed a moment of
radical constitutional foundation was never very strong.
In revolutionary France, although usually seen as the site of a radically voluntaristic con-
struction of constituent power, similar tendencies can be observed. To be sure, in post-1789
France, no strict entrenchment of the constitution was envisaged, although Sieyès did toy
with the idea of introducing an early constitutional court in his drafts for the 1795 constitu-
tion (Troper 2006, pp. 525, 537). Despite this, the theory of constituent power in the French
Revolution, like its equivalent in America, evidently understood legitimate constituent power
as a mode of constitutional agency that was subject to prior norms, and proportioned to the

29
Sieyès saw the nation (people) as ‘the origin of everything . . . the law itself’ (Sieyès 1789, p. 79).
70 Handbook on global constitutionalism

realization of principles of natural law. For example, Sieyès clearly placed his understanding
of the constituent power at the core of a doctrine of rights-based juridical equality, in which
the assertion of this power was synonymous with the allocation of equal rights to all persons
in society.30 More importantly, then, in the white heat of revolution, Robespierre rephrased
this notion, claiming that basic rights were always implied as restrictions on the volitional
exercise of constituent power, and that the constituent power could only legitimately express
a founding political will if it willed rights. In 1793, Robespierre concluded that constituent
power could only acquire legitimacy if it projected constitutional laws within the constraints
of an implied system of rights, and – most notably – if these rights were constructed as rights
with universal or global validity. He explained this principle in the following terms:

The Declaration of Rights is the constitution of all peoples; other laws are by their nature changeable,
and subordinate to it. It must be present to all spirits, it must shine at pinnacle of your public code, and
its first article must be the formal guarantee of all rights of man. (Robespierre 1957, p. 507)

As in revolutionary America, therefore, the theory of constituent power that resulted from
the French Enlightenment was not conceived in a legal-constitutional vacuum, and the idea,
set out by Sieyès, that the constituent power must stand radically before the law was always
softened by the idea that the constituent power is always pre-defined by a corpus of rights: it
always creates a constitution within a constitution. Athough the theory of constituent power
appears to belong to the more voluntaristic end of the spectrum of Enlightenment political
thinking, it was clearly determined by ideas of the rational will, which can be found in the
works of Leibniz and Kant. Notably, the great precursor of the theory of national constituent
power, Rousseau, stood between voluntarist and rationalist theories of legitimate order, and he
argued that a political order becomes legitimate if it is willed by a collective will (a constituent
power) that is inherently rational and can be generalized for all persons: by a will that wills
rights.31
On this basis, the common claim in constitutional theory based on globalist constructions
of international law that there is a deep contradiction between the volitional sovereignty of
national peoples in classical constitutionalism and the overarching force of global constitu-
tional law only has a qualified validity. In the theories of the Enlightenment, national constit-
uent power was seen as an integrated part of a global system of rights, to which, then, it was
required to give effect. The conflict between constituent power and global constitutionalism
is the product of a later tradition of post-Enlightenment reflection, which imputed a more
strictly nationalist, locally historicized foundation to the decisions of the constituent people
(see Schmitt 1928, p. 76). The Enlightenment, however, did not see a deep conflict between
constituent power and global norms, and it always perceived constituent power as a pattern of
agency that brings reality to a higher-order system of rights.

30
Sieyès argued that the nation, as constituent power, is a people ‘all equal in rights’ (Sieyès 1789,
p. 19).
31
Rousseau states, accordingly: ‘Il y a souvent bien de la différence entre la volonté de tous et la
volonté générale; celle-ci ne regarde qu’à l’intérêt commun; l’autre regarde à l’intérêt privé, et n’est
qu’une somme de volontés particulières’ (‘It is often the case that there is a difference between the will
of all and the general will. The latter is concerned solely with the common interest, whereas the former
concerns private interest, and is merely the sum of particular wills’) (1762 [1975], p. 252).
 The Enlightenment and global constitutionalism 71

CONSTITUTIONALISM AND THE ABSTRACTION OF POLITICAL

SYSTEM

In summary, it is observable that, both conceptually and practically, many aspects of what is
today perceived as global constitutionalism already existed in classical constitutional theory,
the defining components of which were formulated during the Enlightenment. In many
respects, the theory and practice of constitutionalism based on globalist ideals of international
law appears, not as a rupture with classical constitutionalism, but as its extension and even as
its necessary corollary. This is not only the case if we observe constitutionalism as a simple
positive phenomenon. Global constitutionalism also appears as a natural extension of classical
constitutionalism if we observe trajectories of constitutional norm construction, not only as
positively constructed institutional systems, but as refractions of sociological processes.
Most notably, if approached sociologically, we can observe that the primary feature of
classical constitutionalism was that it reacted to a series of deep-lying processes, which shaped
the structure of European and other societies, in the longer wake of the collapse of feudalism.
Notably, the basic diction of classical constitutionalism produced a series of concepts in which
political institutions learned to articulate legal norms in order to authorize their use of power,
above the interwoven patchwork structure of late-medieval corporatism, and to stabilize their
functions in the context of increasingly extensive, functionally differentiated, centralized
societies. The constitutional idea that the state was founded on a national constituent power,
above all, allowed national political systems to project their power as authorized by all society,
and as applied to persons who were conceptually implicated in the production of this power.
This meant that political institutions were able increasingly to presume collective authority in
society, to produce laws which claimed to have collectively binding force, and to define their
authority as higher than that of the local/corporate institutions which had historically been
located between the state and individual persons in society. As a result, this concept provided
a diction of abstraction for political power, and it made it possible for increasingly expansive
national societies to construct reserves of power in a form that could be stored in central
institutions, and easily transmitted, authorized and reproduced across very different societal
locations. The expansion and differentiation of early modern societies stimulated a need for
political institutions (that is, states) that could circulate power relatively easily across long
geographical and temporal distances. Constitutions, centred on the concept of constituent
power, made this possible.
In some respects, if viewed literally, the rise of global constitutionalism reflects a process
which is diametrically opposed to the formative dynamic underpinning classical constitutions.
If classical constitutions distilled a diction of abstraction for political power in which power
could be easily utilized by states, global constitutionalism clearly enacts a process in which
states forfeit their classical position as dominant centres of political power and authority.
However, if we observe the process of political abstraction in the Enlightenment from a more
sociological standpoint, as a process in which the political system of society was constructed
at a heightened level of extension and generality, something similar can be identified in
contemporary society, defined increasingly by global constitutionalism. Notably, in the form
of global constitutional law, political power is increasingly abstracted into a form defined by
global rights, which means that it can be distributed easily, at a high level of iterability, across
the rapidly widening functional and geographical spaces which global society contains, and
underpins the emergence of a political system which is able more simply to replicate and
72 Handbook on global constitutionalism

reproduce its power across the fissures between national states, which defined the original
structure of modern society. If classical constitutionalism produced a diction of abstraction
(constituent power) for the political system in the transition from early modern to modern
society, global constitutionalism re-enacts this same process, and it constructs a diction of
abstraction (rights) for the political system as the units of political power that characterized
high modern society (states) are superseded as dominant actors. In both respects, constitutional
norms are specifically formulated and cemented as institutions that stabilize the form of polit-
ical power at a new level of reproducibility, and which allow the political system of society
to construct and circulate political power in increasingly abstracted form, attuned to its own
increasingly differentiation and expansiveness. Seen from a macro-sociological perspective,
therefore, the continuity between classical and global constitutionalism appears greater than
even their literal conceptual and objective similarities indicate.

REFERENCES
Ackerman, B. (1997), ‘The rise of world constitutionalism’, Virginia Law Review, 83 (4), 771–97.
Armitage, D. (2002), ‘The Declaration of Independence and international law’, William and Mary
Quarterly, 59 (1), 39–64.
Böckenförde, E.W. (1999), ‘Die sozialen und politischen Ordnungsideen der französischen Revolution’
(‘The social and political order ideas of the French Revolution’), in E.W. Böckenförde, Staat, Nation,
Europa, Frankfurt am Main: Suhrkamp, pp. 1–24.
Boone Williams, N. (1940), ‘Independent judiciary born in colonial Virginia’, Journal of the American
Judicature Society, 24 (194), 124–7.
Brunkhorst, H. (2014), Critical Theory of Legal Revolutions – Evolutionary Perspectives, London:
Continuum.
Calabresi, S. and S. Dotson Zimdahl (2005), ‘The Supreme Court and foreign sources of law: two
hundred years of practice and the juvenile death penalty decision’, William and Mary Law Review,
47 (3), 743–909.
Cappelletti, M. (1981), ‘Nécessité et légitimité de la justice constitutionnelle’ (‘Necessity and legitimacy
of constitutional justice’), Revue internationale de droit compare, 33 (2), 625–57.
Cleveland, S.H. (2006), ‘Our international constitution’, Yale Journal of International Law, 31 (1),
1–125.
Cocceji, S. (1713–18), Jus civile controversum (Controversy on Civil Law), new edition 1791–99, 2 vols,
Leipzig: Weidmann.
Cohen, H. (1904), System der Philosophie, Zweiter Theil. Ethik des reinen Willens (System of Philosophy,
Part II: Ethics of the Pure Will), Berlin: Bruno Cassirer.
D’Amato, A. (1988), ‘The alien tort statute and the founding of the Constitution’, American Journal of
International Law, 82 (1), 62–7.
Dupuy, P.-M. (1997), ‘The constitutional dimension of the Charter of the United Nations revisited’, Max
Planck Yearbook of United Nations Law, 1, 1–33.
Fassbender, B. (1998), ‘The United Nations Charter as constitution of the international community’,
Columbia Journal of Transnational Law, 36 (3), 539–619.
Ferejohn, J. (2002), ‘Judicializing politics, politicizing law’, Law and Contemporary Problems, 65 (3),
41–68.
Forrest Martin, F. (2007), The Constitution as Treaty: The International Constructionalist Approach to
the U.S. Constitution, Cambridge: Cambridge University Press.
Gardbaum, S. (2008), ‘Human rights as international constitutional rights’, European Journal of
International Law, 19 (4), 749–68.
Grewe, W. (ed.) (1988), Fontes Historiae Iuris Gentium (Sources of the History of International Law),
Berlin: de Gruyter.
 The Enlightenment and global constitutionalism 73

Grimm, D. (1991), Die Zukunft der Verfassung (The Future of the Constitution), Frankfurt am Main:
Suhrkamp.
Helfer, L.R. (2003), ‘Constitutional analogies in the international legal system’, Loyola of Los Angeles
Law Review, 37 (2), 193–238.
Henkin, L. (1995–96), ‘Human rights and state “sovereignty”’, Georgia Journal of International and
Comparative Law, 25 (1–2), 31–44.
Hirschl, R. (2004), Towards Juristocracy. The Origins and the Consequences of the New Constitutionalism,
Cambridge, MA: Harvard University Press.
Hirschl, R. (2007), ‘The new constitutionalism and the judicialization of pure politics worldwide’,
Fordham Law Review, 75 (2), 721–753.
Hobson, C.F. and F.J. Teute (eds) (1990), The Papers of John Marshall, 9 vols, Chapel Hill, NC:
University of North Carolina.
Hunter, I. (2001), Rival Enlightenments. Civil and Metaphysical Philosophy in Early Modern Germany,
Cambridge: Cambridge University Press.
Jay, S. (1989), ‘The status of the law of nations in early American law’, Vanderbilt Law Review, 42
(April), 819–49.
Kadelbach, S. and T. Kleinlein (2007), ‘International law – a constitution for mankind? An attempt at
a re-appraisal with an analysis of constitutional principles’, German Yearbook of International Law,
50, 303–48.
Kahn, P.W. (2000), ‘Speaking law to power: popular sovereignty, human rights, and the new interna-
tional order’, Chicago Journal of International Law, 1 (1), 1–18.
Kant, I. (1795), Zum Ewigen Frieden (On Perpetual Peace), in W. Weischedel (ed.) (1977),
Werkausgabe, 12 vols, Frankfurt am Main: Suhrkamp.
Kant, I. (1797 [1977]), Metaphysik der Sitten (Metaphysics of Morals), in W. Weischedel (ed.) (1977),
Werkausgabe, 12 vols, Frankfurt am Main: Suhrkamp.
Kingsbury, B. (2012), ‘International courts: uneven judicialisation in global order’, in J. Crawford and
M. Koskenniemi (eds), The Cambridge Companion to International Law, Cambridge: Cambridge
University Press, pp. 203–27.
Klabbers, J., A. Peters and G. Ulfstein (2009), The Constitutionalization of International Law, Oxford:
Oxford University Press.
Koselleck, R. (1959), Kritik und Krise. Ein Beitrag zur Pathogenese der burgerlichen Welt (Critique and
Crises: Enlightenment and the Pathogenesis of the Modern World), Freiburg: Alber.
Krisch, N. (2010), Beyond Constitutionalism: The Pluralist Structure of Postnational Law, Oxford:
Oxford University Press.
Kumm, M. (2004), ‘The legitimacy of international law: a constitutionalist framework of analysis’,
European Journal of International Law, 15 (4), 907–31.
Leibniz, G.W. (1693), Codex Juris Gentium (Code of International Law), Hannover: S. Ammonus.
Leibniz, G.W. (1763a), ‘Monita quaedam ad Samuelis Pufendorfii principia’ (‘Opinion on the principles
of Samuel Pufendorf’), in L. Dutens (ed.), Leibniz, Opera Omnia, 6 vols, Geneva: de Tournes.
Leibniz, G.W. (1763b), ‘Observationes de principio juris’ (‘Observations on the principle of law’), in L.
Dutens (ed.), Leibniz, Opera Omnia, 6 vols, Geneva: de Tournes.
Leibniz, G.W. (1885), ‘Méditation sur la notion commune de la justice’ (‘Meditation on the common
notion of justice’), in G. Mollat (ed.), Rechtsphilosophisches aus Leibnizens ungedruckten Schriften,
Leipzig: Robolsky.
Leibniz, G.W. (1923), ‘De jure suprematus ac legationis principium Germaniae’ (‘The law regarding
the rule of German princes and their right to send ambassadors’), in Zentralinstitut für Philosophie
an der Akademie der Wissenschaften der DDR, planned for over 80 vols, Berlin: Akademie-Verlag,
pp. 3–270.
Lillich, RB. (1993), ‘International law in U.S. courts’, Journal of Transnational Law & Policy, 2 (1),
1–22.
Locke, J. (1689), Two Treatises of Government, reprinted 1960, Cambridge: Cambridge University
Press.
Loughlin, M. (2009), ‘In defence of Staatslehre’, Der Staat, 48 (1), 1–27.
Loughlin, M. (2013), ‘The concept of constituent power’, European Journal of Political Theory, 13 (2),
218–37.
74 Handbook on global constitutionalism

Madison, J., A. Hamilton and J. Jay (1787–88), The Federalist Papers, reprinted 1987, London: Penguin.
Marquis de Condorcet (1847), ‘La nation française à tous les peuples’ (‘The French nation to all
peoples’), in Marquis de Condorcet, Oeuvres, 12 vols, Paris: Firmin Didot Frères.
Marquis de Lafayette (1839), Mémoires, correspondences et manuscrits (Memoires, Correspondence
and Manuscripts), 12 vols, Brussels: Hauman et Comp.
Mirkine-Guetzévitch, B. (1929), L’influence de la revolution française sur le développement du droit
international dans l’Europe orientale (The Influence of the French Revolution on the Development of
International Law in Western Europe), Paris: Hachette.
Moser, J.J. (1762–82), ‘Von der teutschen Religionsverfassung’ (‘On the German religious constitu-
tion’), in J.J. Moser, Neues deutsches Staatsrecht, 20 vols, Stuttgart: Mezler.
Munn Ziegler, B. (1939), The International Law of John Marshall: A Study of First Principles, Chapel
Hill, NC: University of North Carolina Press.
Navia, P. and J. Ríos-Figuero (2005), ‘The constitutional adjudication mosaic of Latin America’,
Comparative Political Studies, 38 (2), 189–216.
Nicol, D. (2010), The Constitutional Protection of Capitalism, Oxford and Portland, OR: Hart.
Onuf, P. and N. Onuf (1993), Federal Union, Modern World: The Law of Nations in an Age of
Revolutions, 1776–1814, Madison, WI: Madison House.
Peters, A. (2005), ‘Global constitutionalism in a nutshell’, in K. Dicke, S. Hobe, K.-U. Meyn, A. Peters,
E. Riedel, H.-J. Schütz and C. Tietje (eds), Weltinnenrecht. Liber amicorum Jost Delbrück, Berlin:
Duncker und Humblot, pp. 535–50.
Peters, A. (2014), Jenseits der Menschenrechte: Die Rechtsstellung des Individuums im Völkerrecht
(Beyond Human Rights: The Legal Position of the Individual in International Law), Tübingen: Mohr.
Petersmann, E.-U. (2001), ‘Human rights and international economic law in the 21st century: the need to
clarify their interrelationships’, Journal of International Economic Law, 4 (1), 3–39.
Prempeh, K. (2006), ‘Marbury in Africa: judicial review and the challenge of constitutionalism in con-
temporary Africa’, Tulane Law Review, 80 (4), 1239–323.
Rabkin, J.A. (2007), Law without Nations? Why Constitutional Government requires Sovereign States,
Princeton, NJ: Princeton University Press.
Redslob, R. (1916), ‘Völkerrechtliche Ideen der französischen Revolution’ (‘Ideas on international law
in the French Revolution’), in Festgabe für Otto Mayer: Zum siebzigsten Geburtstage dargebracht
von Freunden, Verehrern und Schülern, Tübingen: Mohr.
Robespierre, M. (1957), ‘Discours sur la Constitution’ (‘Discourse of the Constitution’), in M.
Robespierre, Oeuvres, vol. 9, Paris: Presses Universitaires de France.
Rosanvallon, P. (2000), La Démocratie inachevée: Histoire de la souveraineté du people en France
(Uncompleted Democracy: A History of Popular Sovereignty in France), Paris: Gallimard.
Rousseau, J.-J. (1975), Du contrat social et autres oeuvres politiques (The Social Contract and Other
Political Works), Paris: Garnier.
Schmitt, C. (1928), Verfassungslehre (Constitutional Theory), Berlin: Duncker and Humblot.
Schneiderman, D. (2008), Constitutionalizing Economic Globalization: Investment Rules and
Democracy’s Promise, Cambridge: Cambridge University Press.
Schwöbel, C.E.J. (2011), Global Constitutionalism in International Legal Perspective, Leiden: Nijhoff.
Sieyès, E.-J. (1789), Qu’est-ce que le Tiers-Etat? (What is the Third Estate?), 2nd edn, Paris.
Sieyès, E.-J. (1978), Préliminaire de la constitution: Reconnaissance et exposition raisonnée des droits
de l’homme & du citoyen (Preliminary of the Constitution: Recognition and Reasoned Exposition of
the Rights of Man and the Citizen), Versailles: P.-D. Pierres.
Smith, A. (1762–66), Lectures on Jurisprudence, reprinted in R.L. Meek, D.D. Raphael and P.G. Stein
(eds) (1978), The Glasgow Edition of the Works and Correspondence of Adam Smith, Vol. 5: Lectures
on Jurisprudence, Oxford: Oxford University Press.
Stone Sweet, A. (2009), ‘Constitutionalism, legal pluralism, and international relations’, Indiana Journal
of Global Legal Studies, 16 (2), 621–45.
Teubner, G. (2012), Constitutional Fragments: Societal Constitutionalism and Globalization, Oxford:
Oxford University Press.
Thornhill, C. (2014), ‘Rights and constituent power in the global constitution’, International Journal of
Law in Context, 10 (3), 357–96.
 The Enlightenment and global constitutionalism 75

Troper, M. (2006), Terminer la revolution: La constitution de 1795 (Complete the Revolution. The
Constitution of 1795), Paris: Fayard.
Wahl, R. (2011), ‘Die Rolle staatlicher Verfassungen angesichts der Europäisierung und der
Internationalisierung’ (‘The role of state constitutions in the face of Europeanization and internation-
alization’), in T. Vesting and S. Korioth (eds), Der Eigenwert der Verfassungsgeschichte: Was bleibt
von der Verfassung nach der Globalisierung?, Tübingen: Mohr, pp. 355–78.
Wilson, J. (1791), ‘Lectures on law’, reprinted in R.G. McCloskey (ed.) (1967), The Works of James
Wilson, Cambridge, MA: Harvard University Press, pp. 69–707.
Wolff, C. (1754), Grundsätze des Natur- und Völckerrechts (Principles of Natural and Völcker Law),
Halle: Renger.
Zhu, G. (2010), ‘Constitutional review in China: an unaccomplished project or a mirage?’, Suffolk
University Law Review, 43 (3), 625–53.
6. Modern historical antecedents of global
constitutionalism in theoretical perspective
Michel Rosenfeld

INTRODUCTION

Constitutional architecture, deployment and functioning pertain to politics and law whereas
the conceptual coherence and legitimation of constitutional ordering fall within the ambit of
legal and political theory. From the latter standpoint, modern historical antecedents to what
may be plausibly envisaged as the modern precursor of global constitutionalism trace back
to the Enlightenment. Modern constitutionalism builds on the conceptual heritage of the
Enlightenment through a reworking of various strands of its earlier counterpart. The reworking
in question is by no means a straightforward continuation, but instead a regrouping, trans-
formation and redeployment of the Enlightenment’s embattled and somewhat delegitimized
legacy. The normative project launched by the Enlightenment can be encapsulated in the com-
bination of adherence to the rule of reason and promotion of equal liberty for all (Rosenfeld
2011, p. 1). As against the feudal order it undertook to replace, the Enlightenment project took
a turn against faith and the divine rights of kings to make room for reason and against hierar-
chy based on birth to clear the way for the implantation as the new baseline carved out by the
postulate of equality, according to which all human beings ought to be considered as being
free and equal (Rosenfeld 1991, p. 20). Following up on this Enlightenment paradigm shift
emerges modern constitutionalism and it confronts a major theoretical challenge. The latter
consists in reconciling three different theoretical strands that often find themselves at odds
with one another and that trace back to the ideology put forth by the Enlightenment project.
The first of these strands can be characterized as the Kelsenian or positivist strand; the second,
as the Rawlsian-Habermasian contractarian (or consensus-based) strand; and the third, as the
Schmittian or identitarian strand. With this in mind, the next section briefly examines how
the three strands at stake trace back to the deployment and adaptation of the Enlightenment
ideal. Then the chapter presents a critical analysis of the main poles of friction and interaction
between the three strands in the context of modern constitutionalism as fitted to the needs and
aspirations of the nation-state. Finally, the chapter explores whether and how the congruities
and incongruities between the three strands and the nation-state might be relevant, adaptable,
or play out within the ambit of global constitutionalism.

THE THREE THEORETICAL STRANDS OF MODERN

CONSTITUTIONALISM IN HISTORICAL CONTEXT

The ideal of modern constitutionalism rests on four pillars: limitations of the powers of
government; adherence to the rule of law; protection of fundamental rights; and g­ uarantees
for the maintenance of an adequate level of democracy. The first two of these pillars, and

76
 Modern historical antecedents of global constitutionalism in theoretical perspective 77

especially the functioning of a rule of law regime, require a hierarchy of norms. Kelsen’s
positivist theory of law, in which the constitution or Grundnorm is at the top of the rule of
law pyramid, provides a formal and rational model of the requisite hierarchy (Kelsen 1961,
p. 124). Kelsenian positivism provides the structural pole of modern constitutionalism and it
derives from Enlightenment-based roots going as far back as Hobbes’s social contractarian
positivism (Hobbes 1651, pt II, ch. xxvi) and Kant’s critical approach (Kant 1797 [1969]) as
adapted for law as a self-governing, self-contained normative order.
Against the structural pole based on Kelsenian positivism, there is another complementary
substantive pole that emanates from a human rights regime, such as that elaborated in the 1948
Universal Declaration of Human Rights. That Declaration and the two 1966 United Nations
(UN) Covenants, one on civil and political rights, and the other on economic, social and cul-
tural rights, trace back to the Enlightenment and to its two celebrated sources of fundamental
rights: the 1789 French Declaration of the Rights of Man and Citizen and the 1791 United
States (US) Bill of Rights (Henkin 1994). These latter eighteenth-century iterations of funda-
mental rights originated in the philosophy of the Enlightenment, with particular emphasis on
Rousseau in France and on the Enlightenment philosophers’ great precursor, Locke, in the US.
Eighteenth-century fundamental constitutional rights and twentieth-century human rights are
to a large extent similar in content. However, whereas constitutional rights were only meant
to extend to those within the polity within the scope of the relevant constitution, human rights
are addressed to all human beings qua human beings and are hence meant to transcend all
boundaries.
The eighteenth-century Enlightenment sources of fundamental rights posit the individual as
possessor of rights in abstract and universal terms. Thus, the 1789 French Declaration refers
to ‘man’ and ‘citizen’ rather than to ‘Frenchman’ and ‘French citizen’. However, though con-
ceived in broad universal terms, the scope of eighteenth-century fundamental constitutional
rights could not be imagined as extending beyond the confines of the nation-state, which
in different ways was in the process of construction in both France and the US (Rosenfeld
2010, pp. 157, 159). The French Declaration established political rights whereas the US Bill
of Rights created legal rights. In contrast, the 1948 Universal Declaration, set against the
Holocaust and intent on extending rights to all humans qua humans who possess inherent
dignity, promotes rights that are primarily moral in nature (Rosenfeld 2010, pp. 252–3).
Furthermore, rights, whether legal, moral or political, meant to extend in the same way to all
free and equal individuals, seem best legitimated in terms of social contractarian (Rawls 1971)
and consensus-based (Habermas 1996) rationalizations. Both Rawls and Habermas seek to
perfect the social contract theory tradition spanning from Hobbes to Kant and aim for a synthe-
sis that incorporates both Rousseau and Kant (Habermas 1996, p. 94; Rawls 1971, p. 11). For
Rawls, this culminates in a hypothetical social contract concluded behind a veil of ignorance
that aspires to casting legitimation beyond the realm of particular individual, ideological and
social interests. For Habermas, on the other hand, the quest for the requisite synthesis leads
to an extension of the social contract tradition into a consensus based theory (Rosenfeld
1998, pp. 303–6) built upon a discourse ethics relying upon an ‘ideal speech’ dialogue fairly
and equally open to all concerned (Habermas 1984, pp. 273–337). Justifications based on
a Rawlsian hypothetical social contractarian approach that transcends competing individual
interests or on a Habermasian discourse ethical-based consensus focused on universalizeable
norms and criteria of legal validity stand in sharp contrast with their Kelsenian positivist
counterpart. Moreover, Rawlsian social contractarianism and Habermasian consensus-based
78 Handbook on global constitutionalism

universalism are distinguishable regarding legal and constitutional legitimation from natural
law and Lockean natural rights theory, though they bear some affinity to both of the latter.
Indeed, the affinity in question derives from a common reliance on reason and emphasis on the
fundamental rights of free and equal persons.
The first two strands of modern constitutionalism can either stack up as ­complementary
– for example, positivism to justify structure of government arrangements and Rawlsian or
Habermasian criteria to justify fundamental rights – or as antagonistic – for example, an entire
constitutional order justified either from a positivist or from a Rawlsian or Habermasian per-
spective. In either case, for a constitutional polity to acquire a distinct concrete content and life
and for those within its sweep to view themselves and to interact as a coherent constitutional
unit, there must be a sufficient common identity that allows for unity and for willing adherence
to a common constitutional project. Accordingly, to cohere within a political society, a con-
stitutional order must possess a distinct identitarian component. Karl Schmitt, for example,
insisted that democracy and constitutionalism be understood in ethnicist terms (Schmitt
1928) and conceived of political and constitutional dynamics in terms of the tension between
friend and foe (Schmitt 1996). More generally, a contrast can be drawn between a historically
grounded French conception of constitutionalism where the demos is prior to the ethnos and
its German counterpart, further elaborated in the early twentieth century by Schmitt, where the
ethnos is at the forefront (Preuss 1994, p. 150).
For our purposes, the third strand of modern constitutionalism can be referred to as the
Schmittian or identitarian strand. In some cases, in the context of Westphalian mono-ethnic
nation-states, identitarian issues may remain for the most part below the surface and harmony
among the three above discussed strands may hold steadily. In multi-ethnic nation states and
transnational polities, however, tensions between the three strands seem much more likely.
Moreover, in transnational settings and a fortiori in global settings, the Schmittian or iden-
titarian strand itself may loom as quite problematic since it may be difficult to construct or
imagine a constitutionally meaningful common identity extending to all living human beings
throughout the entire globe.

FIT AND FRICTION OF THE THREE STRANDS AS DEPLOYED IN

THE MODERN NATION-STATE

Constitutional positivism has been cast as antagonistic to natural rights, natural law and the
contractarian tradition that would culminate in Rawls much before the twentieth century. In
1798, in its decision in Calder v. Bull (3 U.S. 386), the US Supreme Court Justices were split
over whether the US Constitution was at the top of the law’s normative pyramid or whether it
ought to be regarded as subordinated to a universal reason-based natural law or rights regime
which would reign above all actually adopted constitutions and laws. As a formal matter, the
positivistic position articulated in Calder has prevailed in the US ever since, but the antago-
nistic positions elaborated in that case have been ­displaced rather than eliminated. Thus, for
example, the conflict between these positions has acquired particular prominence in the ambit
of constitutional interpretation regarding subjects such as abortion1 and same-sex marriage.2

1
See Roe v. Wade, 410 U.S. 113 (1973).
2
See Obergefell v. Hodges, 135 S.Ct. 2584 (2015).
 Modern historical antecedents of global constitutionalism in theoretical perspective 79

Furthermore, the antagonism under consideration also played an important role in the elabora-
tion of the German conception of the Rechsstaat (commonly understood as the ‘rule of law’,
but more accurately understood as ‘state rule through law’). In its original Enlightenment
version, the Rechtsstaat was Kantian and hence, broadly speaking, contractarian in nature
(Rosenfeld 2001, pp. 1320–24). In contrast, after the failed German Revolution of 1848, the
Reich institutionalized a positivistic Rechtsstaat that guaranteed to the defeated German bour-
geoisie state rule through promulgation and implementation of laws rather than through mere
deployment of the will of the monarch (Rosenfeld 2001, p. 1326).
Positivist and contractarian justifications share an important feature in common: they both
are essentially procedural or process-based in nature. Positivism relies on a set hierarchy of
norms and emphasizes pedigree, thus allowing for legitimation regardless of the law’s content
or of the interests advanced or set back by the latter. Contractarianism, in turn, depends on
a discursive process under universally accepted procedures apt to leading to a meeting of the
minds among all the parties of the contemplated contract. Because the social contract, unlike
a legal contract, involves a presumed or hypothetical rather than an actual historical meeting
of the minds, what animates the counterfactual process involved is either reason, a conception
of justice and of the right that transcends the good and interests, or a common commitment
to values, such as dignity, that are supposed to rise above competing interests. When positiv-
ism and the contractarian tradition are sufficiently aligned, then the constitutional order can
simultaneously be justified from the standpoint of a unified hierarchy that ensures structural
integrity and a clearly marked pedigree as well as from that of reason or justice.
Even assuming the above mentioned alignment to be seamless and enduring, for a constitu-
tional order to function so as to bind an entire political community together, it would require
the continuous presence of bonds of solidarity. That is, even under full justification of a con-
stitutional order from the standpoint of reason, those subjected to the constitutional dictates
deriving from the latter would need to internalize the relevant constitution by identifying with
it and making it their own. A constitution becomes our own when we all partake in its identity
and emerge collectively as its constitutional subject – in its multifaceted dimensions that link
the maker of the constitution, those subjected to it and its content – within the ambit of a single
constitutional self set against a multitude of constitutional others (Rosenfeld 2010). Thus,
for example, the ‘We the People’ that gave itself the 1787 US Constitution bonded together
into a constitutional self differentiated from external others – for example, the British and the
French – and from internal others – for example, the African American slaves whose depri-
vation of personhood became constitutionally ratified.3 No matter how rationally appealing,
a constitution must become engrafted in a collective self that creates, partakes and perpetuates
a common identity that is formed, at least in part, against the distinct identities of multiple
others.
Modern nation-state constitutions are characterized by the mutual integration of unity and
hierarchy. The unity at stake is encapsulated in the citizenry’s self-conception as a constitu-
tional self coalescing as a people within a nation, whereas the corresponding hierarchy derives
from the constitution as the supreme law of the polity. Construction and justification of the
relevant constitutional self and the particular identity it is meant to project is to a large extent

3
See US Constitution, Art. 1, Sec 2 (1789) (slaves to count as 3/5 of a person for purposes of allo-
cation of population based House of Representatives Districts), and Sec. 9 (Slave trade protected from
abolition through constitutional amendment prior to 1808).
80 Handbook on global constitutionalism

contested and contestable as differences in interests, values and ideology abound in contem-
porary polities. Significantly, national identity requires a common investment in an ‘imagined
community’ as the modern nation-state, unlike the small commune or the tribe, is built upon
a union among strangers (Anderson 1991, p. 7). Similarly, the identity of the constitutional self
calls for a dynamic process that maintains that which may unite the citizenry (both through
nodes of common identification and through nodes of differentiation from those cast as con-
stitutional others) above and beyond that which is prone to divide it and to alienate some com-
munities from the common national constitutional enterprise. Alternatively, hierarchy is meant
to be formally guaranteed by the place of the constitution at the top of the legal hierarchy and
materially by the functioning of an institution, such as a constitutional court, charged with the
authoritative interpretation of the constitution erga omnes (to all), thus binding all institutions
and all individuals within the polity.
In practice, at the level of justification and legitimation, a considerable degree of dis­
agreement and contestation are likely even in a mono-ethnic nation-state. Disagreements con-
cerning politics, values, ideologies and constitutional interpretation – for example, originalists
versus adaptionists in the US – are typical and seemingly inevitable. Under these circum-
stances, none of the three sources of legitimation discussed above would seem satisfactory.
Positivism may circumscribe form and structure, but appears to be completely indifferent in
relation to substance. It seems equally compatible with a good as with an evil legal or consti-
tutional regime. Moreover, in a polity in which the citizenry is divided as a consequence of
embracing competing conceptions of the good, the constitution, its interpretation and positive
law may be critically regarded by some as arbitrarily enshrining the interests of others at the
expense of their own. Social contractarian and consensus-based justifications are also vul-
nerable to critical assessments, particularly in view of their counterfactual nature in contrast
to legal contract in the context of which the fact of agreement plays a crucial role in terms
of legitimation. Indeed, from a critical perspective, the social contract in all its incarnations
may not be able to avoid favouring some interests or conceptions of the good over others, and
accordingly the counterfactual agreement that it postulates would end up being contestable or
arbitrary as why would a prospective contractor sacrifice his or her interests or vision of the
good in order to institutionalize those of his or her rivals (Rosenfeld 1998)? Dialogical nego-
tiation and interaction may nonetheless be conducive to sustaining the fabric of constitutional
accommodation. This would not be done by settling on contract or consensus, but instead by
promoting mutual recognition through reasonable disagreement or dissent (Tully 2004, p. 95).
Finally, the identitarian bond that is supposed to bind the constitutional subject into a single
and coherent self may be insufficient even in a mono-ethnic setting – for example, those on
the political left may be at complete odds with their counterparts on the right, and though the
polity may be overwhelmingly issued from a single religious tradition, the secular citizenry
may become completely polarized from their strictly practising co-religionists. Furthermore,
these identitarian troubles are likely to be exacerbated in multi-ethnic, multi-religious, multi-
national nation-states which movements towards secession in Catalonia and Quebec attest to.
Preservation and legitimation of a viable constitutional self that stands above all salient
differences and against all relevant (internal and external) others are unlikely to find sufficient
support in any one of the three theoretical strands associated with modern constitutionalism.
Such support, however, can be mustered by a combination of partial reliance on all three of
the strands involved. A relatively thick layer of common identity based on a shared history,
destiny, culture and social and political association is amenable to allow for the grounding
 Modern historical antecedents of global constitutionalism in theoretical perspective 81

and the shaping of a constitutional regime that all the citizenry will be able to internalize
as their own and as other from (those of) others. Identity itself, though indispensable, will
not by itself yield any particular constitutional architecture, commitment to the rule of law
or adherence to fundamental rights consistent with the contemporary transnational human
rights movement. Accordingly, architecture and fundamental rights commitments will call
in part for social contractarian or consensus-based legitimation and in part for positivist jus-
tification. For example, fundamental rights may derive their normative grounding in whole
or in part from consensus on human dignity. Moreover, legitimation of fundamental rights
protection may draw on a broad-based consensus that encompasses transnational as well as
national rights along the lines of judicial convergence that has developed among judges of the
European Union Court of Justice (CJEU), the European Court of Human Rights (ECtHR) and
various European nation-state constitutional court judges (Garlicki 2008). Or else, the requi-
site consensus may originate within a single nation-state, thus tying together identity-based
justifications to pertinent normative justifications, as does Ronald Dworkin when he asserts
that the US Constitution happens to have enshrined fundamental rights as conceived by liberal
political philosophy and turned them into legally binding constitutional rights (Dworkin 1977,
pp. 184–205).
The unity and viability of a nation-state’s constitutional self can endure as long as inevitable
divisions and frictions within the polity, which inevitably seem bound to create incongruities
and inconsistencies, do not degenerate into seemingly unbridgeable incompatibilities. In this
context, relatively thick identitarian bonds seem to play a particularly important role that may
be regarded as analogous to that of family ties. Just as family ties can supersede quarrels and
disagreements, so a strong common (imagined) national and constitutional identity can leave
room for an extensive amount of disagreement and competition regarding constitutional inter-
pretation and constitutional as well as ordinary politics. There are breaking points, however, as
most obviously exemplified in constitutional decisions regarding secession. Both the Canadian
Supreme Court and the Spanish Constitutional Court thus emphasized that any unilateral
thrust toward independence respectively by Quebec and Catalonia would undermine the
constitutional essentials at stake.4 Interestingly, even in the drastic case of secession, the limits
of the integrity of the constitutional self can vary from one setting to another. Accordingly,
the Canadian Supreme Court indicated that a negotiated secession agreement among Quebec
and the rest of Canada would not be incompatible with preservation of the integrity of the
country’s constitutional regime, whereas the Spanish Constitutional Court made it plain that
any Catalonian secession would be destructive of the national and constitutional order circum-
scribed by Spain’s 1978 Constitution. In sum, the limits of identitarian unity and cohesiveness
are context dependent as are the relative places of each of the three strands of modern consti-
tutionalism in the legitimation of any particular constitutional regime functioning within the
bounds of the nation-state.

4
See Reference re Secession of Quebec [1998] 2 S.C.R. 217 (Canadian S. Ct.) and Catalonia 2006
Autonomy Statute Case, No. 31/2010 (June 28, 2010, Spanish Con. Ct).
82 Handbook on global constitutionalism

ARE THE THREE STRANDS OF MODERN CONSTITUTIONALISM

ADAPTABLE FOR PURPOSES OF USE IN TRANSNATIONAL AND
GLOBAL SETTINGS?

According to some, we already have a global constitution embodied in the UN Charter

(Fassbender 1998; Chapter 25 in this Handbook), and the EU member states fashioned for
themselves a transnational constitution in 2004 which was not adopted in 2005 after rejection
by the French and the Dutch voters in national ratifying referenda. Nonetheless, the substance
of the latter constitution was for the most part preserved in the 2007 Lisbon Treaty, which has
been characterized as a constitution in all but name (Dorsen et al. 2016, p. 112). In addition,
the human rights regimes issuing from international or transnational covenants or conventions,
such as the UN Covenant on Civil and Political Rights as well as the UN Covenant on Social,
Economic and Cultural Rights and regional transnational conventions on human rights, includ-
ing the African, the European and the Inter-American, are meant to protect constitutional-like
rights and can thus be regarded as partial or segmentary constitutions. Arguably, therefore,
transnational and global constitutionalism is not only a possibility, but a reality, albeit one that
finds itself in a rather preliminary stage.
Whether regarded as a possibility for the future or as an already partially achieved reality,
global and transnational constitutionalism does raise questions of legitimation, notably includ-
ing whether and to what extent the three strands of modern constitutionalism may figure in
any reasonably plausible scheme of justification. Above all, there are two crucial distinctions
between the constitutional order that inheres in a traditional nation-state and any counterpart
that may emerge in a supranational or global setting. Two major factors are always present
in the nation-state, but loom as problematic in transnational settings. First, at the scale of the
nation-state, there is a cohesive, unified, hierarchically ordered constitutional or legal system
that maximizes formal convergence among all diverse elements and interests; and, second,
there is a sufficient degree of perceived commonality or overlap among competing interests
through adherence to a commonly shared national and constitutional identity.
Transnational legal regimes seemingly lack the means to secure the hierarchy and unity of
legal norms that nation-state constitutions have managed to institutionalize. Could transna-
tional constitutionalism thrive nevertheless without attaining a hierarchy or unity of norms
comparable to those of the nation-state? Furthermore, even assuming an affirmative answer
to the latter question, it would seem that constitutions on a transnational or global scale would
confront daunting hurdles along the identitarian axis. As already mentioned, maintaining the
requisite common identity at the nation-state level can often be challenging and there are
undoubtedly many more differences in need of harmonization at the transnational level – for
example, more cultures, religions, ethnic and linguistic groups – than at that of any single
nation-state. Consistent with this, it seems, at least upon first impression, that the positivist and
the identitarian strands of modern constitutionalism are not readily adaptable in the context of
transnational constitutional ordering.
Against the unity and hierarchy of the nation-state, the transnational legal universe is one
characterized above all by layering and segmenting. The European Union (EU), for example,
amounts to a regional transnational comprehensive legal regime, with an elaborate separation
of powers, structure and a court, the CJEU, which brings unity within the relevant layer, but
does not achieve unity or hierarchy all the way down to the extent that EU member-state
nations insist on the supremacy of their own constitutions in case of conflict between them and
 Modern historical antecedents of global constitutionalism in theoretical perspective 83

EU law.5 As a consequence of the resulting gap in unity and hierarchy, a positivist legitimation
of EU constitutionalism seemingly fails both on formal and on material grounds. Formally,
there is no single hierarchy among norms that can help resolve conflicts between EU legal pre-
scriptions and EU member-state constitutional imperatives and that can avert threats to unity.
Materially, however, positivist legitimation relies on a combination of internalization of the
relevant constitutional norms together with a threat of sanctions in cases of defiance against
the law, and to the extent that the EU treaty-based regime is more akin to an international
law regime than a nation-state domestic regime, it may suffer from a serious sanction deficit
component (Hart 1994, pp. 198–9).
Concerning the identitarian deficit, although the EU is the most highly integrated trans-
national political union to date, it has been characterized as lacking a people, a common
party-based political agenda, a unified commonly shared communications forum, language or
culture (Grimm 1995). At the global level at which the UN Charter might provide some sem-
blance of a constitutional nexus, any plausible identitarian bonds loom as considerably thinner
than those at stake in the context of the EU. More generally, the Schmittian friend-or-foe
dynamic seems altogether unavailing at the global level, and attenuated and diluted at best at
a transnational level such as that of the EU – and then there is its potentially destructive thrust
within a setting such as the EU, as attested by the intensification of discord among EU member
states in response to the recent financial crisis in Greece and to the refugee crisis stemming
from the civil war in Syria.6
Unlike the positivist and the identitarian strands, the social contractarian- or c­ onsensus-based
strand does not appear to fare worse in the global or transnational setting than in that of the
nation-state. Indeed, a counterfactual social contract or consensus can in principle be as easily
conceived at any level within the spectrum spanning between the city-states and the world
at large. Habermas has articulated a source of justification along consensus-based lines that
is meant to provide a solid normative backing to transnational constitutionalism, through
his elaboration of the concept of ‘constitutional patriotism’ (Habermas 1996, p. 118). The
suggestion that we may become ‘patriotic’ about constitutionalism (as opposed to our own
constitution as part and parcel of the country and national identity to which we may be strongly
emotionally committed) appears counterintuitive. However, we may be ‘patriotic’ about our
own constitution as opposed to the concept of constitutionalism itself. This can occur either
because, as in the case of the Federal Republic of Germany before reunification the German
‘nation’ was physically split and conceptually problematic, thus making room for the Basic
Law to become a substitute around which West Germans could unify. Patriotism in relation to
a nation-state’s constitution is also plausible if understood as patriotic embrace of our nation
as a constitutional democracy, as is prevalent in the US.7
That we could and should reach a consensus regarding promotion of constitutionalism on
a transnational scale seems entirely plausible from the standpoint of reason. Particularly from
the perspective of Europe, which is uppermost in Habermas’s thought, recourse to constitu-

5
See, for example, Internationale Handelsgesellschaft Mbh v. Einfuhr- Und Vorratsstelle Für
Getreide Und Futtermittel [Solange I], 37 BVerfGE 271 (German Constitutional Court [GCC] 1974);
the Lisbon Treaty Case, 2 BvE 2/08, 2 BvE 5/08, 2 BvR 1010/08, 2 BvR 1022/08, 2 BvR 1259/08, 2 BvR
182/09 (GCC 2009).
6
See Smale (2015).
7
See generally, I.CON Symposium (2008).
84 Handbook on global constitutionalism

tionalism beyond the nation-state offers an attractive way to insure against future recurrences
of the twentieth-century unspeakable horrors brought about by Nazism and Stalinism as well
as a way to overcome once and for all Europe’s millennial affliction with ceaseless wars
among its peoples. Moreover, whereas spreading the virtues and potential of constitutionalism
across national borders may seem eminently reasonable, enlisting in the fight against past
totalitarian demons and committing energies to the vindication of human dignity and the
spread of human rights may fuel passions akin to those that motivated the best among the
nationalist patriots of yesteryear.
As thus understood, Habermas’s concept of ‘constitutional patriotism’ would provide
a substantive, as opposed to a merely structural, basis for unity within the ambit of an EU con-
stitution and, eventually perhaps, of a global constitution. That is, if constitutional patriotism
can transcend national patriotism and the dangers of Balkanization that the latter poses, then
consensus over the need for legal coordination pursuant to the normative dictates of consti-
tutionalism could cement the foundation for a functionally viable EU constitution. Not only
would constitutional patriotism furnish the EU peoples with a common constitutional identity,
but it would afford substantive means to overcome or mitigate the structural difficulties posed
by national constitution-based resistance to EU supremacy in matters within the jurisdiction
of the EU.
Habermas’s conception of ‘constitutional patriotism’ has generated a considerable debate
(I.CON Symposium 2008, pp. 67–152). For many, constitutional patriotism remains highly
improbable. Nationalism and nation-based patriotism anchored in a common history, culture
and language, and a commonly perceived national destiny can certainly stir strong – and at
times excessive – emotions. However, is it credible that the ideals of constitutionalism might
give rise to similar affective attachments? Or, is Habermas ultimately banking on the hope that
disparate peoples, many for centuries at war with one another, will rally around an abstract
ideal and make it the cement of a lasting common constitutional bond?
Even conceding that constitutional patriotism could pack sufficient identitarian affective
force to foster solidarity in the negative task of standing against abusive or authoritarian
divisive political initiatives within and beyond the nation-state, it is difficult to imagine how
it would suffice for purposes of sustaining the positive task of governing, maintaining and
unifying transnational polities. This raises the question of whether the identitarian and pos-
itivist support likely to be present at the national scale may be adapted to become adaptable
to the realities confronting transnational constitutionalism, or whether such support may be
supplanted by altogether different sources of legitimation. As the current focus is on the suit-
ability of modern constitutionalism justifications for transnational constitutionalism, only the
first part of the above question is addressed briefly below.
From the positivistic standpoint, it is highly unlikely that the unity and hierarchy that can
be achieved at the nation-state level could be reproduced at the transnational or global level.8
However, from a formal perspective at least, positivism may still be enlisted to play a signif-
icant justificatory role at the transnational level. Indeed, the presence of a structural consti-
tution has emerged as a necessity within virtually all contemporary legal regimes (Rosenfeld
2010, p. 268), including private law regimes (Hamann and Ruiz-Fabri 2008). Consistent with

8
In this respect, it is worth noting that the EU took the same ‘constitutional’ approach to UN
worldwide regulation than Germany took toward the EU in Solange I and the Lisbon Treaty Case, note 5
above.
 Modern historical antecedents of global constitutionalism in theoretical perspective 85

that, the unity and hierarchy of the nation-state constitution could be supplemented by the
structural homology among all relevant layered and segmented (formally and structurally, at
least) constitutional regimes bound to come into contact with one another. That is, if all inter-
acting units within a legal universe are circumscribed by a plurality of legal regimes, each of
which comports an analogous internal hierarchy of legal norms, then the unity of nation-state
constitutionalism may be plausibly replaced by a working degree of convergence among
relevant constitutional layers and segments. Moreover, the convergence in question need
not be strict and it may even involve a certain amount of inconsistencies as long as it avoids
incompatibilities. This has pretty much been achieved in the layered constitutional environ-
ment within the EU. Significantly, for all the proclamations by member-state constitutional
courts that the national constitution trumps inconsistent EU regulation, to date no such court
has found an actual incompatibility leading to rejection of EU regulation as contrary to the
relevant member-state’s constitution.
In terms of the Schmittian-identitarian strand of modern nation-state constitutionalism, there
seems to be no doubt that transnational or global constitutionalism could at best muster a much
thinner bond of common identity than their nation-state counterpart. As already alluded to,
multinational or multi-ethnic nation-states often have much more trouble than nationally and
ethnically homogeneous states in mustering the requisite identitarian glue. Does that mean that
transnational constitutionalism cannot count on any identitarian source of legitimation?
Taking into account layering and segmenting and both the positive facet – involving
common identitarian bonds – and the negative facet – uniting as friends to combat a common
enemy – of the Schmittian-identarian strand, the best answer to the last question seems to
be a qualified no. Segmented constitutional regimes, be they human rights based or interest
based, such as that promoted through the World Trade Organization (WTO), appear capable
of fostering closer identitarian ties than large and diverse nation-states. Indeed, human rights
activists, non-governmental organizations (NGOs) and even those entrusted with official
institutional roles, such as human rights court judges, may quite plausibly emotionally identify
with their cause in ways that supersede the active devotion of the citizenry to the political
life of a well-integrated nation-state. Furthermore, within an international regime such as that
framed by the WTO, there may well be a greater convergence of interests than within a typical
national polity with pronounced differences often pitting corporate management against
labour and setting apart free-traders from other organized political groups and interests.
With respect to layered constitutional regimes, such as the EU, however, identity bonds
seem bound to be thinner than those that prevail within cohesive nation-state constitutional
democracies, but that does not automatically imply a lack of the minimum of identitarian
solidarity required for purposes of constitutional legitimacy. Although the EU lacks the kind
of unity that prevails in federal republics, such as Germany or the US, it shares with federal
regimes the potential for harmonizing layered identities. New Yorkers are quite different from
Texans, for example, yet they both identify as Americans and rally together regarding the same
national triumphs and tragedies. Similarly, it is quite conceivable that a thinner EU identitarian
solidarity could combine with thicker member-state identity bonds to confront those beyond
the EU in ‘us’ versus ‘them’ or ‘self’ versus ‘others’ terms. Thus, in good times, those within
the EU can coalesce around a socio-economic vision that is distinct and that contrasts with
that of the US (von Bogdandy 2005). Accordingly, without weakening their bonds of national
identity, EU citizens can positively coalesce towards a common project that they can also
negatively hold against the US. To the extent that layered identity is cumulative rather than
86 Handbook on global constitutionalism

dissonant, a thinner transnational identity may well suffice under conditions of constitutional
layering. Finally, whether layered cumulation of identities could extend all the way to the
realm of global constitutionalism remains an open question. As the global constitutional
subject would lack an external other, its identitarian viability would depend on the availability
of internal others against which it might rise.

CONCLUSION

Though it may contain a large number of twists and turns, there is a seemingly plausible path
leading from the ideal of the Enlightenment to the legitimation of transnational and, much less
certainly but not impossibly, of global constitutionalism. Because Enlightenment-grounded
reason and equal liberty became prone to a number of competing, and even at times contra-
dictory, interpretations, modern constitutionalism as fitted to the nation-state has had to rely
for justification on the weaving together of elements from three separate theoretical strands.
As detailed above, these same strands combined in different ways and relied upon in different
proportions also seem suited in the context of transnational constitutionalism. In some cases,
particularly when global constitutionalism is at stake, it may seem that one of the three strands
of modern constitutionalism may become so attenuated as to play virtually no ascertainable
role in legitimation. For example, if a global segmented constitutional regime were adopted
to deal with the environment, it would seem that ­reason-based contractarian and positivist
justifications would all but completely margin­alize identitarian justifications. In such a case,
there would be no ­external other and no palpable friend-or-foe dynamic. Upon further thought,
however, a global constitutional regime may be interpreted as depending on a conflict with
an internal other – that is, the nation-state as a source of pollution and architect of a national
environmental policy – and a friend-or-foe struggle against an internal enemy – that is, the
nation-state as the exclusive sovereign over the sources of pollution and environmental poli-
cies within its territory. This raises larger questions: is it better to constitutionalize or to resort
to other legal frameworks when dealing with global segmented or layered legal regimes? Even
if constitutional frameworks were better than competing frameworks, such as those of interna-
tional or administrative law at the global level, could there be a better alternative than adapting
and stretching the three theoretical strands of modern constitutionalism? These questions must
remain unanswered here, but they help put the previous analysis in proper perspective.

REFERENCES
Anderson, B. (1991), Imagined Communities: Reflections on the Origin and Spread of Nationalism, New
York: Verso.
Dorsen, N., M. Rosenfeld, A. Sajo, S. Baer and S. Mancini (2016), Comparative Constitutionalism:
Cases and Materials, 3rd edn, St Paul, MN: West.
Dworkin, R. (1977), Taking Rights Seriously, Cambridge, MA: Harvard University Press.
Fassbender, B. (1998), ‘The United Nations Charter as a constitution of the international community’,
Columbia Journal of Transnational Law, 36 (3), 529–619.
Garlicki, L. (2008), ‘Cooperation of courts: the role of supranational jurisdictions in Europe’,
International Journal of Constitutional Law (I.CON), 6 (3–4), 509–30.
Grimm, D. (1995), ‘Does Europe need a constitution?’, European Law Journal, 1 (3), 282–302.
 Modern historical antecedents of global constitutionalism in theoretical perspective 87

Habermas, J. (1984), The Theory of Communicative Action: Reason and Rationalization of Society, trans.
T. McCarthy, Boston, MA: Beacon Press.
Habermas, J. (1996), Between Facts and Norms: Contributions to a Discourse Theory of Law and
Democracy, trans. W. Rehg, Cambridge, MA: MIT Press.
Hamann, A. and H. Ruiz-Fabri (2008), ‘Transnational networks and constitutionalism’, International
Journal of Constitutional Law (I.CON), 6 (3–4), 481–508.
Hart, H.L.A. (1994), The Concept of Law, 2nd edn, Oxford: Oxford University Press.
Henkin, L. (1994), ‘A new birth of constitutionalism: genetic influences and genetic defects’, in M.
Rosenfeld (ed.), Constitutionalism, Identity, Difference and Legitimacy: Theoretical Perspectives,
Durham, NC: Duke University Press.
Hobbes, T. (1651), Leviathan, London: Andrew Cooke.
I.CON Symposium (2008), ‘I.CON Symposium on Constitutional Patriotism’, International Journal of
Constitutional Law (I.CON), 6 (3–4), 67–152.
Kant, I. (1797), The Metaphysics of Morals, reprinted 1969, R.P. Wolf (ed.), trans. L.W. Beck,
Indianapolis, IN: Bobbs-Merrill.
Kelsen, H. (1961), General Theory of Law and State, trans. A. Wedberg, New York: Russell & Russell.
Preuss, U. (1994), ‘Constitutional powermaking in the new polity: some deliberations on the relations
between constituent power and the constitution’, in M. Rosenfeld (ed.), Constitutionalism, Identity,
Difference and Legitimacy: Theoretical Perspectives, Durham, NC: Duke University Press.
Rawls, J. (1971), A Theory of Justice, Cambridge, MA: Belknap Press.
Rosenfeld, M. (1991), Affirmative Action and Justice: A Philosophical and Constitutional Inquiry, New
Haven, CT: Yale University Press.
Rosenfeld, M. (1998), ‘A pluralist critique of contractarian proceduralism’, Ratio Juris: An International
Journal of Jurisprudence and Philosophy of Law, 11 (4), 291–319.
Rosenfeld, M. (2001), ‘The rule of law and the legitimacy of constitutional democracy’, Southern
California Law Review, 74, 1307–52.
Rosenfeld, M. (2010), The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and
Community, London: Routledge.
Rosenfeld, M. (2011), Law, Justice, Democracy and the Clash of Cultures: A Pluralist Account,
Cambridge: Cambridge University Press.
Schmitt, C. (1928), Verfassungslehre (Constitutional Doctrine), Munich and Leipzig: Duncker &
Humblot.
Schmitt, C. (1996), The Concept of the Political, trans. G. Schwab, Chicago, IL: University of Chicago
Press.
Smale, A. (2015), ‘Merkel seeks to head off opposition to Greek bailout’, New York Times, 16 August.
Tully, J. (2004), ‘Recognition and dialogue: the emergence of a new field’, Critical Review of
International Social and Political Philosophy, 7 (3), 84–106.
Von Bogdandy, A. (2005), ‘The European constitution and constitutional identity: text and subtext of the
treaty establishing a constitution for Europe’, International Journal of Constitutional Law (I.CON), 3
(2–3), special issue, 295–315.
 PART II

POLITICAL AND
INTERNATIONAL RELATIONS
THEORIES
7. Cosmopolitanism and global constitutionalism
Garrett Wallace Brown

INTRODUCTION

There is a vast and growing literature on the increasing constitutionalization of international

law and its representational significance as a proto-foundational or already existing global
constitution. As a descriptive and reflective tool, constitutionalization generally denotes
‘the process of legal codification toward the establishment and incorporation of entities into
a coherent and legally objectified body of law, where legal parties, legal rights, legal obliga-
tions and legitimate centers of adjudicating power are specified’ (Brown 2012, p. 210). In the
introduction to this Handbook (Chapter 1), global constitutionalism is positioned as a field of
study that recognizes constitutionalization, to various degrees, as an emergence of a global rule
of law, separation of powers and concerns for constituent power. As the editors suggest, what
makes these three emerging features meaningful is that they can illustrate constitutional-like
properties, which can both limit and enable more constitutionalized forms of global politics
and law. In this regard, writ large, global constitutionalism represents an empirical, methodo-
logical and heuristic device in which to help explain and give meaning to the growth of inter-
national law, the enlargement and saliency of global legal regimes, and as a way to describe
the exponential expansion and impact of international organizations and continuing normative
contestations. As Jan Klabbers has suggested, the process of global constitutionalism ‘carries
the promise that there is some system in all the madness, some way in which the whole system
hangs together and is not merely the aggregate of isolated and often contradictory movements’
(Klabbers 2004, p. 31).
Nevertheless, discussions of constitutionalization are not limited to these more descriptive
and empirical dimensions outlined above. This is because the concept of constitutionalization
is often coupled with normative and evaluative aspects of global constitutionalism, which
can be broadly defined as an approach aimed at both shaping and improving the processes of
constitutionalization by critically examining its properties in order to make normative recom-
mendations about what a real, proto-real or hypothetical ‘global constitution’ ought or ought
not resemble. For example, Marrti Koskenniemi (2007, p. 35) describes the ‘virtue of consti-
tutionalism in the international world’ as a means to expose fundamental global injustices in
order to generate a universalizing focus from which global legal reforms can be constructed.
Anne Peters (2009) further suggests that normative appeals to global constitutionalism reflects
an emphasis for legitimating power through the democratization of global constitutionaliza-
tion processes as well as to tighten democratic relationships between states and their citizens.
Others see global constitutionalism as capturing the continued entrenchment and increasing
demand for human rights protection within and across global legal regimes (Habermas 2006).
Lastly, some scholars of global constitutionalism suggest that the language of constitutional-
ism represents a ‘responsiblizing’ of the current discourse on international law. In this way, it
has been argued that global constitutionalism represents a commitment to notions of mutual
recognition and responsibility, enshrining this language into legal discourse and thus creating

89
90 Handbook on global constitutionalism

opportunities for more intersubjective and pluralistically accepted forms of meta-constitution-

ality (Walker 2002).
What is striking about both constitutionalization as a descriptive device and global con-
stitutionalism as a corresponding normative heuristic is that they share many universal traits
with what is often labelled as moral and institutional cosmopolitanism. Although the study
of constitutionalization can to some degree distance itself from normative evaluations and
prescriptions by simply ‘measuring’ the growth and contested processes of international law
as an empirical phenomenon, global constitutionalism is by contrast inherently normative and
operates within a universalist and cosmopolitan lexicon. The problem, however, is that this
interconnection and interrelation has remained under-explored and often taken for granted.
In simplest terms, cosmopolitanism can be understood as ‘the idea that there are moral
duties and obligations owed to all human beings based solely on our humanity alone, without
reference to ethnicity, nationality, political association, race, culture, religion or other com-
munal particularities’ (Fine 2007; Van Hooft 2009; Brown and Held 2010, p. 1). Common to
this cosmopolitan ethic are three normative commitments, which demand: (1) that the primary
focus of moral concern should be individual human beings, (2) that ‘the status of ultimate
concern attaches to every human being equally’, and (3) that this moral standing is attached to
everyone everywhere, as if all human beings were in some meaningful sense held as universal
‘citizens of the world’ (Pogge 1992, p. 49). These commitments act as foundational principles
that not only inform and motivate moral cosmopolitanism (what we owe all humans morally),
but that also guide institutional cosmopolitanism and practical considerations for global insti-
tutional and legal reform. As a result, prima facie, these moral and institutional tenets share
striking similarities with the global constitutionalist agenda outlined earlier and as expressed
throughout the pages of this Handbook on Global Constitutionalism. This is because both
global constitutionalism and cosmopolitanism posit individual human beings at the very foun-
dation of moral and legal obligation as well as advocate for conditions of globally constituted
public right and egalitarian legitimation in processes of state and global constitutionalization.
However, despite the similarities there is little literature analysing the interconnections
between global constitutionalism and cosmopolitanism. Owing to this lack of explicit analysis,
three common practices and oversimplifications often result. The first oversimplification is that
global constitutionalists are regularly and unreflectively understood as being cosmopolitans,
and vice versa. The second oversimplification is that it is also often the case that those who do
identify themselves as being explicitly both cosmopolitan and a global constitutionalist, have
done so without fully exploring how these two traditions intersect, interrelate and inform one
another. Third, many global constitutionalists are inherently cosmopolitan in their outlook, but
fail to formally recognize or admit their cosmopolitan leanings owing to ignorance, denial, or
in an effort to obscure these leanings so as to avoid the utopian and imperialist criticisms often
directed at cosmopolitan thought.
In response, this chapter starts to explore the interconnections between global constitution-
alism and cosmopolitan thought, particularly as they relate to legal cosmopolitanism. By doing
so, the chapter suggests that global constitutionalism is a form of legal cosmopolitanism (and
vice versa) and that it would behove both cosmopolitans and global constitutionalists to make
better and more explicit links between the traditions. The chapter begins with a general over-
view and summary of legal cosmopolitanism, which connects it to mainstream international
legal theory as well as suggests some ways that it connects to global constitutionalism. The
following section expands upon these connections in more detail by examining four particular
 Cosmopolitanism and global constitutionalism 91

intersections where cosmopolitanism strongly overlaps with global constitutionalism and

where there is mutual reinforcement and heuristic potential: (1) Kantian-based legal cosmo-
politanism and minimal or pluralist constitutionalism; (2) cosmopolitan democracy, inclusive
global governance and a united commitment to a cosmopolitical order; (3) world state cosmo-
politanism and constitutional authority; and (4) globalization, cultural cosmopolitanism and
global constitutionalization. Having outlined these interconnections, the subsequent section
discusses the idea that existing state-based constitutionalism already renders the modern state
a cosmopolitan entity and that this form of existing cosmopolitan constitutionalism buttresses
the enthusiasm of legal cosmopolitans as well as the viability of a more meaningful global
constitution.

LEGAL COSMOPOLITANISM

In the most general sense, contemporary cosmopolitan legal theory upholds the idea that inter-
national law should be constituted from, and constrained by, moral and normative principles
of universal human worth, human respect and global justice (Brown and Held 2010, p. 1). In
so arguing, legal cosmopolitans generally adopt three approaches, often used in tandem, but
sometimes maintained as separate projects. The first approach is to critically assess current
international law and to suggest reformulation to bring existing practice into line with cos-
mopolitan moral principles. This approach highlights an objective that is to ‘evaluate certain
fundamental aspects of the existing international legal order . . . [and to] propose legal norms
and practices which, if implemented with reasonable care, would make the system more just’
(Buchanan 2004, p. 4). Thus, on methodological grounds, the aim of legal cosmopolitans
corresponds nicely with the evaluative objectives of global constitutionalists (for example, it
mirrors many global constitutionalists’ call for ‘responsiblising’ the discourse on international
law). The second approach is to locate current cosmopolitan trends and tenets within processes
of existing international law and politics and to examine ways that these processes can be seen
to reflect an emerging cosmopolitanization of international law (Habermas 2006; Waldron
2006). Again, as above, this ‘methodology’ of locating existing normative trends and thinking
of new ways to reinforce these norms closely adheres with global constitutionalism and thus
signifies a shared normative aim as well as adopted technique. The third approach moves
beyond the empirical, arguing that an additional level of law is necessary to secure human
dignity and legal obligation beyond the traditional state-centric model of international law.
This approach, which is indebted largely to the legal theory of Kant, seeks not only to change
existing law, but also to create additional laws and political mechanisms at the cosmopolitan
level, which create legal obligations not only between states and non-citizens, but also between
individuals themselves (Brown 2009). Once again, this resonates with global constitutionalist
methods, since many global constitutionalists also move beyond ­explanatory methodologies
and advocate for more pronounced and obligatory legal regimes and structures.
Although differences in cosmopolitanism writ large exist, what is common among legal
cosmopolitans is a basic rejection of international law that is predicated solely on the
Westphalian model and therefore grants absolute overriding authority to the interests of state
sovereignty. Although this rejection does not mean that states are necessarily rendered incom-
patible with cosmopolitanism (Brown 2011), it does nevertheless translate into an argument
which demands that an additional level of law, presiding at the global level, should supplement
92 Handbook on global constitutionalism

and enhance current international law, in order to bring states and people under the guiding
principles of cosmopolitan moral theory. To summarize, legal cosmopolitans, and most cos-
mopolitans in general, believe that peaceful cohabitation and justice are a question of both
morality and law, and that they are thoroughly coextensive, complimentary and necessary at
both the international and the global level.
Nevertheless, like global constitutionalism, there remain some perennial questions about
how the normative principles that motivate cosmopolitanism translate into legal practice.
These debates about cosmopolitan legal theory and international legal practice have tradition-
ally been framed as being linked to questions of positive law, legal realism, legal naturalism
or liberal internationalism. Classic legal theorists of a positivist persuasion often argue that
law and morality are not connected. These legal positivists believe that our obligation to any
form of international law is based solely on enforcement and convention versus being based
on strong moral sentiment. Since there is no institutional mechanism to enforce international
law effectively, norms are therefore entirely maintained by voluntary conventions that lack the
Hobbesian ‘sword’ from which law commands strong obligation (Nagel 2005). In a similar
vein, legal realists suggest that international law is predicated on the protection of state sov-
ereignty and that the structure of the anarchic international system rules out any robust and
unified system of cosmopolitan law. Legal realists argue that international law is created by
voluntary state treaties and covenants to which state self-determination, security and a protec-
tion of sovereignty are its primary concern. Since an overarching authority does not enforce
international law, the idea of universal law cannot move beyond the minimal security and eco-
nomic treaties that are enlivened by the self-interest of independent sovereign states (Rabkin
2005). As a result, in both these traditions, cosmopolitan law is often viewed as chimerical.
Conversely, legal naturalism argues that morality and law are not mutually exclusive.
Legal naturalism maintains that the internal aspects that underpin legal norms, and the nor-
mative foundations from which law is often created, justify and motivate the authority of law
(Buchanan 2004). As many global constitutionalists also argue, legal realism fails to capture
the fact that states often obligate themselves to customary international law, despite the fact
that it might not be in their immediate self-interest and that it might limit some absolute
conception of state sovereignty (Franck 1990). This system of self-regulation represents
something more positivistic than that which legal realists proclaim, because it highlights that
the moral force behind law might be more prevalent at the international level than has been
assumed by legal positivists. Similarly, liberal internationalists start from this position of legal
naturalism, but move further, suggesting that the legal concept of sovereignty should also be
understood as a conditional right. That is, liberal internationalists not only believe that law
and morality are connected, but also that the idea of sovereignty itself should be justified by
various conditional moral principles of human rights, accountability to international norms,
and from internal mechanisms for democratic popular sovereignty.
Understanding where legal cosmopolitanism fits into these legal traditions is often difficult
to ascertain. This is because legal cosmopolitanism mirrors, but also moves beyond, several of
the aforementioned positions, sitting somewhere beyond liberal internationalism, while also
sharing liberal principles of conditional sovereignty as well as more positivist conceptions of
law. For example, as part of the Kantian tradition, contemporary cosmopolitans often argue
that domestic law and any right to sovereignty under a cosmopolitan system of law should be
justified through a conception of conditional sovereignty and republican or democratic law
(Franceschet 2002). In this regard, legal cosmopolitanism often overlaps with liberal interna-
 Cosmopolitanism and global constitutionalism 93

tionalism, in that both share the belief that it is through the make-up of a conditional sovereign
that the freedom of every member of society as a human being can be secured. Furthermore,
many liberal internationalists stray considerably close to cosmopolitan legalism in that
many argue passionately for the universal protection of human rights and for the additional
requirement that these rights act as the foundation of any legitimate international legal order
(Wheeler, 2002).
However, despite the similarities, there are subtle differences that exist between liberal
internationalism and most cosmopolitans. First, in line with the Natural Law tradition, liberal
internationalists often restrict themselves to a state-centric approach, operating within the
language of international relations, while remaining loyal to traditional approaches of interna-
tional governance and international law (Franceschet 2002). Although cosmopolitanism can
reconcile states with cosmopolitan law (Brown 2011), many contemporary cosmopolitans
have viewed the state system as increasingly obsolete in the face of global collective action
problems and growing non-governmental organizations, thus constructing global institutional
arrangements that in various ways supersede or augment current multilateralism. Secondly,
although not true of all liberal internationalists, there is certainly a predominate assumption
within classic liberal internationalism that if all states were to be democratic and economically
neoliberal, then that would be enough to end war, increase cooperative interdependence and
secure universal human rights. Although some cosmopolitans might agree in principle, cos-
mopolitanism on the whole demands that a more robust normative commitment to global dis-
tributive justice also be secured (Archibugi 2008). In this regard, cosmopolitan moral and legal
theory moves further than international liberalism, in that it calls for significant changes to be
made to the current system of international law, economics and governance. These changes
include combinations of democratic reform and broader non-state inclusion at the global level
(Held 1995), a solid commitment to global distributive justice (Moellendorf 2009), the corre-
sponding regulation of global capitalism (Barry 1998), a more robust commitment to universal
human rights (Pogge 2002), institutional mechanisms to promote cross-cultural dialogue and
recognition (Appiah 2006) and the establishment of a global legal system that directly mirrors
basic cosmopolitan principles of individual worth, equality and universality (Brown 2009).
Therefore, unlike liberal internationalism, cosmopolitans argue for a system of global
justice that is more robust than a simple state-centric commitment to international law. As
outlined in the next section, this system of cosmopolitan constitutionality can range from
extreme forms of world state institutionalism (Cabrera 2004); to multilevel and stakeholder
cosmopolitan democracy (Held 1995); to more moderate forms of ­cosmopolitanism that rest
on a minimal and more pluralistic conception of cosmopolitan law as a means for peaceful
coexistence (Brown 2009). However, it is important to note that all contemporary designs for
institutional cosmopolitanism are grounded on an assumption of a practised cosmopolitan law
and some meaningful notion of global constitutionalism. This is because when surveying the
literature, it is apparent that cosmopolitans assume and ground their more elaborate forms of
institutional cosmopolitanism on some already existing level of ‘cosmopolitan democratic
law’ (Held 2010, p. 92), a respect for ‘cosmopolitan rights’ (Hayden 2005), ‘cosmopolitan
law-enforcement’ (Kaldor 2003, p. 116) or a formal commitment to ‘political cosmopolitan-
ism’ (Fine 2007, p. 113). Thus, in a move from cosmopolitan moral theory to institutional
cosmopolitanism, cosmopolitans rely on a notion of cosmopolitan legal and political order and
a presupposition that this condition is maintained (or can be maintained) in some thoroughgo-
94 Handbook on global constitutionalism

ing way as global constitutional practice. It is here where cosmopolitanism, constitutionaliza-

tion and global constitutionalism most obviously meet.

GLOBAL CONSTITUTIONALISM AND COSMOPOLITAN

FOUNDATIONS

There are numerous areas where global constitutionalism and cosmopolitanism interconnect
and mutually reinforce. The first place is in regard to what the introduction to this Handbook
(Chapter 1) labels global constitutionalism’s ‘historical antecedents’. This is because global
constitutionalists often reference the works of Cicero, Marcus Aurelius, the Thomists and
Immanuel Kant, citing their historical influence as well as making appeals to their philo-
sophical foundations (see Chapter 1 in this Handbook). Yet, what is often understated is the
fact that the aforementioned scholars were not just constitutionalists, but were also explicitly
cosmopolitan, who expanded their constitutional theories to the global level precisely because
of their cosmopolitan moral, institutional and pragmatic beliefs. In this way, when global
constitutionalists reference the jurisprudential authority of Cicero, Las Casas or Kant, they
are also, to a large degree, accepting the foundational moral and legal cosmopolitanism that
inherently underwrote and motivated their ideas about global constitutionalism. This makes
sense, since the three main pillars of global constitutionalism (rule of law, legitimation of
power, and constituent power) are not truths in themselves, but require philosophical justifica-
tion from which scholars such as Kant or Cicero provide useful firepower. Furthermore, when
boiled down, the three pillars of global constitutionalism ultimately rely on metaphysical or
transcendental foundations, which philosophically ground the question as to why legitimacy,
the rule of law and constituents matter. When boiled down even further, it becomes clear that
these justifications undoubtedly have a cosmopolitan characteristic (even so-called ‘critical’
approaches question domination and power, which is tied to universal human subjectivity,
which is a metaphysical presupposition of common humanity and a universal ‘good’ to be
protected). Finally, if appealing to these moral authorities for ‘firepower’ is not the intent of
global constitutionalists, then global constitutionalists are insufficiently articulating their own
normative and moral foundations, and thus additionally failing to explicitly make necessary
distinctions when making appeals to these philosophical powerhouses.
Second, by comparing cosmopolitans such as Kant with the constitutionalism associated
with the Natural Law tradition (such as Hugo Grotius, Samuel Pufendorf and Emer de Vattel),
it can help to reveal key conceptual distinctions between liberal internationalism and cosmo-
politanism. Moreover, examining these conceptual distinctions also helps to separate many
global constitutionalists from mainstream liberal internationalism, thus also revealing many of
global constitutionalism’s cosmopolitan tendencies.
The significant difference between the Natural Law tradition and cosmopolitanism is
the range to which universal moral commitments are to be extended at the global level.
Traditionally most Natural Law theorists promoted the contractual creation of a sovereign
state as the ultimate source for ethical law and human emancipation. Inherent in this type of
contractarian argument is the idea that self-interested individuals contract with one another to
create political institutions of mutual preservation and right. Nevertheless, contracts between
individuals immediately create boundaries between contracted citizens and other non-citizens,
who are not considered to be members of the legal community. Although some Natural Law
 Cosmopolitanism and global constitutionalism 95

theorists sought limitations on state power in order to promote the natural rights of individual
cooperators (and thus were not called ‘sorry comforters’ by Kant), they nevertheless did not
always argue for strong principles of cosmopolitan law that created imperative moral obliga-
tions between bounded political communities or between states and non-citizens (Brown 2009,
pp. 89–94).
It was from Kant’s development of cosmopolitan law that stronger commitments to cos-
mopolitan principles were developed away from, and as a supplement to, the Natural Law
tradition. Unlike the Natural Law tradition of jus gentium (law of nations), Kant suggested that
a higher level of cosmopolitan law was necessary in order to place greater limits on the law of
nations, the Treaty of Westphalia, and the injustices legitimated by claims to state sovereignty
made under these legal regimes. For Kant, cosmopolitan law was meant to expand the scope
of public right beyond a strict state-centred focus to one that encompassed all members of the
Earth, especially non-citizens. As Charles Covell suggests (1998, p. 141), cosmopolitan law
‘was the body of public law . . . constituting the juridical framework for the intercourse of men
and states, considered in their status as bearers of the attributes of citizenship in an ideal state
that extended to embrace all mankind’. To create this new level of constitutionalism, a condi-
tion of cosmopolitan right would require ‘the sum of laws that need to be publicized in order
to produce [this] rightful condition, one in which individuals, nations and states can enjoy their
rights’ (Gregor 1988, p. 71).
Furthermore, Kant argued that international law should rest on the foundation of a mutually
contracted pacific federation of independent states, dedicated not only to principles of condi-
tional sovereignty, peace and mutual international right, but were also further committed to
the establishment and protection of universal laws of hospitality beyond borders (Kant 1785
[1981], 1795 [1970]; Brown 2009). In this regard, Kant moved beyond a bordered conception
of legal obligation and duty, to one that politically reaches all members of the globe as if they
were equal citizens, regardless of their immediate political affiliation. The idea behind estab-
lishing a consistent commitment to basic laws of hospitality was to create a political condition
where ‘continents distant from each other can enter into peaceful mutual relations which may
eventually be regulated by public laws, thus bringing the human race nearer and nearer to
a cosmopolitan constitution’ (Kant 1795 [1970], p. 106).
In this regard, similar to Walker’s (2002) intersubjective meta-constitutionality, Kant’s cos-
mopolitan goal is to create the foundations for an ethical order of legal norms that would, with
time and commitment by like-minded members, establish the grounding for the practice of
a more robust cosmopolitan legal and political order. An order that transforms these minimal
laws of hospitality into a more constitutionalized form of cosmopolitan law and cosmopolitics,
so as to provide ‘the systematic union of different rational beings through common laws . . . in
a universal kingdom of ends’ (Kant 1785 (1981), p. 39).
There are several overlaps between this cosmopolitan vision and the normative agenda of
global constitutionalism. First, both cosmopolitans and global constitutionalists see the con-
stitutionalization of international law as an iterative process that, if done in relation to a series
of normative principles, can amalgamate a plurality of legal and political sources into a rule
guiding global constitutional order of some kind. Second, both cosmopolitans and global
constitutionalists seek to move beyond the Natural Law tradition as outlined above, by advo-
cating stronger legal and political commitments that rest above and beyond current state-based
multilateralism. This can be advanced as both a critique of existing structures of globalization
and constitutionalization as well as an attempt to bolster existing or emerging ‘cosmopolitan’
96 Handbook on global constitutionalism

principles already entrenched in international law and politics. Third, both cosmopolitans
and global constitutionalists base their institutional arguments upon the idea that they must
reflect moral, normative and philosophical commitments. These commitments clearly overlap
and include: the argument that the worth of human beings trumps absolute sovereignty; that
sovereignty is conditional based on notions of social contract theory or popular sovereignty;
that authority should be fairly distributed based on principles of self-legislation; and that
there should be a strengthened community of states with corresponding responsibilities and
inclusion mechanisms. As Anne Peters nicely summarizes, global constitutionalism is ‘a stand
of thought (outlook or perspective) and a political agenda which advocates the application of
constitutional principles, such as the rule of law, checks and balances, human rights protection,
and democracy, in the international legal sphere in order to improve the effectivity and fairness
of the international legal order’ (Peters 2006, p. 583).
A second intersection between global constitutionalism and cosmopolitanism is a com-
mitment to democratic legitimacy and what both cosmopolitans and global constitutionalists
call ‘constituent power’. As Anne Peters has suggested, global constitutionalism reflects an
emphasis for legitimating power through the democratization of global constitutionalization
processes as well as in promoting tighter democratic relationships between states and their cit-
izens (Peters 2009). This normative commitment for increased democratization, both domes-
tically and globally, reflects what has been labelled cosmopolitan democracy and its moral
and institutional advocacy for embedding democratic principles into global structural reform
(Held 1995, 2010; Archibugi 2008). In summary, cosmopolitan democracy is a sub-discipline
of cosmopolitanism that argues that global governance should democratically represent those
affected by its decision-making processes and that stakeholders should have reasonable
opportunities to affect decisions that affect their lives (Held 1995). In institutional terms, this
has translated into models of democratic multilevel governance, multi-sectoral international
institutions, dispersed democratic subsidiarity, United Nations (UN) democratic reform,
deliberative global forums and the direct democratization of national foreign policy decisions.
Again, this form of cosmopolitanism mirrors several global constitutionalist agendas.
Primarily, it is possible to see overlaps between Bardo Fassbender’s call for procedural reform
within the UN Charter and its ability to more effectively act as a basis for global constitutional-
ism. As Fassbender suggests (2009), the UN Security Council (UNSC) lacks representational
legitimacy and if the UN Charter is to better act as a global constitution, reforms are required
to better democratize and make representative the UNSC and beyond. This comes strikingly
close to the explicit UN reforms advocated by cosmopolitans such as Daniele Archibugi
(2008), who has provided detailed analysis and recommendations for how to democratize the
UN within a larger system of cosmopolitics.
Reverse overlaps between cosmopolitans and global constitutionalism are also manifest.
One area where cosmopolitans are almost certainly global constitutionalists is in relation to
world state cosmopolitanism (Cabrera 2004) or what is also referred to as world government
(Marchetti 2008) or world federalist cosmopolitans (Yunker 2007). These cosmopolitans are
distinct from more moderate cosmopolitans (a distinction is often made between strong or
extreme and weak or moderate cosmopolitans), since their institutional models by necessity
demand robust notions of positive law, global authority, a global parliamentary system,
a global judiciary, global law enforcement and global economic distribution mechanisms. As
a result, since this institutional structure will require an extensive balancing between law and
politics, various constituencies, disparate cultures and manifold sources of law into an explicit
 Cosmopolitanism and global constitutionalism 97

institutional framework – as well as the normative principles that will motivate obligation
and institutional legitimacy – a more exacting form of global constitutionalism will therefore
be necessitated (Scheuerman 2014). Although most cosmopolitans reject world state cosmo-
politanism (rightly or wrongly) on moral and/or practical grounds, the overlaps with global
constitutionalism are obvious, since a world state rests firmly on the presupposition that this
political and legal order has been somehow solidified, objectified and universalized.
Finally, most cosmopolitans and global constitutionalists share two further intersections.
One, as mentioned above, cosmopolitans and global constitutionalists both cast a critical and
normative eye upon processes of globalization (Habermas 2006; Koskenniemi 2007; Peters
2007; Held 2010; Cohen 2012). By doing so, they highlight existing inequalities as well as
suggest structural reforms so as to render existing processes of globalization more just. Two,
most cosmopolitans and global constitutionalists are open and sympathetic to recognizing
cultural pluralism and thus share an understanding that a key role of constitutional thinking is
the attempt to arbitrate, amalgamate and settle issues of entrenched value pluralism (Waldron
2000; Walker 2002; Brown 2009; Cohen 2012). In this regard, it is possible to understand both
legal cosmopolitanism and global constitutionalism as the attempt to locate legal and political
mechanisms of legal and political coexistence, versus demanding that cultures must perfectly
cohere (Brown 2009). It is here, where constitutionalism writ large acts as both a normative
foundation as well as a practical mechanism, that cosmopolitanism and global constitutional-
ism can be further established as reinforcing and enthusing one another.

CONSTITUTIONS, THE COSMOPOLITAN STATE AND GLOBAL

CONSTITUTIONALISM

Cosmopolitans have often argued that we have always lived in a cosmopolitan world.
Cosmopolitans such as Jeremy Waldron (2000), Kwame Appiah (2006), David Held (2010)
and myself (Brown 2009) have grounded our cosmopolitan arguments on an empirical claim
that cultures are already largely cosmopolitan constructions, which are made up of multifar-
ious influences that have been borrowed, stolen, inherited and amalgamated from different
cultural sources (Waldron 2000). In making these claims, cosmopolitans draw attention to
the fallacies of communitarian claims to ‘authenticity’ and particularism, which is often
claimed by non-cosmopolitans who see communities, cultures, civilizations, nations, states,
and their existing constitutional arrangements, as unified bounded entities that automatically
restrict the scope, depth, interconnections and aspirations of cosmopolitanism. For these more
Hegelian-inspired legal scholars, a constitution represents a personification and manifestation
of communal identity, en communion (shared communal recognition), which is necessarily
threatened by the universalizing nature of both global constitutionalism and notions of cos-
mopolitan law.
Nevertheless, there exist both theoretical and practical reasons to challenge this limited
understanding of constitutionalism and its supposed incompatibility with the universalism of
legal cosmopolitanism and global constitutionalism. As with the arguments made by cultural
cosmopolitans, it could also be argued that the modern state and its legal and political evolu-
tion is already in many ways a cosmopolitan construction and ‘that all states are cosmopolitan,
whether they identify themselves as such or not’ (Glenn 2013, p. vii). As Patrick Glenn has
suggested, a thesis of this sort has deep empirical and normative implications, because it calls
98 Handbook on global constitutionalism

into question the continued efforts by states and neo-­sovereigntists to indoctrinate an unreach-
able condition of social uniformity as an underwriting constitutional norm (Glenn 2013, p.
viii). These efforts, he adds, increasingly fly in the face of both historical precedence and the
emergence of a globalized and potentially more constitutionalizing world.
To begin to defend the notion that the state is already cosmopolitan and that this lends
weight to arguments for a cosmopolitan global constitution, Glenn starts by highlighting the
empirical reality ‘that there never has been and, it may safely be added, there never will be,
a nation-state’ (Glenn 2013, p. viii). This is because all states are in fact an amalgamation of
different cultures, communities, religions and sources of law. In addition, if we understand
both institutional cosmopolitanism and global constitutionalism as representing an open set of
negotiated legal and political mechanisms aimed at balancing, adjudicating and amalgamating
pluralistic sources of law and politics, then the state has, by necessity, had to employ various
forms of institutional cosmopolitanism and broadened constitutionalism (see Chapter 1 in this
Handbook). If this empirical reality is true, then ‘all states are therefore cosmopolitan’ in their
basic political, legal and historical functions (Glenn 2013, p. viii). Moreover, if constitutions
are in fact a useful and tested cosmopolitan mechanism to balance and amalgamate pluralistic
sources of law and politics, then there is theoretical and practical justification to think about
global constitutionalism as being a viable reformist platform.
To further support the potential ‘viability’ of cosmopolitan constitutions, there are three uni-
versal conditions that ground cosmopolitan constitutionalism. First, each society has its own
set of common laws and these common laws have been interpreted and transfused in relation
to other common laws that came before or from beyond. Hence these common laws continue
to meet, mix and contest, which illustrates an ongoing cosmopolitanism that is foundational,
enduring as well as amendable. Second, the fact that most states, if not all, utilize aspects
of constitutionalism, which itself is a process of negotiation and the coordination of plural
entities, shows again an aspect of cosmopolitan legal logic that has not only been a primary
mechanism of state coordination, but that provides historical precedence in discussions about
global constitutionalism. Third, an ‘essential feature of institutional cosmopolitanism is the
coexistence of institutions, often on the same territory’, but also with institutions beyond
borders (Glenn 2013, p. 286). This coexistence has been repeatedly successful in reconciling
state authority with religious doctrine, private authorities, other states, international institu-
tions, and diverse cultural traditions. All of which illustrates an enduring cosmopolitanism
in practice that sits at the core of the modern state, international politics and within many
processes of global constitutionalization.
As a result, Glenn’s argument suggests a series of conceptual linkages among constitution-
alism, cosmopolitanism and global constitutionalism. It also adds and captures the normative
demands of both traditions, since it posits that a more viable form of cosmopolitan law and
global constitutionalism should ‘acknowledge legal contradictions, to preserve existing legal
diversity, and to provide cosmopolitan and practical forms of dispute resolution’ (Glenn 2013,
p. 274). Therefore, if conceptualized properly, cosmopolitan law as well as renewed thinking
about the cosmopolitan state can help us to dispense with the idea of creating an impossible
condition of nation-state unity and bounded homogeneity within the international system.
Instead, the key is to accept the cosmopolitan character of the state and the diversity of cos-
mopolitan legal traditions that will continue to underpin the state and which will undoubtedly
shape new forms of legal coexistence and constitutionalization beyond it.
 Cosmopolitanism and global constitutionalism 99

CONCLUSION

The aim of this chapter has been to start to expose the key interconnections between global
constitutionalism and cosmopolitan thought. In doing so, it was possible to locate a number
of normative, empirical, methodological and foundational overlaps. Although these intercon-
nections could only be explored here in a cursory fashion, prima facie, the evidence strongly
intimates that global constitutionalism is in fact a form of legal cosmopolitanism and that
cosmopolitans have traditionally relied on some meaningful conceptualization of constitu-
tionalization and global constitutionalism. As a result, it would behove both cosmopolitans
and global constitutionalists to make better and more explicit links between the traditions. In
doing so, global constitutionalism will gain considerable normative potency, strengthening its
ability to better articulate its philosophical foundations as well as why these foundations are
metaphysically, morally, transcendentally, empirically and pragmatically more attractive than
competing approaches (Brown 2012). Conversely, cosmopolitan transitions from theory to
practice, which are usually weak on providing institutional substance, will significantly gain
from the empirical dimensions that constitutionalization and constitutionalism offer. Thus,
global constitutionalism could provide a useful and fruitful bridge from cosmopolitanism’s
more robust moral theory to its weaker institutional manifestations. Importantly, this sort of
mutual reinforcement is both timely and heuristically valuable. For as Glenn aptly points out,
the world and its entities are already cosmopolitan. What is required, Glenn would argue, is
a better presentation for why this is the case and why the idea of a cosmopolitan constitution
therefore has logical precedence.

REFERENCES
Appiah, K.A. (2006), Cosmopolitanism: Ethics in a World of Strangers, New York: W.W. Norton.
Archibugi, D. (2008), The Global Commonwealth of Citizens: Towards Cosmopolitan Democracy,
Princeton, NJ: Princeton University Press.
Barry, B. (1998), ‘International society from a cosmopolitan perspective’, in D.R. Mapel and T. Nardin
(eds), International Society: Diverse Ethical Perspectives, Princeton, NJ: Princeton University Press,
pp. 144–63.
Brown, G.W. (2009), Grounding Cosmopolitanism: From Kant to the Idea of a Cosmopolitan
Constitution, Edinburgh: Edinburgh University Press.
Brown, G.W. (2011), ‘Bringing the state back into cosmopolitanism: the idea of responsible cosmopoli-
tan states’, Political Studies Review, 9 (1), 53–66.
Brown, G.W. (2012), ‘The constitutionalization of what?’, Global Constitutionalism, 1 (2), 201–28.
Brown, G.W. and D. Held (2010), The Cosmopolitanism Reader, Cambridge: Polity Press.
Buchanan, A. (2004), Justice, Legitimacy and Self-Determination: Moral Foundations of International
Law, Oxford: Oxford University Press.
Cabrera, L. (2004), Political Theory of Global Justice: A Cosmopolitan Case for a World State, New
York: Routledge.
Cohen, J. (2012), Globalization and Sovereignty: Rethinking Legality, Legitimacy and Constitutionalism,
Cambridge: Cambridge University Press.
Covell, C. (1998), Kant and the Law of Peace: A Study in the Philosophy of International Law and
International Relations, New York: Palgrave.
Fassbender, B. (2009), The United Nations Charter as the Constitution of the International Community,
Amsterdam: Martinus Nijhoff.
Fine, R. (2007), Cosmopolitanism, New York: Routledge.
100 Handbook on global constitutionalism

Franceschet, A. (2002), Kant and Liberal Internationalism: Sovereignty, Justice and Global Reform,
New York: Palgrave.
Franck, T. (1990), The Power of Legitimacy Among Nations, Oxford: Oxford University Press.
Glenn, H.P. (2013), The Cosmopolitan State, Oxford: Oxford University Press.
Gregor, M.J. (1988), ‘Kant’s approach to constitutionalism’, in A.S. Rosenbaum (ed.), Constitutionalism:
The Philosophical Dimension, New York: Greenwood Press, pp. 65–78.
Habermas, J. (2006), The Divided West, Cambridge: Polity Press.
Hayden, P. (2005), Cosmopolitan Global Politics, Aldershot: Ashgate.
Held, D. (1995), Democracy and the Global Order: From the Modern State to Cosmopolitan
Governance, Stanford, CA: Stanford University Press.
Held, D. (2010), Cosmopolitanism: Ideals and Realities, Cambridge: Polity Press.
Kaldor, M. (2003), Global Civil Society: An Answer to War, Cambridge: Polity Press.
Kant, I. (1785), Grounding for the Metaphysics of Morals, trans. J.W. Ellington (1981), Cambridge:
Hackett.
Kant, I. (1795), ‘Perpetual peace: a philosophical sketch’ reprinted in H.S. Reiss (ed.), (1970), Kant’s
Politics Writing, Cambridge: Cambridge University Press.
Klabbers, J. (2004), ‘Constitutionalism lite’, International Organizations Law Review, 1 (1), 31–58.
Koskenniemi, M. (2007), ‘Constitutionalism as a mindset: reflections on Kantian themes about interna-
tional law and globalization’, Theoretical Inquiries in Law, 8 (1), 9–36.
Marchetti, R. (2008), Global Democracy: Ethical Theory, Institutional Design and Social Struggles,
Oxford: Routledge.
Moellendorf, D. (2009), Global Inequality Matters, Basingstoke: Palgrave.
Nagel, T. (2005), ‘The problem of global justice’, Philosophy and Public Affairs, 33 (2), 114–47.
Peters, A. (2006), ‘Compensatory constitutionalism: the function and potential of fundamental interna-
tional norms and structures’, Leiden Journal of International Law, 19 (3), 576–610.
Peters, A. (2007), ‘The globalization of state constitutions’, in J.E. Nijman and A. Nollkaemper (eds),
New Perspectives on the Divide Between National and International Law, Oxford: Oxford University
Press.
Peters, A. (2009), ‘Dual democracy’, in J. Klabbers, A. Peters and G. Ulfstein (eds), The
Constitutionalization of International Law, Oxford: Oxford University Press, pp. 263–341.
Pogge, T. (1992), ‘Cosmopolitanism and sovereignty’, Ethics, 103 (1), 48–75.
Pogge, T. (2002), World Poverty and Human Rights, Cambridge: Polity Press.
Rabkin, J. (2005), Law without Nations? Why Constitutional Government Requires Sovereign States,
Princeton, NJ: Princeton University Press.
Scheuerman, W. (2014), ‘Cosmopolitanism and the world state’, Review of International Studies, 40 (3),
419–41.
Van Hooft, S. (2009), Cosmopolitanism, Stocksfield, Northumberland: Acumen.
Waldron, J. (2000), ‘What is cosmopolitan?’, Journal of Political Philosophy, 8 (2), 227–43.
Waldron, J. (2006), ‘Cosmopolitan norms’, in S. Benhabib (ed.), Another Cosmopolitanism, Oxford:
Oxford University Press, pp. 83–101.
Walker, N. (2002), ‘The idea of constitutional pluralism’, Modern Law Review, 65 (3), 317–59.
Wheeler, N. (2002), Saving Strangers, Oxford: Oxford University Press.
Yunker, J.A. (2007), Political Globalization: A New Vision of Federal World Government, Plymouth,
MA: University Press of America.
8. Liberal theory
Iain Ferguson

This chapter examines the International Relations theory of liberalism in relation to global con-
stitutionalism. It uses the work of G. John Ikenberry, an American professor of International
Relations as representative of liberalism. While Ikenberry’s name is synonymous with this
theory, as other commentators have suggested, he is far from its only representative in the
United States (Betts 2011, Jervis 2021, Peterson and Convey 2019). Ikenberry’s thinking is
in line with a ‘worldview’ of American liberal thought (Keohane 2002, Miller 2010). This
worldview reaches beyond an Ivy League perspective on the theory of International Relations
(IR) and connects directly – as Ikenberry himself has throughout his career (Fioretos 2019) –
with the world of international practice and what has been described, in a related context, as
the guidance that political theory can and should provide to decision-makers (Laurence 2021).
This chapter is in three parts. Section one examines the intellectual background to
Ikenberry’s political theory, focusing on what it is that makes it ‘liberal’. Some commentators
have suggested this theory is liberal in a way that is typical in American IR, in that it is con-
cerned with a detached or ‘outsider’ view on the instrumental preferences and wants of states
in an increasingly institutionalised arena of international politics (Moravcsik 2008). While it
is certainly the case that the ever-more institutionalised character of IR is an important aspect
of this theory (Schweller 2001, 2019), for interpretive reasons (see Bevir 1999, Bevir and
Hall 2020, Hall 2012, Smith 1998, Voegelin 1952/1987), I argue that an ‘outsider’ viewpoint
provides very little insight into why this aspect is important. Furthermore, I contend that it is
only by adopting an ‘insider’ view on this theory that it becomes possible to fathom a ‘liberal’
answer to a central research question of this Handbook (see Chapter 1), namely: Can the most
powerful actors in today’s world be bound by constitutional principles, or do the constitutional
principles that exist in international practice provide insufficient restraints on power in global
governance?
As we shall see, this is broadly the question that has informed Ikenberry’s ‘liberal’ the-
orising from the mid 1990s to the present. Rather than take a detached, ‘outsider’ view on
what this theorising is all about, this chapter follows Ikenberry on his intellectual journey in
search of an answer to this question. As I hope to make plain, Ikenberry’s inquiries into events
of ‘binding power’ (see Chapter 1) have not only defined the general moves in his political
theorising about state power and institutions in international history, they have also revealed
a dilemma about his claims concerning the need for ‘more liberalism’ (Ikenberry 2013, p. 92)
as a means to restraining the global power of one state in particular, the United States (US), in
the twenty-first century.
As I discuss in section two, this dilemma illuminates a practice of constitutionalism that is
inherently normative and instrumental, state-bound and incomplete. The aim of this practice
is to achieve a lasting basis for postwar order, initially through a commitment to ‘strategic
restraint’ and more recently through a commitment to ‘liberal rules’ in the partnerships of the
great powers of the day (Ikenberry 2001, 2011; Reus-Smit 2013, Schweller 2019). For reasons
that I come to in section three, the reconciliation of these practical goals of constitutionalism

101
102 Handbook on global constitutionalism

has not been possible in this liberal theory. I explain how and why this is the case in the context
of the recognition of a protracted ‘crisis’ of international order since 2002 (Ikenberry 2002,
2004, 2005, 2008, 2009, 2011, 2013, 2018, 2020, 2021).
In the conclusion, I reflect on the potentially interminable condition of ‘crisis’ in the dis-
course and worldview of this liberal theory and the challenge this raises for understanding
the weakness of the restraints of ‘state-constitutionalism’ (Walker 2008, pp. 521–2). What an
understanding of this condition reveals, I argue, is the reason why these restraints are weak:
to wit, they are contingent on the belief that an ‘enlightened’ global power (Ikenberry 2011,
p. 298) can be the catalyst for the restoration of order in the international system of global
governance at the precise moment when this order is in danger of collapsing (Ikenberry 2011,
2013, 2018, 2020; Mazower 2012). The discourse that defines this ‘crisis’ is, I conclude, no
reason for despair when it comes to the theory of global constitutionalism. But it does encour-
age scepticism about the ideological origins and practical limits of the desire to establish
‘rules-based’ constraints on the US and other powers in global governance.

UNDERSTANDING LIBERAL THEORY

What may now be meant by the word ‘liberal’ is anyone’s guess. (Michael Oakeshott 1962/1991,
pp. 439–40)

There is a debate that begins in the US in the 1970s and centres around John Rawls’s Theory
of Justice about what distinguishes a normative type of political theory known as ‘ideal theory’
from its ‘non-ideal’ other (Rawls 1971/1999, pp. 8 and 215). As with so many debates on
theory that employ binary distinctions, this one has been the subject of a great deal of disa-
greement about what this distinction actually means. But in spite of this, there is something
approaching a consensus emerging that the best kind of normative political theory is predi-
cated on practical reasoning and judgement about the favourable – ideal – and unfavourable
– non-ideal – conditions of politics in which rights might be met, or, as is the focus here, power
might be restrained.
Understood in these normative and practical terms, political theorists are ‘agents of change’
(Laurence 2021) who address the goings on in society in a way that encourages them to act
as public intellectuals, writing about the concerns that professional political actors face and
providing guides for thinking through – and, ideally, ameliorating or resolving – the problems
of the day.
Accordingly, the ideal element in political theory is not left floating free to dream up a better
world, nor is it abandoned. Rather, this ideal and normative aspect of political theory is put to
use in society, rationally analysing and proffering remedies for non-ideal, empirical circum-
stances of politics through essays, books, perhaps even through social media, journalism and
policy briefings. I say this is an emerging consensus about the task of political theory, and
that may well be an overstatement; even with regards to the country where this debate began,
i.e., the US. However, it does help to explain the basic starting points for understanding the
political theory and associated worldview addressed in this chapter.
 Liberal theory 103

Between a Theory of IR and Belief in Wartime

Wartime is not an exception to normal peacetime [in the US], but an enduring condition. (Mary
Dudziak 2012, p. 4)

Given the policy roles in government he held early in his career and his subsequent affiliation
with several Washington-based think tanks (Fioretos 2019), it seems reasonable to suggest
that Ikenberry would not challenge the notion that IR theory1 has little value unless it directly
addresses the non-ideal or ‘real-world’ concerns of policy-makers. Nor, indeed, would most
of his contemporaries in IR departments in the American academy. This includes most, if
not all,2 of the realist theorists of IR who are Ikenberry’s strongest critics (c.f. Allison 2018,
Mearsheimer 2018, 2019; Schweller 2001, 2019).
It would be a stretch to say this understanding of the affinity between IR theory and the
world of policy-making is directly influenced by Rawls’ Theory of Justice. However, as
a disposition to thinking about the task of theory and the role of the theorist in political
society, it shares presuppositions (Skagestad 2020) in an intellectual outlook of rationalism
that is present in Rawlsian liberalism and in the discourse of American political thought more
broadly (Steinberger 2015, pp. 1–61). This aspect of political thought has, among other things,
become bound up with reflecting on the founding documents of the republic, the Declaration
of Independence and the Constitution, and the unifying purpose these serve in the political and
legal imagination of the state (Corey 2015, Kahn 2019, Steinberger 2009).
This way of conceiving of the unifying purpose of these founding texts has been directly
implicated in legitimising an expansion of executive power and reinforcing the US national
security infrastructure (Rana 2015). Clearly, this is a counterintuitive logic of constitutional-
ism. After all, the conventional wisdom – and indeed the sceptical wisdom of constitutional
loyalty advocated by the Founding Fathers (Corey 2015, Smith 2021) – is these founding
texts ought to put procedural checks and balances on the power of government. However, this
rationalist disposition of thought within American political culture (Miller 2010) has fostered
an un-sceptical reverence of ideas of constitutional patriotism (Smith 2021) which has, in
turn, served to buttress practices of policy-making and legislation that have seen those checks
and balances repeatedly contested and transgressed in the period since the National Security
Act was signed in 1947 (Rana 2015). These episodes in American history have been publicly
justified by a political discourse that is the product of myths of war – the ‘Cold War’ and the
‘War on Terror’ – and accompanying beliefs about the threat to the survival of the republic and
its founding principles that certain politicians and members of the intellectual elite hold dear
(Dudziak 2013, Honig 2009, Miller 2010, Rana 2015).
What I look to do in this chapter is examine the ways in which John Ikenberry’s liberal
theory connects with this rationalist background of ‘normative belief’ (Gregory 2021) in
American political society in ways that strive to transcend the non-ideal condition I have just
described. Although this is self-evidently more than an ideal theory for the US, and this state
alone, the constitutional loyalty that informs this theory means that regardless of how inclusive

1
Itself a form of political theory (Rengger 2000) in which the leading authorities have been – and
some would say still are – US-based intellectuals (Hoffman 1977, Walt 2011).
2
Of these names listed here, Randall Schweller, may be considered the exception for reasons to do
with his reflections on the logic of grand strategy, see Drezner et al (2020).
104 Handbook on global constitutionalism

and international it purports to be, non-ideal circumstances in America are never far from
consideration.

The Postwar Ideal of Interdependence: The Progressive Aspect to a Liberal Theory

What is distinctively American and international in Ikenberry’s liberal theory can be under-
stood with respect to its ‘progressive aspect’ (Stout 2018) and the ways in which this is dis-
closed through reflections on what he terms ‘constitutional politics’ in IR (Ikenberry 1998). As
I will elaborate on in more detail below, this way of theorising about constitutionalism beyond
the borders of the US has always been self-consciously ‘liberal’, and has kept true to its ref-
erence points in American liberal thought of the 1970s. But it also, from the outset, sought to
move beyond these beginnings, to establish a position that remains liberal, but in novel way
that issues from conscious efforts to respond to criticisms of the IR school or paradigm that
it is most associated with, and to the empirical circumstances of war that interest Ikenberry.
His most obvious intellectual debt is not to Rawls’s Theory of Justice, but another seminal
work of political theory, with a specific emphasis on IR, Robert Keohane and Joesph Nye’s
Power and Interdependence. This book from 1977 – currently in its fourth edition – is a land-
mark text in what is known as ‘neo-liberal institutionalism’ or, simply, liberal IR theory. It
advances an argument that places the rationality of bargaining and coordination in a world of
states to the end of supporting the transnational, or state plus, ‘institutionalisation’ of politics
that surpasses the basic security guarantees of wartime balances of power in international
affairs.
The progressive character of this account of IR is explicit in its claim about the overall,
postwar direction of institutional change in world politics. This trajectory of change is readily
understood, today, as the basic ‘liberal’ argument in IR theory about transition in world pol-
itics. Keohane and Nye’s main claim is that interdependence has an overall purpose that is
conducive to the harmonisation of interests, the planning of cooperation, and, ultimately, the
reduction of the propensity to war in the international system. In a more globalised world, with
greater interlinkages in the economy and in other policy spheres, the reasoning goes that the
use of military force will bring diminishing returns and higher costs for all the powers in the
international system, state and non-state alike.
The liberal theorising in Power and Interdependence looks to events in the past to identify
the trend towards peaceful change in the international system of the present and the future. This
trend can be understood as a disposition in policy-making in which the recourse to war among
interlinked powers is viewed as increasingly irrational as their relationships become more
densely institutionalised and entangled. As Joseph Nye (2004) put it in his single-authored,
most famous work, Soft Power, according to this liberal worldview, decision-makers will
seek to harness the power that exists between them in the service of ‘win–win’ negotiations
and settlements. Accordingly, the resort to the use of military force will be viewed by these
practitioners as a ‘lose–lose’ scenario, a decision to project power that is bound to introduce
discord and instability into international politics that nobody wants.
This liberal theorising and its central claim about progress in international politics has its
critics, of course. Realist theorists have long accused this liberal argument of wishing away
the dark side of great power politics and the competition and anarchy that they argue defines
the international system (Allison 2018, Mearsheimer 2018, 2019; Schweller 2001). Historians
have raised doubts about whether greater interdependence since 1945 is, actually, the source
 Liberal theory 105

of the peaceful change in international politics that this worldview presupposes, or whether it
is simply a good way of understanding and explaining what makes the Cold War a distinctive
form of international conflict. According to these historians, the institutionalised character of
this conflict may be explained from a standpoint that examines the character of the crisis-prone
relationships between the US and its allies in the twentieth century (Ashton 2002), and also the
character of the ‘new Cold War’ rivalry that has escalated between the US and China in the
last few years in spite of the economic interlinkages between these latter-day great powers and
permanent partners in the Security Council (Ferguson 2020).
These past and present ‘Cold War style’ situations of interdependence do not necessarily
mean that conflicts in an age of globalisation are going to be ‘lose–lose’ scenarios for those
powers directly involved, or that they will result in a full-blown war. But it does mean that
the expectations of Keohane and Nye that a collective harmony of interests will trump the use
of force and transcend conflicts between powers in the UN system requires, at the very least,
a corrective.
John Ikenberry has, in part, provided this corrective with his own version of liberal IR
theory. And he has done so in ways that incorporate state-centred realism (Ikenberry 2010)
into the progressive aspect of interdependence,3 and take a longer view on international history
than Keohane and Nye to account for the origins of postwar orders in-between major powers in
the nineteenth, twentieth and twenty-first centuries (Ikenberry 2001, 2011, 2020). In the next
sections of this chapter, I will explain what these progressive innovations in liberal IR theory
entail and why they matter with respect to the constitutional question of how power(s) have
been and might be restrained.

EVENTS OF INTERNATIONAL ‘CONSTITUTIONAL POLITICS’

Every man’s reading of past events comes to acquire, in the course of time, a certain conceptual
structure. It is not a structure he merely invents and imposes upon the course of events, but one which
he believes himself to have elicited from his study of events and which he uses to keep his thoughts
in order. (Michael Oakeshott 1993, p. 3)

In his earliest article on the origins of what he referred to as the ‘real international order’,
Ikenberry (1996, p. 79) challenged the conventional wisdom that the order constituted at the
end of the Cold War marked a clean break with what emerged at the end of World War II.
On the contrary, he argued, continuities with the settlement of 1990 and 1945 and, indeed,
earlier postwar settlements, were more apparent than significant historic changes occasioned
by the process of globalisation. But this left open the question of how to square his own liberal
assumption of the progressive change in international politics with this empirical observation
about the continuity between postwar orders. Ikenberry’s reflections on this empirical puzzle
would shape his entire worldview on the practice and the dilemma of ‘constitutional politics’
in IR.

3
In a manner that is not necessarily at odds with ‘classical’ realism in the United States, even if it
does not sit well with the tenets of ‘structural’ realism, which are the points of reference of Ikenberry’s
strongest critics (Scheuerman 2011).
106 Handbook on global constitutionalism

The answer that he came up with is that the differences between postwar orders going back
as far as 1815 (Ikenberry 2001) arise because of a tension between equally progressive, yet
substantively different, constitutional foundations that are desired in the negotiation of these
settlements of interdependence in history (Ikenberry 1996, 1998, 2001, 2011). The politics
and practice of international constitutionalism is, accordingly, characterised by a search for
‘institutionalised settlement’ (Ikenberry 2001, pp. 22–4) that is sustainable, but not permanent.
Contractual agreement of this kind is the goal of ‘order–building’ after major wars (Ikenberry
2001, pp. 18–40). The search for this goal is the progressive aspect that runs through
Ikenberry’s explanation of the events of consensus that are achieved and sustained in-between
‘major powers’ in spite of persistent disagreements and conflicts in the international system.
However, it is important to note these are fungible achievements of order, historically contin-
gent up to a point of major war, when the order-building process of ‘constitutional politics’
begins all over again.

In-between Events of Consensus: The Foundations of Order in ‘Constitutional Politics’

Ikenberry has been credited with developing a liberal theory of IR that ‘organises anarchy’
(Schweller 2019). And this is how he does it, through the explanation of events of consensus
in international politics that exhibit constitutional characteristics that are more substantive than
the balance-of-power politics that realists, like Schweller, emphasise as being the extent of the
order that can exist in history (Rengger 2000, pp. 37–70). Ikenberry’s thicker conception of
order in history requires the identification of the sources of stability in-between powers. His
identification of these foundations of order arises through an explanatory narrative about the
postwar efforts by hegemons, from Britain in 1815 to the US in 1945 and 1990, to establish
institutionally binding arrangements of political association that impose a victor’s peace.
This account of the origins of order has substantive commonalities with the English School
theory of international society, which also emphasises events of peacemaking (see Clark
2001, 2005; also Costa-Buranelli, Chapter 12 in this Handbook). What Ikenberry’s theory
shares with this societal theory of IR is a focus on binding settlements that are – or, at least,
are believed to be – legitimate because they are not the outcome of unmediated coercion or
shallow compromise, but of the ‘common interest’ articulated in a foedus or pact in which each
associate in a postwar settlement pledges their allegiance to the raison de système rather than
the narrow and individual state interests of raison d’etat (Watson 1992, p. 14).
This is by no means a sanitised view of IR. Hierarchy and power feature prominently in the
instrumental rationality of ‘constitutional politics’. But they do so not through the mere unilat-
eral imposition of the collective will of one particular state, or self-interested balancing against
or band-wagoning of other states in relations with the prevailing hegemon. This is where the
common end of ‘order-building’ does so much work in Ikenberry’s theory. Order-building
understood in terms of the instrumental rationality of institutionalised settlement, or consen-
sus, accounts for events of partnership in-between the great powers of the day, but also of the
discontinuity and rupture in their partnership as one foundational and common purpose of
interstate order of ‘constitutional politics’ gives way to another in the aftermath of a major war
that none of the states bound by this order (fully) anticipated.
 Liberal theory 107

Constitutional Foundation of Victor’s Peace: The Politics of ‘Strategic Restraint’

In the first instance, consensus serves as a foundation of an interstate settlement that is arrived
at through negotiations led by the principal ‘victor’ in a major war by way of a practice of
political association that implicates all of the great powers, and many of the lesser powers too,
in the rebuilding of international order. According to this logic of international constitutional-
ism, a hegemonic state acts in the common interests of international peace and security to lay
down ‘rules, rights, and protections’ that go on to become ‘widely agreed upon, highly institu-
tionalized, and generally observed’ (Ikenberry 2001: 36) principles of the not-altogether-new
international order, initially within a small club of major powers and subsequently within the
broader international system of states.
In ways that will become more apparent as we proceed, Ikenberry has always taken
something akin to ‘institutional mechanisms of strategy’ (Ikenberry 2001: 4) as an important
explanatory factor in accounting for the achievement of victor’s peace. These ‘mechanisms
of strategy’ are understood as intentions of statecraft and by extension a practice of policy-
making that is orchestrated by ‘leading states’ and aims to ‘“lock in” a favourable and durable
postwar order’ (ibid). The plan of this interstate practice of policy-making is to constitute
a common, international condition for a ‘strategic restraint’ that is not just favourable to the
hegemonic architect of the peace. This ideal condition of constitutionalism is also understood
to be a favourable basis for ‘the ‘governing’ arrangements among a group of states who can
recognise the benefits that come from guaranteeing their own sovereignty in this postwar pact.
As with other societal theories of international constitutionalism – from English School
theorists in particular – there is a presumption that beneath the alignment of the ‘common
interests’ between states there are constitutional principles of international legitimacy at work
that account for common political obligations not just to the system, or to a victor’s peace, but
to a normative belief in the ‘common values’ that underpin both. This is what Hedley Bull
terms the ‘morally prior’ (1977/2002, p. 21) understanding of world order that is constitutive
of international order.
The subtle reality to this argument is that international order has intrinsic and shared value
for what Bull calls ‘social life’ as a whole (1977/2002, p. 3). Ikenberry does not use this
(neo-Hegelian) language of the English School, but he implies something similar to the under-
standing of essential and normative facts of social life in ‘hegemonic cultural values’ and ‘fun-
damental regulative practices’ (Donnelly 2011, pp. 166–7) in his description of the postwar
binding of constitutional settlements. This cultural belief in hegemony is a sub-strategic and
fundamental ideal in Ikenberry’s liberal theory. While he does not give it the kind of expres-
sion that English School theorists do, it is there at the ontological basis of this theory. And it
is there in the progressive aspect to the binding features of ‘constitutional politics’. This belief
in the international legitimacy, or right conduct, of hegemony accounts for why settlements
of victor’s peace promise more than just an expedient restraint on the most powerful states in
history. This belief alludes to a deeper constitutional foundation of political association than
the instrumental language of ‘strategic restraint’ and ‘“locking in” durable postwar order’
suggests.
At root – and as with the English School theory to which it has been compared (Reus-Smit
2013) – Ikenberry’s liberal theory of ‘constitutional politics’ is guided by normative belief in
the value(s) of order itself. How he comes to understand the substance of this value of order, of
this principle of ‘constitutional politics’ is crucial for explaining a change in this liberal theory
108 Handbook on global constitutionalism

that has unfolded over the last 20 years; a change that I have trailed from the beginning of
this chapter, an unanticipated change from his perspective that is contingent on the non-ideal
circumstances of a major war.

Constitutional Foundation After Victory? The Politics of ‘Liberal Rules’

Ikenberry has never concealed his ‘liberal’ identity as a theorist of IR. But the values-based
and normatively liberal character to his theorising about international constitutionalism have
– for reasons that I will elaborate on more in the next section – only really come to light in
the period since the publication of his first book After Victory in mid 2001. As a precis for
a more detailed discussion of this enterprise of political theorising in the years since the US-led
military response to the terror attacks of that year, let me briefly outline what it is that provides
the unifying and substantive basis of institutionalised settlement to what Ikenberry comes to
describe unequivocally and unreservedly as a liberal international order.
This is a conception of international order that is ‘open and loosely rule based’ and provides
‘a foundation in which states can engage in reciprocity and institutionalised cooperation’
(Ikenberry 2011, p. 18). While there are extensive references to images of the past to provide
support for his argument that this constitutional foundation of societal reciprocity is there to be
rediscovered and can be a workable model for cooperation in today’s age of global governance,
this argument rests on not much more than the conviction that the ‘liberal rules’ (Ikenberry
2011, p. 347; 2020, p. 303) he claims were ‘widely accepted’ before in international history
can and will be ‘widely accepted’ again, though US leadership.
Ikenberry’s conviction wavers at times. There is an unmistakable nervousness and uncer-
tainty to his theorising about the postwar order that he argues is in the process of being built
in the twenty-first century. Will this political order ever be finished? Or even worse, will it
collapse as the hegemonic power that is required in this order-building enterprise acts in ways
that are contrary to its foundation in ‘liberal rules’?

THE ‘CRISIS’/CONSTITUTIONALISM OF LIBERAL

INTERNATIONALISM
The international order built and led by the United States and its partners is in crisis. (John Ikenberry
2018, p. 17)

There is a debate in IR literature about what is meant by all the talk of ‘crisis’ with regards
to the contemporary order, and whether this denotes a deep and underlying instability in
international political thought and practice or whether this is simply a rhetoric of affect; the
articulation of anxiety in the face of loss or destruction in the institutional edifice of global
governance that is merely a perception of change (Eilstrup-Sangiovanni and Hoffman 2020).
The way I approach this interpretive question in this section is to suggest that these under-
standings of the ‘crisis’ of order are not mutually exclusive. What is perceived to be a change
in the international order of global governance can also be what is understood to be real and
true about the unstable flux in international politics. Both conceptions of ‘crisis’ are integrated
here through the study of agency-centred belief, in this case Ikenberry’s belief, about an event
that challenges and affirms convictions about what he – and, it would appear, other theorists
 Liberal theory 109

and practitioners of international community, too (Walt 2021) – regard as the rules-based
foundation of the contemporary international order.
The key point here is that what Ikenberry argues is the underlying and unifying foundation
of order comes to him through positing his belief in the substance of ‘liberal rules’; a belief that
identifies the source of stability in IR beneath and beyond a driver of radical change that he
opposes. The driver or instigator of this radical change is the formulation and implementation
of US grand strategy under George Bush Jr. (Ikenberry 2002).
Ikenberry’s principled opposition to this grand strategy of the Bush administration
accounts for a double-sided event in the reformulation of his liberal theory. One side of this
event explains the impetus for the enterprise of building a ‘liberal rules’-based order in the
twenty-first century; the other why this enterprise is predicated on an understanding of how
this Bush-era grand strategy effectively ended the international order of ‘strategic restraint’ as
a workable model for the post-Cold War era, and introduced a new disorder, a new anarchy
into international politics.
The way that Ikenberry looks to ‘organise anarchy’ in this occasion appeals to a recipro-
cally binding and progressive ideology (Holbraad 2003, pp. 39–66) of liberal internationalism
(Ikenberry 2011, 2020) and the intuition that a commitment to this ideology can re-constitute
partnership between the US and other powers through a consensus that will be more stable,
more explicitly rule-governed – in every conceivable sense, a stronger constitutional founda-
tion than the axiom of ‘strategic restraint’ that it will, eventually, possibly, come to replace.

Crisis of ‘Neo-Imperial’ Grand Strategy: The Belief in the Disorder of

Neo–conservativism

In the shadows of the Bush administration’s war on terrorism, sweeping new ideas are circulating
about U.S. grand strategy … They call for American unilateral and preemptive, even preventative
use of force … ultimately unconstrained by the rules and norms of international community. At the
extreme these … radical strategic ideas and impulses … form a neo-imperial vision in which the
United States arrogates to itself the global role of setting standards, determining threats, using force,
and meting out justice. (John Ikenberry, 2002, p. 44, emphasis added)

The best way into understanding how Ikenberry conceives of the improvement on the consti-
tutional foundation of ‘strategic restraint’ is to begin with what he objects to about the 2002
National Security Strategy of the Bush administration. ‘Preemption’ was the idea at the core of
this strategy (Rengger 2013, pp. 18–24). This controversial idea legitimated the US to launch
military attacks on what American and allied intelligence sources claimed were the bases of
international terrorism around the world. Rarely has Ikenberry expressed his disapproval of
these ‘radical strategic ideas and impulses’ or their ‘neo-imperial’ character as forcefully as
he did in the quote cited above. But his criticism of this US grand strategy and its knock-on
effects for America’s standing in the world has reappeared in several of his publications since
(Betts 2011, Ikenberry 2004, 2005, 2008, 2009, 2011, 2020; Porter 2018). This criticism takes
the form of a liberal aversion or resistance to the ‘unconstrained’ (Ikenberry 2002, p. 44)
character of this security strategy and the licence it gives the US to use its historically ‘unprec-
edented global dominance’ (ibid.) in ways that undermine the ‘governing arrangements’ that
administrations prior to Bush Jr. had sought to negotiate and maintain.
There is a question about the ideological origins of this 2002 strategy that Ikenberry does
not address with the subtlety it perhaps deserves (Caverly 2013), namely, the extent to which
110 Handbook on global constitutionalism

its ‘neo-conservativism’ is just as much a product of a homegrown belief in the ‘emergency

politics’ (Honig 2009) of rationalism as Ikenberry’s internationalist alternative. The idea that
the thinking behind the Bush doctrine and its ‘liberal’ nemesis are products of the same ration-
alist matrix of belief and value is certainly not one that Ikenberry or like-minded critics of the
Bush administration share (see Ikenberry 2008). According to them there is a clear ideological
dividing line between American neo-conservativism and a ‘tradition’ of liberal international-
ism that was made an authoritative and alternative foundation for grand strategy by another US
President, Woodrow Wilson, in the event of America’s entry into World War I, 30 years before
the National Security Act was signed.
This appeal to an alternative ideological basis for US national security strategy, or simply,
grand strategy has been referred to, perceptively, as Ikenberry’s anticipation of the ‘Obama
moment’ (Peterson and Convey 2019), the turn against the Bush doctrine of ‘preemption’ and
the foreswearing of the ‘war on terror’ under Bush Jr.’s successor to the Whitehouse. He and
other like-minded American academics were signalling this liberal internationalist change in
policy-making months, if not years, before it began in practice. And at the time of writing,
with Obama’s former deputy, Joe Biden, in the Whitehouse, there is good reason to agree with
Ikenberry (2011, 2018, 2020) that this may be a long-term, US-led change in global govern-
ance and not just a passing ‘moment’.

Constitutionalism of ‘Enlightened’ Grand Strategy: The Belief in the Order of Liberal

Internationalism

The crisis of liberalism today will ultimately bring forth ‘more liberalism’. This is true if by liberal
order we mean an open, rule-based relations system organised around expanding forms of institu-
tionalised cooperation … The future still belongs to the liberal international order. (John Ikenberry,
2013, p. 92, emphasis added)

The ‘future’ may well ‘belong’ to this belief in America’s global leadership as Ikenberry sug-
gests, but this was not a ‘future’ that he envisaged when he was writing about the constitutional
foundations of international order prior to 2002. What has changed in his perspective? What
explains how he has come to imagine the foundation of international order differently? The
clue lies with the pregnant phrase ‘more liberalism’ (Ikenberry 2013, p. 92).
Ikenberry has become more committed to what he means by ‘liberalism’. And as discussed
earlier in this chapter, this commitment is grounded in rationalism in American political
culture, an understanding of the responsibilities of the political theorist to deal with non-ideal
circumstances in wartime, and an understanding of the rational way that hegemons use stra-
tegic means to impose and maintain a normative foundation for constitutional order in IR.
All of these instrumental and normative aspects to Ikenberry’s political theory remain largely
unchanged.
Where the significant change arises is with respect to his understanding of what it means to
be a ‘liberal’ theorist in circumstances of war in the period since After Victory was published.
His response to this ‘non-ideal’ circumstance has seen him become more openly ideological
in his ‘liberal’ identity. This can be understood in the way his theorising is mediated by
language symbols (see Voegelin 1970/1990). He no longer writes simply about the ‘rules’ of
international order as he did in that book (Ikenberry 2001) but ‘liberal rules’ (Ikenberry 2011,
2020), no longer of ‘mechanisms of strategy’ (Ikenberry 2001) but of ‘enlightened’ grand
strategy (Ikenberry 2020, pp. 304–11) and not just about the political association of ‘major
 Liberal theory 111

powers’ (Ikenberry 2001) but about the political association with the US’s ‘global power’
(Ikenberry 2005). These ‘new’ language symbols have introduced a strength of conviction
into Ikenberry’s ‘liberal’ theory that was not there before. And it is this conviction that leads
him to believe in the promise and the possibility of the building of an international order in
and for global governance that will bind power(s) more deeply, more securely than ‘strategic
restraint’ ever did.
He may well be proved right. This might be the long-term outcome of US grand strategy in
the twenty-first century. But, in any case, the postwar order that he describes is not yet a politi-
cal reality. Rather it is the vision of a practice of international constitutionalism, led by the US,
guided by a strategy that is committed to principles of liberal internationalism, some of which
Ikenberry has articulated, but most of which are only intimated in language symbols that are
in many respects beholden to the ‘crisis’ that he, and others, perceive as standing in the way of
this vision becoming a political reality. As he has recently admitted, there is some way to go
in reconciling the two foundational aspects of this vision: on the one hand, the role of the US
as a ‘restrained, humble’ and enlightened global power, acting in concert with its partners for
the rebuilding of order, and on the other, the ‘restless, expansionist force’ to the perfection of
liberal internationalism and the spectre this raises of a new American imperialism (Ikenberry
2021).

CONCLUSION

The meaning that is provided to what is ‘liberal’ in the political theory of IR and constitutional-
ism is, I have argued here, a moving target that is mediated by symbols that place an emphasis
on events of power and interdependence in the search for postwar order that is both beyond the
US and beholden to this state or, in earlier times, to its imperial predecessor, Great Britain. For
readers of the Handbook, the challenge this raises is how to engage with such a state-bound
journey in theorising, how to reason with and respond to this liberal theory from a standpoint
that is also sensitive to real-world goings on in IR especially in a time, our time, of seemingly
endless war.
There are two contrasting ethical-political standpoints (see Rengger 2017, Smith 1998,
White 1991) that global constitutionalists might adopt in response to the evolving character
of this liberal theory. Perhaps the most established of the two, from an IR perspective, is the
ethical position adopted by the constructivist theorist, Richard Price (2008). Price maintains
that the kind of interests that define the ‘crisis’ of this liberal theory are, by definition, unethi-
cal, because ethical thought can only be disinterested thought about the world. The trouble
with this neo-Kantian argument is it makes an empirical assumption that this chapter finds
to be demonstrably untrue. Ikenberry has gone to considerable lengths in his theorising to
defend the ethical grounds of ‘institutionalised settlement’ and the requirement of foresight
in strategic thought to establish what he identifies as constitutional foundations of postwar
order. This might not be a discourse of ethics that Richard Price or other political theorists
of IR or constitutionalism are ready to accept. But this does mean that the understanding of
constitutional settlements predicated on a victor’s peace of ‘strategic restraint’ or a progressive
ideology of ‘liberal rules’ is thereby unethical. Nor does it mean that the ‘crisis’ that accom-
panies the violent break between one constitutional foundation and the search for the other is
112 Handbook on global constitutionalism

unethical either. The striving for each foundation can be understood as an attempt to establish,
or constitute, a system of ethical life beyond war itself (see Frost 1996).
The second, more complex position begins from this neo-Hegelian, ‘social ontology of
recognition’ (Ikaheimo and Laitinen 2011). To recognise the considered yet inconclusive
search for the ethical beginnings of ‘durable post-war order’ (Ikenberry 2001) by one of the
most esteemed theorists of IR of his generation means to acknowledge that the ‘crisis’ and
the rebuilding of order that he describes as being in process since 2002 reveals a paradox in
a state-bound experience of war. This paradox is the inability to ‘organise anarchy’ (Schweller
2019) – or as Ikenberry prefers to call it, ‘master modernity’ (2020, pp. 286–312) – through
the appeal to the intrinsic value of a rules-based international order. Indeed, I would go a step
further. The recognition of this paradox provides a penetrating insight into a dilemma of polit-
ical order in global governance; a dilemma brought to light by a US-centred way of thinking
about ‘constitutional politics’ that, thus far, has been unable to figure out a coherent answer
to its own practical question about the political reality of this order: are its ‘liberal rules’ the
foundation for the restraint of power in global governance or does this foundation (re)legit-
imise American imperialism and perpetuate a non-ideal condition of disorder between one
global power and the others.

REFERENCES
Allison, G. (2018), ‘The myth of the liberal order: From historical accident to conventional wisdom’,
Foreign Affairs, 97 (4), 124–33.
Ashton, N.J. (2002), Kennedy, Macmillan and the Cold War: The Irony of Interdependence, London:
Palgrave Macmillan.
Betts, R.K (2011), ‘Institutional imperialism’, The National Interest, 113, 85–96.
Bevir, M. (1999), The Logic of the History of Ideas, Cambridge: Cambridge University Press.
Bevir, M. and I. Hall (2020) ‘The English School and the classical approach: Between modernism and
interpretivism’, Journal of International Political Theory, 16 (2), 153–70.
Bull, H. (1977/2002), The Anarchical Society: A Study of Order in World Politics, 3rd edition, New
York: Columbia University Press.
Caverly, J.D. (2013), ‘Neoconservatism, Neoclassical Realism, and the narcissism of small differences’,
in R. Friedman, K. Oskanian and R.P. Pardo (eds), After Liberalism? The Future of Liberalism in
International Relations, London: Palgrave Macmillan, pp. 145–66.
Corey, E. (2015), ‘Rationalism and the rule of law: Michael Oakeshott and the American constitutional
order’, American Political Thought, 4 (4), 632–52.
Clark, I. (2001), The Post-Cold War Order: The Spoils of Peace, Oxford: Oxford University Press.
Clark, I. (2005), Legitimacy in International Society, Oxford: Oxford University Press.
Donnelly, J. (2011), ‘The differentiation of international societies: An approach to structural interna-
tional theory’, European Journal of International Relations, 18 (1), 151–76.
Drezner, D.W., R.R. Krebs, and R. Schweller (2020), ‘The end of grand strategy: America must think
small’, Foreign Affairs, 99 (3), 107–17.
Dudziak, M.L. (2013), War Time: An Idea, Its History, Its Consequences, Oxford: Oxford University
Press, p. 4.
Eilstrup-Sangiovanni M. and S.C. Hofmann (2020), ‘Of the contemporary global order, crisis, and
change’, Journal of European Public Policy, 27 (7), 1077–89.
Ferguson, N. (2020), ‘Cold War II’, National Review, 17 December.
Fioretos, O.K. (2019), ‘The syncopated history of the liberal international order’, The British Journal of
Politics and International Relations, 21 (1), 20–8.
Frost, M. (1996), Ethics in International Relations: A Constitutive Theory, Cambridge: Cambridge
University Press.
 Liberal theory 113

Gregory, A. (2021), Desire as Belief: A Study of Desire, Motivation, and Rationality, Oxford: Oxford
University Press.
Hall, I. (2012), Dilemmas of Decline: British Intellectuals and World Politics, 1945–1975, Berkley:
University of California Press.
Hoffman, S. (1977), ‘An American social science: International Relations’, Daedalus, 106 (3), 41–60.
Holbraad, C. (2003), Internationalism and Nationalism in European Political Thought, London:
Palgrave Macmillan
Honig, B. (2009), Emergency Politics: Paradox, Law, Democracy, Princeton, NJ: Princeton University
Press.
Ikaheimo, H. and A. Laitinen (2011), Recognition and Social Ontology, Leiden: Brill.
Ikenberry, J.G. (1996), ‘The myth of post-Cold War chaos’, Foreign Affairs, 81 (5), 44–60.
Ikenberry, J.G. (1998), ‘Constitutional politics in international relations’, European Journal of
International Relations, 4 (2), 147–77.
Ikenberry, J.G. (2001), After Victory: Institutions, Strategic Restraint, and the Rebuilding of Order after
Major Wars, Princeton, NJ: Princeton University Press.
Ikenberry, J.G. (2002), ‘America’s imperial ambition’, Foreign Affairs, 81 (5), 44.
Ikenberry, J.G. (2004), ‘Liberalism and empire: Logics of order in the American unipolar age’, Review
of International Studies, 30 (4), 609–30.
Ikenberry, J.G. (2005), ‘Power and liberal order: America’s postwar world order in transition’,
International Relations of the Asia-Pacific, 5 (2), 133–52.
Ikenberry, J.G. (2008), ‘Woodrow Wilson, the Bush administration, and the future of liberal internation-
alism’ in J.G. Ikenberry, T.J. Knock, A. Slaughter and T. Smith (eds), The Crisis of American Foreign
Policy: Wilsonianism in the Twenty-first Century, Princeton, NJ: Princeton University Press. pp. 1–24.
Ikenberry, J.G. (2009), ‘Liberal internationalism 3.0: America and the dilemma of liberal world
order’, Perspectives on Politics, 7 (1), 71–87.
Ikenberry, J.G. (2010), ‘Liberalism in a realist world: International relations as an American scholarly
tradition’, International Studies, 46 (1), 203–19.
Ikenberry, J.G. (2011), Liberal Leviathan: The Origins, Crisis, and Transformation of the American
World Order, Princeton, NJ: Princeton University Press, p. 92.
Ikenberry, J.G. (2013), ‘Liberal international order and its discontents’, in R. Friedman, K. Oskanian
and R.P. Pardo (eds), After Liberalism? The Future of Liberalism in International Relations, London:
Palgrave Macmillan, pp. 91–102.
Ikenberry, J.G. (2018), ‘Why the liberal world order will survive’, Ethics & International Affairs. 32
(1), 17.
Ikenberry, J.G. (2019), ‘Reflections on After Victory’, The British Journal of Politics and International
Relations, 21 (1), 5–19.
Ikenberry, J.G. (2020), A World Safe for Democracy: Liberal Internationalism and the Crises of Global
Order, Princeton, NJ: Princeton University Press.
Ikenberry, J.G. (2021), ‘Response’, in T. Maddux and D. Labrosse (eds), H-Diplo Roundtable: A World
Safe for Democracy: Liberal Internationalism and The Crises of Global Order, available at: https://​
hdiplo​.org/​to/​RT23​-3 [accessed 1 July 2022].
Jervis, R. (2021), ‘Introduction’, in T. Maddux and D. Labrosse (eds), H-Diplo Roundtable: A World
Safe for Democracy: Liberal Internationalism and The Crises of Global Order, available at: https://​
hdiplo​.org/​to/​RT23​-3 [accessed 1 July 2022].
Kahn, P.W. (2019), Origins of Order: Project and System in the American Legal Imagination, New
Haven, CT: Yale University Press.
Keohane, R. (2002), ‘The globalization of informal violence, theories of world politics, and the “liberal-
ism of fear”’, Dialogue IO, 1 (1), 29–43.
Keohane, R. and J. Nye (1977/2011), Power and Interdependence, 4th edition, London: Pearson.
Laurence, B. (2021), Agents of Change: Political Philosophy in Practice, Boston, MA: Harvard
University Press.
Mazower, M. (2012), Governing the World: The History of an Idea, London: Penguin Press.
Mearsheimer, J.J. (2018), The Great Delusion: Liberal Dreams and International Realities, New Haven,
CT: Yale University Press.
114 Handbook on global constitutionalism

Mearsheimer, J.J. (2019), ‘Bound to fail: The rise and fall of the liberal international order’, International
Security, 43 (4), 7–50.
Miller, R.B. (2010), Terror, Religion, and Liberal Thought, New York: Columbia University Press.
Moravcsik, A. (2008), ‘The new liberalism’, in C. Reus-Smit and D. Snidal (eds), The Oxford Handbook
of International Relations, Oxford: Oxford University press, pp. 234–54.
Nye, J.S. (2004), Soft Power: The Means to Success in World Politics, New York, NY: PublicAffairs.
Oakeshott, M. (1962/1991), Rationalism in Politics and Other Essays, expanded edition, London:
Liberty Fund, pp. 439–40.
Oakeshott, M. (1993), Morality and Politics in Modern Europe: The Harvard Lectures, edited by S.
Letwin, New Haven, CT: Yale University Press, p. 3.
Peterson, J and A. Convey (2019), ‘Breakthrough’ works – revisiting the essentials: a symposium series
in the BJPIR’, British Journal of Politics and International Relations, 21 (1), 3–4.
Porter, P. (2018), ‘Why America’s grand strategy has not changed: Power, habit, and the U.S. foreign
policy establishment’, International Security, 42 (4), 9–46.
Price, R. (2008), ‘Moral limit and possibility in world politics’, International Organization, 62 (2),
191–220.
Rawls, J. (1971/1999), A Theory of Justice, Oxford: Oxford University Press.
Rana, A. (2015), ‘Constitutionalism and the foundations of the security state’, California Law Review,
103 (2), 335–85.
Rengger, N.J. (2000), International Relations, Political Theory and the Problem of Order: Beyond
International Relations Theory?, London: Routledge.
Rengger, N.J. (2013), Just War and International Order: The Uncivil Condition in World Politics,
Cambridge: Cambridge University Press.
Rengger, N.J. (2017), The Anti-Pelagian Imagination in Political Theory and International Relations:
Dealing in Darkness, London: Routledge.
Reus-Smit, R. (2013), ‘The liberal international order reconsidered’, in R. Friedman, K. Oskanian and
R.P. Pardo (eds), After Liberalism? The Future of Liberalism in International Relations, London:
Palgrave Macmillan, pp. 167–86.
Schweller, R.L. (2001), ‘The problem of international order revisited: A review essay’, International
Security, 26 (1), 161–86.
Schweller, R.L. (2019), ‘Organised anarchy: Revisiting G. John Ikenberry’s After Victory’, British
Journal of Politics and International Relations, 21 (1), 63–70.
Scheuerman, W.E. (2011), The Realist Case for Global Reform, Cambridge: Polity Press.
Skagestad, P. (2020), ‘The doctrine of absolute presuppositions’, in Exploring the Philosophy of R.G.
Collingwood: From History and Method to Art and Politics, London: Bloomsbury Academic,
pp. 131–52.
Smith, N.H. (1998), Strong Hermeneutics: Contingency and Moral Identity, London: Routledge.
Smith, S.B. (2021), Reclaiming Patriotism in an Age of Extremes, New Haven, CT: Yale University
Press.
Steinberger, P.J. (2009), The Idea of the State, Cambridge: Cambridge University Press.
Steinberger, P.J. (2015), The Politics of Objectivity: An Essay on the Foundations of Political Conflict,
Cambridge: Cambridge University Press.
Stout, R. (2018), Process, Action, and Experience, Oxford: Oxford University Press, pp. 210–29.
Voegelin, E. (1952/1987), The New Science of Politics: An Introduction, Chicago: The University of
Chicago Press.
Voegelin, E. (1970/1990), ‘Equivalences of experience and symbolization in history’, edited by E.
Sandoz, Published Essays: 1966–1985, Baton Rouge: Louisiana State University Press, pp. 115–33.
Walker, N. (2008), ‘Taking constitutionalism beyond the state’, Political Studies, 56 (3), 519–43.
Walt, S.M. (2011), ‘Is IR still an American social science?’, Foreign Policy, 6 June.
Walt, S.M. (2021), ‘China wants a “rules–based international order,” too’, Foreign Policy, 31 March.
Watson, A. (1992), The Evolution of International Society: A Comparative Historical Analysis, London:
Routledge.
White S.K. (1991), Political Theory and Postmodernism, Cambridge: Cambridge University Press.
9. Constructivism and global constitutionalism
Jan Wilkens

INTRODUCTION

A growing number of phenomena in global politics are being associated with the term global
constitutionalism,1 not only within but also, in often more implicit terms, beyond academia.
Zooming into practices associated with constitutionalisation, it could be argued that this is
a result of a situation in which specifically lawyers, who continue to substantially shape the
academic discourse on global constitutionalism, are involved in processes of global constitu-
tionalisation as they are both practitioners and cognitive promoters of the notion at the same
time (Peters 2014, p. 134). Hence, they are situated at the nexus of academic knowledge
production and social practices in the legal realm, which has a reinforcing effect over time.
In this context, David Kennedy describes the contradictory position of international lawyers,
especially those from the US and Europe, not only as reproducers of a ‘cosmopolitan dream’,
but also as ‘the dark side of law’. He critically states that ‘[o]ne of their projects is to promote
the idea that there is “international law” outside their efforts, and that it “governs” sovereign
states, and that it is, by and large, a good thing – there should be more of it’ (Kennedy 2007,
p. 650, original emphases). Although this will not be the central puzzle here, it highlights
a basic issue constructivism has advanced in general and is very useful in order to better grasp
the abstract notion of global constitutionalism in particular: it fundamentally problematises
what agents perceive as their reality and highlights how actors construct meaning in order to
make sense of this social reality through different patterns of knowledge production (Berger
and Luckmann 1966[1991]). The differentiation between the existence of a material world
that is outside of human volition and the social reality that is reconstituted through knowledge,
is a general contention of constructivists based on the sociology of knowledge (Berger and
Luckmann 1966[1991], p. 13).
Yet, concepts like global constitutionalism, as an explanandum of processes identified as
constitutionalisation, often create universal narratives as they claim to be of a global scale.2
Constructivism demands to take sociological perspectives seriously, which implies:

that meaningful action (and hence also the knowledge of both agent and observer) is a social or inter-
subjective phenomenon. It cannot be reduced to cognitive psychology or to choice, based on interests.

1
For the differentiation and definition of the terms ‘global constitutionalism’ and ‘constitution-
alisation’, see the Introduction to this Handbook and Wiener (2012). In brief, global constitutionalism
describes the academic approach, while constitutionalisation denotes the explanandum of global
constitutionalism.
2
Compare Aoife O’Donoghue’s contribution in which she starts her legal analysis of global con-
stitutionalisation stating that ‘constitutional language is employed in specific fashions’ (O’Donoghue
2014, p. 5). Although she critically reviews different concepts, the narratives created by them remain
uncontested.

115
116 Handbook on global constitutionalism

Instead, the sociological turn emphasises the social context within which identities and interest of
both actor and acting observer, are formed in the first place. (Guzzini 2000, p. 149)

Critical constructivism3 emphasises the need for reflexivity expressed in the call for a double
hermeneutical position (Guzzini 2000, p. 150; Jackson 2006; Hofius et al. 2014, p. 90) prob-
lematising the level of observation as well as the intersubjective processes of constructing
meanings-in-use within particular contexts (Weldes and Saco 1996, p. 373; Milliken 1999,
p. 231; Wiener 2009, p. 176). Global constitutionalism as an ‘academic artefact’ (Weiler
1999, p. 223), like other concepts in social theory, helps to describe social phenomena that
are not of physical existence. Yet, this academic endeavour creates meanings with regard to
the nature and characteristics of global structures. Regardless of whether or not scholars agree
that global constitutionalism is generally a ‘good’ thing because ‘the epistemic and normative
benefits prevail’ (Peters 2009, p. 400), it creates a language and images in which a specific
reality appears as existent in the first place (Ringmar 1996, p. 450). International law does not
only reproduce states as central actors by itself, but concepts such as international community
are also key to create the imagined space in which constitutionalisation unfolds. While the
concept as an analytical category has been substantially criticised, it is ‘the intrinsic vague-
ness and emptiness of the concept and the absence of a specific signified [that] serve as an
epistemological basis to construct states as a “Self” in a greater collective […]’ (Mitrani 2021,
p. 186). Hence, the reiteration by a variety of actors, political leaders, policy-makers, ordinary
people, constructs the realm in which constitutional dynamics are or ought to happen. Against
this background, constructivist scholars not only highlight the role of norms in the social con-
struction of social reality, but have also recently shed light on the concepts as well (compare
Berenskoetter 2016; Ish-Shalom 2021). This literature highlights not only how concepts are
meaningful, and therefore a central part in production of social dynamics such as constitu-
tionalisation, but are also contested and powerful at the same time. The power and contested
nature of concepts central to global constitutionalism, such as democracy, sovereignty, or
human rights, is visible in settings in which actors seek to ‘employ concepts and conceptions
as a powerful hegemonizing tool’ (Ish-Shalom 2021, p. 13). Yet, the contested quality also
means that concepts are not stable entities, but are constantly changing over time. Notably, it
is in the context of international law that the power of concepts and their historical develop-
ment concur in the construction of social reality. In her critical engagement with empiricist
history of international law, Anne Orford has recently outlined how lawyers still ‘intervene in
contemporary debates by using the claims made in those narratives about international law’s
“true” origins or “real” history’ (Orford 2021, pp. 16–17) and called for legal scholars ‘to think
hard about the historical baggage’ (ibid.). Hence, a critical engagement with conceptual histo-
ries, norms, and normative assumptions in the construction of social reality are key aspects in
recent constructivist scholarship.
Given that global constitutionalism is a way to normatively evaluate changing global orders,
reflexivity demanded by critical constructivists is of particular importance and should build
a substantial basis for its research. In order to account for the normative plurality on a global

3
On differences between ‘conventional’ or ‘modern’ and ‘critical’ constructivism see the section
‘Order and normativity’ in this chapter. This chapter draws upon the critical strand for reasons explained
in that section. For further explanations compare, among others, Wiener (2007b, p. 55f; 2008, p. 37;
2009, p. 179) and Fierke (2001; 2007).
 Constructivism and global constitutionalism 117

scale, approaches with a global outreach, such as global constitutionalism, need to reflect
on the lenses and indicators it constructs to assess and evaluate. When the philosophical and
sociological foundations of constructivism started to shape the field of international relations,
Nicholas Onuf critically pointed out with regard to the discipline: ‘We construct worlds we
know in a world we do not’ (Onuf 1989, p. 38). Considering the growing prominence of global
constitutionalism as a new academic field with an international outreach, scholars should
reflect on critical insights developed by constructivism.
To this end, the aim of this chapter is twofold: on the one hand, it seeks to reconstruct how
constructivism as an approach within international relations and scholarship on international
law have developed a prolific relationship. Although this cannot be done in great depth, major
links and academic interventions are discussed. On the other hand, the aim is, with a look to
future scholarship, to carve out the critical potential of constructivism for the study of global
constitutionalism. Therefore, the chapter will proceed in three steps: the next section shows
how the introduction of constructivism to international relations shaped the study of interna-
tional law and therefore opened up possibilities to work between the disciplines and global
constitutionalism specifically. On that basis, it will then be argued that constructivism is of
particular relevance owing to its focus on how norms work, the production of normativity
and the analysis of order which are central concepts with regard to processes of constitution-
alisation at the same time. Finally, this chapter argues that constructivism offers a broader
understanding of constitutionalisation based on sociological and philosophical perspectives
(Tully 1995; Wiener 2007a, 2008; Brown 2012) allowing us to understand how social prac-
tices constitute and re-shape4 existing structures. Thus, it is not only the critical potential of
constructivism seeking to reflect on the production of knowledge but also its theoretical and
methodological rigour that allows us to understand global constitutionalism from different
perspectives.

CONSTRUCTIVISM: LANGUAGE, LAW AND ‘CONSTITUTION’

Constructivism in international relations is neither a theory in a narrow sense nor a single

approach that unifies constructivist research under given conceptual lenses. Owing to the fact
that it draws on constructivism as a social theory,5 issues with regard to ontological, episte-
mological and methodological conceptions shape constructivist discourses in the course of
the increasing prominence of the paradigm since the end of the Cold War.6 Notably, however,
those scholars who prominently introduced constructivism to the study of international rela-
tions in the 1980s with a strong focus on international law at the same time, emphasise the
importance of ontological and epistemological rigour. Friedrich Kratochwil and John Ruggie
called for an interpretive epistemology when it comes to the ontological analysis of norms,

4
Note the emphasis on the procedural character of constitutionalisation. This aspect is outlined in
the next section.
5
Notably, constructivism in international relations draws most prominently on works of Berger
and Luckmann, Pierre Bourdieu, Karl Deutsch, John Dewey, Michel Foucault, Jürgen Habermas, John
Searle, Etienne Wenger to name but a few of the most influential theorists.
6
Compare footnote 2 above on the debates of different strands within international relations. For an
insightful explanation of different ‘logics’ that describe how norms work according to different construc-
tivist approaches, compare Wiener (2007b).
118 Handbook on global constitutionalism

which they used interchangeably with the term ‘law’, that refutes causal relation between
norms (that is, law) and behaviour, for example with regard to compliance in the analysis
of regimes (Kratochwil and Ruggie 1986, p. 772). The fundamental criticism constructivists
brought into the realm of international relations and the study of international law, i.e. norms
more generally, was the absence of language as an analytical perspective in the study of
international politics. As Kratochwil explains: ‘Since all compliance with norms involves
linguistic, conceptual argumentation, it is through analysing the reasons specific to a given
rule or norm type that the intersubjective validity of its prescriptive force can be established’
(Kratochwil 1984, p. 707). The turn to law results from constructivists’ fundamental interest
in analysing norms and rules that they identify as ontologically crucial to understand society’s
co-constitution (Onuf 1989, p. 65; 1994).
Although, Kratochwil and Onuf’s work on international relations and international law has
been criticised for partly drawing on positivist assumptions despite their claim to do the oppo-
site (Brunnée and Toope 2012, p. 126f),7 their work on law and politics substantially shaped
constructivist approaches to research at this nexus until today. The merit of constructivist
debates that unfolded in the following decades is at least threefold, particularly through the
contestation of positivist assumptions. First, norms, whether in the form of law or not, have
to be taken seriously by analysing how they emerge in specific spatio-temporal contexts, how
they are being (re-)shaped and how they constrain actors. This leads, secondly, to constructiv-
ism’s argument that (legal) norms do not merely resemble ‘cheap talk’ in an anarchical world
described by rational choice approaches. Constructivism, therefore, also offers analytical tools
to debates among critical legal scholars who challenge the assumed dichotomy of liberal the-
ories, which imagine constitutional rule and law as opposed to politics (Rajkovic et al. 2016,
p. 1). According to different strands, norms rather have an effect on or shape discursive prac-
tices in specific contexts as they are embedded in social practices (Wiener 2018). The different
epistemological conceptions that lurk behind these terms mark important differences between
constructivists assuming stable norms and identities, as dependent variables, that structure
behaviour (compare Katzenstein 1996, p. 5; Risse et al. 1999). In contrast, and with crucial
relevance for global constitutionalism, critical constructivists have pointed out how norms
and identities are co-constituted through social interaction (Wiener 2008; Wiener and Puetter
2009). Thus, thirdly, drawing on Anthony Giddens’s work (Giddens 1984), constructivists
offer an alternative, that is, sociological, reading of constitution and constitutionalisation and,
therefore, allow for a better understanding of how orders and social structures emerge and
change. Accordingly, norm-generative practices and institutions that seek to regulate society
are mutually constrained. Constitution in legal understandings ‘refers to a formal contract
drafted in the name of “the people” for the purpose of establishing and controlling the powers
of the governing institutions of the state’ (Loughlin 2010, p. 47). Here, constitutionalisation
describes either a formal legal process in which norms are codified and authority is clearly
defined, or the attempt to make ‘an entity subject to legal jurisdiction of an established con-
stitutional order’ (Brown 2012, p. 205). In this context scholarship focusing on global devel-
opments primarily analyses ‘actual developments in international law and interpret[s] them as

7
Compare also the criticism by Adriana Sinclair of Kratochwil and Onuf’s work for ‘the “unreality”
of both approaches’ neglecting power structures (Sinclair 2010, p. 35). Kratochwil’s reaction can be read
in his recent book (Kratochwil 2014, p. 17).
 Constructivism and global constitutionalism 119

manifestations of an ongoing constitutionalisation [or] they may start from the achievement of
(domestic) constitutionalism’ (Kleinlein 2012, p. 81).
In contrast, critical constructivists have argued that constitutionalisation is a social process
(Wiener 2008, p. 26), which can be observed in legal and non-legal contexts entailing ‘pro-
cesses of norm solidification and normative convergence’ (Brown 2012, p. 206). Hence,
constitution has to be understood as a ‘thing and a process’ (Onuf 1994, p. 1, original empha-
sis) since it can refer to a set of norms that is ‘fixed’ in a spatio-temporal context.8 However,
research has further to account for the social practices that may re-shape the meaning-in-use
of norms even within perceived given communities. Particularly under conditions of diversity
in the global realm, practices of contestation affect the quality of norms (Wiener 2014). In
this light it seems to be no surprise that practices have gained increasing prominence not only
within IR more generally, but also with regard to the analysis of international law (compare
Adler and Pouliot 2011a; Brunnée and Toope 2011). While this focus on practice has caused
some debate within constructivism and other approaches in IR, the lawyers Jutta Brunnée
and Stephen Toope have offered a substantial critique of constructivist international relations
scholarship regarding the analysis of international law, while drawing on constructivism and
a notion of practice9 to develop a substantial answer to the perceived shortcomings (Brunnée
and Toope 2010; 2011). Their criticism draws mainly on inconsistencies when it comes to
international law. Different constructivist perspectives, they argue, turn to positivism and
notions of formality when distinctive features of legal and non-legal norms are identified.
Following the question ‘Are legal norms distinctive?’ put forward by Martha Finnemore
(2000) and her outline, together with Stephan Toope, of a constructivist conceptualisation
of legal obligation (Finnemore and Toope 2001) that contested the rationalist and materialist
account of ‘legalization of world affairs’ (Abbott et al. 2000), Brunnée and Toope assert that
constructivists have not yet developed a coherent approach to explain the emergence and
absence of law as well as a theory of law itself (Brunnée and Toope 2012, p. 135). They argue
for a sound conceptualisation of practice with regard to international law scholarship and
claim that their ‘framework is the only one that emphasises both norm properties and legal
practices and sees them, in keeping with their constructivist premises, as inextricably linked to
one another’ (Brunnée and Toope 2012, p. 136).
However, recent contributions of critical constructivists have precisely highlighted the
necessity to differentiate between formal validity, social recognition and cultural validation
in order to address the puzzle of how shared normative meanings-in-use or the contestation
of meanings shape processes in the global realm and global governance structures (Wiener
2008). Notably, Brunnée and Toope’s notion of the practice of legality draws upon Adler and
Pouliot’s definition of practices as ‘competent performances’ (2011b; 2011c, p. 6) assuming
a community of practices in which practices are always more or less meaningful to actors
involved. This, however, might be the case in specific instances as in the context of environ-

8
In his work, James Tully highlights the historical development of the meaning of constitution-
alism. Crucially, constitutional law in the Greek term describes the legal framework agreed to by the
people and refers to the customary ways of the people (Tully 1995, p. 60). This amplifies the importance
of both legal processes and social practices.
9
Note that their understanding of practice is based on interactional perspectives shared by some
constructivists. However, there are different conceptualisations of practice (compare Bueger and
Gadinger 2014; McCourt 2016).
120 Handbook on global constitutionalism

mental law, a case study both authors draw upon. Yet, in particular when it comes to processes
of constitutionalisation in the global realm two limitations to this perspective occur. First,
instances of contestation are likely to occur owing to the normative plurality that matter for
social interaction on a global scale since actors without a given background knowledge of spe-
cific communities are involved. Second, it does not address the normative question of whether
and how these contestations matter (Wiener 2014). From a critical constructivist perspective,
global constitutionalism needs to account for contestations of actors that are subject of legal
structures constructed within ‘communities of practices’. As Jutta Brunnée and Stephen Toope
have argued:

Constructivists are interested in many questions, of which the social creation of norms is only one.
However, because international law is, of its very nature, norm focused, it is a fascination with norm
creation, evolution, and destruction that has proven to be the strongest bridging point between some
IL theorists and the constructivists. (Brunnée and Toope 2012, p. 119)

In sum, they draw useful connections between constructivism and legal scholarship and have
substantially enriched the debate at this nexus. This is, without a doubt, a very productive
perspective for global constitutionalism. Yet, as the critique and recent contributions to critical
constructivism have shown, important aspects are missing.
To this end, the following section seeks to point out how critical constructivism constitutes
a central approach to global constitutionalism. In particular, its value-added contribution of
this perspective is based on the critical notions on order and normativity. However, as will
be argued they are not issues that merely connect both fields in the sense of bringing together
two distinct research areas, but are rather fundamental themes for both academic enterprises.
This turns constructivism, as a social theory and approach within IR, into a central approach
to understand global constitutionalism. The focus on whether legal norms are distinctive is
decisive. Yet, the questions global constitutionalism raises go beyond questions about the
legality of norms.

ORDER AND NORMATIVITY

Order or the absence thereof is a key issue in international relations. In a similar vein,
for scholars of international law and global constitutionalism the analysis of order and its
characteristics are a central issue. In international relations, debates about epistemological
and ontological assumptions have also focused on critical reflections about state-centred
approaches and the often assumed inside-outside logic. From (neo-)realism to conventional
constructivism, states have either been treated as units or ascribed a stable and given identity.
In this sense, order is either characterised by hierarchy or appears to be dependent on ‘what
states make of it’ (Wendt 1992). Notably, this resonates with what has been called modern
constitutionalism. Here, it provides the essence of order within a clearly defined framework,
that is, the state, mostly through a written constitution establishing ‘the main institutions of
government, enumerating their powers, and specifying the norms that would regulate their
relations’ (Loughlin 2010, p. 48). The common feature of these state-centred approaches in
international relations and constitutionalism is not only a purely epistemological claim that
takes the state as a given actor and departing point for observation. It also rests in the deeply
shared notion of European Enlightenment and the belief that only within Westphalian states
 Constructivism and global constitutionalism 121

can order with a constitutional quality be guaranteed. Order outside of states is hardly possi-
ble and almost impossible with a constitutional quality. It comes as no surprise that critical
constructivists have developed an alternative reading and criticised this approach on analytical
and normative grounds.10 This section is concerned with the analytical shortcomings first,
while the next section will turn to the normative problems.
In brief, the co-constitution of norms and identities, as described in more detail above,
rejects a priori conceptualisations of order and, in contrast, assumes that orders can emerge,
change or disappear over time. Based on the difference between a material and social world,
constructivists argue that the social construction of reality unfolds in discursive practices in
the interaction of actors. ‘By making, following and talking about rules people constitute the
multiple structures of society; through such rules societies constitute people as agents’ (Onuf
1994, p. 6). Hence, the interactional understanding of social construction highlights the proce-
dural character that allows for change. This does not mean that a certain order is easily changed
or ‘abolished’, especially if they are enshrined in a legal framework such as a constitution.

The notion of an ‘order’ requires something more than recognition and a set of practices, however.
It emphasizes the systematic and ‘transcendental’ conditions for the functioning of the rules that
constitute our practices. Furthermore, we need some help in ‘applying’ these rules to a case at hand in
a process of interpretation. (Kratochwil 2014, p. 90)

However, the power ascribed to fundamental norms within an order is not a result of
a pre-given essence norms entail. In contrast, norms that constitute the basis for a certain order
have gained their power through discursive practices in which specific interpretations appear
as dominant in a temporal and spatial context. The role of modern constitutions as ‘bolstering
contemporary political identify’ (Loughlin 2010, p. 53) of a pouvoir constitué is a case in
point. Nevertheless, neither is an order a priori given nor is it stable over time and place. Neil
Walker has described this with regard to the state-sovereigntist meta-principle that long served
as the dominant ‘order of orders’. He goes on to explain that this can no longer be considered
the ‘underlying basic grid’ through which relations between diverse legal-normative orders are
understood in the global realm (Walker 2008, p. 373). Hence, in the course of globalisation this
Eurocentric conception of order is reinforced and contested in different contexts at the same
time. In light of the normative plurality in the global realm, however, other meta-principles
compete or formulate alternative visions to hitherto dominant notions of order. Critical con-
structivism’s broader perspective and methodological rigour allows us to dissect normative
changes that take place behind the façade of seemingly fixed structures articulated in positivist
approaches. It is, thus, the aim to dissect the ‘normative grid’ (Hofius 2016) to underscore
the normativity that lies beneath the manifold norms and their interpretations that are in play
in the process of constitutionalisation. Firmly rooted in the sociology of knowledge, critical
constructivists have to analytically account for how normativity is constructed in different
contexts. Addressing normativity entails the critical reflection of social constructions in the
analysis of research objects. Yet, it also requires a critical examination of knowledge produc-
tion within scholarship itself in order to tackle the difficulties of analysis that is constrained
by theoretical lenses.

10
Compare Wiener’s (2008, p. 8) concept of the ‘bifocal approach’ that includes empirical as well as
normative assessment.
122 Handbook on global constitutionalism

CRITIQUE AND REFLEXIVITY

In a second step in the double hermeneutical sense, this section seeks to draw attention to some
normative problems in light of knowledge production in the field of global constitutionalism.
A fundamental problem of global constitutionalism is that key analytical and normative
concepts are strongly rooted in the historical experiences of Europe and the US. This is prob-
lematic not only because it ignores possible negative consequences of constitutionalisation in
the global realm, but it also neglects the normative diversity in the global realm. Postcolonial
scholarship would be a substantial asset for critical constructivism in order to uncover the dark
sides of past and contemporary processes of constitutionalisation. The critical strand of con-
structivism draws upon critical theory that requires to reflect on the ‘grounds of knowledge’
(Brown 1994, p. 215, original emphasis).
Explaining the essential features of modern constitutionalism, from the period of European
Enlightenment until now, Martin Loughlin states with reference to the theory of constitution-
alism: ‘It has exerted such an impact on the drafting of written constitutions since the late
eighteenth century that the theory has almost become synonymous with the modern concept of
constitution itself’ (Loughlin 2010, p. 48, emphasis added). This unfolds in different debates
in global affairs, whether in abstract terms of a utopian future or in precise imagination
formulated in policy advice. Exemplarily, constitutional design seems to offer a solution to
conflicts outside of Western contexts (Kuperman 2015). The right ingredients and pieces
tailored together appear to be helpful in turning ‘failed states’ into democratic organisations
according to the narrative of good governance, that is, help them to become modern states
in the contemporary world system. This, on the one hand, amplifies a deep interrelation of
knowledge and the development of Eurocentric notions of modernity, critical scholars have
rebuked. On the other hand, the absence of reflexivity substantially constrains empirical
analysis of alternative practices underneath the formal surface and rejects the idea of different
normative visions. As James Tully aptly describes, ‘the language of modern constitutionalism
which has come to be authoritative was designed to exclude or assimilate cultural diversity and
justify uniformity’ (Tully 1995, p. 58). This critique should substantially inform scholarship
on global constitutionalism.
Scholars of international law and, increasingly, scholars of international relations funda-
mentally problematise the historical formation of global (legal) structures. Lawyers have
contributed a variety of perspectives on the imperial and colonial legacy of contemporary
structures and international law (compare, among others, Koskenniemi 2001; Anghie 2005;
Krisch 2005; Fassbender and Peters 2012; Darian-Smith 2013; Pedersen 2015), that have
sparked critical strands of literature such as ‘Third World Approaches to International Law
(TWAIL)’ (Anghie et al. 2003; Baxi 2003; Chimni 2003; Rajagopal 2003). In international
relations the a-historical conceptualisation of realists has sparked criticism with the rise of
other approaches like constructivism. Yet, only recently, historical perspectives that reflect the
power of Eurocentric narratives (Hobson 2007; Kayaoglu 2010; Hobson 2012; Matin 2013)
and account for the plurality of normative structures in temporal perspective have informed
the debates in international relations. Notably, these critical strands also draw upon interac-
tional understandings and refute the idea of stable and given normative structures evolving in
 Constructivism and global constitutionalism 123

an historical and spatial vacuum.11 In contrast, they stress the interaction between states and
non-state actors throughout history between different regions and how they affect local notions
of normativity. Accordingly, the production of modernity unfolds in the interaction between
Western12 and non-European states as well as their respective societies (Zarakol 2011; Ringmar
2012; Buzan and Lawson 2015). Hence, the Westphalian discourse has shaped non-Western
agency in contending patterns as it created resistance in different forms (Rajagopal 2003) but
also the desire, especially among elites, ‘to recreate themselves as “modern” states against
a backdrop of an emerging international society of states’ (Zarakol 2011, p. 38) highlighting
the normative power of this discourse. Crucially, the aim to account for normative plurality
with regard to global structures and constitutionalism has been taken up by public philosophy.
Most notably, James Tully’s seminal contribution has highlighted how the ‘concept of a con-
stitution and its associated terminology have remained Janus faced ever since: looking back to
an already constituted order under one aspect and looking forward to an imposed order under
the other’ (Tully 1995, p. 61).
Drawing on these insights that resonate with critical constructivism’s aim to pursue a reflex-
ive research strategy, this contribution argues to reflect and broaden the epistemological per-
spective in regard to the study of constitutionalisation in the global realm. This implies, first, to
account for non-Western experiences and subjectivities in processes of constitutionalisation.
James Tully’s work has drawn attention to how dominant language and practices with regard
to constitutionalism have not only neglected alternative practices, but also undermined possi-
bilities of existence through the imperial language constitutionalism invokes. Hence, scholars
working with normative blueprints, such as neo-Kantian regulative concepts, ‘tend not to
notice the features of both the shared languages of description they employ and the practices of
governance (legal and political institutions) they refer to that are imperial in a broader sense of
the term’ (Tully 2008, p. 129). Thus, in order to account for normative plurality, the theoretical
framework needs to be problem based and theory focused instead of theory driven (Wiener
2011, p. 12). It is, secondly, also important to shed more light on dynamics of knowledge
production that materialise in global governance structures and, possibly, contribute to forms
of constitutionalisation. The formation of global climate governance structures over the past
decades is a case in point. Similar to other governance issues, climate change is an epistemo-
logical challenge and a subject that is made knowable through various practices, particularly
through mapping and reporting by the Intergovernmental Panel on Climate Change (IPCC), in
order to be identifiable, assessable and manageable. Whether this makes climate change really
governable remains an open question (compare Humphreys 2020). However, policy-makers
and states can draw on this produced knowledge to shape the formation of preferred climate.
This dynamic of ‘packaging knowledge’ (compare Wiener et al. 2021) in order to shape poli-
cies and governance structures continues to be a contentious issue given not only the urgency of
the climate crisis, but also in light of diverse ways of understanding climate change. Questions

11
Note that this perspective is also critical of earlier descriptions of postcolonial scholarship that
often reinforce dichotomies stressing the distinctiveness of different sides. Recent contributions have
shown that Eurocentrism is a ‘polymorphous, multivalent discourse that crystalizes in a variety of forms’
(Hobson 2012, p. 1).
12
The term ‘West’ or ‘Western’ is used in this text for an easier reading, being aware of its problem-
atic use owing to the monolithic conception. In this case it subsumes West European and North American
states and societies.
124 Handbook on global constitutionalism

regarding the construction of legitimate climate governance structures may shape processes of
constitutionalisation depending on how just these processes are seen. While climate litigation
and constitutional rulings within individual states point to changing dynamics and a growing
meaning of law in the context of climate change (for an overview compare Jaria-Manzano and
Borràs 2019), it remains contested how climate change may affect or undermine processes
of constitutionalisation. Since, the effects of climate change are fundamentally contesting
concepts central to constitutionalism, research has to engage with different legal practices and
different sites beyond the state in which climate related norms are produced.
Since constitutionalism is a Western concept, future scholarship needs to account for the
plurality of legal and normative imaginations around the globe. This raises, secondly, the
epistemological question of how an academic framework such as global constitutionalism
shapes and constrains the perspective on global processes. At times, the notion produces
narratives that tell teleological stories of increasingly interwoven global structures leading
towards a single process of constitutionalisation. Hence, it could be argued that the concept,
understood as a normative endeavour in many ways produces ontological security, since it
reproduces a consistent sense of self (compare Giddens 1990, p. 92). It creates narratives on
what world politics and global processes could or ought to look like. Global constitutionalism
claiming, as the name suggests, a global outreach seems to be appealing to many because it
promises to affirm a consistent self in the growingly complex world. Yet, an a priori defined
normative framework that guides global constitutionalism undermines the possibility of
uncovering alternative visions of legitimacy. In contrast, critical constructivists reject a priori
conceptualisation and develop a practice-based approach to constitutionalisation. Processes of
constitutionalisation, therefore, have ‘to be assessed through empirical observation’ (Wiener
2015, p. 118) in different contexts.

CONCLUDING REMARKS

The chapter has outlined some important developments in the field of constructivist interna-
tional relations scholarship with regard to the analysis of international law in order to indicate
important aspects in future research of global constitutionalism. Particularly, it has argued that
critical constructivism offers substantial insights owing to its critical perspectives on norms,
normativity and order. Since these elements constitute the substantial interest of global consti-
tutionalism at the same time, scholars need to develop sound theoretical and methodological
concepts. However, in this concluding section possible empirical implications following the
suggested approach should be highlighted instead of reiterating the arguments made in the
other parts.
As mentioned in the introduction to this chapter, global constitutionalism is a field sub-
stantially shaped by lawyers, which is of little surprise. Accordingly, legal scholars and
political scientists empirically focus on formal settings such as international organisations,
(international) courts and other more clearly defined contexts associated with ‘international
politics’. Yet, in order to better understand normative grids that are in play shaping the social
recognition and legitimacy of global structures, researchers need to look beyond these formal
settings and also account for context in which practices cannot be defined as ‘competent per-
formances’. Turning to these practices allows actors who are located at the perceived fringes of
international politics to be included (compare Lang and Weiner, Chapter 1 in this Handbook).
 Constructivism and global constitutionalism 125

Societal protest that unfolds in contentious politics around the globe may not have the possi-
bility of translating their claims into legal structures. Yet, through their contentious practices
they reformulate normative structures which cannot be ignored in global constitutionalism.
The protests in North Africa and West Asia (WANA) are one particular example (Wilkens
2015). In this regard, constructivism offers crucial perspectives in theoretical, methodological
and empirical terms for the study of global constitutionalism.

REFERENCES
Abbott, K.W., R.O. Keohane, A. Moravcsik, A.-M. Slaughter and D. Snidal (2000), ‘The concept of
legalization’, International Organization, 54 (3), 401–19.
Adler, E. and V. Pouliot (eds) (2011a), International Practices, Cambridge: Cambridge University Press.
Adler, E. and V. Pouliot (2011b), ‘International practices’, International Theory, 3 (1), 1–36.
Adler, E. and V. Pouliot (2011c), ‘International practices: Introduction and framework’, in E. Adler and
V. Pouliot (eds), International Practices, Cambridge: Cambridge University Press, pp. 1–46.
Anghie, A. (2005), Imperialism, Sovereignty, and the Making of International Law, Cambridge:
Cambridge University Press.
Anghie, A., B. Chimni, K. Mickelson and O. Okafor (2003), The Third World and International Order:
Law, Politics, and Globalization, Leiden and Boston, MA: Martinus Nijhoff.
Baxi, U. (2003), ‘Operation Enduring Freedom: Towards a new international law and order?’, in A.
Antony, B. Chimni, K. Mickelson and O. Okafor (eds), The Third World and International Order:
Law, Politics, and Globalization, Leiden and Boston, MA: Martinus Nijhoff, pp. 31–46.
Berenskoetter, F. (2016), ‘Unpacking concepts’, in F. Berenskoetter (ed.), Concepts in World Politics.
London: Sage Publications, pp. 1–19.
Berger, P.L. and T. Luckmann (1966), The Social Construction of Reality: A Treatise in the Sociology of
Knowledge, reprinted 1991, London: Penguin.
Brown, C. (1994), ‘“Turtles all the way down”: Anti-foundationalism, critical theory and international
relations’, Millennium – Journal of International Studies, 23 (2), 213–36.
Brown, G.W. (2012), ‘The constitutionalization of what?’, Global Constitutionalism, 1 (2), 201–28.
Brunnée, J. and S.J. Toope (2010), Legitimacy and Legality in International Law: An Interactional
Account, Cambridge: Cambridge University Press.
Brunnée, J. and S.J. Toope (2011), ‘Interactional international law and the practice of legality’, in E.
Adler and V. Pouliot (eds), International Practices, Cambridge; New York: Cambridge University
Press, pp. 108–35.
Brunnée, J. and S.J. Toope (2012), ‘Constructivism and international law’, in J.L. Dunoff and M.A.
Pollack (eds), Interdisciplinary Perspectives on International Law and International Relations: The
State of the Art, Cambridge: Cambridge University Press, pp. 119–45.
Bueger, C. and F. Gadinger (2014), International Practice Theory: New Perspectives, Basingstoke and
New York: Palgrave Pivot.
Buzan, B. and G. Lawson (2015), The Global Transformation: History, Modernity and the Making of
International Relations, Cambridge: Cambridge University Press.
Chimni, B. (2003), ‘Third World approaches to international law: A manifesto’, in A. Anghie, B.
Chimni, K. Mickelson and O. Okafor (eds), The Third World and International Order: Law, Politics,
and Globalization, Leiden and Boston, MA: Martinus Nijhoff, pp. 47–73.
Darian-Smith, E. (2013), ‘Postcolonial theories of law’, in R. Banakar and M. Travers (eds), An
Introduction to Law and Social Theory, 2nd edn, Oxford: Hart, pp. 247–64.
Fassbender, B. and A. Peters (2012), The Oxford Handbook of the History of International Law, Oxford:
Oxford University Press.
Fierke, K. (2001), ‘Critical methodology and constructivism’, in K. Fierke and K.E. Jørgensen (eds),
Constructing International Relations: The Next Generation, Armonk, NY and London: M.E. Sharpe,
pp. 115–35.
Fierke, K. (2007), Critical Approaches to International Security, Cambridge: Polity Press.
126 Handbook on global constitutionalism

Finnemore, M. (2000), ‘Are legal norms distinctive?’, New York University Journal of International Law
and Politics, 32 (3), 699–706.
Finnemore, M. and S.J. Toope (2001), ‘Alternatives to “legalization”: Richer views of law and politics’,
International Organization, 55 (3), 743–58.
Giddens, A. (1984), The Constitution of Society: Outline of the Theory of Structuration, Cambridge:
Polity Press.
Giddens, A. (1990), The Consequences of Modernity, Cambridge: Polity Press in association with Basil
Blackwell, Oxford.
Guzzini, S. (2000), ‘A reconstruction of constructivism in international relations’, European Journal of
International Relations, 6 (2), 147–82.
Hobson, J.M. (2007), ‘Is critical theory always for the white West and for Western imperialism? Beyond
Westphalian towards a post-racist critical IR’, Review of International Studies, 33 (Supplement S1),
91–116.
Hobson, J.M. (2012), The Eurocentric Conception of World Politics: Western International Theory,
1760–2010, Cambridge: Cambridge University Press.
Hofius, M. (2016), ‘Community at the border or the boundaries of community? The case of EU field
diplomats’, Review of International Studies, 42 (5), 939–67.
Hofius, M., J. Wilkens, H. Hansen-Magnusson and S. Gholiagha (2014), ‘Den Schleier lichten? Kritische
Normenforschung, Freiheit und Gleichberechtigung im Kontext des “Arabischen Frühlings” –
Eine Replik auf Engelkamp/Glaab/Renner, Ulbert und Deitelhoff/Zimmermann’ (‘Lifting the veil?
Critical norms research, freedom and equality in the context of the “Arab Spring”’), Zeitschrift für
Internationale Beziehungen, 21 (2), 85–105.
Humphreys, S. (2020), ‘Ungoverning the climate’, Transnational Legal Theory, 11 (3), 244–66.
Ish-Shalom, P. (ed.) (2021), Concepts at Work: On the Linguistic Infrastructure of World Politics, Ann
Arbor, MI: University of Michigan Press.
Jackson, P.T. (2006), ‘Making sense of making sense: Configurational analysis and the double herme-
neutic’, in D. Yanow and P. Schwartz-Shea (eds), Interpretation and Method: Empirical Research
Methods and the Interpretive Turn, Armonk, NY and London: M.E. Sharpe, pp. 264–80.
Jaria-Manzano, J., and S. Borràs (eds) (2019), Research Handbook on Global Climate Constitutionalism,
Cheltenham, UK, and Northampton, MD, USA: Edward Elgar Publishing.
Katzenstein, P. (1996), The Culture of National Security: Norms and Identity in World Politics, New
York: Columbia University Press.
Kayaoglu, T. (2010), ‘Westphalian Eurocentrism in international relations theory’, International Studies
Review, 12 (2), 193–217.
Kennedy, D. (2007), ‘One, two, three, many legal orders: Legal pluralism and the cosmopolitan dream’,
New York University Journal of International Law and Social Change, 31 (3), 641–59.
Kleinlein, T. (2012), ‘Between myths and norms: Constructivist constitutionalism and the potential of
constitutional principles in international law’, Nordic Journal of International Law, 81 (2), 79–132.
Koskenniemi, M. (2001), The Gentle Civilizer of Nations: The Rise and Fall of International Law
1870–1960, Cambridge: Cambridge University Press.
Kratochwil, F. (1984), ‘The force of prescriptions’, International Organization, 38 (4), 685–708.
Kratochwil, F. (2014), The Status of Law in World Society: Meditations on the Role and Rule of Law,
Cambridge: Cambridge University Press.
Kratochwil, F. and J.G. Ruggie (1986), ‘International organization: A state of the art on an art of the
state’, International Organization, 40 (4), 753–75.
Krisch, N. (2005), ‘International law in times of hegemony: Unequal power and the shaping of the inter-
national legal order’, European Journal of International Law, 16 (3), 369–408.
Kuperman, A.J. (ed.) (2015), Constitutions and Conflict Management in Africa: Preventing Civil War
through Institutional Design, Philadelphia, PA: University of Pennsylvania Press.
Loughlin, M. (2010), ‘What is constitutionalism?’, in P. Dobner and M. Loughlin (eds), The Twilight of
Constitutionalism?, Oxford: Oxford University Press, pp. 47–72.
Matin, K. (2013), ‘Redeeming the universal: Postcolonialism and the inner life of Eurocentrism’,
European Journal of International Relations, 19 (2), 353–77.
McCourt, D.M. (2016), ‘Practice theory and relationalism as the new constructivism’, International
Studies Quarterly, 60 (3), 475–85.
 Constructivism and global constitutionalism 127

Milliken, J. (1999), ‘The study of discourse in international relations: A critique of research and
methods’, European Journal of International Relations, 5 (2), 225–54.
Mitrani, M. (2021) ‘The conceptual virtues of the international community’, in P. Ish-Shalom (ed.),
Concepts at Work: On the Linguistic Infrastructure of World Politics, Ann Arbor, MI: University of
Michigan Press, pp. 185–202.
O’Donoghue, A. (2014), Constitutionalism in Global Constitutionalisation, Cambridge: Cambridge
University Press.
Onuf, N.G. (1989), World of Our Making: Rules and Rule in Social Theory and International Relations,
Columbia, SC: University of South Carolina Press.
Onuf, N.G. (1994), ‘The constitution of international society’, European Journal of International Law,
5 (1), 1–19.
Orford, A. (2021), International Law and the Politics of History, Cambridge: Cambridge University
Press.
Pedersen, S. (2015), The Guardians the League of Nations and the Crisis of Empire, Oxford: Oxford
University Press.
Peters, A. (2009), ‘The merits of global constitutionalism’, Indiana Journal of Global Legal Studies, 16
(2), 397–411.
Peters, A. (2014), ‘Konstitutionalismus als globale Errungenschaft’ (‘Constitutionalism as global
achievement’), in J. Delbrück, U. Heinz, K. Odendahl, N. Matz-Lück and A. Von Arnauld (eds),
Aus Kiel in die Welt: Festschrift zum 100-jährigen Bestehen des Walther-Schücking-Instituts für
Internationales Recht, Berlin: Duncker & Humblot, pp. 127–38.
Rajagopal, B. (2003), ‘International law and Third World resistance: A theoretical inquiry’, in A.
Anghie, B. Chimni, K. Mickelson and O. Okafor (eds), The Third World and International Order:
Law, Politics, and Globalization, Leiden and Boston, MA: Martinus Nijhoff, pp. 145–72.
Rajkovic, N., T.E. Aalberts, and T. Gammeltoft-Hansen (eds) (2016) The Power of Legality: Practices of
International Law and Their Politics, Cambridge: Cambridge University Press.
Ringmar, E. (1996), ‘On the ontological status of the state’, European Journal of International Relations,
2 (4), 439–66.
Ringmar, E. (2012), ‘Performing international systems: Two East-Asian alternatives to the Westphalian
order’, International Organization, 66 (1), 1–25.
Risse, T., S.C. Ropp and K. Sikkink (eds) (1999), The Power of Human Rights: International Norms and
Domestic Change, Cambridge: Cambridge University Press.
Sinclair, A. (2010), International Relations Theory and International Law: A Critical Approach,
Cambridge: Cambridge University Press.
Tully, J. (1995), Strange Multiplicity: Constitutionalism in an Age of Diversity, Cambridge: Cambridge
University Press.
Tully, J. (2008), Public Philosophy in a New Key, Volume II: Imperialism and Civic Freedom,
Cambridge: Cambridge University Press.
Walker, N. (2008), ‘Beyond boundary disputes and basic grids: Mapping the global disorder of norma-
tive orders’, I-CON: International Journal of Constitutional Law, 6 (3–4), 373–96.
Weiler, J.H.H. (1999), The Constitution of Europe. ‘Do the New Clothes Have an Emperor?’ and other
Essays on European Integration, Cambridge: Cambridge University Press.
Weldes, J. and D. Saco (1996), ‘Making state action possible: The United States and the discursive
construction of “The Cuban problem”, 1960–1994’, Millennium: Journal of International Studies, 25
(2), 361–95.
Wendt, A. (1992), ‘Anarchy is what states make of it: The social construction of power politics’,
International Organization, 46 (2), 391–425.
Wiener, A. (2007a), ‘Demokratischer Konstitutionalismus jenseits des Staates? Perspektiven auf die
Umstrittenheit von Normen’ (‘Democratic constituionalism beyond the state? Perspectives on the
contestedness of norms’), in P. Niesen and B. Herborth (eds), Anarchie der kommunikativen Freiheit:
Jürgen Habermas und die Theorie der internationalen Politik, Frankfurt am Main: Suhrkamp,
pp. 173–98.
Wiener, A. (2007b), ‘The dual quality of norms and governance beyond the state: Sociological and nor-
mative approaches to “interaction”’, Critical Review of International Social and Political Philosophy,
10 (1), 47–69.
128 Handbook on global constitutionalism

Wiener, A. (2008), The Invisible Constitution of Politics: Contested Norms and International Encounters,
Cambridge: Cambridge University Press.
Wiener, A. (2009), ‘Enacting meaning-in-use: Qualitative research on norms and international relations’,
Review of International Studies, 35 (1), 175–93.
Wiener, A. (2011), ‘Constitutionalism unbound: A practice approach to normativity’, ‘Practice, Ethics
and Normativity’ paper presented at the Annual Millennium Conference ‘Out of the Ivory Tower –
Weaving the Theories and Practice of International Relations’, London School of Economics and
Political Science, 22–23 October, accessed 20 April 2017 at http://​ssrn​.com/​abstract​=​2103049.
Wiener, A. (2012), ‘Global constitutionalism’, Oxford Bibliographies in International Relations,
doi:10.1093/obo/9780199743292-0092.
Wiener, A. (2014), A Theory of Contestation, Berlin: Springer.
Wiener, A. (2015), ‘A hidden asset in times of crisis: The EU’s unbound constitutional quality’, in
S. Champeau, C. Closa, D. Innerarity and M.P. Maduro (eds), The Future of Europe: Democracy,
Legitimacy and Justice after the Euro Crisis, London: Rowman & Littlefield, pp. 111–34.
Wiener, A. (2018), Contestation and Constitution of Norms in Global International Relations,
Cambridge: Cambridge University Press.
Wiener, A. and U. Puetter (2009), ‘The quality of norms is what actors make of it: Critical constructivist
research on norms’, Journal of International Law and International Relations, 5 (1), 1–16.
Wiener, A., Wilkens, J., & F. Schenuit (2021), ‘Knowledge production’. in D. Stammer, A. Engels,
J. Marotzke, E. Gresse, C. Hedemann, and J. Petzold (eds), Hamburg Climate Futures Outlook
2021: Assessing the Plausibility of Deep Decarbonization by 2050 (1 ed., pp. 109–112), Hamburg,
Germany: Cluster of Excellence Climate, Climatic Change, and Society (CLICCS).
Wilkens, J. (2015), ‘Contention and constitutionalization in the global realm: assessing the uprisings
in West Asia and North Africa and their impact on international politics’, in F.A. Gerges (ed.),
Contentious Politics in the Middle East: Popular Resistance and Marginalised Activism Beyond the
Arab Spring Uprisings, New York: Palgrave Macmillan, pp. 25–50.
Zarakol, A. (2011), After Defeat: How the East Learned to Live with the West, Cambridge: Cambridge
University Press.
10. Realist perspectives on global
constitutionalism
Oliver Jütersonke

INTRODUCTION

Realism enjoys a prominent legacy in both scientific and artistic circles and across a variety of
disciplines. In the field of international relations (IR), the ‘realist school’ constitutes the princi-
pal benchmark, the ‘primary or alternative theory in virtually every major textbook addressing
general theories of world politics, particularly in security affairs’ (Legro and Moravscik 1999,
p. 5). The alleged pantheon of international realist thought stretches from Thucydides via
Hobbes to proponents of nineteenth-century German Realpolitik and the American realists
of the post-World War Two era (for an overview see Bell 2009). This is a rich intellectual
heritage that is too often occluded in straw-man versions used as a null hypothesis backdrop
for arguments about how international law does not matter in an anarchical setting of power
politics (Steinberg 2002, p. 261) – thus prompting numerous calls to unearth and rehabilitate
realist thought in all its diversity (see, for example, Lang 2004; Tjalve 2008; Jütersonke 2010;
Scheuerman 2011). Realist thought is certainly not confined to politics, however, and has
diverse meanings across disciplines. In moral philosophy, for instance, realism assumes that
moral facts exist, and that moral judgements are an expression of beliefs deemed to be objec-
tively true or false – a position that a political realist has no particular reason to share. In legal
theory, as outlined below, realism pertains to the view that the normativity of positive law
can be reduced to social facts – again an altogether different proposition to the argumentative
stance usually associated with political realism.
While it is important to distinguish such disciplinary variations in how the realist label is
applied, it is equally crucial to acknowledge that realism is a relational concept, in that a claim
to being realist defines itself and is evaluated with regard to an opposing conception – ideal-
ism, utopianism, formalism, positivism, legalism, or whatever happens to be perceived as the
‘other’ at that point in the debate (for a useful discussion see Chimni 1993). A person is not
absolutely and categorically a realist, but more realist(ic) than his or her interlocutor – a fact
that we wish to make clear in our heated discussions and use as an argumentative device to
discredit our opponents. As the international lawyer Hersch Lauterpacht already complained
in the 1930s, an appeal to realism can simply constitute an at times objectionable method of
argument in which the speaker lays an exclusive claim to wisdom: ‘I am a realist; I am a sound
person; I am a practical man; I look to realities; I see things as they are and not as I would like
them to be’ (Lauterpacht 1975, p. 53). Whereas you, the opponent, ‘[y]ou are a Utopian; you
are a dreamer; you see people and events as what you think they ought to be and not as what
they are’ (Lauterpacht 1975, p. 53). On that level of analysis, we are all realists, perhaps – if it
is ‘nothing else than the method, or temper, or attitude most calculated to realize our desires’,
to quote Lauterpacht (1975, p. 54) again, ‘[w]ho but a crank or a fool does not wish to be
a realist in that sense?’

129
130 Handbook on global constitutionalism

All this is not to say that realism as an academic term is void of substance. In ­philosophy,
its origins are commonly traced back to the early scholastic period, and to a debate between
(Platonic) realists who claimed the independent existence of universals or abstract objects,
and nominalists who denied the existence of such universals – but already back then, the
rhetorical element of such labels is strikingly obvious, with John of Salisbury’s Metalogicon
(1159 [1955]) referring to the ‘Nominalist sect’ in an effort to discredit those who held a dif-
ferent view (see also Carré 1946 [1993]). Many centuries on, ‘transcendental realism’ was
used in contradistinction to ‘transcendental idealism’ by Immanuel Kant in his Critique of
Pure Reason (1781/87 [1998]), and the German literary giants Friedrich Schiller and Johann
Wolfgang von Goethe also engaged in lengthy correspondence on the realism–idealism
distinction in the fields of poetry and aesthetics. Yet, the history of ideas of the realist label
need not concern us for the purposes of this chapter; nor must we invest much energy on the
ways realist perspectives have been projected onto a variety of (mostly dead) thinkers for the
purpose of producing a disciplinary canon worthy of a ‘realist school’ of IR (see Jütersonke
2010, pp. 5–9). What is of importance, however, is the relational nature of realism, as well as
the rhetorical move associated with its application to legal and political affairs.
The following sections entail a series of thought experiments about what it might mean to
adopt a realist perspective on global constitutionalism. There is no clearly identifiable realist
branch within the literature on constitutionalism in – and the constitutionalization of – the
international sphere, and this chapter does not aim to take a sub-set of authors and place them
into the realist camp. Indeed, most of the scholars cited below do not self-identify with realism,
and the bibliographical references for this chapter should not be taken as a list of archetypical
realists. Instead, the chapter offers a set of tentative reflections on what a realist perspective
might entail, and on how such a viewpoint could generate a constructive contribution to the
global constitutionalism debate. To do this, it will be necessary to distinguish between legal
and political realism in a bit more detail.

LEGAL REALISM
Starting with the notion of ‘legal’ realism may seem counterintuitive to some readers, in the
sense that it is an arguably far more obscure intellectual position than its ‘political’ counter-
part. As the following paragraphs seek to highlight, however, some of those scholars studying
– and being positively inclined towards – the observed constitutionalization of the interna-
tional realm share views and assumptions that can easily be associated with legal realism.
These can then be juxtaposed onto the political realist critique of global constitutionalism. As
we shall see in the concluding section, it is by contrasting its legal and political variants that we
can begin to make sense of the realist contribution to the themes addressed by this Handbook.
In legal theory, realism has a rather short and chequered history, and the label ‘legal realism’
was only explicitly applied to a set of American scholars reacting in the 1930s to the perceived
inadequacy of legal formalism, as well as to a group of Scandinavian legal scholars working,
at around the same time period, in a similar vein (for important caveats and further details see
Jütersonke 2016). Instead of the ‘mechanical jurisprudence’ of classical legal thought already
discredited by Roscoe Pound (1908), and instead of deductive legal reasoning that was deemed
misleadingly neutral and thus apolitical, the Great Depression highlighted the need for legal
theory and practice to build on insights from the social sciences. Inspired by pragmatist philos-
 Realist perspectives on global constitutionalism 131

ophy, it was time for ‘law in action’ rather than ‘law in books’, for law grounded in experience
rather than in abstract logic, and grounded in the facts rather than in general propositions.
Legal realists such as Karl N. Llewellyn and Jerome Frank emphasized the law’s indetermi-
nacy and warned, in the words of their Scandinavian colleagues (notably Anders V. Lundstedt
and Karl Olivecrona in Sweden and Alf Ross in Denmark), against the law’s dependence on
‘supernatural’ forces, ‘mystic-magical’ thinking, and the ‘imaginative lucubration’ that had
dominated formalist legal thought for centuries (see Escorihuela 2003).
In hindsight, legal realism has left an ambiguous legacy, ranging from the view that it was no
more than a historical curiosity that had appeared out of a very specific societal context (Leiter
2001, p. 279), to the cliché, still commonly heard among legal scholars and practitioners, that
‘we are all realists now’ (Singer 1988, p. 467). The concrete heir to American legal realism
is often taken to be Yale’s Myres McDougal, who, together with the political scientist Harold
Lasswell, began in the 1940s to call for a new direction in legal education, one that sought to
constitute a ‘conscious, efficient, and systematic training for policy-making’ (Lasswell and
McDougal 1943, p. 206, original emphasis). Focusing too narrowly on general doctrines and
the formal validity of legal rules, they claimed, only nurtured the law’s indeterminacy further
and exacerbated the artificial distinction between law and policy, between formulations de
lege lata and de lege ferenda (McDougal 1953, p. 144). International law, in particular, could
only be relevant if it refrained from focusing on formal authority, and instead emphasized the
establishment of effective control through value-dependent policies and processes – and this
required the development of a legal ‘policy science’ that was based on democratic values and
that incorporated social scientific methods into the study of law.
Reviewing today’s global constitutionalism literature, one cannot but get the impression
that the study of the constitutionalization of the international sphere has a decidedly legal
realist ring to it. Works by the likes of Fassbender (1998), De Wet (2006) or Dunoff and
Trachtman (2009) may not be explicitly identifying with what is now branded as new legal
realism (see Nourse and Shaffer 2009 for an overview), but they do seem to share the legal
realist’s basic tenets of pragmatism, socially observed law in the making, and a rejection of
legal formalism. It is probably no accident that in his much-cited article on the United Nations
(UN) Charter, Fassbender (1998, p. 535) quotes Karl N. Llewellyn, one of the key figures of
American legal realism, who had claimed that a constitution was ‘in essence not a document,
but a living institution built (historically, genetically) in first instance around a particular
Document’ (Llewellyn, 1934, p. 3; original emphasis). It is through an approach that seeks to
relate the law to concrete social processes, as originally advocated by the legal realists, that
we can begin to make a case for an observed constitutionalization on the supranational level,
pointing to a variety of normative elements deemed hierarchically superior. These, according
to one classification offered by Ulrich K. Preuss (2008, pp. 38–41), can be grouped into
obligations erga omnes; peremptory norms (or ius cogens); ‘world order treaties’ such as the
UN Charter, international human rights covenants, or the UN Convention on the Law of the
Sea; and the establishment of independent, compulsory judiciaries such as the International
Criminal Court (ICC).
As Hans J. Morgenthau – typically identified as a founding father of the realist school of IR
but originally a scholar of law – already pointed out in 1940, in their shared aim of replacing
‘the fictitious legalism of traditional jurisprudence with a conception nearer to the realities of
the law’, legal realists:
132 Handbook on global constitutionalism

do not regard the legal rules as definitely determined by their legislative or judicial formulation, but
search for the psychological, social, political and economic forces which determine the actual content
and working of legal rules and which, in turn, are determined by them. In other words, their scientific
goal is to formulate uniform functional relationships between those forces and the legal rules. Hence,
‘realist’ jurisprudence is, in truth, ‘functional’ jurisprudence. (Morgenthau 1940, pp. 273–4)

In strikingly similar terms, Dunoff and Trachtman (2009, p. 23) propose a ‘functional
approach to international constitutionalization’ resting on the premise that the ‘status of a text
or set of norms as constitutional . . . is thus a contingent social fact that can be usefully exam-
ined through historical, sociological, statistical, psychological, or other relevant evidence’.
Following Richard Falk (1993, p. 14, cited in Dunoff and Trachtman 2009, p. 22), it is now
a matter of extending such ‘constitutional thinking’ to the world order – albeit acknowledging
the ‘practical, analytic, and normative challenges’ (Dunoff and Trachtman 2009, p. 25) that
such a transposition entails. Erika De Wet, for her part, proposes to extend the term constitu-
tion ‘to describe a system in which the different national, regional and functional (sectoral)
constitutional regimes form the building blocks of the international community (“international
polity”) that is underpinned by a core value system common to all communities and embedded
in a variety of legal structures for its enforcement’ (De Wet 2006, p. 53). Here, the funda-
mentals of legal realism meet the ‘policy approach’ of Lasswell and McDougal mentioned
previously, which asserted that in order for international law to be relevant, it needed to rely
on value-dependent ‘policies’ and ‘processes’ – and such sociological descriptions of legal
decision-making also involve the identification of those ‘common values’ (‘human dignity’
for McDougal, ius cogens norms and erga omnes obligations for De Wet) that serve as a way
of controlling (political) power (see Koskenniemi 2005, pp. 201–9). In summary, therefore,
and in a trend that can also be observed in the ‘social fact’ conception of law pursued by global
administrative law (for example, Kingsbury et al. 2005; Kingsbury 2009) or the transnational
legal process movement (for example, Koh 1996), the literature on the constitutionalization of
the international sphere follows, explicitly or not, legal realist premises. As David Kennedy
(2009, p. 48) notes: ‘[w]e embark on the constitutionalization of the world not only atop the
ruins of our conventional disciplines but also against the background of these earlier and still
powerful efforts to rethink the legal order in unconventional ways’. Legal realism is an impor-
tant component of this intellectual heritage.

POLITICAL REALISM

The previous section insisted on the legal realist premises of the debate surrounding the
constitutionalization of international normative frameworks so as not to fall into the trap of
over-simplistically equating realism with the arguments brought forth by the (more ‘realistic’)
political sceptic. The arguments of the Realpolitiker often amount to the unwillingness to
engage in rosy-eyed reflections about the prospects for world peace, and to a distrust in the
potential of institutions to mitigate our perennial ‘will to power’, to use Friedrich Nietzsche’s
vocabulary. Yet realism has potentially more to offer than such a straw-man version of
the eternal doomsayer who is pessimistic about human nature and accepts that we live in
a Hobbesian world of all against all in which our existence is necessarily nasty, brutish and
short. Politics is about solving collective action problems, after all, and the political realist
builds the analysis on the credible assumption that, more often than not, this entails submitting
 Realist perspectives on global constitutionalism 133

to the interests of those in positions of power or authority. In the sphere of international pol-
itics, and in contrast to neoliberal and constructivist colleagues, political realists would thus
claim that institutions have a minimal role to play, as they are simply a reflection of the pre-
vailing distribution of power among states (see Reus-Smit 1997 for an overview). If interna-
tional cooperation can be observed, it is usually because conditions of hegemony prevail, with
the dominant state enabling the creation, maintenance and, ultimately, the instrumentalization
of supranational institutions for the sake of furthering its interests and maximizing its power.
Starting from such a perspective, what would a political realist have to contribute to the
global constitutionalism debate? Possible arguments are interrelated and could be brought
forth with varying degrees of nuance and sophistication, but at least three main strands can be
identified. Building on the work of Mattias Kumm (2009, p. 60) – who, it must be emphasized,
would probably not place himself in the realist camp – these strands can be grouped under the
headings of coherence, effectiveness and legitimacy. A variety of assertions and viewpoints
could be placed under each heading, and the following paragraphs do not seek to paint an
exhaustive picture. Instead, a series of typical arguments are briefly outlined for purely illus-
trative purposes.
In terms of coherence, the political realist would probably start from where we left off in the
previous section, namely, with the functionalist approach of many a legal realist maintaining
that constitution-like elements can be observed in the international realm. So how do we get
from such issue-specific ‘partial constitutionalizations’ (Peters 2006, p. 602) – about trade or
human rights and so on – to a more holistic constitutional configuration? That is, how do we
deal with the ‘purposive bias’ (Kennedy 2009, p. 62) that arises when claims regarding global
constitutionalization rest on starting observations about a selection of existing institutional
arrangements such as the UN Charter or the ICC? Asserting that certain elements of global
governance are part of a constitutional order assumes that they each have a (predetermined)
function, ‘that the world is, in fact, constituted – that things do add up, one way or another’
(Kennedy 2009, p. 62). Yet history, the political realist will warn, was a much more haphazard
and reactive affair, and seeking with hindsight to instil a sense of ‘constitutional’ order onto it
amounts to a Whig interpretation of historical events that presupposes an unjustifiable claim
to inevitable progress. Also, how do we even know that the elements selected are indeed the
most pertinent ones? Perhaps regulations in, for instance, the global banking sector – or even
those regulating illicit financial flows – are just as intrinsic a part of our global constitutionalist
set-up as our more benign framework for, say, ‘sustaining peace’ (United Nations 2016). So
is the literature on global constitutionalization not simply an attempt (mostly by scholars of
international public law) to counteract the ominous fragmentation of their field, as diagnosed
in detail by the International Law Commission (2006)? In the face of ‘deep disciplinary anxi-
eties’ (Dunoff 2006, p. 649) about international law’s current role and status,

constitutionalism carries the promise that there is some system in all the madness, some way in which
the whole system hangs together and is not merely the aggregate of isolated and often contradictory
movements. The conflicts between trade and environmental rules, trade and human rights, or trade
and labour standards, may not, in their own terms, seem solvable, but they might appear manageable,
at least, in a matrix of constitutionalism, for such a matrix would suggest that there are some values
which simply cannot be affected: there is a bottom line, somewhere, somehow, an apparent unity
underlying all apparent disunity. (Klabbers 2004, p. 49)
134 Handbook on global constitutionalism

With the ‘systemic character’ of international law ‘threatened by a multiplicity of international

régimes without obvious coherence’, the ‘constitutionalization of partial régimes appears as
antidote rather than confirmation of the constitutionalization of the international legal system
as a whole’ (Paulus 2009, p. 70).
A second set of issues a political realist might raise relates to effectiveness. Some (for
example, Kumm 2009, p. 260) have discussed the merits of distinguishing between global
‘constitutionalism’ with a small ‘c’, as opposed to the stronger, foundational reading of
‘big-C’ ‘Constitutionalism’ as developed in domestic political theory (for a recent reappraisal
see Loughlin and Walker 2007; also Krisch 2010a, pp. 47–52). From that perspective, and

however low one’s requirements for a proceduralized popular sovereignty in the domestic realm may
be, they will hardly be fulfilled in a postnational space where power and wealth differentials, lan-
guage and cultural barriers, and the lack of identification with a common project render meaningful
communication and deliberation beyond a narrow elite very difficult. (Krisch 2010a, p. 56)

Nevertheless, and even if we acknowledge that the absence of a genuine pouvoir constituant at
the inter-state level should not deter us from exploring the merits of a ‘constitutionalism lite’
at the level of international organizations (Klabbers 2004), the question arises as to whether
many of the phenomena discussed by international lawyers under this rubric are not simply
instances of ‘thicker legalization and institutionalization, without any need to resort to the
notion of constitution’ (Peters 2006, p. 597; also Grimm 2005, p. 460). In order for there to be
an analytic added value to the application of constitutionalist vocabulary to the international
level, it must be more than an assertion of the bindingness of international legal rules: having
a constitution presupposes a notion of hierarchy (and a dominant power, basic norm, or source
of legitimacy that is superior to all other legal norms), a measure of comprehensiveness, as
well as some form of judicial control in order to enforce its norms (see Paulus 2009, pp. 75–7).
Yet international (public) law, as Hans J. Morgenthau already pointed out in his classic Politics
Among Nations (1948), is voluntarily established among sovereign states in order to regulate
‘normalized’ relations under conditions of anarchy. It is a horizontal, decentralized form of
legal framework with respect to legislation, adjudication and norm enforcement (see also
Grimm 2010, p. 22), particularly for issues related to vital, ‘national’ interests – Morgenthau
(1948, p. 211) called international law a ‘primitive’ form of law for precisely this reason. As
a result, whoever ‘uses the language of constitutionalism in relation to public international
law is suspected of effectively advocating some version of a constitutional world state’
(Kumm 2009, p. 259) – which, the political realist would argue, is ‘unattainable in this world’
(Morgenthau 1948, p. 539). Even on the regional level, the European Union (EU) faces the
dilemma that the European treaties ‘are not an expression of the self-determination of a people
or a society about the form and substance of their political union. The EU does not decide upon
its own legal foundation’ (Grimm 2010, p. 17). If EU member states would ever agree to such
a move, then a European federal state would be conceivable – the failed Constitutional Treaty,
however, demonstrates that many if not most European powers have no intention of moving
in that direction. Instead, EU-related ‘talk of constitutionalism (whether invoked innocently
or deployed strategically) is a solecism that taps into an understanding of political community
that does not (yet) exist’ (Halberstam 2009, p. 327; also Walker 2008, pp. 520–25, who dis-
cusses this point under the headings of ‘inconceivability’ and ‘improbability’).
Back to the global level, and the ‘bitter truth’, then, ‘is that neither the WTO Charter or the
UN Charter comes even close to embodying the basic elements of “constitutionalism” with
 Realist perspectives on global constitutionalism 135

which we are familiar, namely the separation of powers, checks and balances, democratic
representation and participation, an emphasis on individual rights, and governmental restraint
in the exercise of power’ (Kratochwil 2014, p. 97). So why go to such lengths to portray
international cooperation in constitutional terms? Here, finally, the political realist might point
to the ‘ism’ in ‘global constitutionalism’ and to concerns about legitimacy. This entails the
worry that ‘those who work in the constitutionalist vernacular are often dressing up normative
projects in sociological terms’, and that ‘current constitutionalist discussions of global govern-
ance, although they begin as description, end up sounding far more like proposals to remake
the world’s political order by sacralizing the institutional forms with which they are most
familiar’ (Kennedy 2009, pp. 60–61). Antje Wiener (2008, p. 26) makes the useful distinction
between constitutionalization as an observed ‘social process’ with an ‘exclusively descriptive
content’ and constitutionalism as an ‘academic artefact’, a ‘helpful tool’ that offers an ‘analyt-
ical framework’ to make sense of what we are observing. However, the political realist would
presumably assert that far from being a neutral vocabulary, it harbours an inherently ‘political
agenda’ (Peters 2006, pp. 583–4). Perhaps constitutionalism is not necessarily ‘an awfully
vague and possibly sinister term’ (Young 2003, p. 528), but the terminology does evoke
the imperial and colonial heritage of international public law – that is, the combination of a
‘universalist façade’ and the ‘discriminatory and imperialistic practices’ of domination that
it conceals (Jouannet 2007, p. 382). As James Tully (2007) has highlighted, it is misleading
to portray constitutional states as first having developed in the West, before constitutionalist
thinking was then projected to the international sphere. Instead, these states developed within
those very systems of imperial and colonial law (see also Anghie 2004) that brought about
the state constitutional forms and notions of constituent powers we are familiar with today.
These notions rest on an understanding of a popular ‘right to resistance’ when sovereign
power is unchecked, and to an ascending pattern of legitimation (Ullmann 1975, pp. 30–31)
in which the sovereign derives a basis for rule on the consent of those governed. However,
as much as the ‘constitution’ is supposed to constrain the sovereign’s power, political realists
since Hobbes and Bodin have pointed to the ways in which, ‘particularly in the great game of
foreign power with other sovereigns’ (Tully 2007, p. 322), the state maintains the upper hand.
Ultimately, ‘the field of “constitutional form and constituent power” is really a game between
the constitutive sovereign and the constituent people within and over the constitutional form
(the “contract” between them) – a game that, according to the realists, the sovereign domi-
nates’ (Tully 2007, p. 322, original emphasis).
On one level of analysis, therefore, the political realist will point to the ambitions of
the (American) hegemon, who may foster an ‘anti-constitutionalist trend’ (Peters 2006,
pp. 604–5) by ignoring – or indeed disengaging from (Koskenniemi 2004a, p. 243) – various
facets of international criminal and human rights law as well as treaty application. Far more
subversively, however, the rhetoric of global constitutionalism can also be debunked as the
‘mindset’ of empire (Koskenniemi 2007, p. 18), as a convenient way through which to depo-
liticize high politics by occluding the particularistic interests of the dominant power behind
a universalistic (and universalizing) guise – leading to a ‘hegemonic technique’ (Koskenniemi
2004b) in the form of a hollow ‘legalism’ and ‘moralism’ that the likes of Morgenthau had
already diagnosed almost a century ago (see Jütersonke 2010, pp. 146–74; also Preuss 2008,
pp. 48–9). Neil Walker (2002, p. 319) aptly elaborates on these tendencies under the headings
of ‘ideological exploitation and debased conceptual currency’. In the final analysis, attempting
136 Handbook on global constitutionalism

to constitutionalize international society, as Nico Krisch (2010b, p. 255) notes, is ‘bound to

sanction structures that primarily benefit the powerful’.

CONCLUDING THOUGHTS

In his seminal work From Apology to Utopia (2005), Martti Koskenniemi demonstrated how
the structure of international legal argument is characterized by a perpetual discursive oscil-
lation between normativity and concreteness (for a concise overview see Koskenniemi 2012,
pp. 60–61). International law needs to maintain a normative dimension in that it does not
simply entail a description of a particular rule or institution but actually imposes a measure of
‘oughtness’ onto it – certain requirements or obligations about how things should be. However,
legal abstractions need to be grounded in fact as well, that is, in the reality of the international
sphere. The concreteness of international law thus refers to its responsiveness to changes in the
behaviour, will and interests of states and other authoritative actors, while normativity denotes
international law’s degree of autonomy from the behaviour of these actors.
The argumentative resort to realism plays a central role in this discursive tussle between
normativity and concreteness that lies at the heart of the liberal vision. Without concrete pro-
cesses, international law would face the charge of being utopian, as it would mean assuming
the existence of a natural morality independent of the behaviour, will and interests of states.
This is why international lawyers turn to treaties, customs and decisions of international insti-
tutions, to the ‘canvas’ (Koskenniemi 2012, p. 60) of verifiable facts that prevent legal ideas
from being mere philosophical abstractions – and this is essentially the legal realist’s mantra
against formalism that is also at the heart of the claims made by those scholars emphasizing
the increasing constitutionalization of the international sphere. Yet without a normatively
compelling set of rules, international law is unable to discursively establish its independence
from state policy – which is why those advocating for global constitutionalism leave them-
selves open to the political realist’s charge of being an apology for state interests, systemic
inequalities (Kingsbury 1998), ‘untamed’ sovereignty (Fassbender 2003), and the occlusion
of particularist ideologies behind (highly instrumentalized) appeals to a universally accepted
normative order.
So the oscillation between normative abstraction and sociological description continues.
All sides in the global constitutionalism debate lay claim to a greater dose of realism by either
debunking the hypocritical servant of power or by unmasking the naive imagination of the
utopian believer in the importance of international legal rules, institutions and, ultimately,
constitution-like elements. In the final analysis, neither side is right or wrong. Instead, this
argumentative dynamic is in and of itself constitutive of our collective attempts to make sense
of our global institutional surroundings – and our reflections are all the richer for it.

REFERENCES
Anghie, A. (2004), Imperialism, Sovereignty, and the Making of International Law, Cambridge:
Cambridge University Press.
Bell, D. (ed.) (2009), Political Thought and International Relations: Variations on a Realist Theme,
Oxford: Oxford University Press.
Carré, M.H. (1946 [1993]), Realists and Nominalists, Oxford: Oxford University Press.
 Realist perspectives on global constitutionalism 137

Chimni, B.S. (1993), International Law and World Order: A Critique of Contemporary Approaches,
New Delhi: Sage Publications.
Crawford, J. and M. Koskenniemi (eds) (2012), The Cambridge Companion to International Law,
Cambridge: Cambridge University Press.
De Wet, E. (2006), ‘The international constitutional order’, International and Comparative Law
Quarterly, 55 (1), 51–76.
Dunoff, J.L. (2006), ‘Constitutional conceits: the WTO’s “Constitution” and the discipline of interna-
tional law’, European Journal of International Law, 17 (3), 647–75.
Dunoff, J.L. and J.P. Trachtman (2009), ‘A functional approach to international constitutionalization’, in
J.L. Dunoff and J.P. Trachtman (eds), Ruling the World? Constitutionalism, International Law, and
Global Governance, Cambridge: Cambridge University Press, pp. 3–36.
Escorihuela, A.L. (2003), ‘Alf Ross: towards a realist critique and reconstruction of international law’,
European Journal of International Law, 14 (4), 703–66.
Falk, R.A. (1993), ‘The pathways of global constitutionalism’, in R.A. Falk, R.C. Johansen and S.S. Kim
(eds), The Constitutional Foundations of World Peace, Albany, NY: State University of New York
Press, pp. 13–30.
Fassbender, B. (1998), ‘The United Nations Charter as constitution of the international community’,
Columbia Journal of Transnational Law, 36 (3), 529–619.
Fassbender, B. (2003), ‘Sovereignty and constitutionalism in international law’, in N. Walker (ed.),
Sovereignty in Transition, Oxford and Portland, OR: Hart, pp. 115–44.
Grimm, D. (2005), ‘The constitution in the process of denationalization’, Constellations, 12 (4), 447–63.
Grimm, D. (2010), ‘The achievement of constitutionalism and its prospects in a changed world’, in P.
Dobner and M. Loughlin (eds), The Twilight of Constitutionalism?, Oxford: Oxford University Press,
pp. 3–22.
Halberstam, D. (2009), ‘Constitutional heterarchy: the centrality of conflict in the European Union and
the United States’, in J.L. Dunoff and J.P. Trachtman (eds), Ruling the World? Constitutionalism,
International Law, and Global Governance, Cambridge: Cambridge University Press, pp. 326–355.
International Law Commission (2006), ‘Conclusions of the work of the Study Group on the Fragmentation
of International Law: difficulties arising from the diversification and expansion of international law’,
Report of the International Law Commission on its Fifty-eighth Session, UN Doc. A/61/10, New
York: United Nations.
John of Salisbury (1159), The Metalogicon of John of Salisbury: A Twelfth-Century Defense of the
Verbal and Logical Arts of the Trivium, trans. D.D. McGarry (1955), Berkeley, CA: University of
California Press.
Jouannet, E. (2007), ‘Universalism and imperialism: the true-false paradox of international law?’,
European Journal of International Law, 18 (3), 379–407.
Jütersonke, O. (2010), Morgenthau, Law and Realism, Cambridge: Cambridge University Press.
Jütersonke, O. (2016), ‘Realist approaches to international law’, in A. Orford and J. Hoffmann, with M.
Clark (eds), The Oxford Handbook of the Theory of International Law, Oxford: Oxford University
Press, pp. 327–43.
Kant, I. (1781/87), Critique of Pure Reason, trans. P. Guyer and A.W. Wood (eds) (1998), Cambridge:
Cambridge University Press.
Kennedy, D. (2009), ‘The mystery of global governance’, in J.L. Dunoff and J.P. Trachtman (eds),
Ruling the World? Constitutionalism, International Law, and Global Governance, Cambridge:
Cambridge University Press, pp. 37–68.
Kingsbury, B. (1998), ‘Sovereignty and inequality’, European Journal of International Law, 9 (4),
599–625.
Kingsbury, B. (2009), ‘The concept of “law” in global administrative law’, European Journal of
International Law, 20 (1), 23–57.
Kingsbury, B., N. Krisch and R.B. Stewart (2005), ‘The emergence of global administrative law’, Law
and Contemporary Problems, 68 (3/4), 15–61.
Klabbers, J. (2004), ‘Constitutionalism lite’, International Organizations Law Review, 1 (1), 31–58.
Koh, H.H. (1996), ‘Transnational legal process’, Nebraska Law Review, 75 (1), 181–207.
Koskenniemi, M. (2004a), ‘Global governance and public international law’, Kritische Justiz, 37 (3),
241–54.
138 Handbook on global constitutionalism

Koskenniemi, M. (2004b), ‘International law and hegemony: a reconfiguration’, Cambridge Review of

International Affairs, 17 (2), 197–218.
Koskenniemi, M. (2005), From Apology to Utopia: The Structure of International Legal Argument,
Cambridge: Cambridge University Press.
Koskenniemi, M. (2007), ‘Constitutionalism as mindset: reflections on Kantian themes about interna-
tional law and globalization’, Theoretical Inquiries in Law, 8 (1), 9–36.
Koskenniemi, M. (2012), ‘International law in the world of ideas’, in J. Crawford and M. Koskenniemi
(eds), The Cambridge Companion to International Law, Cambridge: Cambridge University Press,
pp. 47–63.
Kratochwil, F. (2014), The Status of Law in World Society: Meditations on the Role and Rule of Law,
Cambridge: Cambridge University Press.
Krisch, N. (2010a), Beyond Constitutionalism: The Pluralist Structure of Postnational Law, Oxford:
Oxford University Press.
Krisch, N. (2010b), ‘Global administrative law and the constitutional ambition’, in P. Dobner and M.
Loughlin (eds), The Twilight of Constitutionalism?, Oxford: Oxford University Press, pp. 245–266.
Kumm, M. (2009), ‘The cosmopolitan turn in constitutionalism: on the relationship between consti-
tutionalism in and beyond the state’, in J.L. Dunoff and J.P. Trachtman (eds), Ruling the World?
Constitutionalism, International Law, and Global Governance, Cambridge: Cambridge University
Press, pp. 258–325.
Lang, A. F., Jr. (ed.) (2004), Political Theory and International Affairs: Hans J. Morgenthau on
Aristotle’s The Politics, Westport, CT: Praeger.
Lasswell, H.D. and M.S. McDougal (1943), ‘Legal education and public policy: professional training in
the public interest’, Yale Law Review, 52 (2), 203–95.
Lauterpacht, H. (1975), ‘On realism, especially in international relations’, in E. Lauterpacht (ed.),
International Law, Being the Collected Papers of Hersch Lauterpacht. Volume 2: The Law of Peace,
Cambridge: Cambridge University Press, pp. 52–66.
Legro, J.W. and A. Moravscik (1999), ‘Is anybody still a realist?’, International Security, 24 (2), 5–55.
Leiter, B. (2001), ‘Legal realism and legal positivism reconsidered’, Ethics, 111 (2), 278–301.
Llewellyn, K.N. (1934), ‘The constitution as an institution’, Columbia Law Review, 34 (1), 1–40.
Loughlin, M. and N. Walker (eds) (2007), The Paradox of Constitutionalism: Constituent Power and
Constitutional Form, Oxford: Oxford University Press.
McDougal, M.S. (1953), ‘International law, power and policy: a contemporary conception’, Recueil des
cours de l’Académie de droit international, 82 (1), 137–258.
Morgenthau, H.J. (1948), Politics Among Nations: The Struggle for Power and Peace, New York: Alfred
A. Knopf.
Morgenthau, H.J. (1940), ‘Positivism, functionalism, and international law’, American Journal of
International Law, 34 (2), 260–84.
Nourse, V. and G. Shaffer (2009), ‘Varieties of new legal realism: can a new world prompt a new legal
theory?’, Cornell Law Review, 95 (1), 61–137.
Paulus, A.L. (2009), ‘The international legal system as a constitution’, in J.L. Dunoff and J.P. Trachtman
(eds), Ruling the World? Constitutionalism, International Law, and Global Governance, Cambridge:
Cambridge University Press, pp. 69–112.
Peters, A. (2006), ‘Compensatory constitutionalism: the function and potential of fundamental norms
and structures’, Leiden Journal of International Law, 19 (3), 579–610.
Pound, R. (1908), ‘Mechanical jurisprudence’, Columbia Law Review, 8 (8), 605–23.
Preuss, U.K. (2008), ‘Equality of states – its meaning in a constitutionalized global order’, Chicago
Journal of International Law, 9 (1), 17–49.
Reus-Smit, C. (1997), ‘The constitutional structure of international society and the nature of fundamental
institutions’, International Organization, 51 (4), 555–89.
Scheuerman, W.E. (2011), The Realist Case for Global Reform, Cambridge: Polity Press.
Singer, J.W. (1988), ‘Legal realism now’, California Law Review, 76 (2), 465–544.
Steinberg, R.H. (2002), ‘Overview: realism in international law’, Proceedings of the Annual Meeting
(American Society of International Law), 96 (January), 260–62.
Tjalve, V.S. (2008), Realist Strategies of Republican Peace: Niebuhr, Morgenthau, and the Politics of
Dissent, New York and Basingstoke: Palgrave Macmillan.
 Realist perspectives on global constitutionalism 139

Tully, J. (2007), ‘The imperialism of modern constitutional democracy’, in M. Loughlin and N. Walker
(eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form, Oxford:
Oxford University Press, pp. 315–38.
Ullmann, W. (1975), Law and Politics in the Middle Ages: An Introduction to the Source of Medieval
Political Ideas, Ithaca, NY: Cornell University Press.
United Nations (2016), Security Council Resolution 2282 (April 27), UN Doc. S/RES/2282, New York:
United Nations.
Walker, N. (2002), ‘The idea of constitutional pluralism’, Modern Law Review, 65 (3), 317–59.
Walker, N. (2008), ‘Taking constitutionalism beyond the state’, Political Studies, 56 (3), 519–43.
Wiener, A. (2008), The Invisible Constitution of Politics: Contested Norms and International Encounters,
Cambridge: Cambridge University Press.
Young, E.A. (2003), ‘The trouble with global constitutionalism’, Texas International Law Journal, 38
(3), 527–45.
11. Critical theory
Gavin W. Anderson

Globalization represents not just a transition between different conceptual frameworks or even
ideologies, but also engages fundamental questions of what it is to be in the world. Hegemonic
analyses of globalization emphasize the ‘neoliberal redefinition of the political on a world
scale’ (Gill and Cutler 2014b, p. 5) in which the investor and the consumer are the consti-
tutionally privileged actors, rather than the democratically engaged citizen (Schneiderman
2008, p. 191). At the heart of the critical response to these developments is the rallying cry
that ‘another world is possible’ (Santos 2014, p. 41), one which imagines a reversal of the
global subordination of much of social life to the dictates of the market (Munck 2007, p. 17).
There is now a developed literature, and a growing cohort of scholar-activists, under the rubric
of ‘globalization from below’ (Santos and Rodríguez-Garavito 2005a), drawing inspiration
from the global South, which for some represents ‘the most politically compelling aspect of
globalization’ (Santos and Rodríguez-Garavito 2005b, p. 2). What is less clear – and addressed
directly in this chapter – is where critical constitutional theory fits into this picture, and what
role, if any, it can play in moving toward alternative visions of globalization to neoliberalism.
The difficulty in answering this question stems in part from a historical distrust of con-
stitutionalism by critical thinkers as a means of stymieing majoritarian reform, which is
exacerbated by the contemporary appropriation of constitutional tropes to safeguard neolib-
eralism against democratic regulation. This raises the key problem of whether we can use the
vocabulary of constitutionalism both to describe an often dense structure of constraints on
redistributive politics, and to devise a means of overcoming those constraints. In practice, this
has led critics either to acknowledge the relatively modest nature of counter-proposals they
make within the constitutional framework (Schneiderman 2008, p. 203) or to see the route to
social change as lying outside constitutionalism altogether (Mandel 2000–2001).
Overarching the issue of strategy are two more basic questions, the answers to which tend
to be assumed rather than articulated, namely, how do we conceive of constitutionalism, and
what do we mean by critique. To the extent that these questions are addressed in the litera-
ture, they are generally seen as the continuation (albeit with modifications) of debates and
conceptual apparatuses that have their antecedents in the nation-state phase of constitution-
alism. This, though, significantly underestimates both the ways in which our understanding
of constitutionalism and critique are recast by the advent of globalization, and how grappling
with the nature of these changes is crucial to engendering a more transformational mode of
constitutional discourse.
Accordingly, here we draw attention to a different vein of scholarship which takes as its
primary reference point the inception of a distinctive critical school of thought in debates
over globalization; this applies to the constitutional sphere the argument that in presenting the
neoliberal manifestation of globalization – in shorthand, globalization from above – as globali-
zation simpliciter, this mistakes the part for the whole by omitting the multifarious phenomena
of contestation and resistance captured under the rubric of globalization from below. This

140
 Critical theory 141

leads to a fuller understanding of constitutionalism – at whatever level – as always already

composed of constitutionalism from above and below.
This second approach opens up critical constitutional debate in two key ways. First, it is
as much concerned with asking questions over, as well as within, the existing constitutional
rules (Tully 2002), thus expanding the frame of constitutional reference to focus also on what
is habitually excluded (such as the pre-existing and often complex indigenous rules of gov-
ernance in colonized lands (Young 2000)), and why this is not deemed to be of constitutional
interest. In doing so, it invokes the insight that ‘[our] institutions reflect our basic perceptions
of the world’ (Eisenstein 2013, p. 3), returning us to core existential questions including the
nature of the self, and how we constitute meaning. While not uninterested in matters of institu-
tional design, this approach is primarily interested in exploring the constitutional implications
of a change of mindset which no longer answers these questions in terms of Enlightenment
assumptions about the bounded self, but instead takes seriously the idea that we are more
relationally connected, at an ontological level, than is generally understood.
In this chapter, we compare those approaches which grow out of critical analyses of consti-
tutionalism and globalization respectively, and their implications for recovering any kind of
critical constitutional project (Schneiderman 2011). With regard to the first, we explore two
distinct schools under the heading of ‘New Constitutionalism’ – one focusing on bills of rights,
the other on economic phenomena – each of which, in different ways, engages global consti-
tutionalism by showing how the latter vindicates lines of critique that originated in pre-global
settings. While each (justifiably) aspires to the label ‘new’ by developing their argument in
the global context, there is considerable overlap with national scholarship in terms of its pre-
vailing constitutional epistemology, which, in emphasizing the hegemonic aspects of global
constitutionalism, often leaves little room to outmanoeuvre a pervasive structural fatalism. In
contrast, the second approach sees the key to reinvigorating critical constitutionalism as revis-
iting some basic ontological presuppositions at the root of Western modernity, which it views
as limiting the scope of any critical project. Here, we outline the ramifications of reintroducing
constitutionalism from below to the constitutional frame: this not only provides a richer and
fuller account of the nature of constitutionalism, but, in answering the existential questions
above from within a paradigm of thoroughgoing relationality, creates the fluidity and space for
imagining that another constitutional world is possible.

NEW CONSTITUTIONALISM(S)

The two most significant early critical engagements with global constitutionalism each
describe themselves in the phraseology of the new constitutionalism (Mandel 1998; Hirschl
2004; Gill and Cutler 2014a). Although ostensibly focusing on different phenomena, and
emerging from different intellectual traditions, there are strong family resemblances between
them that analyse global constitutionalism in terms of its bounded nature. The first addresses
the proliferation of constitutional charters of rights, and, in contrast to the liberal narrative of
global democratization, portrays this as the advent of ‘juristocracy’ (Hirschl 2004) whereby
political, economic and judicial elites deliberately pursued rights-based strategies to shore up
their power and influence. The second recasts economic globalization in constitutional terms,
outlining how the rules of the global economy operate as higher norms on policy-making
processes of nation-states (Gill and Cutler 2014a). While located in separate scholarly litera-
142 Handbook on global constitutionalism

tures – domestic constitutional critique and critical international relations theory, respectively
– underpinning each is an analysis of global constitutionalism as placing binding constraints
on the capacity of majoritarian institutions to reverse these processes.
Between them, both accounts of the new constitutionalism have brought an important
critical presence to debates on globalization and constitutional law, countering more aggran-
dizing and technical accounts with a persistent interrogation of constitutionalism’s political
impact. In doing so, critical theory furnishes a rich account of how constitutional means have
elevated neoliberalism to the default model for global economic and political governance
(Schneiderman 2002; Nicol 2010). However, the emerging portrait of a hegemonic constitu-
tionalism which reinforces hierarchies of power, at the same time as closing down the scope
for political alternatives, raises doubts as to how we can ‘move into that solid domain and
ask questions’.1 One such question is, where does the new constitutionalism leave the idea of
a critical constitutional project?
Situating this question in critical constitutional theory more generally enables us to view the
new constitutionalism as the final vindication of critiques first advanced by domestic critical
scholarship. However, as these critiques are themselves organized around various sets of
boundaries, this also brings us closer to comprehending their limits for any project of critical
reconstruction. These boundaries give meaning to what has been the dominant conception of
critique in constitutional scholarship, but as we will see, they tend to maintain an epistemology
of bounded constitutionalism within which it is difficult to recover any reconstructive critical
project.

New Constitutionalism in the Context of Critical Constitutional Theory

In the pre-global age, critical constitutional theory both acquired its meaning and derived its
bearings by recasting liberal narratives of constitutional law in terms of a series of distinctions
which sought to illuminate questions of power relations generally occluded in constitutional
discourse. Most prominent among these was the distinction between law and politics, or legal
and political constitutionalism, which was deployed to criticize the idea that law is superior
to politics upon which was premised the contemporary rise of judicial review and the pres-
entation of adjudication as the optimum means of deciding constitutional disputes (Tomkins
2005, p. 14). Related to this was a critical analysis of constitutional rights as maintaining
a public–private divide as sustaining the (flawed) idea that the principal threat to freedom
came from governmental power, and that consequently the primary role of the courts is to
protect the individual’s zone of freedom (Seidman and Tushnet 1996, pp. 61–71; Bakan 1997,
pp. 47–8). Further moulding each was an interrogation of the separation of the economic from
the political within liberal democracy, which, channelling the realists’ concern with the actual
operation of power in society (Hale 1943; Griffiths 1979, p. 5), questioned the legitimacy
of constitutional arrangements which subjected governmental institutions to often searching
constitutional scrutiny, but not the significant power wielded by and through the market
(Ewing 2001). Thus, the role of the critic was clear, namely, to defend the first part of each
dyad: legislative taming of judicial laissez-faire attitudes, the expanding of the public sphere

1
I am grateful to Saskia Sassen for this formulation.
 Critical theory 143

to curtail the more invidious aspects of private ordering, and subjecting market excesses to
democratic regulation.
Each of the three divides plays a crucial role in giving meaning to new constitutionalism’s
critique of globalization. For those tracking the exponential growth of charters of rights and
constitutional review, a key element of their argument was to show how political, economic
and judicial elites around the world appeared to confirm critical intuitions about the relative
institutional capacities of legislatures and courts by their resort to legal constitutionalism in
order to protect in the courts – whether minority white economic power in post-apartheid
South Africa, or Anglophone business interests in Quebec – what was regarded as vulnerable
to challenge through majoritarian democracy (Hirschl 2004, pp. 50–99). Others, whose main
focus was on the constitutional implications of economic globalization, charted not just a shift
in the location of the public–private boundary, but of an attempted redefinition of the former in
terms of the latter. Thus, the legal establishment of neoliberalism through bilateral investment
treaties could be seen to have constitutional effect both in narrowing the range of considera-
tions guiding governmental action, from the broader public interest (and which could justify
expropriation) to the concerns of investors, and of removing decision-making power to insti-
tutions of the market such as commercial arbitration panels (Schneiderman 2008, pp. 69–70).
An important consequence of this was seen as not just maintaining the divide between the
economic and the political, but reducing the scope for the latter to constrain the former, and so
facilitating the spread of neoliberal practices of privatization and marketization to more areas
of social life (Gill 2014, p. 38).
This analysis augments genealogies of the new constitutionalism which situate its origins
in international relations theory to distinguish it from accounts of global constitutionalization
as the (welcome) triumph of liberal democracy. Rather, its emphasis on ‘class, power and
global inequality’ (Di Muzio 2014, p. 81) can also be viewed as a distinct, but integral, branch
within the existing family tree of critical constitutional theory. As such, we can characterize
both domestic critical theory and new constitutionalism as resisting attempts to unravel the
post-World War II consensus on the welfare state and the mixed economy. It is the meth-
odological priority accorded to international political economy as the ‘structuring agent’
(Schneiderman 2002, p. 244) for global constitutionalism that forms the common root for both
versions of the new constitutionalism, and opens up the space for cross-fertilization between
them. Thus, critics of constitutional rights argue that attention to the ‘ideological atmosphere’
(Hirschl 2004, p. 147) in which their interpretation unfolds reveals the ‘affinity’ between
a negative conception of rights and the ‘presently ubiquitous neoliberal, small-scale social and
economic world-view’ (Hirschl 2004, p. 154). Similarly, analysts of economic globalization
have elaborated how the constitutionalist doctrine of the rule of law, in particular its ‘[formal]
requirements of equality and generality’(Schneiderman 2008, p. 206) dovetails with the inter-
national investment rules regime to ‘restrain state regulatory capacity to unreasonably upset
expected returns on investment’ (ibid., p. 212).
New constitutionalism’s major contribution to debates on global constitutionalism is
accordingly to ensure that questions of power, particularly economic power, are at the heart of
constitutional discourse. It offers a compelling counter-narrative to that which views globaliza-
tion as conducive to the long-term spread of democracy and human rights (Howard-Hassmann
2005), and the constitutionalization of international economic law as a necessary condition
for promoting individual freedom (Petersmann 2006). Instead, new constitutionalism views
the emergence of neoliberalism from the early 1970s as a coherent political and constitutional
144 Handbook on global constitutionalism

project, whose aim was to supplant the social constitution that had prevailed during the middle
part of the twentieth century (Ewing 2000, pp. 417–20). The global escalation of this project
in the service of a ‘neoliberal international’ (Wacquant 2004, p. 100) can be seen as the cat-
alyst for the emergence of new constitutionalism. Describing neoliberalism in constitutional
language here goes beyond semantics; in mapping the transition between different constitu-
tional time-frames, new constitutionalism seeks to instil a deeper understanding of the power
dynamics by which distributive choices are institutionalized (Schneiderman 2013, p. 5), which
includes more traditional constitutional schema, but also goes beyond them.
This broader understanding situates constitutional discourse within the wider field of con-
temporary globalization, with important consequences for any critical constitutional project.
On the one hand, this extends analysis of globalization as a ‘field of struggle’ (Schneiderman
2008, p. 47) to its constitutional dimension, and so, at a theoretical level, rendering the product
of this struggle as deeply contingent rather than the working out of some ineluctable purpose.
However, on the other, the picture of actually existing global constitutionalism that emerges
reveals ‘a field that is tilted decidedly in one direction’ (Schneiderman 2008, p. 47), and
moreover one that seems intent on reducing its contingency as far as possible. Empirical anal-
yses of charters of rights and judicial review emphasize their now near global sway (Hirschl
2014, p. 95), and also the high percentage of cases before final courts of appeal which uphold
arguments advancing negative rights and notions of the deregulatory state (Hirschl 2004,
pp. 103–8). As such, critical empirical disquiet and liberal normative ambition seem to point
to ‘a world [that] is converging on one [constitutional] model’ (Schneiderman 2002, p. 210).
Critics of economic constitutionalization also stress its exponential growth, now extending to
more than 2,800 bilateral investment treaties (Schneiderman 2014, p. 172). They warn that
rather than viewing globalization as ushering in an era of uncertainty and flux, its manifesta-
tion through trade agreements discloses a high degree of legal fixity whose aim is ‘freezing
existing distributions of wealth, and securing certainty for already affluent economic interests’
(Schneiderman 2008, p. 205). Furthermore, the constitutional status of these treaties is under-
scored by their onerous termination clauses, designed to ensure their long-term stability, and
protect against repeal (Schneiderman 2008, p. 37).
In many ways, new constitutionalism shows how the idea of bounded constitutionalism is
taken to its zenith by the forces of neoliberal globalization; the lines between the legal and
political constitution, the public and private and the economic and the political are viewed less
as being drawn in the wrong place, but more as being obliterated as the first pole consumes
the second in limiting states’ capacity for deviation. This is of huge consequence, as the tra-
ditional route for progressive change – pressuring for legislative change within the political
constitution – has no obvious analogue at the global level (Schneiderman 2008, p. 221). While
some critics hope that this state of affairs will be a spur to action, and indeed one of the reasons
it is important to label such developments as ‘constitutional’ (Schneiderman 2008, p. 5), the
account of a hegemonic constitutionalism can often seem ‘very impenetrable’. All of which
poses the question of whether new constitutionalism’s tragedy is to highlight the necessity of
a critical constitutional engagement in the global age, while reinforcing the intractable nature
of the problems such an engagement faces. To address this, we turn now to consider the
importance of how we understand constitutionalism for the prospects of developing a critical
constitutional project.
 Critical theory 145

CONSTITUTIONALISM FROM BELOW

The Limits of Western Critical Theory

The question of how to renew critical resources in the global age is not faced by new consti-
tutionalism alone. There is more generally a palpable crisis of critical confidence exemplified
by the response to the 2008 financial crisis. When Keynesianism suffered what became its
terminal crisis in the 1970s, its opponents had a ready-made neoliberal prescription (Monbiot
2016); however, a moment when critical warnings about unfettered global capital seemed to
have come home to roost has instead been marked by the ‘strange non-death of neoliberalism’
(Crouch 2011). Boaventura de Sousa Santos sees this inability to construct a viable alterna-
tive as reflecting a deeper malaise within critical theory, or more accurately Western critical
theory. For Santos, mainstream critical theory tends to regard its own, northocentric, experi-
ence as providing a universal template, and consequently as exhausting its range of options.
Accordingly, Santos contends that to generate a more convincing response to neoliberal
globalization, critical theory must create some distance from the well-travelled paths of the
Western critical tradition (Santos 2014, pp. 19–20). His argument raises the possibility that
light may be shed on the situation, not by considering the ways in which new constitutionalism
differs from the traditional state-orientated approach, but rather the ways in which it is similar.
Our point of departure is to unpack why new constitutionalism developed as a critical con-
stitutional theory, that is, why not the ‘new politics’, or the ‘new global political economy’?
It is evident from the new constitutionalist literature that the constitutional matters to critical
theory. Thus, detailed quantitative analysis of the outcomes of constitutional adjudication, for
example as favouring notions of positive or negative freedom, seems to assume much turns
on how such cases are resolved. This impact is not only measured in terms of cause and effect
in the instant dispute, but also at the level of legitimating prevailing ‘metanarratives’ (Hirschl
2004, p. 172) such as neoliberalism. In a similar vein, new constitutionalist accounts of eco-
nomic globalization which highlight the increasing commodification of society (Cutler 2014),
and the attendant colonization of politics by the logic and forces of the market (Brodie 2014;
Gill 2014, pp. 38–9), rest on the implicit premise that it would be of consequence if the global
constitutional mainframe were organized on different principles. It is important to situate this
discussion in the widely held view, in the national context, that the critical task is to eschew
the constitutional and instead concentrate energy upon the political (Griffiths 1979; Mandel
2000–2001). If what critics previously saw as political ground is now necessarily constitu-
tional ground (Arthurs 1999), then if, in a time of globalization, there is to be a critical project
worth speaking of, it would also seem to be a critical constitutional project.
When we consider how constitutional forms affect the outcomes critiqued by new constitu-
tionalism, it is again striking how far its epistemological framework, couched in the language
of limits, hierarchy, review and entrenchment, resembles that of national constitutionalism. In
particular, it exhibits a positivistic outlook, whether in depicting the sources of the new consti-
tutionalism in formal terms, necessarily possessing an (national or supranational) institutional
imprimatur, or regarding those sources as external to, and imposing concrete restraints upon,
the national social and political fields being reshaped. In either sense, constitutionalism is per-
ceived through the lens of some core assumptions that have shaped the Western understanding
of law: that law functions as an instrument for realizing particular ends; that law does, or at
146 Handbook on global constitutionalism

least, can embody universal values; and, that ‘law is best understood through “top-down”
perspectives’ which emphasize the primary creative role of elites (Twining 2009, p. 6).
The latter point is of crucial importance: it gives substance to the intuition that new con-
stitutionalism’s openness to expanding constitutional knowledge meets some innate barriers,
speaking to its difficulty in imagining law outside the Western canon. In giving content to
this intuition, it is helpful to adapt Upendra Baxi’s three-part account of constitutionalism’s
‘forming practices’: the first represents historically enacted formal documents, the second
stands for ‘constitutional hermeneutics’ or interpretation, and the third is ‘the set of ideolog-
ical sites that provide justification/mystifcation for constitutional theory and practice’ (Baxi
2000, p. 1188). Baxi’s schema offers a fuller account of constitutional phenomena than most
domestic literature (often focused on developing legal doctrine), but seems initially consistent
with new constitutionalism’s emphasis on the rise of global neoliberalism as an important
constitutional ‘conditioning framework’ (Schneiderman 2002, p. 244). However, his interest
in tracing ‘a genealogical understanding of constitutionalism’, together with his emphasis
elsewhere on illuminating the ‘logics of exclusion’ (Baxi 2008 [2009], p. 44) within Western
thought, point to a fourth, overarching, forming practice which can accommodate seemingly
intractable opposites, such as new constitutionalism and neoliberalism, and which for much
constitutional theory, critical and otherwise, takes as unproblematic the ontological bases of
Western modernity.
This fourth forming practice requires us to engage with the idea that ‘all world-views are
manifestations of existential attitudes’ (Mendieta 2003, p. 4), and so to re-examine whether
the stock answers within critical theory to the existential questions posed in the introduction
– about our understandings of how we are in the world and the meaning we attach to them –
which often unconsciously draw upon modernist assumptions, now need to be revisited. For
some critics, the instability that has accompanied contemporary globalization, and its con-
comitant complexities, is indicative that we are leaving a time of reflective equilibrium, and
instead must now ‘dwell sensitively in historically significant, forking moments’ (Connolly
2011, p. 165) that require a reimagining of the human (and global) condition. This prioritiza-
tion of the ontological is relatively underdeveloped within critical constitutional scholarship,
which tends to situate its engagement at Baxi’s third level of ideological sites. However, the
emergence of distinctive voices from the global South as part of the critique of globalization
is giving a new prominence within critical theory to the connections between ways of being in
the world with ways of making the world. Central to this approach is the claim that Western
modernity does not exhaust possible ways of understanding the world (Santos 2014, p. 20),
and that moreover, retaining this understanding presents a major obstacle to constructing
a viable alternative to neoliberal globalization (Santos 2002, pp. 1–4; Dussel 2008, p. 87;
Mignolo 2011, pp. 44–52).
Regarding attitudes to modernity as the principal critical fault-line for the global age
creates a number of problems for critical constitutional scholars. Shifting attention to the
ontological level suggests that in important ways critical theory may not be so different to its
object of critique. Thus, while neoliberalism and its opponents fiercely dispute how material
wealth should be allocated, for both economic growth is important in itself, which reflects
a Eurocentric view of human entitlement to exploit nature (Santos 2014, p. 23). Moreover,
for both critics and their opponents, the Enlightenment faith in autonomous reason to guide
societal progress remains embedded in their attachment to abstract theorizing (Gray 1995,
p. 217), notwithstanding the disconnect between theory and experience for much of the planet
 Critical theory 147

(Santos 2014, p. 22). Perhaps most fundamentally, critical theory has been largely inattentive
to the association of modernity with the colonial project in much of the non-West, where its
universality rhetoric is seen more as a means of reinforcing relations of domination, rather than
their emancipation (Mignolo 2011, pp. 2–3). Accordingly, for the global South, advancing
any critical constitutional project goes hand in hand with adopting a different world view at
this fourth level of constitutional forming practices, one which can ‘usher new concepts and
experimental actions into the world that show promise of negotiating unexpected situations’
(Connolly 2011, p.165).

Constitutionalism from Below as a Paradigm of Relational Constitutionalism

The construction of a new paradigm of globalization is precisely the task which the
Southern-orientated scholarship under the rubric of ‘globalization from below’ sets for itself
(Santos and Rodríguez-Garavito 2005a). At the core of this enterprise is the imperative to
overcome ‘the habits of separation’ (Eisenstein 2013, p. 105) which permeate modern thought,
whether in seeing the ‘common interest [as] based on the pursuit of self interest’ (Santos 2009,
p. 11) or in reifying divides between nature and society, public and private, or immanence
and transcendence (Santos 2009). One important area where globalization from below finds
a mindset of separation prevailing is in the equation of globalization only with its most hegem-
onic form of neoliberalism; instead, it seeks to complement this partial account by introducing
a ‘bottom-up perspective’ (Santos and Rodríguez-Garavito 2005b, p. 4) into the analysis.
There is certainly a strong political aspect to this argument, as grass-roots actors in globaliza-
tion from below, such as social movements, are often presented as the more promising agents
for challenging neoliberalism (Munck 2007); but it is important to see that this argument
reaches further. For Santos, adverting to globalization from below shows that globalization is
organized around two sides of the same line; accordingly, any attempt to privilege the most
visible (hegemonic) side is only fully intelligible by adumbrating what it excludes (Santos
2014, pp. 124–33).
In turning to the implications of the foregoing for the constitutional debate, it is instructive
to remember that, at least initially, the details of any new paradigm will not be as fully worked
out as that which it moves beyond. In this regard, it may be of benefit for critical theory to enter
a period of ‘not knowing’, particularly in terms of how this connects up the four constitutional
forming practices outlined above. Notwithstanding the urgency of the problems associated
with neoliberal globalization, the insufficiency of prior critical approaches to avert the present
conjuncture also underscores the need for critical thinking to address long-term change (Santos
2014, p. 28). Applying globalization from below’s modus operandi to the constitutional field
enables us to see that what is often referred to as global constitutionalism (including by
scholars of the new constitutionalism school) is more accurately labelled constitutionalism
from above. However if, extending the analysis of those advocating globalization from below,
Western constitutionalism ultimately derives its meaning from what is systematically omitted,
then constitutionalism from above necessarily exists in relation to constitutionalism from
below (Anderson 2015, p. 159).
This approach to scholarship, not on what is to be separated out, but on the connections
that are often missed, forms the basis for a relational paradigm of constitutionalism. This has
significant implications for critical theory, as it broadens the knowledge base of constitutional
theory, restoring much of what modern constitutionalism sought to expel. By focusing on
148 Handbook on global constitutionalism

how this transforms the nature of the debate, we can see that the fourth, ontological, forming
practice is ultimately constitutive of constitutional discourse, with ramifications all the way
down Baxi’s cascade. This broadens the scope of constitutional inquiry beyond that generally
found within new constitutionalism, and in particular enables us to view much of globalization
from below as seeking to effect change at the level of constitutional world view, grounded in
a different conception of what it is to be human.
One of the leading examples is the contemporary resurgence of the constitutional traditions
of indigenous peoples (Ivison et al. 2000), which challenges top-down approaches in two
important ways. Ethnographic research attests that, notwithstanding the exclusivist ambition
of modern constitutionalism, the lived reality of indigenous peoples through to the twenty-first
century was messier and more pluralist (Anaya 2007) on account of the sustenance of con-
stitutional practices and ideas which preceded their encounter with European colonialism
(Tully 1995; Borrows 2011). Moreover, this tradition is grounded in a distinctly non-modern
ontology, which both challenges narratives about the end of constitutional history, and for
some embodies principles of deep relevance to the crises of the global age. For example, the
sections of the Ecuadorian Constitution affirming the rights of nature accord with the efforts
of social movements to actualize ‘a non-European conception of the relation between nature
and society’ (Santos 2014, p. 23). As such, the perspective from below also widens the scope
of constitutional agency beyond institutions or elites to include those grass-roots actors whose
aim is to change the ontological prism through which the line between the constitutional and
the non- constitutional is refracted (Anderson 2013).
This genealogically minded, more pluralist understanding of the sources guiding constitu-
tional formation ‘open[s] a space for critical thought’ (Rose 1999, p. 19) through the potential
interface with other disciplines which lend empirical and theoretical support to a relational
paradigm of constitutional law. Thus, critical strands in psychological theory speak to the
connections between assumptions about who we are, and the sort of societies we build, arguing
that notions of the bounded self are ‘secreted within our institutions’ (Gergen 2011, p. 4);
accordingly, any critical constitutional theory which wishes to supplant Western conceptions
of bounded constitutionalism has to take seriously the idea that knowledge and meaning are
only ever created through co-action (Gergen 2011, p. 40). Others advert to recent findings in
neuroscience which emphasize an innate human capacity for compassion, and advocate a shift
of focus in constitutional design towards the fostering of social systems which ‘will spur the
emergence of an egalitarian society, motivated by compassion, and not by fear’ (Duffy 2011,
p. 445). These and other developments, whether in political (Dussel 2008) and legal (powell
2012, pp. 163–94) theory, or contemplative studies (Loy 2010), are coalescing into a concerted
philosophical inquiry into the basis of ‘a more promising view of our global future’ in which
the world is recognized ‘not within persons but within their relationships’ (Gergen 2011, p. 5).
This approach entails a major shift of approach with regard to critical constitutional theory,
that is, to ground any new paradigm in the actual experience of those generally absent from the
discourse. This points to a critical research agenda orientated around reintroducing the consti-
tutional perspective from below in three crucial, interrelated, senses. First, it encourages full
and proper attention to the constitutional knowledge and practices of the global South, whether
innovative design in Latin America, the resurgence of indigenous constitutionalism, and more
besides: as a result, Western experience is valued not because of its provenance, but in terms
of its contribution to forging new constitutional alliances. Second, it opens constitutional
knowledge to the vast range of phenomena such as ‘private’ actors and social movements
 Critical theory 149

which fall beneath the radar of more traditional approaches, and therefore extends the sites
in which relations of domination are structured and resisted beyond the formally regulated
contests for the acquisition of institutional power (Day 2004, p. 723). Third, and perhaps most
fundamentally, it seeks to give priority to those who have historically been below the winning
line in contests over the politics of constitutional definition: the dispossessed, whether of
wealth, voice or identity. It is by grappling with the question of why they became the ‘invisible
people’ (Nootens 2015) of constitutional theory that the critical project can ‘reimagine the
past’ (Scheingold 2010, p. 2) and remember the path towards an alternative future.

REFERENCES
Anaya, J. (2007), ‘Indigenous law and its contribution to global legal pluralism’, Indigenous Law
Journal, 6 (1), 3–12.
Anderson, G.W. (2013), ‘The new borders of the constitutional’, Osgoode Hall Law Journal, 50 (3),
737–62.
Anderson, G.W. (2015), ‘Towards a cosmopolitan pluralist theory of constitutionalism’, in U. Baxi,
C. McCrudden and A. Paliwala (eds), Law’s Ethical, Global and Theoretical Contexts: Essays in
Honour of William Twining, Cambridge: Cambridge University Press, pp. 143–64.
Arthurs, H.W. (1999), ‘TINA x 2: constitutionalizing neo-conservatism and regional economic integra-
tion’, in T.J. Courchene (ed.), Room to Manoeuvre? Globalization and Policy Convergence, Kingston,
ON: McGill-Queen’s University Press, pp.17–37.
Bakan, J.C. (1997), Just Words: Constitutional Rights and Social Wrongs, Toronto and Buffalo, NY:
University of Toronto Press.
Baxi, U. (2000), ‘Constitutionalism as a site of state formative practices’, Cardozo Law Review, 21 (4),
1183–210.
Baxi, U. (2008), The Future of Human Rights, 3rd edn, reprinted 2009, New Delhi: Oxford University
Press.
Borrows, J. (2011), Canada’s Indigenous Constitution, Toronto and Buffalo, NY: University of Toronto
Press.
Brodie, J. (2014), ‘New constitutionalism, neo-liberalism and social policy’, in S. Gill and A.C. Cutler
(eds), New Constitutionalism and World Order, Cambridge: Cambridge University Press, pp. 247–60.
Connolly, W. (2011), A World of Becoming, Durham, NC and London: Duke University Press.
Crouch, C. (2011), The Strange Non-Death of Neoliberalism, Cambridge: Polity Press.
Cutler, A.C. (2014), ‘New constitutionalism and the commodity form of capitalism’, in S. Gill and A.C.
Cutler (eds), New Constitutionalism and World Order, Cambridge: Cambridge University Press,
pp. 45–62.
Day, R.J.F. (2004), ‘From hegemony to affinity: the political logic of the newest social movements’,
Cultural Studies, 18 (5), 716–48.
Di Muzio, T. (2014), ‘Toward a genealogy of the new constitutionalism: the empire of liberty and
domination’, in S. Gill and A.C. Cutler (eds), New Constitutionalism and World Order, Cambridge:
Cambridge University Press, pp. 81–94.
Duffy, J.D. (2011), ‘What Hobbes left out: the neuroscience of compassion and its implications for a new
common-wealth’, in M. Freeman (ed.), Law and Neuroscience: Current Legal Issues, vol. 13, Oxford:
Oxford University Press, pp. 433–47.
Dussel, E. (2008), Twenty Theses on Politics, Durham, NC: Duke University Press.
Eisenstein, C. (2013), The More Beautiful World Our Hearts Know Is Possible, Berkeley, CA: North
Atlantic Books.
Ewing, K.D. (2000), ‘The politics of the British Constitution’, Public Law, Autumn, 405–37.
Ewing, K.D. (2001), ‘The unbalanced constitution’, in T. Campbell, K.D. Ewing and A. Tomkins (eds),
Sceptical Essays on Human Rights, Oxford: Oxford University Press, pp. 103–17.
Gergen, K. (2011), Relational Being: Beyond Self and Community, Oxford: Oxford University Press.
150 Handbook on global constitutionalism

Gill, S. (2014), ‘Market civilization, new constitutionalism and world order’, in S. Gill and A.C. Cutler
(eds), New Constitutionalism and World Order, Cambridge: Cambridge University Press, pp. 29–44.
Gill, S. and A.C. Cutler (eds) (2014a), New Constitutionalism and World Order, Cambridge: Cambridge
University Press.
Gill, S. and A.C. Cutler (2014b), ‘New constitutionalism and world order: general introduction’, in
S. Gill and A.C. Cutler (eds), New Constitutionalism and World Order, Cambridge: Cambridge
University Press, pp. 1–25.
Gray, J. (1995), Enlightenment’s Wake, London: Routledge.
Griffiths, J.A.G. (1979), ‘The political constitution’, Modern Law Review, 42 (1), 1–21.
Hale, R.L. (1943), ‘Bargaining, duress and economic liberty’, Columbia Law Review, 43 (5), 603–28.
Hirschl, R. (2004), Towards Juristocracy: The Origins and Causes of the New Constitutionalism,
Cambridge: Cambridge University Press.
Hirschl, R. (2014), ‘Origins of the new constitutionalism: lessons from the “Old Constitutionalism”’,
in S. Gill and A.C. Cutler (eds), New Constitutionalism and World Order, Cambridge: Cambridge
University Press, pp. 95–107.
Howard-Hassmann, R.E. (2005), ‘The second great transformation: human rights leapfrogging in the era
of globalisation’, Human Rights Quarterly, 27 (1), 1–40.
Ivison, D., P. Patton and W. Sanders (eds) (2000), Political Theory and the Rights of Indigenous Peoples,
Cambridge: Cambridge University Press.
Loy, D. (2010), ‘A different “Enlightened” jurisprudence’, Saint Louis University Law Journal, 54 (4),
1239–56.
Mandel, M. (1998), ‘A history of the new constitutionalism, or how we changed everything so that
everything could remain the same’, Israel Law Review, 32 (2), 250–300.
Mandel, M. (2000–2001), ‘Against constitutional law (populist or otherwise)’, University of Richmond
Law Review, 24 (2), 443–59.
Mendieta, E. (2003), ‘Introduction’, in E. Dussel (ed.), Beyond Philosophy: Ethics, History, Marxism
and Liberation Theology, Lanham MD: Rowman & Littlefield, pp. 1–18.
Mignolo, W.D. (2011), The Darker Side of Western Modernity: Global Futures, Decolonial Options,
Durham, NC: Duke University Press.
Monbiot, G. (2016), ‘Neoliberalism – the ideology at the root of all our problems’, Guardian, 15 April,
accessed 5 April 2016 at https://​www​.theguardian​.com/​books/​2016/​apr/​15/​neoliberalism​-ideology​
-problem​- george-monbiot.
Munck, R. (2007), Globalization and Contestation, London and New York: Routledge.
Nicol, D. (2010), The Constitutional Protection of Capitalism, Oxford and Portland, OR: Hart.
Nootens, G. (2015), ‘Constituent power and the people-as-the-governed: about the invisible people of
political and legal theory’, Global Constitutionalism, 4 (2) 137–56.
Petersmann, E.-U. (2006), ‘Human rights, constitutionalism and the WTO: challenges for WTO jurispru-
dence and civil society’, Leiden Journal of International Law, 19 (3), 633–67.
powell, j.a. (2012), Racing to Justice: Transforming our Conceptions of Self and Other to Build an
Inclusive Society, Bloomington and Indianapolis, IN: Indiana University Press.
Rose, N. (1999), Powers of Freedom: Reframing Political Thought, Cambridge: Cambridge University
Press.
Santos, B. de S. (2002), Toward a New Legal Common Sense, London: Butterworth.
Santos, B. de S. (2009), ‘If God were a human rights activist: human rights and the challenges of political
theologies’, Law, Social Justice and Global Development Journal, 13 (1), 1–42.
Santos, B. de S. (2014), Epistemologies of the South: Justice Against Epistemicide, Boulder, CO:
Paradigm.
Santos, B. de S. and C.A. Rodríguez-Garavito (eds) (2005a), Law and Globalisation from Below:
Toward a Cosmopolitan Reality, Cambridge: Cambridge University Press.
Santos, B. de S. and C.A. Rodríguez-Garavito (2005b), ‘Law, politics and the subaltern in counterhe-
gemonic globalization’, in B. de S. Santos and C.A. Rodríguez-Garavito (eds), Law and Globalisation
from Below: Toward a Cosmopolitan Reality, Cambridge: Cambridge University Press, pp. 1–26.
Scheingold, S. (2010), The Political Novel: Reimagining the Twentieth Century, New York: Continuum.
 Critical theory 151

Schneiderman, D. (2002), ‘Comparative constitutional law in an age of globalization’, in V.C. Jackson

and M. Tushnet (eds), Comparative Constitutional Law: Defining the Field, Westport, CT: Praeger,
pp. 237–50.
Schneiderman, D. (2008), Constitutionalizing Economic Globalisation: Investment Rules and
Democracy’s Promise, Cambridge: Cambridge University Press.
Schneiderman, D. (2011), ‘A new global constitutional order?’, in R. Dixon and T. Ginsburg (eds),
Research Handbook on Comparative Constitutional Law, Cheltenham: Edward Elgar Publishing,
pp. 189–207.
Schneiderman, D. (2013), Resisting Economic Globalisation: Critical Theory and International
Investment Law, Basingstoke: Palgrave Macmillan.
Schneiderman, D. (2014), ‘How to govern differently: neo-liberalism, new constitutionalism and inter-
national investment law’, in S. Gill and A.C. Cutler (eds), New Constitutionalism and World Order,
Cambridge: Cambridge University Press, pp. 165–78.
Seidman, L.M. and M. Tushnet (1996), Remnants of Belief: Contemporary Constitutional Issues, New
York: Oxford University Press.
Tomkins, A. (2005), Our Republican Constitution, Oxford and Portland, OR: Hart.
Tully, J. (1995), Strange Multiplicity: Constitutionalism in an Age of Diversity, Cambridge: Cambridge
University Press.
Tully, J. (2002), ‘The unfreedom of the moderns in comparison with their ideals of constitutional democ-
racy’, Modern Law Review, 65 (2), 204–28.
Twining, W. (2009), General Jurisprudence: Understanding Law from a Global Perspective, Cambridge:
Cambridge University Press.
Wacquant, L. (2004), ‘Critical thought as solvent of Doxa,’ Constellations, 11 (1), 97–101.
Young, I.M. (2000), ‘Hybrid democracy: Iroquois federalism and the postcolonial project’, in D. Ivison,
P. Patton and W. Sanders (eds) (2000), Political Theory and the Rights of Indigenous Peoples,
Cambridge: Cambridge University Press, pp. 237–58.
12. The English School and global
constitutionalism
Filippo Costa Buranelli

INTRODUCTION

The idea of ‘global constitutionalism’, understood as a constitutional political and legal order
which enables and constrains political decision-making by placing limits on political life
through its emphasis on the rule of law while also enabling the creation of new institutions and
laws in moments of founding and in practices of interpretation (Lang and Wiener, Chapter 1
in this Handbook) has always been a distinctive mark, albeit perhaps in nuce, of the ES. The
very premise of this theory, as a matter of fact, is based on the idea of sociability between
states (or, to be more trans-historically correct, polities), which to a minimum agree to find
a modus vivendi and mutually acceptable arrangements, through the development of formal
and informal norms, rules, and institutions.
Yet few ES authors have dealt with global constitutionalism, let alone Global
Constitutionalism,1 directly (for an exception, see Clark 2007; Hurrell 2007; Lang 2013).
How does the ES conceive of processes of constitutionalisation of world politics? How does it
conceptualise the idea of a ‘constitution’ between political communities? Does it make sense
to speak of global constitutionalism from an ES perspective, and if yes, what are the analytical
prisms used to study it? This chapter sheds light on these questions.
It does so by following four steps. The first one is to present the reader with a short overview
of ES theory – its main tenets, its concepts, and its specific take on international relations. The
second step is tasked with reviewing what scholars working within the ES tradition have said
about the idea of constitutionalism, and to what extent their theorisation of international society
has been informed by its ideas. Here, ES arguments about (global) constitutionalism are com-
pared to those offered by the Italian constitutional jurist Costantino Mortati (1891–1985), who
in his theory of ‘material constitution’ (1940) sought to reconcile the legal with the political.
The third step, more analytical in scope, discusses three prisms through which the ES looks
at global constitutionalism – the pluralism-solidarism distinction; the relationship between
primary and secondary institutions; and the interplay between international society and world
society. The fourth and last step is to indicate some of the current and, possibly, future research
areas that an ES approach to global constitutionalism may consider – the regionalisation of
international society, the polysemy associated to it, and the embedded pluralism that is being
enhanced by such process; the rise of Global IR as a research programme; and the increase

1
For the purpose of this chapter, ‘global constitutionalism’ (lower case initials) refers to processes,
dynamics, practices and trends pertaining to the establishment of a constitutional framework/structure
in world politics, whereas ‘Global Constitutionalism’ (capitalised initials) refers to the interdisciplinary
academic field studying such issues.

152
 The English School and global constitutionalism 153

prominence of power politics and the related attempts to change the current structure of inter-
national society.

THE MAIN TENETS OF THE ES

In order to set the argument clearly and to give those readers not necessarily acquainted with
the ES a conceptual map, this first section will briefly illustrate the main features, or aspects,
of ES theory and its research programme.
First and foremost, the ES conceives of world politics as a tripartite realm – an international
system, where inter-state anomic relations operate; an international society, where ‘a group of
states, conscious of certain common interests and common values, form a society in the sense
that they conceive themselves to be bound by a common set of rules in their relations with
one another, and share in the working of common institutions’ (Bull 1977, 13); and a world
society, where non-state and transnational actors operate. These three domains, discerned
for analytical purposes, are in fact intertwined and are to be thought as in constant interplay,
dialogue, and as mutually influencing each other.
Second, the ES thinks that in international relations there is more than a realist would think,
and less than a liberal would hope for (Linklater and Suganami 2006). It is an environment in
which organised communities do not live in a Hobbesian state of nature, in constant competi-
tion and dealing with violence daily, nor in a cosmopolitan Kantian kingdom of ends. The very
idea of an international society is one that accounts for norms, rules and institutions, which,
if not always respected and followed, direct and constrain the behaviour of such communities
in their intercourses and relations. These institutions, in ES thinking, are conceived of in two
different, yet related, ways. The first meaning of institutions, socio-anthropological, is that of
rooted, durable but by no means eternal codified practices which channel the behaviour of the
states (or, in general, actors) forming the society, giving a sense of order and predictability
to their actions (Buzan 2004). They define the socio-structural context where actors operate,
and who the legitimate actors are within that context, too. These are primary institutions, such
as diplomacy, the balance of power and international law. The second meaning, more akin
to neoliberal institutionalism and regime theory, is that of international organisations and
regimes. These are secondary institutions. More on this, however, will be said below.
The third aspect of ES theory pertains specifically to the idea of international society itself,
which can assume a pluralist or a solidarist configuration (even if, as recent research as show,
these are better conceived as an interplay as opposed to two dichotomic ideal-types – for differ-
ent conceptualisations of this interplay, see Bain 2021; Buzan 2004; Weinert 2011). Pluralism
and solidarism are two normative, ethical, and moral schemes that serve to frame and indi-
viduate the goals of the society of states itself. Pluralism pertains to a communitarian ethics,
premised on the idea that the absence of any moral authority in international society means
that states are the ultimate arbiters on the meaning of ‘the good life’ within their domains.
This results in a strict embracement of principles of non-interference and non-intervention, on
a minimal, often procedural set of norms to agree upon, and on the value of cultural diversity
and plurality of worldviews. Solidarism, on the other hand, pertains to the idea that states are
capable of advancing sophisticated forms of cooperation that benefit them and humanity as
well. Solidarism thus rests on a more cosmopolitan ethics, strongly incorporates the domain of
154 Handbook on global constitutionalism

world society within international society, and is bearer of a more progressive, emancipatory
agenda.
The fourth and, for the purpose of this chapter, last aspect of the ES as a theory of
international relations is its accentuated humanism and holism. It emphasises the role that
co-constitution plays in world politics, thus accounting for both agency and structure; it
stresses the pivotal importance of law, philosophy, history and political theory in the pursuit
of explaining and understanding international relations; and it ascribes equal importance to
power and morality in world politics, as well as to order and justice.
From the above, it is evident that, within the IR theory panorama, the ES is in an advantaged
position to synthetize and integrate the multiple views of global constitutionalism (and, con-
sequently, the different strands of Global Constitutionalism) identified by Jeffrey Dunoff and
colleagues (Dunoff et al 2015) – as a political theory, as a moral project, as a legal process, and
an institutional development.

GLOBAL CONSTITUTIONALISM IN ES SCHOLARSHIP

As stated in the introduction, since its very inception scholars working within the ES tradition
have been interested in processes of constitutionalisation of world politics as well as in the
existence of defined constitutional structures, defined as ‘a set of fundamental and prioritised
principles and rules that serves as a framework for the self-ordering of relations between
polities’ (Muller 2014, 73). Martin Wight, for example, was among the first to reflect on these
issues by drawing on a rationalist understanding of international relations supported by his
Christian realism and its related middle-ground ethics, defined as ‘a move toward compro-
mise, an effort to find a middle-ground between those who disagree’ (Navari quoted in Lang
2013, 114). It was Wight, in fact, who first coined the expression ‘middle-ground ethics’ when
addressing the role of Western values in contemporary world politics (Cochran 2009; Wight
1966) and who identified in the charted of the League of Nation ‘a constitution’.
Another prominent ES scholar who much contributed to incorporating and developing ideas
of constitutionalism was Maurice Keens-Soper, who clearly recognised the role that deeper
institutionalised practices played in fostering a sense of constitutionalisation of world politics
across history (Keens-Soper 2016). Although very much Eurocentric (more on this in the
last section of this chapter), Keen-Soper’s argument was premised on the idea that relations
between political communities have always been conducted within what he calls ‘a framework
of some kind’, which ‘has to be seen not as an empty shell circumscribing and setting limits to
the play of political forces, but as intimately and pervasively related to the substantive issues
arising between states’ (2016, 28). He further argued that even before Westphalia, the fact that
Europe was known as a ‘respublica Christiana’ hinted at the fact that the idea of a ‘respub-
lica’ is necessarily paired with that of a constitution, being both terms borrowed from liberal
political theory and tradition. He also argued, passim, that ‘Europe got a novel “constitution”’
(2016, 29), that international politics in the continent were premised on discernible ‘constitu-
tional’ arrangements (2016, 30), and that such constitution was ‘composed of “institutions”’
(2016, 32).
This importance of the historicisation of constitutional forms and principles has recently
been noted by Thomas Muller, when arguing that ‘[a] crucial consequence of [the] character-
ization of global constitutionalism as a contemporary new phenomenon is the largely missing
 The English School and global constitutionalism 155

historicization of constitutional forms in the international realm’ (Muller 2014, 72), thus
emphasising the synergy that exists between the ES and the historical comparative approach
(which, similarly to Keen-Soper, was that endorsed by Martin Wight and, perhaps even more
so explicitly, by Adam Watson, another key ES author). This understanding of constitutional-
ism was then shared, in different forms, by other ES scholars, such as Donald MacKinnon and
Hedley Bull, who, supported by his epistemological scepticism and conservatism, made the
case that international society as an empirical fact is premised on three layers of normative pre-
cepts, an idea he took from H.L. Hart: constitutional normative principles, rules of coexistence
and regulative rules (Bull 1977). Other prominent ES authors have used constitutional cate-
gories to analyse world politics from an ES perspective. Cornelia Navari, who apart from her
work on middle-ground ethics, has resorted to the concepts of ‘compacts’ and ‘packages’ to
illustrate the normative substance of international society (Navari 2016). Also, James Mayall
defined the workings of international society and the interplay between power and morality
within it as ‘constitutional arrangements’ (Mayall 2016). Furthermore, the work of scholars
such as Robert Jackson has very much hinted at the deep relationship that exists between the
ES and Global Constitutionalism. One of his books, The Global Covenant, illustrates this
aptly – the idea that, even in the absence of a world government, states and societies have been
able to devise a normative structure that, when not stymying illegitimate behaviours, at least
induces them either to apologise for doing so or offer a justification.
In more recent times, both Ian Clark (2007) and Andrew Hurrell (2007) have focused
heavily on how the ES, de facto, incorporates fundamental ideas at the centre of global con-
stitutionalism. Clark has grounded his work on the idea of constitutional legitimacy, which
revolve around the two legitimacy principles of ‘rightful membership’ and ‘rightful conduct’
which, albeit not explicitly, remind one of Reus-Smit’s (Reus-Smit 1997, 556) two functions
of constitutional structures: defining legitimate actorness and ‘the basic parameters of rightful
state action’. The echoes of global constitutionalism are even more audible in that Clark (2005,
2, emphasis added) defines his legitimacy principles as ‘rudimentary social agreement about
who is entitled to participate in international relations, and also about appropriate forms in
their conduct’. It is the very idea of a social agreement, as a human product of reason, that
constitutes a direct link with the tradition of global constitutionalism, albeit arguably from
a more political, as opposed to legal, perspective. Hurrell, too, has very much made the case
for a progressive constitutionalisation of international society, arguing that a pluralist under-
standing of world order is not morally tenable anymore and that it is through solidarism that
one can see the progressive constitutionalisation of world politics, as a legal but most impor-
tantly as a moral project. This, according to him, has been mostly visible in the ‘failure’ of
pluralism to advance world politics and human emancipation in the two areas of human rights
and environmental stewardship.
The above discussion provided only a snapshot of how past and contemporary authors who
have contributed to ES theorising conceive of the idea of constitutionalism, and its applicabil-
ity to the global domain. The gist of the ES understanding of global constitutionalism is that
the ES embraces an idea of law that is deeper than the positivistic one, although not necessarily
rejecting the latter. It is an expression of something deeper. It is thus possible to distil some
main features of this understanding.
First, the ES considers ‘constitutional’ not simply in legal terms, but also, and one may
say especially, in sociological ones in the sense of constituting – the very idea of defining
legitimate players and legitimate identities within the context of international society. This
156 Handbook on global constitutionalism

very well stresses the fundamental enabling function of constitutions, as opposed to a merely
prescribing one. This idea is embodied in the very concept of institutions, norms and rules, that
through the practice and intersubjective understandings of state representatives creates a legit-
imate framework of action. This is enucleated in one of the pivotal, yet still underappreciated,
concepts at the heart of ES theorising, that of raison de systéme, which implies that political
communities, alongside their individual interests, are aware of the systemic, pluralistic inter-
est(s) of the other communities, too, and acknowledge that their interests and the stability that
protects them are best served by abiding by the constitutional structures at play (Keens-Soper
2016; Watson 1992). Neatly encapsulating the idea at the core of an international society, and
therefore of a covenant, raison de systéme can be defined as ‘the belief that it pays to make the
system work’ (Watson 1992, 14).
Second, and related to the above, the ES places diplomacy at the centre of these constitu-
tional structures, for it is through diplomacy that common practices, mutual understandings,
compromises, and accommodation of differences can be achieved. Indeed, as has been noted,
within an ES understanding of global constitutionalism it is diplomacy which serves as an
exemplification of middle-ground ethics, which places compromise as the ultimate good.
Tellingly, Keens-Soper (2016, 38, emphasis added) maintained that

Purposes and therein ‘thought’ are to be detected not merely in the pursuit of the expressly formu-
lated and justified determinations of foreign policy but equally, through differently, in the practices
upon which the ability to pursue the substantive ends of policy are themselves dependent. By way of
analogy, in constitutionalism, the content of any legislation is unimportant; it is the procedures that
matter. And diplomacy is to foreign policy what constitutionalism is to legislation.

Third, due to its focus on co-constitution as well as the interplay of morality, power, and
politics, the ES de facto de-essentialises constitutionalism as a given and renders it a process,2
subject to historical contingency, contextuality, and waxing and waning. The constitutional
structures, or orders, across history arise, develop, change and demise – and, with them, their
underpinning practices and institutions. Therefore, it can be said that because of its ontologi-
cal, epistemological, and methodological toolkit, the theory is able to investigate the structure
and the content of the current global covenant (the contemporary existing order) as well as
those practices and normative principles that are slowly assuming a constitutional, prescriptive
character without necessarily having reached codification.
Considering constitutional theory, I argue that the above are interesting parallels that
connect the ES with the idea of ‘material constitution’ advanced by the famous Italian jurist
and constitutional theorist Costantino Mortati (Mortati 1940).3 As a matter of fact, Mortati
tried to ‘reconnect the juridical with the political’ advocating for an approach to constitu-
tionalism that would ‘legalise the political through reference to constitutional principles and

2
Which, crucially, is not teleological.
3
Costantino Mortati (1891–1985) was a constitutional jurist, theorist, and academic, who partici-
pated in the Italian Constitutional Assembly (1946–1948) after the fall of the Fascist regime and served
as judge of the Italian Constitutional Court, of which was also vice-president. Strongly influenced by
German organicism and by French and Italian institutional pluralism, and constantly attempting to
mediate between the historical-political orientation of Franco-British origin and the legal positivistic
tradition with German roots, Mortati saw in the concrete and historically situated ‘dominant order’ the
fundamental element of a constitution. His writings, especially those about comparative constitutional-
ism and public law, are still considered relevant today (Rubinelli 2019).
 The English School and global constitutionalism 157

values, supported by the force or group of forces that are at the basis of the legal system’
(Lanchester 2012, no page). As we shall see, this conceptualisation of constitutionalism,
rooted in practice and experience and not in aprioristic assumptions (à la Lauterpacht, who
identified this assumption in the civitas maxima), is helpful in illustrating an ES understanding
thereof (although crucially not the only possible one), not far from the socio-legal tradition of
George Schwarzenberger (who, incidentally, was a contemporary of Mortati) (Navari 2021a,
137–40; see also Navari 2019, 68–72). As a matter of fact, for Mortati, the constitution was
not necessarily ‘the spring of the law’, from which other laws and norms flow, as was Kelsen’s
Grundnorm or Schmitt’s decision. Rather, it was an expression of the interests, power rela-
tions, priorities, and goals of different social actors. It is clear that this is a dynamic, proces-
sual reading of the constitution, as opposed to a static one, which very much is in line with the
idea of ‘international society’ and its idea of (global) constitutionalism.4
According to Mortati, the heart of the ‘constitution’ was the appreciation, in a unitary way,
of the various interests that gather around the state. Although not a positivistic document, the
material constitution understood by Mortati was nonetheless juridical, for the material consti-
tution could ‘transfer itself in the formal constitution, which consequently stabilises and war-
rants the balance of power and the political goals of the material constitution’ (Pinelli 2010, no
page, emphasis added).5 For Mortati, therefore, as well as for the ES, the idea of a fundamental,
unwritten, and political constitution understood as a balance of different interests, goals, and
moral positions necessarily predates any formalisation of it, and lends itself to diachronicity,
contestation and change, reminding us that every constitution is, at the same time, stability
and tension. A tension that is primarily political, residing in the creation of boundaries and
areas of legitimacy, ‘between inside and outside and between what counts as politics and
what doesn’t’, which is a reminder that for the ES the analysis and the operation of order and
constitutional structures is primarily ‘about the power politics of these constitutive processes’
(Hurrell 2021, 40). This is in line with Navari’s argument who maintains that ‘the constitution
of the international order does not serve particular masters: it represents rather a particular
balance of achievable goals among power equals, near equals and unequals’ (2019, 69,
emphasis added). The logical conclusion of these arguments is, with timely relevance for the
recent shifts in world order, that ‘power transition [in an ES sense] can be conceptualized and
studied as a matter of continuity and change in the constitutive principles and reproductive
practices of fundamental institutions with the superstructure of international organization as
a key site and potential stimulator of such deep changes’ (Knudsen 2022, 42, emphasis added).
The constitutionalism theorised by the ES is, therefore, deeper and more pervasive than
mere legalisation, especially in a positivistic understanding of the law. The treaty, the charter,
the covenant at play at a given time in history is only an epiphenomenal expression of more
fundamental principles, norms, and rules of conduct. This is most evident, perhaps, in the
institution of international law. For those theorists of global constitutionalism stressing the
legal character of it, international law is the explanans, and the mover, of the processes

4
Conscious of the temptation of (yet another!) domestic analogy, I realise that the parallel with
Mortati’s understanding of material constitution would require a theorisation of the analogy between
states and political parties, and whether such analogy is tenable. However, here the analogy is presented
simply to illustrate the broad similarity between the two approaches.
5
The emphasis on the quintessentially political character of constitutions on the international stage
echoes Cox’s arguments on social forces and social orders (1981).
158 Handbook on global constitutionalism

underpinning the progressive constitutionalisation of world politics. From an ES viewpoint,

however, international law is both explanans and explanandum, the coalescence in the form of
a primary institution of deeper and more substantial constitutional norms in a Bullian sense,
such as the preservation of a society of states predicated on limits to (and regulation of) vio-
lence, establishment of property rights, and sanctity of agreements (pacta sunt servanda). If,
therefore, one subscribed to the more fundamental idea of a constitution in the ES sense and,
following Keen-Soper, accepts that for the ES a constitution between states is not necessarily
‘announced, signed, or proclaimed’, but is visible and operates ‘in the no less instructive reit-
eration in practice of shared precepts and rules of conduct’ (Keen-Soper 2016, 29), then there
is also the acceptance that international law is an institution of that very constitution, and not
merely its prime mover.
This section has situated the idea of global constitutionalism within past and recent
scholarship of the ES, showing how since the very beginning of the activities of the British
Committee of International Relations scholars and theorists associated with its workings have
explored issues pertaining to rights, freedoms, liberties, morality, power and ethics – both
between states, and between states and people. The next section, more analytical in scope,
moves towards an account of three of the main ways in which current debates within the ES are
contributing to the idea, the practice, and also the problematisation of global constitutionalism.

THREE POSSIBLE WAYS TO STUDY GLOBAL

CONSTITUTIONALISM FROM AN ES PERSPECTIVE

Against the backdrop outlined above, this section now zooms into three specific ways in which
ES scholarship has dealt with the ideas and principles of global constitutionalism. These three
ways are the pluralism-solidarism distinction; the relationship between primary and secondary
institutions; and the interplay between international and world society.

The Pluralism-Solidarism Distinction

It is now an accepted idea within ES scholarship that international society can be underpinned
by two different logics of organisation, behaviour and order – pluralism and solidarism. In
William Bain’s words, ‘pluralism and solidarism are framing principles for a debate about the
limits of reform and the possibilities for progress in international society’ (Bain 2021, 96).
The former refers to the idea that territorial communities agree on a minimum, often proce-
dural set of principles, rules and norms to ‘live and let live’, holding to the two principles of
non-interference and non-intervention.
The idea of pluralism rests on a communitarian ethics, aimed at preserving and protecting
cultural and moral differences, on the basis that no single culture can argue to be better than
others. Conversely, solidarism refers to the idea that international society can and should be
premised on enhanced and increasing cooperation between territorial communities, as well
as the people inhabiting them. In a solidarist international society, sovereignty is conceived
as responsibility; international law makes room for individuals; and institutions that bring
together states in largely cooperative framework are developed, such as the market or envi-
ronmentalism. This means that global constitutionalism from an ES perspective can be studied
by paying attention at the underpinning logics, justifications, and moral claims that give birth
 The English School and global constitutionalism 159

to these two compacts (Ahrens 2019), and in particular at the tensions between them, with
interesting and potentially fruitful connections with legal and ethical pluralism and their con-
nections with international law (Schmidt 2020; Swenson 2018; Williams 2015).
The scholar who may want to study global constitutionalism using an ES prism may look,
for example, at how state actors fight (discursively but also non-metaphorically) for a pluralist
world order based on jus inter gentes, at the moment best enshrined in the UN Charter of 1945.
Nowadays, it is countries like Russia and China who advocate for a ‘democratic world order’,
in which ‘democratic’ is unequivocally a substitute for ‘pluralist’. Conversely, one may read
the post-1990 liberal order as an attempt to project solidarist logics across the globe and to
give them rule-like, jus gentium nature (Ahrens and Diez 2015; Wheeler 2000) and approach
processes of global constitutionalisation as the development of institutions like humanitarian
international law, environmental stewardship, and the market as ways of ‘reducing the tension
between the needs and imperatives of states and the needs and imperatives of humankind’
(Bain 2021, 95).

The Relationship between Primary and Secondary Institutions

The second prism which the ES uses to study processes of constitutionalisation of world
politics is the distinction between primary and secondary institutions. With the first one, it is
usually understood as a set of durable, consolidated yet not eternal practices that inform both
the identities of the legitimate actors within international society as well as their behaviour.
Conversely, by secondary institutions within the ES it is usually understood as (regional) inter-
national organisations, akin to institutions as meant by regime theory and neoliberalism. The
ES contributes to global constitutionalism through this angle by, on the one hand, acknowl-
edging that there are deeper, fundamental practices that structure, regulate and inform world
politics as opposed to the epiphenomenal organisations mentioned and studied by regime theo-
rists. The analytical power of this angle is that it shows how a ‘constitution’, global or regional
but in any case international (still, we are referring to inter-polities relations, to cover space
diachronically), does not have to be formalised in a treaty or in an official document to exist,
but can be internalised, ‘felt’, and followed by those actors who acknowledge to be bound by
it through routinary practices (institutions) and discourses.
On the other hand, the ES has been placing increasing importance on the role which sec-
ondary institutions play in ‘locking in’ the constitutional principles of international society
– global, as well as the regional ones. While it can be argued that, in principle, secondary insti-
tutions are an empirical, physical manifestation of the primary institutions operating within
an international society at a given time and space, recent scholarship has also illustrated how
international organisations (secondary institutions in an ES sense) contribute to the refine-
ment, development and change of primary institutions, thus changing de facto the content and
the values at the base of a given constitutional compact in a given period of history (Friedner
Parrat 2017; Navari and Knudsen 2019; Spandler 2015). Examples of this may include the
emergence of international humanitarian law through the workings of the United Nations
(UN), the International Court of Justice (ICJ), and the International Criminal Court (ICC) as
well as regional courts such as the European Court of Justice (ECJ) and the European Court
of Human Rights (ECHR) (Knudsen 2019; Schmidt 2019); the institutionalisation of envi-
ronmentalism through the establishment of UN Framework Convention on Climate Change
160 Handbook on global constitutionalism

(UNFCCC); and the evolution of the meaning of sovereignty in a solidarist sense through the
conceptualisation of Responsibility to Protect (R2P) following GAR/60/1 in 2005.
A possible research programme on global constitutionalism from an ES perspective in
this area would, for example, trace and explore the mechanisms through which secondary
institutions alter, change, and enhance meanings and practices of those norms and principles
that have potential global constitutional character, while accounting for power politics and
interest-based behaviours in international organisations. As aptly noted by Navari (2021b,
140, emphasis added):

In liberal institutional theory, phenomena such as sovereignty, balance of power, inclination to war
and great power management are generally considered to be constraints on the working of IOs. In the
ES understanding of institutions, they are not constraints but constitutional foundations that inform
the inner mechanisms of the organisations.

Finally, recent studies working on the distinction between primary and secondary institutions
at the regional level have highlighted how, in line with the embedded pluralism that seems to
be underpinning the post-liberal order, it is perhaps better to start talking about constitution-
alisms in the plural, as opposed to only one, with different fundamental rules and practices
ossified and coalesced in different organisations of different regional orders (Costa Buranelli
2019). More on this will be said in the next section.

International and World Society

The third prism that the ES adopts to study processes of global (and regional) constitution-
alisation is that of the interrelation between international and world society. While the first
generation of ES thinkers paid attention to the ontological tripartition of world politic (system,
society, world society) but at the same time privileged analytically the international society
dimension, the new turn of the ES has started inquiring more and more not simply into the
interrelation between international and world society, but also into how world society can
affect institutional dynamics at the level of international society, thus impacting on processes
of constitutionalisation thereof.
The focus on how non-state actors can have agency in international society, to the point of
creating new primary institutions and/or dismantling existing ones, has been at the forefront of
the work of, for example, Ian Clark, who specifically links ideas of legitimacy in international
society to the inter-human component of it. This is an argument developed in a solidarist
fashion, for it locates the source of the moral viability and acceptability of order between states
within humanity. It also echoes Bull’s ‘solidarism of the heart’, for in an oft-neglected aspect
of his thought he actually located the ultimate source of the legitimacy of international society
in what he called the ‘world political system’, i.e. the interplay between states and peoples
(Bull 1977).
More recently, by distinguishing a normative world society whose primary institution is
collective identity from a political world society whose primary institution is advocacy, Barry
Buzan (2017) has theorised how solidarist institutions such as the market, human rights, or
the environment were initially promoted, and now are supported and developed, thanks to
the role that world society has been playing. Conversely, authors such as John Pella (2013)
have pointed at how world society has contributed to a restructuring of international society in
a decolonial sense through the movements for the abolition of slavery.
 The English School and global constitutionalism 161

This third prism of the ES can therefore help in the study of global constitutionalism by
emphasising how different forces located at different levels of analysis impact, shape, tailor
and affect the institutional structure of the normative compact at a given time in history, high-
lighting how global constitutionalism and the process thereof are not simply a matter of states,
but are a complex interplay of interests, aims, moral preferences and ethics. In this respect, for
example, the focus on the interplay between international and world society has been crucial
in identifying ‘constitutional moments’ in contemporary international relations that have
elevated human beings as both bearers of rights and responsibilities in international society,
such as the formation of the International Criminal Court (Ralph 2007), the institutionalisation
of individual sanctions (Wilson and Yao 2019), and the creation of the UN Ombudsperson,
tellingly defined as a ‘contact point between international and world society’ (Giumelli and
Costa Buranelli 2020).

CURRENT DEBATES AND FUTURE RESEARCH AREAS

This last section intends to discuss some of the current debates that pertain to an ES approach
to Global Constitutionalism as well as indicate some future research areas that, in the mind
of this author, may be promising avenues to enhance and entrench the synergies between ES
and Global Constitutionalism. In other words, this section is asking what aporias, areas of
contestation and debate is the ES illuminating that can be important for students of Global
Constitutionalism to address and reflect on? I will elaborate on three.
First, there is the issue of regionalisation and the polysemy of institutions (Costa Buranelli
2015). As the world seems to have entered a post-hegemonic era and current dynamics of
embedded pluralism seem to be underway, it is spontaneous to at least question the meaning
of ‘global’ in global constitutionalism. This is a debate that pertains to the pluralist wing of
the ES (in the sense of how morally justifiable the defence of cultural and moral differences
between regional groupings is) as much as for the solidarist one (where is solidarism going,
and is solidarism necessarily liberal?) The issue here is that there is evidence that regional
international societies are coalescing around their own constitutional compacts, developing
new institutions and/or altering the fundamental meanings of existing ones thus undermining
the globality of the covenant, á la Jackson (Buzan and Schouenborg 2018).
Second, and related to the above, there is the growing demand for incorporating the the-
oretical, epistemological and moral arguments of the Global IR and decolonisation within
established IR theory, and the ES is no exception (Costa Buranelli and Taeuber 2022). As
noted in the previous section, much of the work of the ES in the realm of global constitu-
tionalism has been very much derived from the European experience, and has been based on
strong Eurocentric accounts of political theory and history (Bull and Watson 1984; Dunne
and Reus-Smit 2017). The point here is to understand what the impact for global constitu-
tionalism would be for those people who, in the past, where left outside the constitutionalised
realm of international society because of different ‘standards of civilisation’ (Costa Buranelli
2020) and therefore not protected by the obligations of such compact, and to retrieve the
connection between the globalisation of the constitutional structures of international society,
rooted both in primary and secondary institutions as analysed above, and racism, colonialism,
violent dispossession and oppression (Pasha 2017). This means an acknowledgement of the
162 Handbook on global constitutionalism

not-so-voluntary ‘associationalism’ at the heart of the constitution of global international

society, as well as a recognition that other traditions of constitutionalism have been silenced.
Here, the ES in dialogue with Global IR may encourage a reflection on what is meant by
‘constitutionalism’, whether the Western, republican idea of a covenant rooted in explicit
rights, values and non-compromisable principles, or whether it should be meant something
more fundamental along the lines of ‘constituting’ in the sense of ‘informing’, ‘sustaining’,
‘regulating’, thus embracing the richness and diversity of non-Western experiences, both
contemporary but also historically (Phillips and Reus-Smit 2020; Spruyt 2020). Once again,
here the strength of the ES is that of appreciating, if not necessarily resolving, the tension that
exists between uniformity and diversity, socialisation and resistance, domination and emanci-
pation, globalisation and localisation – all fundamental tensions within the project of Global
Constitutionalism. Recently, authors have started exploring the long-dated contribution of the
Asian continent, if with all its internal diversity, to global constitutionalism (Bhandari 2013;
Lang 2021), and more should be done in this respect.
Third, and again at least in part related to the above, is the issue pertaining to the structure
itself of international society and, therefore, the kind of covenant that would legitimise it.
In a partial overlap with the issue of regionalisation of world order and the polysemy of its
institutions, one can make the case that some states are pushing for a return to an order based
on spheres of interests (when not influence) and more hierarchical relations in international
politics, embracing a flexible understanding of sovereignty (arguably the bedrock of the
current global covenant). This would present an interesting interplay between power politics
and a further constitutionalisation of the institution of great power management, consolidating
and de facto legitimising the inequality between them and other states and redrawing the rest
of the institutional architecture of global politics by subsuming diplomacy under transaction-
alism and self-determination under an interpretation of sovereignty as birth-culture (Michelsen
et al 2022). The recent events in Eurasia and, more specifically, in Ukraine are a sad yet timely
reminder that the globality of constitutionalism is an institutional, as well as moral, aspiration
and tension, as opposed to a fait accompli.

CONCLUSIONS

This chapter had a dual goal. On the one hand, it presented the reader with how the ES has
always been concerned with, and interested in, constitutional processes latu sensu in world
politics. It did so by elaborating on the existing synergies between the ontological and episte-
mological components of the theory and the research programme of Global Constitutionalism
as well as analysing the work of past and current scholars working with the theory. On the
other hand, it identified similarities with the constitutional theory of Costantino Mortati, and
advanced three distinctive ways in which the ES can shed light on global constitutionalism
– the pluralism-solidarism distinction; the relationship between primary and secondary institu-
tions; and the interplay between international and world society. After this, an overview of the
existing challenges for global constitutionalism from an ES perspective was offered, alongside
some ideas for future research trajectories. While not necessarily exhaustive, the hope is that
this chapter has successfully made the case for the mutually nourishing relation between the
ES and Global Constitutionalism and offer a set of convincing arguments as to why this mutu-
ally nourishing relation should be maintained, fostered and celebrated.
 The English School and global constitutionalism 163

REFERENCES
Ahrens, B., 2019. The European Union between solidarist change and pluralist re-enactment, in:
T.B. Knudsen and C. Navari (eds), International Organization in the Anarchical Society. Palgrave
Macmillan.
Ahrens, B., and T. Diez, 2015. Solidarisation and its limits: the EU and the transformation of interna-
tional society. Global Discourse, 5, 341–55. https://​doi​.org/​10​.1080/​23269995​.2015​.1053189.
Bain, W., 2021. Pluralism and solidarism, in: C. Navari (ed.), International Society. Palgrave Macmillan.
Bhandari, S., 2013. Global Constitutionalism and the Constitutionalization of International Relations:
A Reflection of Asian Approaches to International Law (SSRN Scholarly Paper No. ID 2402084).
Social Science Research Network, Rochester, NY. https://​doi​.org/​10​.2139/​ssrn​.2402084.
Bull, H., 1977. The Anarchical Society: A Study of Order in World Politics. Macmillan.
Bull, H., and A. Watson, 1984. The Expansion of International Society. Clarendon Press.
Buzan, B., 2004. From International to World Society?: English School Theory and the Social Structure
of Globalisation. Cambridge University Press.
Buzan, B., 2017. Revisiting world society. Int Polit, 1–16. https://​doi​.org/​10​.1057/​s41311​-017​-0065​-5.
Buzan, B., and L. Schouenborg, 2018. Global International Society: A New Framework for Analysis.
Cambridge University Press.
Clark, I., 2007. Legitimacy in International Society. Oxford University Press. https://​doi​.org/​10​.1093/​
acprof:​oso/​9780199219193​.001​.0001.
Cochran, M., 2009. Charting the ethics of the English School: What ‘Good’ is there in a middle-ground
ethics? International Studies Quarterly, 53, 203–25. https://​doi​.org/​10​.1111/​j​.1468​-2478​.2008​.01529​
.x.
Costa Buranelli, F., 2015. ‘Do you know what I mean?’ ‘Not exactly’: English School, global interna-
tional society and the polysemy of institutions. Global Discourse, 5, 499–514. https://​doi​.org/​10​.1080/​
23269995​.2015​.1053195.
Costa Buranelli, F., 2019. Global international society, regional international societies and regional
international organizations: A dataset of primary institutions, in: T. Knudsen and C Navari (eds),
International Organisations in the Anarchical Society. Palgrave Macmillan.
Costa Buranelli, F., 2020. Standard of civilization, nomadism and territoriality in nineteenth-century
international society, in: J. Levin (ed.), Nomad-State Relationships in International Relations: Before
and after Borders. Springer International Publishing, pp. 77–99. https://​doi​.org/​10​.1007/​978​-3​-030​
-28053​-6​_5.
Costa Buranelli, F., and S.F. Taeuber, 2022. The English School and Global IR – A research agenda. All
Azimuth, 11, 87–105.
Cox, R.W., 1981. Social forces, states and world orders: Beyond international relations theory.
Millennium, 10, 126–55. https://​doi​.org/​10​.1177/​03058298810100020501.
Dunne, T., and C. Reus-Smit (eds), 2017. The Globalization of International Society. Oxford University
Press.
Dunoff, J.L., A. Wiener, M. Kumm, A.F. Lang, and J. Tully, 2015. Hard times: Progress narratives, his-
torical contingency and the fate of global constitutionalism. Global Constitutionalism, 4, 1–17. https://​
doi​.org/​10​.1017/​S204538171400015X.
Friedner Parrat, C., 2017. On the evolution of primary institutions of international society. Int Stud Q, 61,
623–30. https://​doi​.org/​10​.1093/​isq/​sqx039.
Giumelli, F., and F. Costa Buranelli, 2020. When states and individuals meet: The UN Ombudsperson as
a ‘contact point’ between international and world society. International Relations, 34, 46–66. https://​
doi​.org/​10​.1177/​0047117819856402.
Hurrell, A., 2007. On Global Order: Power, Values, and the Constitution of International Society.
Oxford University Press.
Hurrell, A., 2021. Hedley Bull and the idea of order in international society, in: C. Navari (ed.),
International Society. Palgrave Macmillan.
Jackson, R.H., 2000. The Global Covenant: Human Conduct in a World of States. Oxford University
Press.
Keens-Soper, M., 2016. The Practice of a State System, in: M. Donelan (ed.), The Reason of States.
Routledge, pp. 25–44.
164 Handbook on global constitutionalism

Knudsen, T.B., 2019. Fundamental institutions and international organizations: Theorizing continuity
and change, in: T. Knudsen and C. Navari (eds), International Organizations in the Anarchical
Society. Palgrave Macmillan.
Knudsen, T.B., 2022. Power transition and world order: Three rival theories and the dynamics of change,
in: T. Knudsen and C. Navari (eds), Power Transition in the Anarchical Society: Rising Powers,
Institutional Change and the New World Order. Palgrave Macmillan.
Lanchester, F., 2012. ‘Mortati, Costantino’ in Il Contributo italiano alla storia del Pensiero: Diritto,
Treccani, https://​www​.treccani​.it/​enciclopedia/​costantino​-mortati​_​%28Il​-Contributo​-italiano​-alla​
-storia​-del​-Pensiero:​-Diritto​%29/​, accessed on 29 August 2022.
Lang, A., 2013. Global constitutionalism as a middle-ground ethic, in: A. Lang (ed.), Ethical Reasoning
in International Affairs. Springer, pp. 106–126. https://​doi​.org/​10​.1057/​9781137290960​_6.
Lang, A.F., 2021. Global constitutionalism: A practical universal. Global Constitutionalism, 10,
367–375. https://​doi​.org/​10​.1017/​S2045381721000149.
Linklater, A., and H. Suganami, 2006. The English School of International Relations: A Contemporary
Reassessment, 1st edition. Cambridge University Press.
Mayall, J., 2016. International society and international theory, in: M. Donelan (ed.), The Reason of
States. Routledge, pp. 122–41.
Michelsen, N., P. de Orellana, and F. Costa Buranelli, 2022. The reactionary internationale: the rise of
the new right and the reconstruction of international society. International Relations, 0(0). https://​doi​
.org/​10​.1177/​00471178231186392.
Mortati, C., 1940. La costituzione in senso materiale. Giuffrè, Milano.
Muller, T., 2014. Global Constitutionalism in Historical Perspective: Towards Refined Tools for
International Constitutional Histories. GlobCon, 3, 71–101.
Navari, C., 2016. Knowledge, the state, and the state of nature, in: M. Donelan (ed.), The Reason of
States. Routledge, pp. 102–21.
Navari, C., 2019. Modelling the relations of fundamental institutions and international organizations,
in: T. Brems Knudsen and C. Navari (eds), International Organization in the Anarchical Society:
The Institutional Structure of World Order, Palgrave Studies in International Relations. Springer
International Publishing, pp. 51–75.
Navari, C., 2021a. The International Society Tradition – From Hugo Grotius to Hedley Bull. Palgrave
Macmillan.
Navari, C., 2021b. Institutions and organisations, in: C. Navari (ed.), International Society. Palgrave
Macmillan.
Navari, C., and T.B. Knudsen (eds), 2019. International Organizations in the Anarchical Society.
Palgrave Macmillan.
Pasha, M.K., 2017. Decolonizing the anarchical society, in: H. Suganami, M. Carr and A. Humphreys
(eds), The Anarchical Society at 40. Oxford University Press, pp. 92–110.
Pella, J.A., 2013. Thinking outside international society: A discussion of the possibilities for English School
conceptions of world society. Millennium, 42, 65–77. https://​doi​.org/​10​.1177/​0305829813503513.
Phillips, A., and C. Reus-Smit, 2020. Culture and Order in World Politics. Cambridge University Press.
Pinelli, C., 2010. Costituzione formale-costituzione materiale in ‘Dizionario di Storia’ [WWW
Document]. URL https://www.treccani.it/enciclopedia/costituzione-formale-costituzione-materiale_
(Dizionario-di-Storia) (accessed 20 February 2022).
Ralph, J., 2007. Defending the Society of States: Why America Opposes the International Criminal Court
and its Vision of World Society. Oxford University Press.
Reus-Smit, C., 1997. The Constitutional structure of international society and the nature of fundamental
institutions. International Organization, 51, 555–89. https://doi.org/10.1162/002081897550456.
Rubinelli, L., 2019. Costantino Mortati and the idea of material constitution. History of Political
Thought, 40 (3), 515–46.
Schmidt, D.R., 2019. Institutionalising morality: The UN Security Council and the fundamental norms of
the international legal order, in: T. Brems Knudsen and C. Navari (eds), International Organization in
the Anarchical Society: The Institutional Structure of World Order, Palgrave Studies in International
Relations. Springer International Publishing, pp. 99–125.
Schmidt, D.R., 2020. Pluralism and international law in the English School. Cambridge Review of
International Affairs, 33, 491–94. https://doi.org/10.1080/09557571.2020.1785128.
 The English School and global constitutionalism 165

Spandler, K., 2015. The political international society: Change in primary and secondary institutions.
Review of International Studies, 41, 601–22. https://doi.org/10.1017/S026021051400045X.
Spruyt, H., 2020. The World Imagined: Collective Beliefs and Political Order in the Sinocentric, Islamic
and Southeast Asian International Societies, LSE International Studies. Cambridge University Press.
https://doi.org/10.1017/9781108867948.
Swenson, G., 2018. Legal pluralism in theory and practice. International Studies Review, 20, 438–62.
https://doi.org/10.1093/isr/vix060.
Watson, A., 1992. The Evolution of International Society: A Comparative Historical Analysis. Routledge.
Weinert, M.S., 2011. Reframing the Pluralist – Solidarist Debate. Millennium, 40, 21–41. https://doi.
org/10.1177/0305829811406036.
Wheeler, N.J., 2000. Saving Strangers: Humanitarian Intervention in International Society. Oxford
University Press.
Wight, M., 1966. Western values in international relations, in: H. Butterfield and M. Wight (eds),
Diplomatic Investigations: Essays on the Theory of International Politics. London.
Williams, J., 2015. Ethics, Diversity, and World Politics: Saving Pluralism from Itself? Oxford
University Press.
Wilson, P., and J. Yao, 2019. International sanctions as a primary institution of international society,
in: T. Brems Knudsen and C. Navari (eds), International Organization in the Anarchical Society:
The Institutional Structure of World Order, Palgrave Studies in International Relations. Springer
International Publishing, pp. 127–48. https://doi.org/10.1007/978-3-319-71622-0_6.
13. Postcolonial global constitutionalism
Sigrid Boysen

INTRODUCTION

If constitutionalism was what it claims to be, colonialism and constitutionalism would be

diametrically opposed concepts. While colonialism and imperialism stand for domination,
exploitation and coercion, constitutionalism is preoccupied with recognising the peoples’
right to self-determination and limiting the power of domestic governments by a body of fun-
damental laws. This is also and especially true for global constitutionalism: As an inter- and
intradisciplinary field including, inter alia, international law, comparative constitutional law,
international relations, political science and political theory, it sets out to usher legitimacy and
accountability within international law and its institutions and to develop a more coherent and
legitimate global legal order (Wiener and Oeter 2017).
For the prevalent legal strand of the endeavour this comes with a lot of mapping and
describing. For years, if not decades, the relevant literature thrived on ever-new discoveries
of constitutional norms and processes. They were most prominently found in the World Trade
Organisation (WTO) and its dispute settlement system (Petersmann 2000; Cass 2005) and
from there went on to conquer other areas of law, including, inter alia, environmental law,
the law of cultural heritage, and investment protection law (Schill 2015). Aiming to rebuild
globally what seemed to erode on the national level, the contributions all share an underlying
tone that is in praise of a developing and with ever more substantive international legal order,
the so-called ‘global constitutionalist trinity’ of democracy, rule of law, with human rights
featuring as the centrepiece of the endeavour (Kumm et al 2014, p. 3; Wiener et al 2012).
This does not imply that the critique of law has no place in global constitutional law. It is
to critical norm theory (Wiener 2014) that we owe the insight that the constitutionalisation of
international law is not simply a straight line of development, but – if anything – a bumpy road
full of political conflicts indicated by frequent contestations of norms. However, the sugges-
tion that rather than equating progressive international juridification with constitutionalisation,
we should look for arenas of conflict and elements of contestation to mark the emergence of
global constitutional norms, was not received well by international legal scholars. This is
hardly surprising since some of the discipline’s most prominent proponents have put a life’s
work into the idea of the ‘international community’ as a legal space that limits political power
(Tomuschat 1999; Simma and Paulus 1998). The legalisation of everything adds up to a kind
of constitutional surplus, a desirable creamy layer of constitutional principles that are sup-
posed to create an international legal order that is transparent, accountable, democratic.
However, this line of thinking makes it difficult if not impossible to address law’s role in
creating and upholding injustice, inequality and conflict (Kennedy 2020). This also holds true
for the very premise of many variants of global legal constitutionalism. As they depict law
beyond the state as somehow weak and insufficient, they obscure international law’s role in
the reproduction of injustice and inequality, even as it enables it. For what seemed like a very
long time, global legal constitutionalism thrived in a legal framework that – despite ever-rising

166
 Postcolonial global constitutionalism 167

levels of global inequality – operated on a narrative of progress. The underlying assumption

of the constitutionalisation of international law was inextricably linked to well-chosen periods
or constitutional moments that initiate and guide it: first and foremost, the fall of the Soviet
Union and the victory of liberal constitutionalism, and, second, the end of World War II with
the creation of the United Nations. The triumphalism of this historical anchoring should have
cast doubt on the jurisprudential project built upon it from the beginning (Kumar 2017). Quite
to the contrary, it rather seemed to fuel the constitutionalisation debate that flourished in the
aftermath of the presumed end of history.
The last decade has been sobering in every regard: a global environmental crisis,
a never-ending war on terror, an unforeseen rise of autocratic regimes, the marketisation
of social and global justice, Russia’s war on Ukraine, just to name a few, put the idea of an
ever-expanding constitutionalisation of international law to the test. The amount of optimism
(or naïveté) it would take to envisage a ‘constitutional’ solution to all these problems seem-
ingly presents a challenge even to the most enthusiastic proponents of the project (compare
also Lang and Wiener, Chapter 1 in this Handbook). It was only when the constitutionalism
discourse entered this dire phase that its international law branch opened up to the idea that
there might be a problem with the concept of an international legal sphere that is shielded
against political conflict. But it still remains difficult to identify arenas for political conflict, to
locate sites where decisions can be contested, where people can share possible solutions and
responsibility for the handling of the immense challenges. Global constitutionalism has not
created such a space and its home base – Europe and North America – is no longer a potent
hegemon. However, focusing on law’s role in political conflict and the apparent difficulties
to engage in it prompts the assumption that the decisive question might not be what global
constitutionalism is about, but what it is precisely not about.
The most obvious candidates for such gaps certainly are the Global South and the colonial
experience. The focus of global constitutionalism scholars on the post-World War II order
and the collapse of the Soviet Union has overshadowed another historical event: the formal
end of European imperialism. There are many reasons why decolonisation was not, or at
least not sufficiently reflected in the context of global constitutionalism. For the geopolitical
system, decolonisation was both a moment of rupture and continuity (Bonilla Maldonado and
Riegner 2020; Bonilla Maldonado 2018). The ‘geopolitics of knowledge’ (Mignolo 2002)
continued to reflect epistemic hierarchies and marginalised the experience of the Global South
(Schwöbel-Patel 2020). The widely-held belief that constitutionalism is inherently neutral
towards economic order helped to stabilise economic inequalities. After the fall of the Soviet
Union and the assumed end of the Cold War, there seemed to be a tacit consensus about the
basic economic order of all constitutional systems of the world and, hence, of global consti-
tutionalism. From a Global South perspective, it is precisely this chosen historical frame of
reference that marks constitutionalism as inherently colonial, that is to say: property-centred.
This is ironically true most of all for US constitutional law, the former British colonies, and,
without a written constitution, for common law constitutionalism, but also more generally for
constitutions following the French or German tradition. These analogies reveal global law and
global constitutionalism in particular as part of a global architecture of domination. Arguing
from a neo-Marxist perspective, some authors even point out that the very concept of property
as a basis of constitutional protection of rights is inherently colonial (Bhandar 2018; Wood
2012; Walcott 2021).
168 Handbook on global constitutionalism

In an attempt to capture the postcolonial constellation of global constitutionalism, this

chapter proceeds in four steps. First, it investigates the connection between constitutionalism
and colonialism and argues that they are more closely related than has usually been accounted
for. Second, it reconsiders global constitutionalism as an architecture of domination that like
its domestic variant tends to pose as an introvert endeavour, to emphasise its principled, power
restricting impetus while concealing its dominant and often violent external dimension. An
integral part of this architecture of domination are the politics of universality that promote
the dominant set of particular values to the universal. Building on this, the chapter thirdly
explores the most salient gaps in the current global constitutionalism framework starting with
the Global South and the Southern turn in international and comparative constitutional law.
Going beyond a merely comparative law approach, the chapter argues in a fourth step that
global constitutionalism is not only marginalising the colonial experience and the Global
South, but in a more fundamental sense has detached itself from the defining parameter of the
Global South’s relationship with the global economic order. This political-economy divide
aligns with another classical distinction, i.e., that between public and private law. Problematic
from the very outset, these boundaries seemed to guarantee ideological neutrality in an inter-
national order that was supported by two empires with opposing economic systems. Now they
find themselves in a process of disintegration. It is precisely the postcolonial constellation
that opened the floor for a new transnational law. In this new transnational constellation,
corporations privatise parts of the legal relations between states in the Global North and South
through investments. International multilateral agreements rest on (and are often undermined
by) a substructure of transnational private contracts. Against this background, the concluding
analysis points at a troubling contradiction that lies at the heart of global constitutionalism:
while the study of global constitutional law is neither about the economy, nor about distribu-
tive justice or power relations in general, there is only one kind of law that is both truly global
and constitutional. It consists of the basic legal structures of global markets and is based on yet
another trinity: property rights, free trade, and investment protection.

CONSTITUTIONAL COLONIALISM
Both domestic and global variants of constitutionalism tend to ignore the inherent connection
between constitutionalism and colonialism. The dissemination of written constitutions is
traditionally analysed in the context of specific legal orders. Their rapid spread around the
globe in the nineteenth century is usually attributed to the impact of famous revolutions:
the American revolution after 1776, and, shortly afterwards, the French and – notoriously
neglected – Haitian revolutions (Bhambra 2016) as well as the revolts that erupted in the 1810s
in the Spanish and Portuguese colonies in South America. Focusing on particular legal systems
and revolutions as ‘constitutional moments’, the predominant narrative overshadows the fact
that constitutionalism and colonialism have gone hand-in-hand in the process of increasing
the power of European states. Ever since the nineteenth century, they have come as a package
deal: constitutionalism governing the internal, colonialism the external affairs of the sovereign
state. If it therefore still seems pressing to decolonise global constitutionalism, both concepts
– colonialism as well as constitutionalism – need some clarification.
Constitutionalism comes in many forms and variations. While some authors seek to legit-
imise international public authority through its institutionalisation, others take a normative
 Postcolonial global constitutionalism 169

approach and identify specific norms that serve as building blocks for a global constitutional
order. Many of these normative approaches build on an affirmative account of the international
legal order, while critical norm theory points to the significance of sites and instances of polit-
ical struggle and contestation. Some accounts heavily rely on analogies between global and
domestic or regional forms of constitutionalism while others disassociate constitutionalism
from the nation-state and envisage a global constitutionalism of civil society (Schwöbel 2011).
The different approaches share roots in German legal scholarship and a concept of con-
stitutionalisation that oscillates between a vocabulary of institutional hierarchisation and
fundamental values. It can be read as an attempt to establish a hierarchically structured legal
framework based on the rule of law in which conflicting conceptions of the common good
could be reconciled on the basis of simple or qualified majorities. All approaches employ
a concept of hierarchy and conceive of constitutional norms as creating a political-legitimacy
surplus that goes beyond their regulatory scope. This in turn leads to politics of universality
that promote the dominant set of particular values as universal. Thirdly and most importantly,
what all variants of constitutionalism have in common is the concept of a public-private divide
as it historically has been established by the early modern state. It was endorsed by eighteenth
and nineteenth-century constitutionalism and is now reproduced by global constitutionalism.
Like its domestic counterpart, it rests on a distinction between public authority and a private
law that is based on a fiction of private autonomy and the equality of parties. In international
law, the public-private divide translates into a separation of the political and the economic
sphere. This separation constitutes a central characteristic of the international legal order of
the United Nations: the universalisation of the principle of sovereign equality was only pos-
sible through the institutional and normative disconnection of the political from the economy
(Boysen 2021).
As for colonialism, postcolonial theory has produced a vast body of literature that traces the
history of its critique back to Nietzsche’s paradigmatic appraisal of the myth of pure origins
and the emancipatory myth of progress and teleology (Gandhi 2019). Legal scholars tend to
employ a rather narrow concept of colonialism that is closely linked to European imperialism
in the late nineteenth and early twentieth century understood as an open policy of acquiring
colonial territories for economic, strategic and political aims. Many authors have explored
in detail how international law and in particular a specific notion of sovereignty not only
tolerated, but helped to legitimise imperialism and the colonial expansion and how colonial
legacies are still deeply inscribed in international legal forms today (Rajagopal 2003; Anghie
2005; Pahuja 2011).
This distinctly legal critique of colonial titles of possession and exploitation is opposed by
approaches which describe colonialism and imperialism in more general terms as a practice of
domination. Edward Said uses imperialism in this sense to describe ‘the practice, theory, and
the attitudes of a dominating metropolitan centre ruling a distant territory’ (Said 1993, p. 8). In
this broad perspective, postcolonialism embodies a general critique of domination over those
the respective practices render subordinate. In this vein, feminist approaches have criticised
analogies that have been drawn between the position of states in the Global South and that
of women (Charlesworth et al 1991). They have also pointed to the ‘double colonisation’ of
women who were subject both to general discrimination as colonised persons and to specific
gender-based discrimination (Spivak 1985; Mohanty 1984).
In the tradition of theories that focus on liberalism and economic liberalism in particular, this
chapter relies on a broader concept of postcolonialism and uses it to discuss the shortcomings
170 Handbook on global constitutionalism

of a conceptual framework that is European-centred and in some parts even can be character-
ised as a predominantly German discussion. In this vein, it seems important to use an approach
that highlights the connection between colonialism and capitalism. Ever since Adam Smith’s
depiction of the role of commodities in distinguishing the ‘civilised’ from the ‘uncivilised’, his
underlying ideology of ‘economic liberalism’ can be seen as deeply entrenched with the ideol-
ogy of Empire. In Smith’s conception, trade and the possession of an abundance of ‘objects of
comfort’ constitute the mark of distinction between ‘civilised’ and ‘uncivilised’ states (Smith
1776). This as well as the fact that European post-Renaissance colonial expansion coincided
with the development of a modern capitalist system of economic exchange connects the free
operation of the market to the idea of the ‘civilizing mission’ of Empire (Ashcroft et al 2013).
Returning to the relationship between constitutionalism and colonialism, the traditional
account depicts the former as a purely nationalist, introverted endeavour: Revolutions over-
throw feudalistic orders and pave the way for republicanism and democratic nation states. In
this picture, colonialism features as an aberration, a dark spot on a clean slate. It is a narrative
that ignores the synchronicity in the development of constitutionalism and colonialism and
once more tells a story of progress that leaves out many important details. First of all, in the
early twentieth century when written constitutions had already spread across the world, most
states were still monarchies and very few were democracies. Second, and even more impor-
tantly, the standard account overlooks the elephant in the room: The most powerful actors
at that time were not nation states but empires. And while it is certainly true that there are
important differences between revolutions and wars – the former traditionally being a class
project – there are similarities that tend to be overlooked. As Linda Colley has shown, both
wars and revolutions primarily constitute expressions of mass violence and their distinction is
unstable at best (Colley 2021). Hence, all of the revolutions mentioned above, the American
and French revolutions as well as the subsequent revolutions in Haiti and South America, must
be seen in a context of transcontinental warfare that preceded them. For some countries, these
wars brought about new regimes which experimented with written constitutions as a means
to reorder government. But even in the prevailing states wars influenced the proliferation
and design of written constitutions. Constitutional rights like admission to the franchise were
exchanged for military service and higher taxes (Colley 2021). While this part of the story
only accounts for the impact of war on nation-building, the other part is about empire. In 1914,
at a point where written constitutions were becoming the norm, eleven of the twelve most
populous political jurisdictions were empires and they all experimented with written consti-
tutions. Constitutions became an integral part of colonial rule: legitimising it in the first place
and establishing rights and privileges for their citizens at the cost of disenfranchising local
populations in the colonial territories. At the same time, it was European colonial expansion
itself that prompted non-European states that had not yet been colonised to develop written
constitutions in an attempt to strengthen their political systems against the looming threat of an
unfriendly takeover (Colley 2021). Finally, it can hardly be ignored that – as Partha Chatterjee
has pointed out – ‘most of the world’, i.e. ‘three-fourths of contemporary humanity’, were ‘not
direct participants in the history of the evolution of the institutions of modern capitalist democ-
racy’ (Chatterjee 2006, p. 3). As a result, the concept of ‘civil society’ remains ‘restricted to
a small section of culturally equipped citizens’ (Chatterjee 2006, p. 41) and it may well be
argued that it is only this select group that constitutes ‘the people’ in the constitutional imagi-
nation (Loughlin 2022, p. 173).
 Postcolonial global constitutionalism 171

These links between constitutionalism and colonialism have only scarcely been reflected in
domestic constitutional law. In international law with its notorious politics-economy divide
(Pahuja 2011), for a very long time, it did not seem to matter at all. And this is certainly not
a coincidence. The institutional separation of sovereign equality and economic inequality in
the international legal order established after World War II has always carried the meaning of
ideological neutrality vis-à-vis domestic economic policy. International law between sover-
eign, politically equal states was supposed to be secular, rational law. The distinction perme-
ates different areas of international law and already manifests in the US Military Tribunals at
Nuremberg (NMT). Both the US and the USSR regarded World War II as an act of economic
imperialism in which industrialists had played a key role at every stage (Baars 2014). In the
Flick case, Telford Taylor, Counsel for the Prosecution at the NMT, openly addressed the
fact that the war had been orchestrated by an ‘unholy trinity’ of corporatism, Nazism and
militarism.1 However, the NMT largely failed to hold German industrialist accountable for
their crimes against humanity (De Jong 2022), which in turn can be read as a precedent for
current international criminal law’s tendency to ignore economic causes of conflict and has
resulted in its characterisation as a form of capitalist imperialism (Baars 2014). In this vein,
the politics-economy divide becomes especially virulent for international law after decolo-
nisation. Here, the claim to the universality of international law universalises preferences of
the North, like free trade, economic growth and the interest in protection of natural resources.
While international law thus becomes an instrument for achieving these interests, we find
ourselves not only in a postcolonial, but increasingly in a transnational constellation, charac-
terised by a dissolution of boundaries, both territorially and in terms of the erosion of classical
distinctions: between public and private, between law and non-law. Transnational corpora-
tions privatise part of the legal relations between states in the Global North and South through
investments and international multilateral agreements rest on (and are often undermined by)
a substructure of transnational private contracts.

ARCHITECTURE OF DOMINATION
The Ius Publicum Europaeum from the seventeenth to the nineteenth centuries excluded the
so-called ‘uncivilised’ nations from the community of states under international law and
exploited their workforce and natural resources according to self-issued legal titles. Against
this background, the term ‘architecture of domination’ not only applies to colonial rule itself,
but also to the lasting effects of what Antony Anghie has called a ‘dynamic of difference’,
i.e., the process of establishing a gap between colonisers and the colonised (‘civilised’/‘un-
civilised’) and subsequently legitimising techniques to bridge this alleged gap (Anghie 2005,
p. 4; Young 1991). These techniques include legal arrangements to naturalise the enjoyment
of entitlements, rights and privileges for one (racially defined) group, at the cost of disenfran-
chising another.
While, at its peak, the legal strand of global constitutionalism went so far as to explicitly ref-
erence the United Nations’ Charter as a form of world constitution (Fassbender 1998, 2009), it

1
United States v Friedrich Flick et al, US Military Tribunal Nuremberg, Judgment of 20 August
1947, in: Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law
No. 10, October 1946–April 1949, Vol. VI, Prosecution Opening Statement, 32.
172 Handbook on global constitutionalism

now has become utterly clear that the establishment of the UN in 1945 was all but a fresh start.
While utopian readings of the founding period depict a visionary and prudent internationalism,
a new world order risen out of the common goal to fight Nazism, there are also more sobering
accounts that reveal the ambiguities of the motives in play. These ambiguities are of crucial
importance if we seek to read today’s failures and challenges against the background of the
establishment of the UN. The institutionalist branch of global constitutionalism explicitly or
implicitly often seems to feed off the narrative that ‘the United Nations rose – like Aphrodite –
from World War II, pure and uncontaminated by any significant association with that pre-war
failure, the League of Nations’ (Mazower 2009, p. 14). And while one can certainly read the
UN Charter as establishing a new world order after the victory over Nazism, there is another
perspective that highlights personal and intellectual continuities that connect the UN to the
League of Nations and British Empire. As Mark Mazower points out in his rather critical
account of the formation of the UN, one of the most influential figures at the conference in
San Francisco was South African prime minister Jan Smuts. As one of the oldest delegates, he
had already been involved in the establishment of the League of Nations 20 years earlier. As
prime minister, Smuts oversaw the beginnings of the apartheid regime. As a delegate at the
conferences establishing the League of Nations and the UN, he can first and foremost be char-
acterised as a ‘figure of empire’ (Mazower 2009, p. 30). Not only did he serve as a member of
the Imperial War Cabinet during World War I, but he was also highly regarded as the creator of
the Royal Air Force and chief ideologue for the new British Commonwealth. In the formation
period of the UN, Smuts played a significant role in implementing his ideology of ‘imperial
internationalism’ and basically did everything to ‘prop up an empire in decline and offer a new
way to project its self-defined sense of moral purpose globally’ (Mazower 2009, p. 192). Thus,
while it is perfectly legitimate to highlight the ambitious moral language of the UN Charter,
it is hardly understandable how the colonial roots of the UN escaped the mainstream of the
debate.
Against this background, it is not surprising that decolonisation could not keep up with the
high expectations placed on it. Even under the new framework of the United Nations it did not
take long before disillusionment and the feeling of being trapped once again in – now informal
– colonial structures spread among the newly independent former states of the Global South.
After a first phase when a global movement engaged in a struggle for the redistribution of land
to empower farmers in the Global South, it was a US-led shift in development policies that
eventually resulted in the failure to reconstruct postcolonial economies from scratch (Guldi
2022). The colonial opposition of ‘civilised’/‘uncivilised’ was replaced by the distinction
between ‘developed’ and ‘underdeveloped’ states that established a paradigm of economic
growth and justified far-reaching interventions. The fixation on economic growth remains
dominant until today and manifests itself in the remarkable continuity of the industrialised
countries’ access to the natural resources of the Global South. It was perpetuated in the process
of decolonisation by a transnational constellation of new legal titles in the form of concession
contracts that were protected through international investment law (Boysen 2021).
It was in 1992, around the same time when Thomas Franck published his seminal article
‘The emerging right to democratic governance’ (Franck 1992), that Secretary-General Boutros
Boutros-Ghali saluted the end of the Cold War as a ‘new chapter in the history of the United
Nations’ (Boutros-Ghali 1992, p. 89). The reference to a new constitutional moment was
declaratory rather than constitutive. For a short period of time, everything seemed possible.
The UN, entrusted with renewed meaning, held a monopoly on legitimately building and
 Postcolonial global constitutionalism 173

securing peace, defending human rights, and representing the interest of all mankind – if nec-
essary – by intervening in its member states (Boysen 2019). But the euphoria was short-lived.
The striving hopes and expectations went up in flames in the Balkans and in Africa, the gen-
ocide in Rwanda marking a point zero in the UN’s credibility as global peacekeeper. While
the academic debate around the UN quickly resumed discussions about institutional reforms,
global constitutionalism reached its first pinnacle in the aftermath of the establishment of the
WTO (Petersmann 1998). The UN stayed at the centre of global constitutionalism. There may
still be many good reasons to engage with the UN from a constitutionalist perspective. At the
same time, the UN serve as a case in point for the failure of global constitutionalism to include
the ambiguities of its founding narratives and institutions. Just as it is counterproductive to
ignore the imperial internationalism that informed the creation of the United Nations and is
deeply inscribed in its institutional architecture, it is likewise counterproductive to take the
‘universal’ for granted.

POLITICS OF UNIVERSALITY

For international law scholars, international law’s promise resides in its universality. Even
scholars associated with Third World Approaches to International Law (TWAIL) seem to
embrace the concept and engage in the quest for a new, decolonised variant of ‘the universal’
(Rajagopal 2006). Though, it is precisely TWAIL’s critique that has shown that ‘ostensibly
genuine universals invariably end up elevating a particular meaning to the universal’ (Eslava
and Pahuja 2012a, p. 121). The underlying mechanism has already been described above:
Thriving on a ‘dynamic of difference’, the dominant set of particular values is able to cast
itself as universal (Anghie 2005, p. 4). The downside of the ‘universal’ is the ‘particular’, the
important point being that – in a historical perspective – all those who have not fit within the
dominant idea of the universal have been marginalised or even pathologised as ‘uncivilised’,
‘underdeveloped’, ‘poor’, ‘subaltern’. Conversely, the universal of international law has been
shaped by people, places or motives that are commonly described or describe themselves as
‘Civilised, Advanced, Developed or Rich’ (Eslava and Pahuja 2012b, p. 211). This in turn
leads to a trend to deploy the Western particular, i.e., notions and concepts of mostly European
constitutional law or of US- or German administrative law, as universal norms (Xavier 2016).
It thus seems unclear how the universal should escape the logic of the ‘dominant particular’.
The technicalities of this universalisation of the dominant particular have been described
in the literature. One topic that has repeatedly been raised since the beginning of the decolo-
nisation process is the question of ‘unequal treaties’, i.e., international treaties that caught the
newly independent former colonies in a relationship of economic dependence. The unequal
contractual relations were cemented by so-called stabilisation clauses that precluded substan-
tive changes (Anghie 2005; Spero and Hart 2003). According to the law of state succession,
obligations were treated differently if not the state itself, but the colonial rulers had entered
into the respective treaties. In these cases, the protection of acquired rights was subject to the
sovereign disposal of the newly emerging states, but at the same time to extensive compensa-
tion obligations (Craven 2007). The same modus operandi can be found in categories like ius
cogens (Özsu 2017; Charlesworth and Chinkin 2000), general principles of international law
or international customary law. The latter is by its very nature supposed to describe a general
state practice based on a corresponding opinio iuris. This concept seems much more plausible
174 Handbook on global constitutionalism

(and practicable) in the setting of a rather homogeneous group of 51 states at the time of the
foundation of the United Nations than in view of 194 states that are highly heterogeneous in
their socio-economic conditions. If customary law thus initially reflects the practice, traditions
and values of the ‘advanced’ states, the perspective of the South is marginalised (Chimni
2018; Kelly 2000). The less formal, fluid character of customary law makes it susceptible to
manipulation in this constellation (Cassese 1986, p. 66 et seq.).
It is also hardly a coincidence that the rise of global constitutionalism was accompanied
by a ‘call for coherence in international law’ (Marceau 1999). Coherence has been at the
centre of the predominant discourses responding to the evident crisis of international law
that has followed the supposed end of history. It sometimes seems to escape the global con-
stitutionalism literature that its primary constitutional moment in the early 1990s coincided
with, or was at least followed by, a crisis of multilateralism that lasts until today. Ever since
the establishment of the WTO in 1994, multilateral agreements with a universal claim have
experienced significant headwinds. The same is true for customary international law. Since
then, general international law has been in search of interlocking legal principles. A first wave
of this crisis discourse, which also figured prominently in the International Law Commission,
was the discussion on the fragmentation of international law which became known above all
through the 2006 report of the Study Group led by Martti Koskenniemi. The report put forward
the idea to reconstruct core international law as a conflict of laws with mitigating principles
between fragmented sub-regimes (ILC 2006). Subsequently, the search for coherence has
shifted to the sources of international law. Here, the International Law Commission explored
both international treaty (ILC 2013–2018) and customary law (ILC 2014–2018) and finally
turned to the general principles of international law which have been on its agenda since 2017.
The overall orientation towards the production of coherence is especially evident from the two
reports of the Special Rapporteur (ILC 2019 and 2020). The reports address both principles
that international law derives from the commonalities of state legal systems as well as general
principles found and operationalised at the international level itself. While basically every
detail is contested, the quest for overarching principles touches upon core elements of the
constitutionalism project.
This movement toward coherence and constitutional convergence comes at a price. The
respective trends are countered by expressions of constitutional resistance, contestation or
even defiance. Thus, it is precisely the pursuit of constitutional convergence and coherence
that prompts manifold reactions of ‘opting out’ (Hirschl 2018). In this perspective, putting too
much emphasis on ‘the universal’ appears as a central shortcoming of global constitutionalism
(as well as of global administrative law). Rather than thinking about both international law
and global constitutionalism as a set of ‘concrete practices that express themselves in the
material world’ (Eslava and Pahuja 2012b, p. 214), contributions to global constitutionalism
often ignore and obscure the true nature of international law and its institutions. But legal
arrangements and constitutional arrangements in particular often have a distributive effect.
They distribute by influencing the bargaining power of individuals or groups, they exclude
others from political authority or economic gain by putting down criteria for which allocations
will be enforced (Kennedy 2020). Last not least, another flipside of this preoccupation with
the universal is its inherent connection to juristocracy (Hirschl 2007). The institutional actors
behind these norms are usually courts which can hardly claim to act on behalf of a constituent
power (Rubinelli 2020). On the international level, inquiries into the foundations of courts’
legitimacy have led to calls for or a democratic re-conceptualisation of the international judici-
 Postcolonial global constitutionalism 175

ary (Bogdandy and Venzke, 2014). Many of these arguments also apply to domestic courts as
they, too, are increasingly involved in issues of global justice and human rights.

THE SOUTHERN TURN

While these problems of the international legal order have not gone unnoticed, the Global
South still remains one of the most salient gaps in the global constitutionalism framework. It
was as early as 1958 that Jawaharlal Nehru, as India’s acting first prime minister, noted that
the crucial gap in international relations was not between communist and non-communist, but
between the rich industrialised countries of the North and the economically barely developed
countries of the South (Bedjaoui 1979). Since then, the Global North and Global South cannot
be understood as exclusively territorial references, but as divided along material inequalities.
As the example of Nehru already illustrates, the first significance of the category of the Global
South is non-alignment, i.e., the experience of being only passively affected by the competi-
tion of the imperial great powers for global supremacy, but not belonging to the inner circle of
its profiteers. Authors like Anibal Quijano, Boaventura de Sousa Santos or Raewyn Connell
also emphasise this postcolonial identity-forming aspect of the Global South when they use the
term ‘coloniality of power’ to emphasise the influence of colonialism on contemporary politics
and culture (Quijano 2000, p. 533; Quijano 2007) or the specific intellectual traditions of the
South (de Sousa Santos 2006 and 2007; Connell 2007).
The intellectual history of the North-South distinction goes back to the writings of the
Italian Marxist Antonio Gramsci, whose essay ‘Questione meridionale’ developed the thesis
that the South of Italy was in fact colonised by capitalists of the Italian North, thus prevent-
ing an alliance between the farmers of the South and the workers of the North (Gramsci
2015[1919]). While later discussions of the North-South divide mostly referred only to the dif-
ferences in economic development, development economics in the 1950s and 1960s returned
to its connection with colonialism. The Argentinean economist Raúl Prebisch popularised
the distinction between the centre and the periphery of the world economy, thus bringing the
terms ‘North’ and ‘South’ into the terminology of international politics. Centre and periphery
now formed alternative heuristic categories to the previously prevailing distinction between
modern developed and traditional backward societies. A large number of states – including in
particular the former colonies – began to formulate common interests of the Global South as
opposed to the interests of the northern industrialised countries. They consciously framed their
demands as a counter position to the ideological boundaries of the Cold War. In the 1990s,
hardly surprisingly in parallel with the dismantling of the supposedly obsolete East-West
divide, the concept of the Global South spread in social sciences and the humanities and was
usually deliberately opposed to the concept of globalisation by denying common modernisa-
tion theory assumptions of an increasing homogenisation of cultures and societies. While post-
colonial theorists used the term to highlight the continuing effects and legacies of imperialism
and on the geopolitics of knowledge, international relations and political economy usually
employ the term to point to huge inequalities in the global economy (Chimni and Mallavarapu
2012).
Thus, the Global South is not a place, but rather a perspective that questions the logic of
what Reinhart Koselleck has called asymmetric counter concepts (Koselleck 1989). It is
‘a political concept that gains its critical potential from its geographical imprecision’ (Dann et
176 Handbook on global constitutionalism

al 2020, p. 7). The Global South therefore not only describes a common historical experience
of colonial rule, a neo-liberal international economic order and the associated structural polit-
ical and economic dominance of the North in the United Nations system (Dados and Connell
2012, p. 13). It also focuses on past and future resistance against these practices. International
law has been involved at least in some of these debates. Its role in the Global South has been
discussed by authors with different backgrounds (Comaroff and Comaroff 2006). It has been
thoroughly reflected by TWAIL scholars (Chimni 2017), who do not share one single method,
but rather a commonality of concerns and political orientation (Chimni 2006). They strategi-
cally engage with international law to highlight the ways in which international law conceals
its colonial roots and marginalises the Global South in contemporary dualities as ‘Developed/
Developing, Centre/Periphery, Advanced/Emerging, or Rich/Poor’ (Eslava and Pahuja 2012b,
p. 196). However, the TWAIL literature does not specifically engage with global constitution-
alism, nor has a TWAIL equivalent emerged in comparative constitutional law.
The Global South gap has neither gone unnoticed nor is it a recent discovery. When, in the
1990s that brought about new constitutions in the former Soviet Union and the Global South,
scholars from the Global North first observed the rise of ‘world constitutionalism’ (Ackerman
1997), their Southern counterparts argued for a re-conceptualisation of constitutionalism from
a Global South perspective (Baxi 2000). However, it took more than a decade until the Global
South was specifically addressed from a constitutional perspective (Bonilla Maldonado 2013).
In recent years, it has frequently been pointed out more generally that global constitutional-
ism is a regionally rooted project (Xavier 2016) that relies on constitutional concepts of an
exclusive club of Western democracies in Europe and North America as well as European
institutions like the European Union and the Council of Europe (Kumm et al 2017). Attempts
are being made to close this gap, since it is hardly justifiable. Recent works in comparative
constitutional law have set out to enlarge the world of global constitutionalism. The contribu-
tions identify distinct characteristics of Southern constitutionalism and put forward the argu-
ment that the Global South also denotes a specific epistemic, methodological, and institutional
sensibility, meaning that including the Global South has implications for comparative consti-
tutional scholarship as a whole. As for the characteristics, they observe common themes that
mark Southern constitutionalism (1) as a distinct response to socio-economic transformation;
(2) as a site of struggle about political organisation; and (3) as denial of and access to justice
(Dann et al 2020).
These are highly relevant contributions and if we were merely dealing with a problem of
comparative constitutional law, this attempt to deepen and broaden the methods of compar-
ative constitutional law would probably do the trick. But global constitutionalism is an odd
creature that is not just powered by comparative constitutional law. It has moved to the very
centre of general international law and international institutional law. From a comparative per-
spective, it seems both evident and urgent to include constitutional concepts from ‘most of the
world’ (Chatterjee 2006). And there are other dimensions to the striking lacuna in the middle
of the global constitutionalism project that go beyond the Global South and the subaltern
perspective it represents. Global constitutionalism is not only marginalising the Global South,
but in a more fundamental sense has detached itself from the defining parameter of the Global
South’s relationship with the Global North.
 Postcolonial global constitutionalism 177

GLOBAL CONSTITUTIONALISM’S POLITICAL ECONOMY

Building on the contemporary form of liberal constitutionalism, global constitutionalism has

banned the driving force of globalisation itself from its trajectory: the economy and with it the
existing wealth and power distributions between different peoples and countries. Originating
in large parts from the country of the Wirtschaftswunder, this might seem ironic, but in the
context of the German experience of rehabilitation through trade after World War II, it is cer-
tainly no more a coincidence than the fact that it was Germany that signed the very first invest-
ment treaty with Pakistan in 1959.2 As the German example shows, subscribing to a vision of
global constitutionalism that leaves out the economy in many ways suits the needs of a country
that relies on natural resources from the Global South and export of industrial goods. The
resulting lacuna points to a troubling contradiction at the heart of global constitutionalism:
While the global constitutionalism project invests considerable time and effort in building
a corpus of distinctly ‘public’ constitutional norms and principles and ignores the ‘private’ and
the economy, the only law that is both ‘global’ and ‘constitutional’ in the strictest sense, is yet
another trinity: property rights, free trade and investment protection.
At least in the legal strand of the global constitutionalism project, power and wealth dispari-
ties between the Global South and Global North are understood as givens, not as produced. At
first glance, this seems to contradict the fact that the WTO and socio-economic rights did serve
as the starting point of the whole debate on constitutionalisation (Petersmann 1998; Walker
2001; Howse and Nicolaidis 2001). However, most proponents of this debate argue for the
constitutionalisation of international economic law as a distinct regime and not of the interna-
tional legal order as a whole. They take ‘the market’ as a natural phenomenon and explicitly do
not endorse an understanding of markets as being co-produced by law (and politics). The same
holds true for a functionalist strand of the global constitutionalism literature that is more open
to making references to the economy (see e.g., Dunoff and Trachtman 2009). Here, again, the
globalised market is seen as a given and global constitutionalism as responding to it. Finally,
while the debate around socio-economic rights has shown some promise in addressing issues
of distributive justice and contributing a Global South perspective to global constitutionalism
(Bilchitz 2013, p. 42), the limited scope of this endeavour has been pointedly highlighted. It is
a sad and widely known fact that the age of human rights has also been the age of exploding
inequality (Moyn 2018). The critical account of the relationship between socio-economic
rights and a vanishing commitment to material equality highlights the limited scope of these
rights as largely compliant with a neo-liberal economic order (Whyte 2019; Marks 2013), once
again leaving us with the same problem: a self-contained regime detached from the economy
and distributive justice.
What are the reasons for the conspicuous absence of the economy and, in its wake, of ques-
tions of equal distribution of power and goods in global constitutionalism? Can it – in a twisted
sense of neutrality – somehow be read as a form of critical distance to global capitalism or is
it just a way of legitimising it? After all, absence might be not the right frame to discuss this
lacuna, since – as Bonaventura de Sousa Santos so pointedly observes in his ‘sociology of
absences’: what does not exist is in fact actively produced as non-existent (de Sousa Santos

2
Treaty between the Federal Republic of Germany and Pakistan for the Promotion and Protection
of Investments, signed 25 November 1959, (1963) 457 UNTS 23 (entered into force 28 April 1962).
178 Handbook on global constitutionalism

2007, p. 45). When was the economy produced as non-existent in international law and subse-
quently in global constitutionalism? As always, there are many accounts of how we got here.
First of all, global constitutional law reproduces the public-private divide that has histor-
ically been established by the early modern state and endorsed by eighteenth and nineteenth
century constitutionalism. By establishing a ‘public law’ regime for taxation and market
interventions, economic activity is established as the realm of private law and enterprise in the
first place. As we have already seen, constitutional law played a crucial role in the division
of the political from the economy and still does. And here we go again: While private law is
generally considered to fall outside the scope of global constitutionalism, the global norms that
are created here are explicitly designed to benefit individuals. By regulating states (public) and
focusing on improving trade conditions for private actors, international trade law constantly
applies and reinforces this dichotomy (Messenger 2016), which consequently leads to the
conundrum of public authority feeding private power (Cutler 2003). The benefiting private
actors are regularly reconstructed as ‘the public’. In this vein, Ernst-Ulrich Petersmann, in
his book review of Quinn Slobodian’s Globalists, tries to secure the contested social justice
and democratic credentials of his model of constitutionalisation of international economic
law by referring to the ‘billions of “cosmopolitan market actors”’ as potential beneficiaries
of his vision (Petersmann 2018, pp. 920–1). The usual mistake in this and parallel accounts
is to equate market actors with political actors, conflating the private and the public sphere.
Conversely, public concerns that might revolve around questions of environmental or distribu-
tive justice, are framed as private concerns – by definition – cannot be the object of democratic
contestation (Schwöbel-Patel 2020).
A variant of this argument is the narrative that it was precisely the rise of a particular kind
of ‘ordo-globalism’ in the early twentieth century that led to an encasement of the market and
that shortly after was hypostasised by proponents like Ernst-Ulrich Petersmann into a con-
stitutionalised version of the international economic order. The Geneva School neoliberals
believed that democracy constituted a problem for the free flow of capital. Their aim was thus
to create norms and institutions that prevent the politicisation of the economy. The vehicle of
this venture was precisely what Quinn Slobodian calls ‘encasement of the market’: the divide
between the public and the private sphere resulting in a distinct form of legal-institutional
protection of the market (Slobodian 2018). While the establishment of the WTO for many
global constitutionalists still remains the greatest achievement, its crisis and evident failure
to accommodate the interests of the Global South, according to them, should not infect the
global constitutionalism project. Against this background, it seems only logical that the fol-
lowing generation of (especially German) constitutionalist scholars dropped any reference to
the material and devoted themselves to a constitutionalism purged of all economic content.
In their idealistic version of the global constitutionalism project, the focus lies on universal
human rights, international institutions, universal principles as a means for peace and prosper-
ity – liberal democracy without reference to the free market (Peters 2012, p. 130; Paulus 2009;
Fassbender 1998). Aware of the dark legacy of National Socialism – including its economic
imperialism – and informed by the experience of the stabilising factor of the post-fascist
German Constitution, the universalisation of legalist-moral principles seemed to be the order
of the day (Schwöbel-Patel 2020). At the same time, albeit seemingly not reflected, this
idealistic version of a normative global constitutionalism fits all too well the interests of an
economically potent middle power. More than many other countries in the world, Germany
relies on the development of international law in view of its dependence on natural resources
 Postcolonial global constitutionalism 179

from the Global South and its export of industrial goods. By subscribing to a vision of global
constitutionalism that is bereft of references to the economy and cannot be irritated by explod-
ing inequality, this strand of global constitutionalism invites neo-liberal imperatives into the
centre of international law generally, namely its structure and conception of what it means to
be sovereign.
This leads us to another reading that focuses on international law itself. Here, the universal-
isation of the principle of sovereign equality was only possible through the institutional and
conceptual divide between the economic and political sphere. It took shape in the separation of
the institutions of the United Nations on the one side and the Bretton Woods institutions and
their successor institutions on the other side. The divide between the political system and the
economy (and economic inequality) is not an inherent necessity of international law, which
flows from the principle of free trade or from statehood as the building block of the interna-
tional legal order. In post-war international law, however, the institutional separation of sover-
eign equality and economic inequality initially supported the aim of ideological neutrality with
respect to domestic economic policy as long as the order was supported by two empires with
opposing economic systems (Boysen 2021). International law between sovereign, politically
equal states should be formal, rational law. However, this set-up has huge implications for the
newly independent states of the Global South. Equal sovereignty as the promise of political
self-determination comes at the price of adapting to the model of the European territorial state.
While the states of the Global South pursue political and economic independence by securing
permanent sovereignty over their natural resources (PSNR), the emancipatory impact of PSNR
is undermined by functionalist international law. International law systematically separates
international politics (United Nations) from the international economy (Bretton Woods),
thereby perpetuating and stabilising, through formally equal law, the colonial relations of
dependence that it has politically overcome. The claim to the universality of international law
subsequently universalises preferences of the North, especially: economic growth and the
interest in protection of supposedly ‘common’ environmental goods. International law thus
becomes an instrument for achieving growth, ‘development’ and the international regulation
of the natural environment.

TRANSNATIONAL CONSTITUTIONALISM

It has been shown that in its traditional form, global constitutionalism supports an architecture
of domination, the continued economic exploitation of the natural environment of the Global
South and the inequalities that come with it. While it therefore seems urgent to decolonise
global constitutionalism, it is hard to imagine it as a counter-hegemonic tool and to escape
the path dependencies of a model that is deeply entrenched in current international law. The
endeavour of decolonising global constitutionalism means something different than what it
meant to decolonise the international legal order after the end of imperialism, when legal
powers to colonial appropriation were abolished and the right to self-determination was finally
acknowledged. Today, decolonising global constitutionalism is not primarily about removing
titles, banning concepts, or reversing treaties. A postcolonial framework of global constitu-
tional law that is committed to building a ‘constitutionalism from below/for the wretched’
(Kumar 2017), would have to leave the familiar categories of European and North American
constitutionalism and engage with ‘modernity’s outside, fissures, and borders’ (Mignolo
180 Handbook on global constitutionalism

and Walsh 2018, ‘Interculturality and Decoloniality’, p. 74). Alternative approaches face
major obstacles, to say the least. They are caught in the dilemma of either being so similar
to the current constitutionalist framework that they effectively fade in comparison with the
original, or so different that they are ridiculed by the dominant geopolitics of knowledge
(Schwöbel-Patel 2020).
Is there a way to escape this quandary? For the study of global constitutional law, a first
step would require the adoption of an up-to-date law-and-political-economy approach in
its description of the fabric of law (Britton-Purdy et al 2020). This implies questioning the
powerful distinction of constitutional and non-constitutional law as well as the divide between
public and private law more generally. In this vein, decolonising global constitutionalism
starts with addressing the interplay of colonial law, transnational private law, domestic law,
and international law in enabling and constraining global capitalism across time (Alter 2021).
Taking a closer look at the role of law in global political economy will enable us to see world
trade more as hierarchy than bargain and world politics more as domination than as a system of
sovereign equality (Kennedy 2020). Thus, rather than obscuring how states and corporations
use law and legal arguments to further their goals and rather than downplaying the way the
system of state-supported transnational private contracting and more generally transnational
private law reproduce certain colonial era practices, global constitutionalism can tell these
stories and highlight law’s role in them. The study of global constitutional law is the political,
social, and economic critique of the global and the transnational legal order, in which all legal
cultures must have their voice.

REFERENCES
Ackerman, B. (1997), ‘The rise of world constitutionalism’, Virginia Law Review, 83 (4), 771–97.
Alter, K.J. (2021), ‘From colonial to multilateral international law: A global capitalism and law investi-
gation’, ICON, 19 (3), 798–864.
Anghie, A. (2005), Imperialism, Sovereignty, and the Making of International Law, Cambridge:
Cambridge University Press.
Ashcroft, B., G. Griffiths and H. Tiffin (2013), Postcolonial Studies: The Key Concepts, 3rd edn, New
York: Routledge.
Baars, G. (2014), ‘Capitalism’s Victor’s Justice? The hidden stories behind the prosecution of industri-
alists post-WWII’ in K. Heller and G. Simpson (eds), The Hidden Histories of War Crimes Trials,
Oxford: Oxford University Press, pp. 163–92.
Baxi, U. (2000), ‘Constitutionalism as a Site of State Formative Practices’, Cardozo Law Review, 21 (4),
1184–5.
Bedjaoui, M. (1979), Towards a New International Economic Order, New York/London:
UNESCO-Holmes&Meier Publishers.
Bhambra, G.K. (2016), ‘Undoing the epistemic disavowal of the Haitian Revolution: A contribution to
global social thought’, Journal of Intercultural Studies, 37 (1), 1–16.
Bhandar, B. (2018), Colonial Lives of Property, Durham: Duke University Press.
Bilchitz, D. (2013), ‘Constitutionalism, the Global South, and economic justice’, in D. Bonilla
Maldonado (ed.), Constitutionalism in the Global South: The Activist Tribunals of India, South Africa
and Colombia, Cambridge: Cambridge University Press, pp. 41–94.
Bogdandy, A. and I. Venzke (2014), In Whose Name? A Public Law Theory of International Adjudication,
Oxford: Oxford University Press.
Bonilla Maldonado, D. (ed.) (2013), Constitutionalism of the Global South: The Activist Tribunals of
India, South Africa and Colombia, Cambridge: Cambridge University Press.
 Postcolonial global constitutionalism 181

Bonilla Maldonado, D. (2018), ‘The political economy of legal knowledge’, in C. Crawford and D.
Bonilla Maldonado (eds), Constitutionalism in the Americas, Cheltenham, UK/Northampton, MA:
Edward Elgar Publishing, pp. 29–78.
Bonilla Maldonado, D. and M. Riegner (2020), ‘Decolonization’, in R. Grote, F. Lachenmann and
R. Wolfrum (eds), Max Planck Encyclopedia of Comparative Constitutional Law, Oxford: Oxford
University Press.
Boutros-Ghali, B. (1992), ‘Empowering the United Nations’, Foreign Affairs, 71 (Winter), 89–102.
Boysen, S. (2019), ‘Remnants of a constitutional moment: The right to democracy in international law’,
in A. von Arnauld, K. von der Decken and M. Susi (eds), The Cambridge Handbook on New Human
Rights: Recognition, Novelty, Rhetoric, Cambridge: Cambridge University Press, pp. 465–89.
Boysen, S. (2021), Die postkoloniale Konstellation: Natürliche Ressourcen und das Völkerrecht der
Moderne, Tübingen: Mohr Siebeck.
Britton-Purdy, J., D. Singh Grewal, A. Kapczynski and K. S. Rahman (2020), ‘Building
a law-and-political-economy framework: Beyond the Twentieth-Century Synthesis’, The Yale Law
Journal, 129 (6), 1784–835.
Cass, D.Z. (2005), The Constitutionalization of the World Trade Organization, Oxford: Oxford
University Press.
Cassese, A. (1986), International Law in a Divided World, Oxford: Clarendon Press.
Charlesworth, H. and C. Chinkin (2000), The Boundaries of International Law: A Feminist Analysis,
Manchester: Manchester University Press.
Charlesworth, H., C. Chinkin and S. Wright (1991), ‘Feminist approaches to international law’, AJIL,
85 (4), pp. 613–45.
Chatterjee, P. (2006), The Politics of the Governed: Reflections on Popular Politics in Most of the World,
New York: Columbia University Press.
Chimni, B.S. (2006), ‘Third World approaches to international law: A manifesto’, International
Community Law Review, 8, 3–27.
Chimni, B.S. (2017), International Law and World Order: A Critique of Contemporary Approaches, 2nd
edn, Oxford: Oxford University Press.
Chimni, B.S. (2018), ‘Customary international law: A Third World’s perspective’, AJIL, 112 (1),
pp. 1–46.
Chimni, B.S. and S. Mallavarapu (eds) (2012), International Relations: Perspectives for the Global
South, Delhi: Pearson.
Colley, L. (2021), The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern
World, New York: Liveright Publishing Corporation.
Comaroff, J. and J. L. Comaroff (eds) (2006), Law and Disorder in the Postcolony, Chicago: University
of Chicago Press.
Connell, R. (2007), Southern Theory: Social Science and the Global Dynamics of Knowledge, Sydney:
Allen & Unwin Australia.
Craven, M. (2007), The Decolonization of International Law: State Succession and the Law of Treaties,
Oxford: Oxford University Press.
Cutler, A.C. (2003), Private Power and Global Authority: Transnational Merchant Law in the Global
Political Economy, Cambridge: Cambridge University Press.
Dados, N. and R. Connell (2012), ‘The Global South’, Contexts, 11 (1), 12–13.
Dann, P., M. Riegner and M. Bönnemann (2020), ‘The Southern Turn in Comparative Constitutional Law:
An introduction’, in P. Dann, M. Riegner and M. Bönnemann (eds), Comparative Constitutionalism
and the Global South, Cambridge: Cambridge University Press, pp. 1–38.
De Jong, D. (2022), Nazi Billionaires: The Dark History of Germany’s Wealthiest Dynasties, Glasgow:
William Collins (HarperCollins Publishers UK).
De Sousa Santos, B. (2006), Conocer desde el Sur, Lima: Fondo Editorial de la Facultad de Ciencias
Sociales/UNMSM Programa de Estudios sobre Democracia y Transformación Global.
De Sousa Santos, B. (2007), ‘Beyond abyssal thinking. From Global Lines to Ecologies of Knowledge’,
Review (Fernand Braudel Center), 30 (1), 45–89.
Dunoff, J.L. and J.P. Trachtman (2009), ‘A functional approach to international constitutionalization’,
in J.L. Dunoff and J.P. Trachtman (eds), Ruling the World: Constitutionalism, International Law and
Global Governance, Cambridge: Cambridge University Press, pp. 3–36.
182 Handbook on global constitutionalism

Eslava, L. and S. Pahuja (2012a), ‘Between resistance and reform: TWAIL and the universality of inter-
national law’, Trade, Law and Development, 3 (1), 103–30.
Eslava, L. and S. Pahuja (2012b), ‘Beyond the (Post)Colonial: TWAIL and the everyday life of interna-
tional law’, Verfassung und Recht in Übersee, 45 (2), 195–221.
Fassbender, B. (1998), ‘The United Nations Charter as constitution of the international community’,
Columbia Journal of Transnational Law, 36 (3), 529–619.
Fassbender, B. (2009), The United Nations Charter as the Constitution of the International Community,
Leiden/Boston: Martinus Nijhoff.
Franck, T.M. (1992), ‘The emerging right to democratic governance’, AJIL, 86 (1), 46–91.
Gandhi, L. (2019), Postcolonial Theory – A Critical Introduction, New York: Columbia University
Press.
Gramsci, A. (1919), The Southern Question, reprinted P. Verdicchio (ed.) (2015), New York: Bordighera
Press.
Guldi, J. (2022), The Long Land War: The Global Struggle for Occupancy Rights, New Haven: Yale
University Press.
Hirschl, R. (2007), Towards Juristocracy: The Origins and Consequences of the New Constitutionalism,
Cambridge, MA: Harvard University Press.
Hirschl, R. (2018), ‘Opting out of “global constitutionalism”’, Law & Ethics of Human Rights, 12 (1),
1–36.
Howse, R. and K. Nicolaidis (2001), ‘Legitimacy and global governance: Why constitutionalizing the
WTO is a step too far’, in R.B. Porter et al (eds), Efficiency, Equity, and Legitimacy: The Multilateral
Trading System at the Millenium, Washington, DC: Brookings Institution Press, pp. 227–52.
International Law Commission (2006), Fragmentation of international law: Difficulties arising from the
diversification and expansion of international law, A/CN.4/L.682, Report of the Study Group of the
International Law Commission, Finalized by M. Koskenniemi.
International Law Commission (2013–2018), Subsequent agreements and subsequent practice in relation
to the interpretation of treaties, First report of the Special Rapporteur G. Nolte, A/CN.4/660; Second
Report, A/CN.4/671; Third Report, A/CN.4/683; Fourth Report, A/CN.4/694; Fifth Report, A/
CN.4/715.
International Law Commission (2014–2018), Formation and evidence of customary international law,
First report of the Special Rapporteur Sir M. Wood, A/CN.4/663; Second report, A/CN.4/672; Third
report, A/CN.4/682; Fourth report, A/CN.4/695 + Add. 1; Fifth report, A/CN.4/717 + Add.
International Law Commission (2019–2021), General principles of law, First report of the Special
Rapporteur M. Vázquez-Bermúdez, A/CN.4/732; Second report, A/CN.4/741 + Corr. 1.
Kelly, J.P. (2000), ‘The twilight of customary international law’, Virginia Journal of International Law,
40 (2), 450–544.
Kennedy, D. (2020), ‘Law in global political economy – now you see it, now you don’t’, in P.F.
Kjaer (ed.), The Law of Political Economy: Transformations in the Functions of Law, Cambridge:
Cambridge University Press, pp. 127–51.
Koselleck, R. (1989), Vergangene Zukunft: Zur Semantik geschichtlicher Zeiten, Frankfurt am Main:
Suhrkamp.
Kumar, V. (2017), ‘Towards a constitutionalism of the wretched’, Völkerrechtsblog, 27 July 2017, doi:
10.17176/20170727-141227.
Kumm, M., A.F. Lang, J. Tully and A. Wiener (2014), ‘How large is the world of global constitutional-
ism?’, Global Constitutionalism, 3 (1), 1–8.
Kumm, M., J. Havercroft, J. Dunoff and A. Wiener (2017), ‘The end of the “West” and the future of
global constitutionalism’, Global Constitutionalism, 6 (1), 1–15.
Loughlin, M. (2022), Against Constitutionalism, Cambridge, MA: Harvard University Press.
Marceau, G. (1999), ‘A call for coherence in international law: Praises for the prohibition of “Clinical
Isolation” in WTO Dispute Settlement’, Journal of World Trade, 33 (5), 87–152.
Marks, S. (2013), ‘Four human rights myths’, in D. Kinley, W. Sadurski and K. Walton (eds),
Human Rights: Old Problems, New Solutions, Cheltenham, UK/Northampton, MA: Edward Elgar,
pp. 217–35.
Mazower, M. M. (2009), No Enchanted Palace, Princeton: Princeton University Press.
 Postcolonial global constitutionalism 183

Messenger, G. (2016), The Development of World Trade Organization Law: Examining Change in
International Law, Oxford: Oxford University Press.
Mignolo, W.D. (2002), ‘The geopolitics of knowledge and the colonial difference’; South Atlantic
Quarterly, 101 (1), 57–96.
Mignolo, W.D. and C.E. Walsh (2018), On Decoloniality: Concepts, Analytics, Praxis, Durham: Duke
University Press.
Mohanty, C.T. (1984). ‘Under Western eyes: feminist scholarship and colonial discourses’, boundary
2, 12/13 (3/1), On Humanism and the University I: The Discourse of Humanism (Spring/Autumn),
333–58.
Moyn, S. (2018), Not Enough: Human Rights in an Unequal World, Cambridge, MA: Harvard University
Press.
Özsu, U. (2017), ‘An Anti-Imperialist Universalism? Jus Cogens and the politics of international law’,
in M. Koskenniemi, W. Rech and M. Jiménez Fonseca (eds), International Law and Empire, Oxford:
Oxford University Press, pp. 295–313.
Pahuja, S. (2011), Decolonizing International Law. Development, Economic Growth and the Politics of
Universality, Cambridge: Cambridge University Press.
Paulus, A.L. (2009), ‘The international legal system as a constitution’, in J.L. Dunoff and J.P. Trachtman
(eds), Ruling the World: Constitutionalism, International Law and Global Governance, Cambridge:
Cambridge University Press, pp. 69-109.
Peters, A. (2012), ‘Are we moving towards constitutionalization of the World community?’, in A.
Cassese (ed.), Realizing Utopia, Oxford: Oxford University Press, pp. 118–35.
Petersmann, E.-U. (1998), ‘How to promote the international rule of law? Contributions by the World
Trade Organization Appellate Review System’, Journal of International Economic Law, 1 (1), 25–48.
Petersmann, E.-U. (2000), ‘The WTO Constitution and human rights’, Journal of International
Economic Law, 3 (1), 19–25.
Petersmann, E.-U. (2018), ‘Globalists: The End of Empire and the Birth of Neoliberalism. By Quinn
Slobodian [Book Review]’, Journal of International Economic Law, 21 (4), 915–21.
Quijano, A. (2000), ‘Coloniality of power, Eurocentrism, and Latin America’, Nepantla: Views From
the South, 1 (3), 533–80.
Quijano, A. (2007), ‘Coloniality and modernity/rationality’, Cultural Studies, 21 (2), 168–78.
Rajagopal, B. (2003), International Law from Below: Development, Social Movements and the Third
World Resistance, Cambridge: Cambridge University Press.
Rajagopal, B. (2006), ‘Counter-hegemonic international law: Rethinking human rights and development
as a Third World strategy’, Third World Quarterly, 27 (5), 767–83.
Rubinelli, L. (2020), Constituent Power: A History, Cambridge: Cambridge University Press.
Said, E.W. (1993), Culture and Imperialism, London: Chatto & Windus.
Schill, S. (2015), ‘Towards a constitutional law framework for investment law reform’, EJIL:Talk!,
5.1.2015, www​.ejiltalk​.org.
Schwöbel, C. (2011), Global Constitutionalism in International Legal Perspective, Leiden: Brill.
Schwöbel-Patel, C. (2020), ‘(Global) constitutionalism and the geopolitics of knowledge’, in P. Dann, M.
Riegner and M. Bönnemann (eds), Comparative Constitutionalism and the Global South, Cambridge:
Cambridge University Press, pp. 67–85.
Simma, B. and A. Paulus (1998), ‘The ‘International Community’: Facing the challenge of globaliza-
tion’, European Journal of International Law, 9 (2), 266–77.
Slobodian, Q. (2018), Globalists: The End of Empire and the Birth of Neoliberalism, Cambridge, MA:
Harvard University Press.
Smith, A. (1776), An Inquiry into the Nature and Causes of the Wealth of Nations, reprinted E. Cannan
(ed.) (1994), New York: Modern Library.
Spero, J.E. and J.A. Hart (2003), The Politics of International Economic Relations, Belmont: Thomson
Wadsworth.
Spivak, G.C. (1985), ‘Three women’s texts and a critique of imperialism’, Critical Inquiry, 12 (1),
242–61.
Tomuschat, C. (1999), International Law: Ensuring the Survival of Mankind on the Eve of a New
Century, General Course on Public International Law, The Hague: Recueil des Cours de l’Académie
de Droit International.
184 Handbook on global constitutionalism

Walcott, R. (2021), On Property, Windsor, ON: Biblioasis.

Walker, N. (2001), ‘The EU and the WTO: Constitutionalism in a New Key’, in G. de Búrca and J. Scott
(eds), The EU and the WTO: Legal and Constitutional Issues, Oxford: Hart, pp. 31–57.
Whyte, J. (2019), The Morals of the Market: Human Rights and the Rise of Neoliberalism, London:
Verso.
Wiener, A. (2014), A Theory of Contestation, Basel: Springer.
Wiener, A. and S. Oeter (2017), ‘Introduction: Who recognizes the Emperor’s clothes anymore?’,
International Journal of Constitutional Law, 14 (3), 608–21.
Wiener, A., A.F. Lang, Jr., J. Tully, M.P. Maduro and M. Kumm (2012), ‘Global constitutionalism:
Human rights, democracy and the rule of law’, Global Constitutionalism, 1 (1), 1–5.
Wood, E.M. (2012). Liberty and Property: A Social History of Western Political Thought from
Renaissance to Enlightenment, London: Verso.
Xavier, S. (2016), ‘Learning from Below: Theorising global governance through ethnographies and
critical reflections from the Global South’, Windsor Yearbook of Access to Justice, 33 (3), 229–55.
Young, I.M. (1991), Justice and the Politics of Difference, Princeton: Princeton University Press.
14. Feminist approaches to global
constitutionalism
Ruth Houghton

INTRODUCTION1

Sometimes criticised for being a ‘cacophony’ (Mac Amhlaigh 2016, 179), spanning multiple
levels of governance and crossing several disciplines, the diversity of global constitutionalism
makes it difficult to locate a singular body of literature that is feminist global constitutional-
ism. Global constitutionalism is used to describe a body of literature that is concerned with
the constitutionalisation of international law and international institutions,2 as well as a strand
of comparative constitutional scholarship concerned with the convergence of norms across
domestic jurisdictions into ‘common global standards’ (Shiner 2019, 13). These distinct pro-
jects of global constitutionalism are siloed strands, at times with little interaction across these
bodies of literature, and little engagement with feminist critique. Yet, this rhizomic discourse
provides opportunities for feminist critique.
This chapter does not offer a singular or definitive model of feminist constitutionalism;
instead, it relates a study of the different ways different feminisms can engage with global
constitutionalism (hereafter feminist global constitutionalism). Reflecting on current feminist
work in comparative constitutional scholarship and international law, this chapter explores
ways of doing feminist global constitutionalism. This chapter begins in the first section by
locating feminist approaches across international law and comparative constitutional law to
consider what is meant by feminist global constitutionalism.
In reflecting on the scope of feminist global constitutionalism, the second section of this
chapter builds on feminist critiques to interrogate the meaning of ‘global’ within global
constitutionalism. This includes both a critique of the sites of governance captured by global
constitutionalism and a discussion of the risk of assimilating ‘global’ with universalism.
Rather than assuming a universal female subject, intersectional feminist approaches have
shown how this ignores the many differences of women’s experiences (Crenshaw 1989, 1991;
Nash 2018, 9–10; Dawuni 2019, 446). Critiquing universality provides a starting point for
centring the different locations, networks and concerns of transnational feminisms within
global constitutionalism.
There is an emerging epistemological turn in feminist global constitutionalism that is con-
cerned with sources and methods (Sapiano and Baines 2019; Schwöbel-Patel 2011). These
feminist critiques of methods of global constitutionalism can be used to further question the
global of global constitutionalism as they challenge the claim to universality. The third section

1
With thanks to Aoife O’Donoghue, Sean Molloy, Se-shauna Wheatle and the Handbook editors
for their comments on this chapter.
2
Sometimes labelled interchangeably as international or global constitutionalism, see Klabbers
(2019).

185
186 Handbook on global constitutionalism

will discuss global constitutionalism’s sources, histories and futures, as well as explore con-
versations as a feminist method for global constitutionalism.
By sources, I mean both the theoretical underpinnings of global constitutionalism and the
legal sources that evidence global constitutionalisation.3 Global constitutionalism is under-
pinned by a liberal constitutional tradition, derived from a Western, Global North canon.4
Common sources used in the evaluation of the processes of global constitutionalisation are
constitutional documents, multi-lateral international treaties (e.g., UN Charter) and Customary
international law. Feminists have called for a diversification of these sources, to take into
account the work of feminist theorists and activists.5 ‘Histories’ overlaps with sources, for it is
through the histories of constitutionalisation (and global constitutionalisation) that global con-
stitutionalism (re)constructs ideas of constituent power, by interrogating who has the power
to create a given constitutional order and how that power is exercised. Feminist approaches
have demonstrated the narrow histories of constituent power that exclude feminist activism
from consideration within global constitutionalism (Irving 2008, 4–13; Irving 2017, 1–3; Gago
2020).6 The sources and histories relied on in global constitutionalism construct particular
approaches to the principles of global constitutionalism (such as the rule of law, separation of
power, constituent power and rights), which construct silences where women and marginalised
groups are further marginalised.7 With respect to ‘Futures’, global constitutionalism encapsu-
lates a hope for an international legal order, but feminists have questioned who that legal order
would benefit. Feminists also have hopes for a feminist future, found in novels, short-stories,
manifestos, in letters in archives, songs and artwork. Such dreams are often dismissed, but
a feminist global constitutionalism would take these seriously to engage with alternative
futures for global constitutionalism.
Related to the question of sources and histories is the methods utilised by feminist global
constitutionalists. Across feminist international law and feminist global constitutionalist
scholarship there has been a move to engage in inter-generational conversations (Buchanan
and Pahuja 2002; Charlesworth et al 2019; Otto and Grear 2018), including fictionalised
accounts (Sapiano and Baines 2019; Otomo 2014, 150). As this chapter will illustrate,
feminist global constitutionalism necessitates a conversation across feminist international
and comparative law scholarship. Feminist approaches in comparative constitutional law,
which have exposed the discrimination faced by women in different countries, make more
visible the relative silence of global constitutionalist scholarship when it comes to feminist
concerns. The third section considers conversations as a feminist methodology for global con-
stitutionalism. Drawing on feminist work on silences and listening, the section outlines seven
features of a feminist conversation for global constitutionalism: these conversations must be
ongoing and without a fixed end-point, facilitate discussion across feminisms, be global and
inter-generational, centre listening, silences and (un)learning. Research on global constitu-

3
For the purposes of this chapter, global constitutionalism references scholarship that discusses
theories of constitutionalism in the global context and global constitutionalisation is concerned with the
processes of constitutionalisation that are identified and critiqued within international law and global
governance (Wiener et al 2012, 5).
4
See Lang and Wiener, Chapter 1 of this Handbook. See also Schwöbel-Patel (2012).
5
See for example, Labenski (2022).
6
See also Houghton and O’Donoghue (2022).
7
For a critique of the Eurocentric focus of Global Constitutionalism see, Vidya Kumar (2017). See
also Gina Heathcote and Lucia Kula (2023).
 Feminist approaches to global constitutionalism 187

tionalism must take seriously the feminist critiques of its sources, histories and the silences it
constructs, if global constitutionalism is to strive for a more equal and just world.

LOCATING FEMINIST APPROACHES TO GLOBAL

CONSTITUTIONALISM

As noted above, global constitutionalism is difficult to demarcate as it encompasses a range of

interdisciplinary studies. Whilst some have labelled the study of the convergence of domestic
constitutional norms as ‘global constitutionalism’ (Saunders 2009), others have focused on the
constitutionalisation of the international legal order.8 This raises the question of what is meant
by feminist global constitutionalism. Taking inspiration from these main strands of global
constitutionalism – one of which focuses on comparative constitutional work and the other
focuses on international law – this section shows that it is possible to locate feminist critiques
in comparative constitutionalism and international law so as to build up feminist approaches
to global constitutionalism.
This section will first outline the relevant feminist critique in international law. Then it will
set out the approaches taken in feminist comparative constitutionalism, before considering the
feminist critiques within the comparativist strand of global constitutionalism that evaluates
the convergence of domestic constitutional norms. The section will then discuss the potential
for feminist engagement with an alternative approach to global constitutionalism, as set out
by Christine Bell, who advocates that the relationship between international law and domes-
tic constitutional law should be part of the debate in global constitutionalism (Bell 2014).
The section brings these feminist critiques together and through a case study on the 1979
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
shows what could be meant by feminist global constitutionalism.
Within international law, there is feminist critique of some of the foundational aspects of
global constitutionalism. Erika de Wet argues jus cogens norms are evidence of the consti-
tutionalisation of international law (de Wet 2006), but feminist scholars offer a critique of
these peremptory norms; ‘Charlesworth, Chinkin, and Wright argued that the international
prohibition against torture, by incorporating a division between public and private, denies
women the same protection as men from torture’ (Charlesworth et al 1991, 627–8 cited in
Buss 1997, 364). As a result, women’s experiences and concerns are not taken into account
within the hierarchy of norms (Sellers 2022). Human rights and the role of the individual as
a rights-holder in international law is often presented as evidence of constitutionalisation
(Peters 2009), but feminists have critiqued the construction of the individual within inter-
national law (Kapur 2021; Engle et al 2022, 193).9 For some feminist scholars, liberalism
defends the universality and abstract nature of the individual ‘because it offers the possibility
of articulating universal principles which are not dependent upon essentialist invocations of
sex/gender’ (Munro 2007, 59 cited in Conaghan 2013, 85). Other feminist scholars show how
this universalising category risks offering a ‘fixed account’ of the individual (Heathcote 2018,

8
For a discussion on these two strands, see Shiner (2019, 13).
9
For an overview of the discussion of feminist approaches to the individual in international law, see
Ruth Houghton, ‘The Individual in Feminist Approaches to International Law’ in Thomas Sparks and
Anne Peters (eds) Individual in International Law (forthcoming). See also Heathcote (2018).
188 Handbook on global constitutionalism

13), preferring instead to centre ‘plural subjectivities’ that focus on the diversity of people’s
lived experiences (Heathcote 2018, 12). Feminist global constitutionalism should look to these
debates within feminist international law.
There is a wealth of feminist constitutional scholarship within comparative constitutional
law that undertakes gender analyses of constitutions to understand the constitutionalisation of
gender (in)equality. Studies have looked at how constitutions impact women and how women
use constitutions (Baines and Rubio-Marín 2005; Irving 2008, 2017; MacKinnon 2012). The
initial focus was on substantive rights protection (Atrey 2022, 614–15), including reproductive
rights and equality provisions. In particular, within this literature there is a concern about
equality, and specifically with the nature of equality provisions adopted within constitutions,
comparing formal and substantive equality (Baines and Rubio-Marín 2005, 13–14). Ruth
Rubio-Marín identifies a ‘participation turn’ within comparative constitutionalism that was
concerned with feminist critiques of constitution-making processes and women’s participation
in constitutional change (Rubio-Marín 2020, 235). Central to this feminist approach is a call
for women to be included as constitutional actors including as constituent power holders,
constituted power holders and rights holders (Baines and Rubio-Marín 2005; Irving 2008, 20;
Irving 2017, 13). Feminist approaches to global constitutionalism could look to the agendas
for feminist constitutionalisation, which combine a substantive and participatory focus, out-
lining practical reforms for facilitating greater institutional access, participation of women as
constitutional actors, and substantive rights protection (Baines and Rubio-Marín 2005).
Aoife O’Donoghue argues that feminist constitutionalism also needs to reflect on the core
constitutional concepts within constitutionalism (O’Donoghue 2013a, 236), for example the
rule of law, human rights, separation of powers and democratic legitimacy.10 Feminist con-
stitutionalism should consider the work these concepts do to exclude women and minorities
and to subdue feminist change, as well as to reconceptualise these concepts through a feminist
lens. Susan Williams’ work on dialogic democracy starts to do some of this conceptual work.
Williams demonstrates how the ‘participatory turn’ is predicated on ideas of participation,
representation and dialogue, which can work to downplay the ‘meaningful’ participation
of women and minority groups (Williams 2019). She shows how dialogue has a fixed
end-point, how representation does not necessarily facilitate the exchange of ideas between
a representative and the represented, and how these concepts are used without considering
the power dynamics within specific dialogues. Williams begins to interrogate ideas of rep-
resentation to show how alternative models could be used to enhance women’s voices within
constitution-making (Williams 2019, 352). Beverley Baines and Ruth Rubio-Marín highlight
how ‘three major constitutional law categories – federalism, autonomy, and equality – might
capture women’s claims, [but] they also might distort and/or impoverish them’ (Baines and
Rubio-Marín 2005, 4). Similarly, Aoife O’Donoghue and Ruth Houghton have questioned
whether the core tenets of constitutionalism – separation of powers, rule of law, and demo-
cratic legitimacy – can inculcate feminist approaches (O’Donoghue and Houghton 2019).
Comparative constitutionalism – even where the focus is on global perspectives (Baines
et al 2012a) – is distinct from the global constitutionalist project that seeks to evaluate the
convergence of constitutional norms across domestic constitutional systems around the
world to form an emerging common ‘gene pool’ of constitutional norms (Saunders 2009, 1).

10
For a discussion on the tenets of constitutionalism in global constitutionalism see, Lang and
Wiener, Chapter 1 of this Handbook as well as O’Donoghue (2014, 14–53).
 Feminist approaches to global constitutionalism 189

Within this project, feminist scholars investigate the convergence or divergence of norms
that have particular impact on women, for example reproductive rights (Dixon and Bond
2017). However, the ‘rhetoric’ of commonality has been criticised by feminists for its ‘crude
normativism’ (Suk 2018, 163). Rather than attempting to ‘tally up’ constitutional provisions
to determine a ‘transnational phenomenon’, Julie Suk argues that global constitutionalism (as
a comparative project), should be about ‘revealing what is possible’ (Suk 2018, 163). Whilst
there are feminist approaches within this comparative strand of global constitutionalism
and there are feminist critiques of the strand of global constitutionalism that focuses more
on international law (O’Donoghue and Houghton 2019; Houghton and O’Donoghue 2020;
Sapiano and Baines 2019), neither strand inculcates the wealth of feminist critiques within
their respective disciplines of comparative law and international law. A feminist approach to
global constitutionalism would need to draw its critiques from across feminist approaches to
international law and feminist comparative constitutionalism.
There is an additional dimension to global constitutionalism, which Bell highlights, and that
is the interaction between international law and constitutional law (Bell 2014). Specifically, Bell
focuses on the role of international law in constitution-drafting (Bell 2014). This dimension is
important for feminist constitutionalism because of the increasing role of international law in
ensuring women’s participation in constitution-drafting. Christina Murray and Cindy Wittke
demonstrate how international law shapes gender-sensitive constitution-drafting (Murray and
Wittke 2017; Rubio-Marín 2020, 252). The role of international law in constitution-making
‘has also opened unprecedented avenues for women’s organisations to have access to inter-
national aid and international networks’ (Rubio-Marín and Irving 2019, 4). Going beyond
the process, to look at the substance of constitutions, Helen Irving and Ruth Rubio-Marín
have shown how international law shapes domestic constitutions and judicial interpretations
(Rubio-Marín and Irving 2019). For example, it is claimed that where constitutional regimes
‘have accorded a special place for international norms in the constitutional order’, it has
‘made a significant impact on the gender sympathies of the constitutional bench’ (Baines and
Rubio-Marín 2005, 11). Moreover, Catharine MacKinnon argues that international law can fill
the gaps in domestic constitutional law because international law ‘can supplement, supplant,
or suffuse domestic law on gender questions’ (MacKinnon 2012, 402 ). Bell’s critique reminds
us of the need for feminist global constitutionalism to explore the interactions across the
constitutionalisation of international law, comparative constitutional law and the intersections
between international law and constitutional law. CEDAW is one example where feminist
critique spans the interrelationship between international law and constitutional law and it
can be used to demonstrate what a feminist global constitutional analysis uncovers. Across
feminist constitutional literature there has been a focus on CEDAW, with scholars noting that
there are a number of instances where women’s organisations have successfully called for the
incorporation of CEDAW provisions within a constitution (Rubio-Marín and Morgan 2004,
121–2). Within feminist comparative constitutional law, international law (and in particular
CEDAW) is, for the most part, presented as having ‘positive impact on women’s constitutional
status’ (Rubio-Marín and Morgan 2004, 117). Whilst there is an acknowledgement that this is
not always the case, not least because balancing rights within a human rights framework does
not guarantee protection of women’s rights (Rubio-Marín and Morgan 2004, 117; Krivenko
2009), feminist comparative constitutionalism has not engaged substantially with the critique
by feminist international lawyers.
190 Handbook on global constitutionalism

Within feminist international law, CEDAW is criticised for its construction of women, an
inconsistent approach to intersectionality, and a lack of enforcement. Within CEDAW there
are no provisions recognising the intersectionality of identity. Intersectionality, first coined by
Kimberlé Crenshaw in 1989, is used to show how race, sex, gender, class, sexual orientation,
and ability intersect to discriminate and oppress (Crenshaw 1989, 1991; Nash 2018, 9–10). In
not recognising intersectionality in the text of the Convention, CEDAW has been critiqued for
ignoring the diversity of women’s experiences (Campbell 2015, 486). There is also a lack of
enforcement of CEDAW; it is ‘the most heavily reserved international human rights treaty’,
and there is ‘poor compliance’ with the enforcement mechanisms (Hodson 2014, 563, 566).
Some feminist international legal scholars criticise the use of CEDAW by some women’s
networks to undermine the rights of more marginalised women (Otto 2006). A feminist global
constitutional account of CEDAW would take into account these criticisms.
A feminist global constitutionalist analysis, which draws on the perspectives of comparative
constitutionalists and international law, demonstrates a more complex picture of the role of
CEDAW in advancing the protection of women’s rights. It shows how international norms
(despite their lack of international enforcement mechanisms) can be incorporated into domes-
tic constitutions, and how they can provide ‘crucial leverage for advancing women’s rights on
specific issues and support for local nongovernmental organizations’ (MacKinnon 2012, 403,
see also O’Rourke and Swaine 2018). Drawing on international relations scholarship on the
contestation and constitution of norms would also further a feminist global constitutionalist
discussion of the role of CEDAW, as such research takes into account the range of state and
non-state actors and the relations between international legal frameworks and institutions
(O’Rourke and Swaine 2018; True and Wiener 2019). Incorporating the critique by interna-
tional feminists, feminist global constitutionalism can also show how white Western femi-
nisms have used CEDAW to ‘justify efforts to “abolish” non-Western cultural practices’ in the
name of protecting Global South women (Otto 2006, 343). Focusing on the place of CEDAW
within domestic constitutions misses the use of the Convention by white Western feminists
to construct Global South women as being in need of saving. As will be discussed below, this
idea of ‘global sisterhood’, where some women are constructed as victims to be saved, needs
to be resisted within feminist global constitutionalism.
In suggesting that lessons can be learnt when reading across comparative constitutional-
ism and international law, I am not advocating that feminist global constitutionalism adopts
a simple process of ‘borrowing’ concepts from comparative constitutionalism or international
law. Karen Knop highlights the ‘limits of borrowing from other fields of study’ (Knop 2004,
6), because of the nuances in how concepts can be applied in different sites of governance.
Global constitutionalism is often critiqued for the way it seeks to ‘import’ constitutional
concepts (O’Donoghue 2013b). In understanding how international and constitutional law
impact on women (both positively and negatively), as well as how women use these legal
frameworks, feminist global constitutionalism can be more than a bird’s-eye view of interna-
tional obligations and can offer more than a one-dimensional, ‘nearside’ account of a domestic
constitutional order (Rubio-Marín and Morgan 2004, 113).
 Feminist approaches to global constitutionalism 191

INTERROGATING THE ‘GLOBAL’ IN FEMINIST GLOBAL

CONSTITUTIONALISM

Part of locating feminist global constitutionalism is interrogating the meaning of ‘global’

(Fierke and Jabri 2019; Anderl and Witt 2020). This section considers feminist critiques of
the meaning of ‘global’ that can inform the approach to feminist global constitutionalism.
Both comparative constitutional law and international law are framed by the state. Feminist
global constitutionalism ‘cannot adequately challenge gender injustice if they remain within
the previously taken-for-granted frame of the modern territorial state’ (Fraser 2009, 112 cited
in O’Donoghue and Houghton 2019, 81). This is because it overlooks the impact of private
actors (be those individuals or transnational corporations) on women’s lives. In addition to
the role and impact of non-state entities, feminist approaches need to consider the scales of
governance discussed within global constitutionalism. As Ruth Rubio-Marín and Martha
Morgan have shown ‘[t]he relationship between national and world citizenship is increasingly
complex but women remain subject to the interrelated consequences of each of these statuses,
as well as to those flowing from their membership in more local forms of government and
in non-geographically defined communities’ (Rubio-Marín and Morgan 2004, 113). As
such, ‘global’ in feminist global constitutionalism must encompass more than just domestic
constitutional law and international law, and take into account other levels of governance:
local, national, international and regional (here meaning feminist critiques of regional organ-
isations and systems such as the European Union (Shaw 2000), the African Union, and the
Inter-American human rights system (García-Del Moral 2019), as well as regional networks
established by women). Baines and Rubio-Marín highlight how decision-making that impacts
women is situated across these levels of governance and how some constitutions have tended
‘to allocate “private” matters to the regional [here meaning local] entities rather than to the
national level’ (Baines and Rubio-Marín 2005, 12). Feminist approaches to global constitu-
tionalism must ask questions about how global constitutionalism uses these scales of govern-
ance and where decision-making is taking place.
Gunther Teubner’s societal constitutionalism fractures the idea of distinct levels of gov-
ernance, framed by the state. Instead, Teubner argues that autonomous systems such as civil
society, business corporations and private organizations can develop as constitutional orders
(Teubner 2010, 328). As societal constitutionalism discusses the constitutionalisation of
private sectors, it provides an opportunity for feminist analyses of the inequalities within these
autonomous systems which are often side-lined in global constitutionalism. These autonomous
constitutions emerge within different sectors of society, across the different levels of govern-
ance and within them. A feminist analysis would centre the work of feminist activist networks
that operate within these autonomous systems and across these scales of governance.
The ‘global’ in feminist global constitutionalism, in addition to the questions of scale,
requires a critique of universality and an understanding of feminist transnational solidarity.
The ‘global’ risks being aligned with a claim to universalism (Jones 2022). Post-colonial
feminist scholars in international law have shown the problem with universalism in relation to
human rights, where the ‘proclaimed universalism of human rights’ risks excluding peripheral
and marginalised voices (Jones 2022, 2, see also Kapur 2002). Feminist theory is also met
with critiques of universalism, for example ‘global feminism’ has been critiqued for its prior-
itisation of the experiences and interests of white Western women (Grewal and Kaplan 1994;
Ghadery and Kalantry 2022). Related to ‘global feminism’ is the idea of a ‘global sisterhood’,
192 Handbook on global constitutionalism

a form of solidarity that draws on the idea that there are universal shared commonalities among
women. As discussed above, scholars have shown how this notion of ‘sisterhood’ has given
rise to harmful practices of Global North women trying to ‘save’ women in the Global South
(Orford 2002; Kapur 2022).
Feminist approaches to global constitutionalism must be alive to these risks of universalism.
Doris Buss warns against using ‘Western analytic categories and Western ways of knowing’
as it acts to filter women’s experiences through those lenses (Buss 1997, 366). One example of
an analytic category used within feminist theory is the public/private divide; where the public
space is traditionally constructed as being within the purview of men, and where women are
traditionally relegated to the private sphere of the home. Vasuki Nesiah reflects on the ‘need to
unpack the universalization of analytical prisms such as the public/private distinction and [to]
examine the conditions of their production’ (Nesiah 2011, 3). Scholars have highlighted how
the Western feminist analysis of the gendered public/private divide can obscure a ‘colonialized
or racialized context’ and thus exclude the lived experiences of people (Buss 1997, 361–2).
Decolonial feminists have shown how law, policy, and missionaries utilised hierarchies of
race and gender to impose a public/private divide as a tool of colonialism (Coetzee 2019), and
intersectional feminists remind us of the need to consider not just a gendered public/private
divide, but the way race, class, sexuality, and gender are used to exclude people and render
their experiences invisible. Nesiah calls for an investigation of the ‘multiple genealogies of
the public/private in diverse and specific contexts’ (Nesiah 2011, 3), and to avoid the risks of
universalism feminist global constitutionalism should subject other analytical categories to the
same critique.
‘Global’ in feminist global constitutionalism should not mean universal, but rather it
embraces the diversity of women’s lived experiences. Related to universalism is essentialism.
Gender essentialism ‘refers to the fixing of certain attributes to women’, where these ‘attrib-
utes are considered to be shared by all women’ (Kapur 2002, 7). As noted above, feminists
disagree on the strategic use of universal categories; some consider universal ideas of the
individual to mitigate the risks of gendered-essentialism, others see how essentialist ideas
of ‘women’ can work to silence and render invisible people’s different experiences (Munro
2007, 59 cited in Conaghan 2013, 85). For Gina Heathcote, emphasis needs to be placed on
the plurality of differences between people (Heathcote 2019), taking into account the specific
contexts people are situated within, so as to disrupt the notion of a ‘universal’ standard or
experience. This requires incorporating intersectional feminist approaches that are concerned
with how the intersectionality of race, gender, sex, ability, sexual orientation and class, work
to ‘reframe epistemologies’ by considering other ways of knowing and by challenging the
assumptions of gender as fixed (Heathcote 2019, 14). Feminist approaches to global constitu-
tionalism can be informed by transnational feminist solidarity, which rejects the essentialisa-
tion of ‘woman’ and the universalisation of women’s experiences, where this universalisation
is premised on white Western women’s experiences (Ghadery and Kalantry 2022), and instead
‘presumes differences between varied locations rather than claiming sameness’ (Tambe and
Thayer 2021, 1). Feminist approaches to global constitutionalism should be built on a ‘global’
that inculcates the diversity of women’s experiences, and the different and specific contexts
women are situated within.
Building on transnational feminist solidarity, a feminist approach to global constitutional-
ism resists conflating the global aspect of the discussion with universality and essentialism.
A feminist global constitutionalism should interrogate the construction of fixed scales of
 Feminist approaches to global constitutionalism 193

governance that can work to locate responses to women’s concerns within local levels of
governance, to make incomprehensible the impact of private and non-state entities, and to
obscure the work of transnational feminist solidarity networks. As will be explored in the next
section, a methodological turn is needed to ensure that feminist global constitutionalism does
not replicate a Global North vision of global constitutionalism.

RETHINKING FEMINIST APPROACHES TO GLOBAL

CONSTITUTIONALISM

The critique of the ‘global’ highlights the need for an epistemological shift that would reflect
on how knowledge is produced, including what sources and methods are used within global
constitutionalism. This section will first consider the sources of global constitutionalism,
which includes its histories and futures. Then it will explore conversations as an alternative
feminist method.
Within international law, feminists are engaged in a methodological ‘return’ (Bird 2020,
180, see also Otto and Grear 2018 and Charlesworth et al 2019). In particular, in their
inter-generational conversation, Hilary Charlesworth, Gina Heathcote and Emily Jones call
for a ‘return to theories and methodologies’ (Charlesworth et al 2019, 82). Taking up this call
within global constitutionalism requires reflection on the theories of constitutionalism that are
used. This includes both the interrogation of the Global North canonical theories of liberal
constitutionalism that are currently relied on, and an engagement with feminist ‘thought’
(including the work of women labelled as proto-feminist11) across history. It would also
require engagement with theories of feminism beyond liberal feminism, such as feminisms
that are ‘antiracist, anti-homophobic, anticlassist, anti-agesist, and reflective of claims for
ableism’ (Baines et al 2012b, 4).12
Global constitutionalism encompasses both a descriptive and normative project (Wiener
et al 2012, 8). In the descriptive sense, global constitutionalism is used to explain processes
in the international legal order,13 it ‘aims to identify elements of constitutional quality’ that
are already present within international law and global governance (Kotzur 2012, 589, see
also Peters and Armingeon 2009, 385). To do so, scholars refer to specific international laws,
institutions and events. Vidya Kumar critiques the literature for the emphasis that is placed
on the ‘triumphant’ events in 1945 which marked the end of World War II and 1989 as the
‘putative end of the Cold War’ (Kumar 2017). What is meant by ‘constitutional quality’ can
also be critiqued for being informed by Global North liberal theories of constitutionalism and,
as Lang and Wiener outline in Chapter 1 of this Handbook, very often the same historical
examples are referred to in discussions on constitutionalism, such as the French or American
revolutions. As will be discussed below, feminist global constitutionalism must excavate
feminist theories and histories that disrupt these traditional accounts of constitutionalisation
and constitutionalism (Rubio-Marín 2022). The normative aspect of global constitutionalism

11
Proto-feminist is often used for works that pre-date the term ‘feminist’ to avoid so-called anachro-
nistic discussions, however this leads to a periodisation based on a singular understanding of ‘feminism’
(Garrard 2021).
12
For a discussion on posthuman feminism and global constitutionalism, see Jones (2022).
13
For a discussion see Lang and Wiener, Chapter 1 of this Handbook.
194 Handbook on global constitutionalism

projects visions for a global constitutional order; visions that will guide the ‘progressive
development of international law’ (Wiener et al 2012, 7, see also Schwöbel-Patel 2012, 13).
Feminist scholarship questions who will benefit under these visions of a global constitutional
order (Houghton and O’Donoghue 2020) and a feminist approach to global constitutionalism
would centre alternative feminist visions of constitutional futures. Within feminist activism
and feminist theory, the ability to imagine, to hope, and to pre-figure an alternative future is
crucial. As explored below, Otto and Grear stress the importance of an ‘imagined feminist
future’ within international law (Otto and Grear 2018, 353), and feminist global constitution-
alism can look to imagined futures in literature and art to offer an alternative starting point for
global constitutionalism.

Sources, Histories and Futures

Sources
Global constitutionalist scholarship draws on a variety of sources, such as, international
law, international institutional law, international relations theories, historical events, and
constitutional law and theory. Within the scholarship, there are sources that provide evidence
of constitutionalisation and there are the theories that underpin the various models of consti-
tutionalism that are discussed. Feminist approaches to the sources of global constitutionalism
requires both the critique of the current sources as well as engagement with the breadth of
women’s international and constitutional thought.
As outlined above, feminist international lawyers critique the sources of law relied upon
by global constitutionalism because they construct a patriarchal, gendered international legal
system that fails to adequately protect the rights of women and renders invisible the lived
experiences of women. This includes a critique of the current approach to jus cogens norms in
international law (Sellers 2022). Alongside jus cogens norms, de Wet argued that erga omnes
obligations evidence constitutionalisation because they are predicated on an international
community (de Wet 2006). Charlesworth and Chinkin argued that even if a shift to include
the international community in law-creation could facilitate the inclusion of non-state actors,
there was a risk that women’s voices would still be ignored (Charlesworth and Chinkin 2000,
95). These feminist critiques of the sources of global constitutionalism should be taken into
account within mainstream global constitutionalist discussions.
Constitutional and international legal theory is another key source of global constitution-
alism. Through their project, which showcased international relations scholarship by women
from the nineteenth and mid-twentieth century, Owens and Rietzler show how ‘thought’ and
theory are not only found in political treatises or academic articles. Rather, women’s thought
can be located in journalistic writings (Umoren 2021), ‘lecture halls, and seminar rooms’
(Owens and Rietzler 2021, 17). The ‘street scholarship’ of the Black working-class intellectual
Mittie Maude Lena Gordon, which involves the dissemination of ideas to groups of people,
shows the ‘importance of orality as well as oratory’ as sites of feminist theorising (Taylor
2006, 153–5 cited in Owens and Rietzler 2021, 15). Feminist global constitutionalism must
take as broad an approach to feminist constitutional theory and thought, so as to not exclude
sites of knowledge production frequented by women.
In addition to constitutional law and theory, international law and international relations
scholarship, feminist global constitutionalism must continue to engage with the breadth of
feminist theories. For Shreya Atrey, feminist constitutionalism as a method should unpack
 Feminist approaches to global constitutionalism 195

which feminist approach is being utilised in a legal argument, in a judgment, or in a constitu-

tional convention (Atrey 2022), and this would require an understanding of different feminist
approaches. As noted above, there is no singular feminist constitutionalism. Rather, there
are many feminisms and therefore multiple feminist approaches to global constitutionalism.
Within feminist global constitutionalism, the need to inculcate the diversity of women’s lived
experiences requires engagement with a range of feminist theories, including intersectional,
Black, post-colonial and decolonial feminist approaches.

Histories
Within constitutional theory it is the histories of revolutions that often act as evidence for
exercises of constituent power (Arato 2017, 45–105; Rubinelli 2020, 5). Feminist constitu-
tionalism revisits these histories to uncover the participation (and active exclusion) of women
within constitutional change.
The ‘participation turn’ in constitutionalism considers the participation of women in con-
stitutional change; whether this is as constituent assembly delegates, litigators, or judges. But
conceptualising this ‘turn’ as taking place in the 1980s and 1990s can obscure the work of
women activists throughout history and around the world (Rubio-Marín 2020, 235). Feminist
comparative constitutionalists have been instrumental in illuminating these activists and their
campaigns. To locate women’s involvement in constitutional change requires a more expan-
sive view – to look beyond the ‘official and traditional sites and institutions’ (Rubio-Marín
2020, 258; 2022, 206), such as constitutional assemblies – and see the work done by women
through lobbying (Irving 2008, 15), or protests (Ghadery 2022), or even at kitchen tables
(Gago 2020, 155).
Irving refers to feminist manifestos, such as the ‘Declaration of the Rights of Woman and the
Female Citizen’ (1791) by Olympe de Gouges and the Seneca Falls ‘Declaration of Sentiments
and Resolutions’ coordinated by Elizabeth Cady Stanton in 1848, as examples of women
critiquing constitutional processes (Irving 2008, 7–9). In her manifesto, de Gouges ‘points
to the omission of women from the French Declaration of the Rights of Man’ (Houghton
and O’Donoghue 2021). The ‘Declaration of Sentiments and Resolutions’ exposes ‘the
exclusionary nature of the Declaration of Independence and the constitutional arrangements
that followed; it acts to expose what was omitted in the text and highlight oppressions that
remained’ (Houghton and O’Donoghue 2021). These examples show how constitutionalism
did not (and does not always) serve women, and how their voices were missing from processes
of constitutional change. Both de Gouges’ and Stanton’s manifestos also show how women
are sometimes actively excluded from constitutional processes and political decision-making.
De Gouges was ‘considered so counter-revolutionary’ that she was arrested and executed as
part of the Terror in France in 1793 (Lyon 1999, 51), and Irving highlights how Stanton was
excluded from acting as a delegate at the World Anti-Slavery Convention in 1840 because she
was a woman (Irving 2008, 9).
However, there are historical examples of women participating in constitution-making that
highlight the limitations of the ‘participation turn’ in feminist constitutionalism. Gertrude Bell
was an archaeologist and diplomat. She worked as part of the British colonial intelligence
services and civil administration in Iraq from 1916. She is known for drawing the territo-
rial boundaries of the new state of Iraq and playing a role in drafting the Iraq Constitution
in 1921. Irving refers to Bell as an early example of women’s ‘direct involvement’ in
constitution-making (Irving 2017, 2). Heathcote calls on feminist scholars to critique ‘suc-
196 Handbook on global constitutionalism

cesses’ of women’s participation in international law (Heathcote 2019, 1), and such calls
should be heeded within feminist constitutionalism. Celebrating Bell’s involvement as a
‘success’ for women’s participation in constitutional change is to overlook this exercise of
British colonialism, under the auspices of a British mandate to govern Iraq,14 how the drafting
of the constitution was not open to the people in the region, and that only men could vote in
the elections to establish the Constituent Assembly that would later adopt the constitution. The
epistemological shift or methodological turn problematises the ‘participatory turn’ of feminist
constitutionalism, as well as offer ways to move beyond mere participation and inclusion of
women, towards transforming constitutionalism.

Futures
Proffering visions, agendas or manifestos for the future of feminist constitutionalism is a core
part of the feminist constitutional literature. In their agenda, Baines and Rubio-Marín outline
a ‘feminist constitutional agenda’, which ‘should address the position of women with respect
to: (i) constitutional agency, (ii) constitutional rights, (iii) constitutionally structured diversity,
(iv) constitutional equality; and give special treatment to (v) women’s reproductive rights and
sexual autonomy; (vi) women’s rights within the family; and, (vii) women’s socioeconomic
development and democratic rights’ (Baines and Rubio-Marín 2005, 4). In a manifesto,
O’Donoghue and Houghton outlined the need for: (1) women as active agenda setters; (2)
women’s co-authorship of global constitutions; (3) women’s substantive participation in
‘living’ global constitutions; (4) a Right of Rejection so that elements of a global constitutional
agenda can be discarded; (5) abandoning the idealised citizen so constituent and constituted
power reflects who we really are; (6) ‘global’ necessitates a move beyond a Euro-centric gaze;
and (7) a Right to Revolt, which encapsulates the ‘continual challenges to constituted power’
(O’Donoghue and Houghton 2018). Both these agendas are offered as the starting point of
a conversation, and as feminist agendas they must change over time to accommodate the new
interests and concerns of feminists (Nesiah 2011). As part of that conversation then, feminist
global constitutionalism needs to consider alternative visions by activists and theorists. This
section discusses some examples of such visions of feminist futures, which might otherwise be
overlooked as sites of knowledge production in global constitutionalism.
Feminist futures can be found in feminist utopian-thinking. Science fiction has emerged
as one site of feminist utopian-thinking. Otto for example, reads science fiction to learn
about alternative feminist futures (Otto and Grear 2018). O’Donoghue and Houghton proffer
feminist science fiction literature as alternative starting points for global constitutionalism
(Houghton and O’Donoghue 2020). For Patricia Melzer, science fiction is crucial for ‘fem-
inist theorizing outside the science fiction community’ and it ‘can be understood as part of
a feminist criticism of existing power relations’ (Melzer 2006, 9). Short-stories and novels
by feminist science fiction writers offer critiques of the conceptualisations of community and
constituent power, as well as facilitating discussion on how these constitutional concepts could
be reconceptualised. These alternative worlds in science fiction provide a way of harnessing
the ‘feminist future imaginaries’ and related hope, which Otto has argued needs to be brought
within international legal scholarship (Otto and Grear 2018).

14
For a discussion, see Craven (2021, 207), Tzouvala (2020, 100), and Natarajan (2011, 809).
 Feminist approaches to global constitutionalism 197

Imagining feminist constitutional futures plays an important role within feminist constitu-
tionalism. Davina Cooper’s theories of ‘conceptual pre-figuring’ show the power of acting ‘as
if’ something can happen or has happened (Cooper 2020). Such pre-figuration can demon-
strate the possibility of new and alternative ways of doing governance. There are examples
of pre-figuration within feminist constitutional activism. Rubio-Marín outlines examples
where women have organised mock Constituent Assemblies and where women have written
draft constitutions (Rubio-Marín 2020, 248; 2022, 149). In Australia, the outcomes from
the Women’s Constitutional Convention ‘were presented to the Chair of the Government’s
Constitutional Convention and were raised on the Convention floor during the proceedings’
(Karpin and O’Connell 2005, 22 cited in Rubio-Marín 2020, 248). In Bolivia, the ‘Political,
Feminist Constitution of the State: The Impossible Country We Build as Women’ imagines an
alternative state infrastructure, constitution-drafting process, and constitutional text (Galindo
and Mujeres Creando 2013). Written by the Mujeres Creando collective, which are an
anarcha-feminist collective, as a response to the 2011 Pluri-national Constitution in Bolivia,
the ‘Feminist Constitution’ critiques the Bolivian constitution and imagines an alternative
constitution; one that centres women’s lived experiences and offers imagined futures of how
society could be constituted (for example, without the military). Throughout, Mujeres Creando
provide explanations for the provisions within the ‘Feminist Constitution’, thus outlining the
work that needs to be done to move towards a feminist constitutional order. In contrast to
the Australian Women’s Constitutional Convention that was presented to the Constitutional
Convention, Mujeres Creando’s alternative constitution was meant to stand apart from the
constitution; ‘Mujeres Creando remained strongly critical of the Constituent Assembly and the
Morales government in general, in the belief that Morales used gender issues instrumentally in
the process of consolidating his power’ (Rousseau 2011, 14 cited in Rubio-Marín 2020, 244).
They state: ‘We only want to make clear that there are other ways of conceiving of the voice of
women and the transformations that are urgent in our society’ (Galindo and Mujeres Creando
2013). Both examples show the duality of speculative work, which works to expose the harms
of current realties and offer imagined futures.
Women’s dreams and aspirations for constitutional futures are conveyed in many different
forms of communication.15 In Somalia, women used poetry to convey their constitutional
aspirations to constitution-makers (Rubio-Marín and Irving 2019, 13). Manifestos that offer
utopian visions of feminist futures can be in the form of art and craft, song, performance and
protest.16 As part of the methodological turn, feminist global constitutionalist scholarship looks
for these examples of non-legal texts that nevertheless intersect with law (Heathcote 2019, 6).
Within constitutional scholarship, there have been attempts to imagine aspects of a femi-
nist constitution.17 Such thought-experiments highlight the sorts of questions that need to be
asked about the constitutional processes, the substance and scope of the constitution, as well
as highlighting the tensions that arise between feminist approaches (Sullivan 2002, 747).
Kathleen Sullivan, in her experiment, imagines a ‘hypothetical set of feminist drafters’ for

15
For a discussion on the role of music and dance in feminist protests, see Ghadery (2022).
16
For a discussion on feminist manifestos, see Houghton and O’Donoghue (2022).
17
See also Beverley Baines’ (2017) reflection on what it would mean to have an all-female US
Supreme Court. In his thought-experience, Ori Aronson (2017–2018), considers a rule that would make
the next forty presidents of the US women. Though focused on a ‘participatory turn’ in constitutionalism,
these thought-experiments offer some examples for the ways of doing feminist constitutionalism.
198 Handbook on global constitutionalism

a US constitution, and raises five questions that they would need to consider; the type of equal-
ity provision, formal or substantive equality, private actions, negative or positive rights, and
whether to have a judicially enforceable constitution or hortatory norms. Sullivan highlights
how feminists disagree when answering these questions.18 This reiterates the importance of
Atrey’s focus on the discourse across feminisms, as such an approach unpacks the different
feminisms underpinning such thought-experiments (Atrey 2022).
Feminist futures and feminist utopias are part of a process of hope, critique and
reform (Heathcote 2019, 23). The examples discussed here show how feminists have used
pre-figuration to criticise the current constitutional systems or processes and to offer alter-
native visions that instil hope for further reforms. By reading these feminist futures, as well
as working towards an increasing diversification of sources (including feminist theories and
histories), feminist global constitutionalism fractures the canonical liberal underpinnings of
global constitutionalism.

Conversations as a Feminist Method

In addition to rethinking the sources, feminist constitutionalism also needs to reconsider its
methodologies. The inter-generational conversation between Charlesworth, Heathcote and
Jones (Charlesworth et al 2019), as well as the conversation between Otto and Grear (Otto and
Grear 2018), demonstrate a way of doing feminist international law, which could be adapted
as a way of doing global constitutionalism through the exchange of ideas. Such an approach
has already been used. Jenna Sapiano and Beverley Baines wrote an imagined conversation
between key feminist thinkers across constitutional law, international law and international
relations scholarship (Sapiano and Baines 2019). Building on Cynthia Enloe’s ‘feminist curi-
osity’, which focuses on ‘the questions you might ask, not just the answers you offer’ (Enloe
et al 2016, 541), Sapiano and Baines ask where the women are in global constitutionalist
scholarship and how they use gender analysis in their work.
Fierke and Jabri – exploring the role of conversations within global international relations
– proffer the method of ‘global conversations’ (Fierke and Jabri 2019, 509). Fierke and Jabri
distinguish conversations from dialogue, because conversations are ‘a more open-ended
exchange that is receptive to difference and by which difference is continuously trans-
formed’ (Fierke and Jabri 2019, 524). These ‘global conversations’ are ‘relational, unfixed
and open-ended’ (Fierke and Jabri 2019, 509). Building on Fierke and Jabri’s work, and
seeing the role of conversations emerging in global constitutionalism, this section outlines
seven features of a feminist conversation for global constitutionalism: conversations must be
ongoing and without a fixed end-point, facilitate discussion across feminisms, be global and
inter-generational, centre listening, silences and (un)learning.
The first feature of the conversation is that it is ongoing. For Heathcote, conversations
across feminisms need to be ongoing, and for Nesiah feminist agendas constantly need
revising (Heathcote 2019, 72; Nesiah 2011). Reflexive processes of revisiting decisions are
also a key aspect of feminist utopias, which are often conceptualised as ‘process’ utopias that
reject the idea that utopia is a static destination, with an end-state (Johns 2010; Houghton and
O’Donoghue 2020). These open-ended conversations are being reflected in constitutional

18
For an alternative speculative engagement with the US Constitution see Bell (1987).
 Feminist approaches to global constitutionalism 199

processes. Constitutionalisation often centres on the constitutional moment, understood as

a fixed point in history where a constitution is adopted. Rubio-Marín argues that the ‘par-
ticipatory turn’ in constitutionalism also changes this focus on the constitutional moment;
‘civic constitutionalism, the claim goes, envisages constitution-making as a conversation that
invites all those who are potentially concerned, and is open in terms of new voices and issues’
(Rubio-Marín 2020, 235). This approach seeks to move away from a ‘final act of closure’ to
‘permanently open process’ (Blokker 2016, 65 cited in Rubio-Marín 2020, 235). Keeping
a conversation open ensures inequalities are not calcified within the constitution.
The second feature is the requirement for conversations across feminisms. Within interna-
tional law, Otto and Heathcote call for conversations between feminist, queer, intersectional,
and post-colonial feminisms (Otto 2015, 300; Heathcote 2019). For Atrey, feminist constitu-
tionalism is about the discourse between feminist approaches to constitutionalism, how these
approaches are used differently in constitutional legal arguments, and specifically about the
contestation that arises from different feminisms (Atrey 2022). For Atrey, feminist constitu-
tionalism is not something that can be ‘done’ or ‘achieved’, rather it is a continuing process
of ‘unravelling’ the different feminist engagements with constitutionalism (Atrey 2022, 611).
The third feature of this conversational method is to inculcate a global conversation. The
second section of this chapter demonstrated the need for a conversation that takes into account
the levels of governance, the plethora of actors and networks, as well as working across inter-
national law and comparative constitutional law. Heathcote argues ‘there is a general silence
within international law on the intersectional violence within peacetime states that silences
alternative knowledge practices and histories and ignores the wilfulness of state structures
in harming specific groups’ (Heathcote 2019, 173–4). Feminist comparative constitutional,
with its focus within and across states, can help to fill these gaps within international law
scholarship.
The fourth feature of a feminist global constitutionalist conversation is that it should be
inter-generational. The conversation between Charlesworth, Heathcote and Jones offers an
‘inter-generational’ exchange of knowledge (Charlesworth et al 2019). Learning from previ-
ous feminist activism is an important part of rethinking the sources and histories of feminist
constitutionalism (Delap 2020; Engle 2022). Inter-generational conversations work to compli-
cate the fixed ‘waves’ of feminism, an approach which is critiqued for not correctly reflecting
the different agendas of feminist activism. Learning about past feminisms facilitates critiques
of instances of co-option, racism and the exclusion of other women (Kapur 2002). Arguably
an ‘inter-generational’ approach is also a way of incorporating feminist futures imagined in
the past and the present.
Listening is a central aspect, and the fifth feature, of feminist conversations. Baines pri-
oritises listening as a method within her own research, for example by listening to women
within polygamous relationships (Baines 2012). Otto offers a ‘politics of listening’, which
challenges us to ‘think about our collective responsibility to find ways to act on these stories
in the present and support the struggles for justice that were being related’ (Otto 2017, 239).
For Otto, listening takes multiple forms; ‘listening that educates about the complex causes of
conflict and violence, that prompts acknowledgement of the political responsibility of those
who are listening, and encourages solidarity and action towards change’ (Otto 2017, 244). The
‘politics of listening’ goes beyond invitations to participate; as Heathcote argues, listening to
women is not about trying ‘to save or rescue or even to invite to partici­pate’ (Heathcote 2019,
4–5). Rather we should listen to these ‘feminist voices that have been moved to the peripheries
200 Handbook on global constitutionalism

of feminist legal work outside of dominant liberal, radical, and cultural feminisms’ (Heathcote
2019, 4–5, see also Bennoune 2022), and the task for feminist global constitutionalist scholar-
ship is to resist the institutional practices that have side-lined these voices and work to make
space for their voices to be heard.
Within conversations there are also silences. Silence is the sixth consideration of a fem-
inist global constitutionalist conversation. When Gayatri Chakravorty Spivak asked if the
sub-altern can speak, she highlighted how race, gender and colonialism work to oppress
people and render them inaudible to mainstream scholarship (Spivak 1988). Silences ‘can
refer to being silenced, to not being allowed to speak or use one’s voice without severe conse-
quences, or not being heard or acknowledged’ (Fierke and Jabri 2019, 523). Feminist constitu-
tionalists should interrogate where these silences occur, who is being silenced or not listened
to. However, ‘silence may also be deliberate, a decision not to engage or an act of resistance’
(Fierke and Jabri 2019, 523). Feminist constitutional scholars must learn to listen for and to
these deliberate silences so that they are not lost as a source of knowledge in the theorisation
of constitutionalism. Moreover, Gina Heathcote and Lucia Kula call for silence from domi-
nant liberal, radical and cultural feminisms (Heathcote and Kula 2023). Within international
law, Heathcote asks ‘for silence from and to interrupt dominant feminisms’ (Heathcote 2019,
194). Within her own work she attempts to ‘engage the silence required to hear difference’
(Heathcote 2019, 183). Here the methods of listening and silence come together.
The seventh and final feature of a feminist global constitutionalist conversation is the
requirement of (un)learning. Part of these conversations across feminist theories is about
acknowledging the limits of what we know. As Beverley Baines, Dephne Barak-Erez and Tsvi
Kahana state ‘[f]eminists do not pretend to know all there is to know about diversity, but rather
they proclaim their openness to instruction from the writings and practical expertise of the full
range of diversity theorists’ (Baines et al 2012b, 4). Ratna Kapur calls for feminists ‘to listen
and learn from unfamiliar, non-liberal knowledge systems’ (Kapur 2022, 274). The conversa-
tions must be open to conversations in other disciplines, including Third World Approaches
to International Law (TWAIL) that have critiqued the colonial structures of international law.19
Feminist global constitutionalism should be built on an ongoing commitment to unlearning
exclusionary Western analytical tools, listening responsibly to the voices of women as they
tell their stories and share their dreams, as well as being attentive to the silences today and in
the archives.

CONCLUSION

Global constitutionalist scholarship has been criticised for overlooking feminist critiques of
constitutionalism that are located across comparative constitutionalism (Baines et al 2012a),
international constitutionalism (Krivenko 2009), and within global constitutionalism schol-
arship (O’Donoghue and Houghton 2019; Houghton and O’Donoghue 2020; Sapiano and
Baines 2019). Feminist critiques of the principles of global constitutionalism – in particular the
global constitutionalist commitment to human rights – are also found in feminist approaches
to international law (Rimmer and Ogg 2019). Feminist approaches to global constitutionalism

19
For a discussion on Third World Approaches to International Law and Global Constitutionalism,
see Oklopcic (2016).
 Feminist approaches to global constitutionalism 201

must draw on these feminist critiques across domestic constitutional law, international law,
and global constitutionalism.
Feminist approaches to global constitutionalism require a reinterrogation of the meaning
of ‘global’. This chapter discussed how ‘global’ involves an appreciation of the relationship
between international law and domestic constitutional law to better understand how consti-
tutionalisation affects women. Feminist focus on the impact of law on women exposes the
limitations of a scaled approach to global constitutionalism, which conceptualises fixed levels
of governance. Instead, feminist global constitutionalism interrogates feminist engagement
within and across these levels of governance. ‘Global’ can invoke universal, and a feminist
approach resists this move to universality and instead centres transnational feminist solidarity
that prioritises the diversity of women’s experiences.
In a manifesto for feminist global constitutionalism, O’Donoghue and Houghton question
whether it was even possible for global constitutionalisation to be feminist given how entan-
gled it is in conservative constitutional traditions and imperial practices (O’Donoghue and
Houghton 2019). The epistemological turn to consider new sources and methodologies goes
some way to problematising these structures of global constitutionalism. It also offers a new
horizon for feminist global constitutionalism, moving beyond discussions on the inclusion
and participation of women. Focusing on the sources, histories and feminist futures (drawn
from non-legal and legal texts, in archives, artwork, and protests), can work to challenge the
assumptions underpinning core tenets of global constitutionalism, and offer feminist recon-
ceptualisations. One example can be found in Verónica Gago’s work; observing transnational
feminist strike actions around the world from 2016, Gago reconceptualises constituent power
through a feminist lens (Gago 2020). Gago’s feminist potencia drives for the ‘displacement of
the limits that we’ve been made to believe and obey’ (Gago 2020, 2–3).
Part of the epistemological turn is the utilisation of conversations as a methodology. This
chapter draws on feminist discussions of conversations, listening and silences to outline
seven features that should guide feminist global constitutionalist conversations as part of
a methodological shift that offers one ‘mechanism to open up the foundational knowledge and
assumptions of feminist approaches rather than being limited to participation or quotas for
inclusion that are not necessarily transformative in terms of knowledge production’ (Heathcote
2019, 14). These feminist global constitutional conversations must be ongoing and without
a fixed end-point, facilitate discussion across feminisms, be global and inter-generational so
as to reflect on the past and offer feminist futures, centre responsible listening, be alert to the
uses and abuses of silences, and be open to other theories and disciplines as part of an ongoing
process of (un)learning.

REFERENCES
Anderl, F. and A. Witt (2020), ‘Problematising the Global in Global IR’, Millennium, 49 (1), 32–57.
Arato, A. (2017), The Adventures of the Constituent Power: Beyond Revolutions?, Cambridge:
Cambridge University Press.
Aronson, O. (2017–2018), ‘The Next Forty Presidents’, William and Mary Journal of Women and the
Law, 24 (2), 235–66.
Atrey, S. (2022), ‘Feminist Constitutionalism: Mapping a Discourse in Contestation’, International
Journal of Constitutional Law, 20 (2), 611–41
202 Handbook on global constitutionalism

Baines, B. (2012), ‘Polygamy and Feminist Constitutionalism’, in B. Baines, D. Barak-Erez and T.

Kahana (eds), Feminist Constitutionalism: Global Perspectives, Cambridge: Cambridge University
Press, pp. 452–74.
Baines, B. (2017), ‘Women Judges on Constitutional Courts: Why Not Nine Women?’, in H. Irving (ed.),
Constitutions and Gender, Cheltenham, UK and Northampton, MA: Edward Elgar, pp. 290–319.
Baines, B. and R. Rubio-Marín (2005), ‘Introduction: Toward a Feminist Constitutional Agenda’,
in B. Baines and R. Rubio-Marín (eds), The Gender of Constitutional Jurisprudence, Cambridge:
Cambridge University Press, pp. 1–21.
Baines, B., D. Barak-Erez and T. Kahana (eds) (2012a), Feminist Constitutionalism: Global Perspectives,
Cambridge: Cambridge University Press.
Baines, B., D. Barak-Erez and T. Kahana (2012b), ‘The Idea and Practice of Feminist Constitutionalism’,
in B. Baines, D. Barak-Erez and T. Kahana (eds), Feminist Constitutionalism: Global Perspectives,
Cambridge: Cambridge University Press, pp. 1–14.
Bell, C. (2014), ‘What We Talk About When We Talk About International Constitutional Law’,
Transnational Legal Theory, 5 (2), 241–84.
Bell, D. (1987), And We Are Not Saved: The Elusive Quest for Racial Justice, New York: Basic Books.
Bennoune, K. (2022), ‘Multi-directionality and Universality: Global Feminism and International Law in
the Twenty-first Century’, American Journal of International Law: Unbound, 116, 275–80.
Bird, F. (2020), ‘“Is this a Time of Beautiful Chaos?”: Reflecting on International Feminist Legal
Methods’, Feminist Legal Studies, 28, 179–203.
Blokker, P. (2016), ‘Constitutional Reform in Europe and Recourse to the People’, in X. Contiades and
A. Fotiadou (eds), Participatory Constitutional Change: The People as Amenders of the Constitution,
London: Routledge, pp. 31–51.
Buchanan, R. and S. Pahuja (2002), ‘Collaboration, Cosmopolitanism and Complicity’, Nordic Journal
of International Law, 71, 297–324.
Buss, D.E. (1997), ‘Going Global: Feminist Theory, International Law, and the Public/Private Divide’, in
S.B. Boyd (ed.), Challenging the Public/Private Divide: Feminism, Law and Public Policy, Canada:
University of Toronto Press, pp. 360–84.
Campbell, M. (2015), ‘CEDAW and Women’s Intersecting Identities: A Pioneering New Approach to
Intersectional Discrimination’, Revista Direito CV Sao Paulo, 11 (2), 479–503.
Charlesworth, H. and C. Chinkin (2000), The Boundaries of International Law: A Feminist Analysis,
Manchester: Manchester University Press.
Charlesworth, H., C. Chinkin and S. Wright (1991), ‘Feminist Approaches to International Law’,
American Journal of International Law, 85 (4), 613–45.
Charlesworth, H., G. Heathcote and E. Jones (2019), ‘Feminist Scholarship on International Law in the
1990s and Today: An Inter-Generational Conversation’, Feminist Legal Studies, 27 (1), 79–93.
Coetzee, A. (2019), ‘Revisiting Citizenship in the South African Postcolony: Empire, White Romance
and the (Continued) Abjection of the Black Woman’, Postcolonial Studies, 22 (3), 345–61.
Conaghan, J. (2013), Law and Gender, Oxford: Oxford University Press.
Cooper, D. (2020), ‘Towards an Adventurous Institutional Politics: The Prefigurative “as if” and the
Reposing of What’s Real’, The Sociological Review, 68 (5), 893–916.
Craven, M. (2021), ‘The Tyranny of Strangers: Transformative Occupations Old and New’, London
Review of International Law, 9 (2), 197–218.
Crenshaw, K. (1989), ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique
of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’, The University of Chicago
Legal Forum, 140, 139–67.
Crenshaw, K. (1991), ‘Mapping the Margins: Intersectionality, Identity Politics, and Violence against
Women of Color’, Stanford Law Review, 43 (6), 1241–99.
Dawuni, J.J. (2019), ‘Marti-legal Feminism: An African Feminist Response to International Law’, in
S.H. Rimmer and K. Ogg (eds), Research Handbook on Feminist Engagement with International Law,
Cheltenham, UK and Northampton, MA: Edward Elgar, pp. 445–62.
de Wet, E. (2006), ‘The International Constitutional Order’, International & Comparative Law
Quarterly, 55 (1), 51–76.
Delap, L. (2020), Feminisms: A Global History, London: Pelican Books.
 Feminist approaches to global constitutionalism 203

Dixon, R. and J. Bond (2017), ‘Constitutions and Reproductive Rights: Convergence and
Non-convergence’, in H. Irving (ed.), Constitutions and Gender, Cheltenham, UK and Northampton,
MA: Edward Elgar, pp. 438–62.
Engle, K. (2022), ‘Looking Back to Think Forward: What We Might Learn from Cold War Feminist
Movements’, American Journal of International Law: Unbound, 116, 264–9.
Engle, K., V. Nesiah and D. Otto (2022), ‘Feminist Approaches to International Law’, in J.L. Dunoff and
M.A. Pollack (eds), International Legal Theory, Cambridge: Cambridge University Press, pp. 174–95.
Enloe, C., A. Lacey and T. Gregory (2016), ‘Twenty-five Years of Bananas, Beaches and Bases:
A Conversation with Cynthia Enloe’, Journal of Sociology, 52 (3), 537–50.
Fierke, K.M. and V. Jabri (2019), ‘Global Conversations: Relationality, Embodiment and Power in the
Move Towards a Global IR’, Global Constitutionalism, 8 (3), 506–35.
Fraser, N. (2009), Scales of Justice: Reimagining Political Space in a Globalizing World, New York:
Columbia University Press.
Gago, V. (2020), Feminist International: How to Change Everything (trans. L. Mason-Deese), London:
Verso.
Galindo, M. and Mujeres Creando (2013), ‘Political, Feminist Constitution of the State: The Impossible
Country We Build as Women’, in M. Galindo, No se puede descolonizar sin despatriarcalizar,
reprinted in Hemispheric Institute and trans. A. Levine, accessed 11 September 2022 at https://​
hemisphericinstitute​.org/​en/​emisferica​-11​-1​-decolonial​-gesture/​11​-1​-dossier/​constitucion​-politica​
-feminista​-del​-estado​-el​-pais​-imposible​-que​-construimos​-las​-mujeres​.html​#​_edn2.
García-Del Moral, P. (2019), ‘The “Formally Feminist State”: A Potential New Player in the
Inter-American Human Rights System?’, American Journal of International Law: Unbound, 113,
365–9.
Garrard, M.D. (2021), Artemisia Gentileschi and Feminism in Early Modern Europe, London: Reaktion
Books.
Ghadery, F. (2022), ‘Beyond International Human Rights Law – Music and Song in Contextualised
Struggles for Gender Equality’, Transnational Legal Theory, 13 (1), 31–58.
Ghadery, F. and S. Kalantry (2022), ‘Introduction – Transnational Legal Feminism’, Transnational
Legal Theory, 13 (1), 1–7.
Grewal, I. and C. Kaplan (eds) (1994), Scattered Hegemonies: Postmodernity and Transitional Feminist
Practices, Minnesota: University of Minnesota Press.
Heathcote, G. (2018), ‘On Feminist Legal Methodologies: Spilt, Plural and Speaking Subjects’,
feminists@​law, 8 (2), 1–20.
Heathcote, G. (2019), Feminist Dialogues on International Law: Success, Tensions, Futures, Oxford:
Oxford University Press.
Heathcote, G. and L. Kula (2023), ‘Abandoning the Idealized white subject of legal feminism: a mani-
festo for silence in a Lusophone register’, Global Constitutionalism, 1–26.
Hodson, L. (2014), ‘Women’s Rights and the Periphery: CEDAW’s Optional Protocol’, European
Journal of International Law, 25 (2), 561–78.
Houghton, R. (2022), ‘The Individual in Feminist Approaches to International Law’, in T. Sparks and A.
Peters (eds), Individual in International Law, forthcoming.
Houghton, R. and A. O’Donoghue (2020), ‘“Ourworld”: A feminist approach to global constitutional-
ism’, Global Constitutionalism, 9 (1), 38–75.
Houghton, R. and A. O’Donoghue (2021), ‘Manifestos and Counter-Manifestos: An explainer for the
1776 Commission’, Critical Legal Thinking, 21 January, accessed 11 September 2022 at https://​
c​riticalleg​althinking​.com/​2021/​01/​21/​manifestos​-counter​-manifestos​-an​-explainer​-for​-the​-1776​
-commission/​.
Houghton, R. and A. O’Donoghue (2022), ‘Manifestos as Constituent Power: Performing a Feminist
Revolution’, Global Constitutionalism, 1–26.
Irving, H. (2008), Gender and the Constitution: Equity and Agency in Comparative Constitutional
Design, Cambridge: Cambridge University Press.
Irving, H. (2017), ‘Introduction’, in H. Irving (ed), Constitutions and Gender, Cheltenham, UK and
Northampton, MA: Edward Elgar, pp. 1–15.
Johns, A. (2010), ‘Feminism and Utopianism’, in G. Claeys (ed.), The Cambridge Companion to Utopian
Literature, Cambridge: Cambridge University Press, pp. 174–99.
204 Handbook on global constitutionalism

Jones, E. (2022), ‘Posthuman Feminism and Global Constitutionalism: Environmental Reflections’,

Global Constitutionalism, 1–15.
Kapur, R. (2002), ‘The Tragedy of Victimization Rhetoric: Resurrecting the “Native” Subject in
International/Post-Colonial Feminist Legal Politics’, Harvard Human Rights Journal, 15, 1–13.
Kapur, R. (2021), ‘On Violence, Revolution and the Self’, Postcolonial Studies, 24 (2), 251–69.
Kapur, R. (2022), ‘“The First Feminist War in all of History”: Epistemic Shifts and Relinquishing the
Mission to Rescue the “Other Woman”’, American Journal of International Law: Unbound, 116,
270–74.
Karpin, I. and K. O’Connell (2005), ‘Speaking into a Silence: Embedded Constitutionalism, the
Australian Constitution and the Rights of Women’, in B. Baines and R. Rubio-Marín (eds), The
Gender of Constitutional Jurisprudence, Cambridge: Cambridge University Press, pp. 22–47.
Klabbers, J. (2019), ‘International Constitutionalism’, in R. Masterman and R. Schütze (eds), The
Cambridge Companion to Comparative Constitutional Law, Cambridge: Cambridge University Press,
pp. 498–520.
Knop, K. (2004), ‘Introduction’, in K. Knop (ed.), Gender and Human Rights, Oxford: Oxford University
Press, pp. 1–12.
Kotzur, M. (2012), ‘Overcoming Dichotomies: A Functional Approach to the Constitutional Paradigm in
Public International Law’, Goettingen Journal of International Law, 4 (2), 585–97.
Krivenko, E.Y. (2009), ‘Feminism, Modern Philosophy and the Future of Legitimacy of International
Constitutionalism’, International Community Law Review, 11 (2), 219–45.
Kumar, V. (2017), ‘Towards a Constitutionalism of the Wretched: Global Constitutionalism, International
Law and the Global South’, Völkerrechtsblog, 27 July 2017, accessed 12 September 2022, https://​
voelkerrechtsblog​.org/​towards​-a​-constitutionalism​-of​-the​-wretched/​.
Labenski, S. (2022), ‘“The world is not organised for peace”: Feminist Manifestos and the Making of
International Law’, Global Constitutionalism, 1–31.
Lyon, J. (1999), Manifestoes: Provocations of the Modern, Ithaca, NY: Cornell University Press.
Mac Amhlaigh, C. (2016), ‘Harmonizing Global Constitutionalism’, Global Constitutionalism, 5 (2),
173–206.
MacKinnon, C.A. (2012), ‘Gender in Constitutions’, in M. Rosenfeld and A. Sajó (eds), The Oxford
Handbook of Comparative Constitutional Law, Oxford: Oxford University Press, pp. 397–416.
Melzer, P. (2006), Alien Constructions: Science Fiction and Feminist Thought, Texas: University of
Texas Press.
Munro, V. (2007), Law and Politics at the Perimeter: Re-evaluating Key Debates in Feminist Theory,
Oxford: Hart.
Murray, C. and C. Wittke (2017), ‘International Institutions, Constitution-making and Gender’, in H.
Irving (ed.), Constitutions and Gender, Cheltenham, UK and Northampton, MA: Edward Elgar,
pp. 107–32.
Natarajan, U. (2011), ‘Creating and Recreating Iraq: Legacies of the Mandate System in Contemporary
Understandings of Third World Sovereignty’, Leiden Journal of International Law, 24, 799–822.
Nash, J.C. (2018), Black Feminism Reimagined: After Intersectionality, Durham, NC: Duke University
Press.
Nesiah, V. (2011), ‘Priorities of Feminist Legal Research: A Sketch, a Draft Agenda, a Hint of an
Outline…’, feminists@​law, 1 (1), 1–4.
O’Donoghue, A. (2013a), ‘Book Review: Feminist Constitutionalism: Global Perspectives by Beverley
Baines, Daphne Barak-Erez and Tsvi Kahana’, The Irish Jurist, 49, 235–7.
O’Donoghue, A. (2013b), ‘International Constitutionalism and the State: A Rejoinder to Vlad Perju’,
International Journal of Constitutional Law, 11 (4), 1052–5.
O’Donoghue, A. (2014), Constitutionalism in Global Constitutionalisation, Cambridge: Cambridge
University Press.
O’Donoghue, A. and R. Houghton (2018), ‘A Manifesto for Feminist Global Constitutionalist Order’,
Critical Legal Thinking, 1 August 2018, accessed 11 September 2022 at https://​c​riticalleg​althinking​
.com/​2018/​08/​01/​a​-manifesto​-for​-feminist​-global​-constitutionalist​-order/​.
O’Donoghue, A. and R. Houghton (2019), ‘Can Global Constitutionalisation be Feminist?’, in S. Harris
Rimmer and K. Ogg (eds), Research Handbook on Feminist Engagement with International Law,
Cheltenham, UK and Northampton, MA: Edward Elgar, pp. 81–102.
 Feminist approaches to global constitutionalism 205

O’Rourke, C. and A. Swaine (2018), ‘WPS and CEDAW, Optional Protocol, and General
Recommendations’, in S.E. Davies and J. True (eds), The Oxford Handbook of Women, Peace, and
Security, Oxford: Oxford University Press, pp. 669–79.
Oklopcic, Z. (2016), ‘The South of Western Constitutionalism: A Map Ahead of a Journey’, Third World
Quarterly, 37 (11), 2080–97.
Orford, A. (2002), ‘Feminism, Imperialism and the Mission of International Law’, Nordic Journal of
International Law, 71, 275–96.
Otomo, Y. (2014), ‘Her Proper Name: A Revisionist Account of International Law’, London Review of
International Law, 2 (1), 149–54.
Otto, D. (2006), ‘Lost in Translation: Re-scripting the Sexed Subjects of International Human Rights
Law’, in A. Orford (ed.), International Law and Its Others, Cambridge: Cambridge University Press,
pp. 318–56.
Otto, D. (2015), ‘Queering Gender [Identity] in International Law’, Nordic Journal of Human Rights,
33 (4), 299–318.
Otto, D. (2017), ‘Beyond Legal Justice: Some Personal Reflections on People’s Tribunals, Listening and
Responsibility’, London Review of International Law, 5 (2), 225–49.
Otto, D. and A. Grear (2018), ‘International Law, Social Change and Resistance: A Conversation
between Professor Anna Grear and Dianne Otto’, Feminist Legal Studies, 26 (3), 351–63.
Owens, P., and K. Rietzler (2021), ‘Introduction: Toward a History of Women’s International Thought’,
in P. Owens and K. Rietzler (eds), Women’s International Thought: A New History, Cambridge:
Cambridge University Press, pp. 1–26.
Peters, A. (2009), ‘The Merits of Global Constitutionalism’, Indiana Journal of Global Legal Studies,
16 (2), 397–411.
Peters, A, and K. Armingeon (2009), ‘Introduction: Global Constitutionalism from an Interdisciplinary
Perspective’, Indiana Journal of Global Legal Studies, 16 (2), 385–95.
Rimmer S.H. and K. Ogg (eds) (2019), Research Handbook on Feminist Engagement with International
Law, Cheltenham, UK and Northampton, MA: Edward Elgar.
Rousseau, S. (2011), ‘Indigenous and Feminist Movements at the Constituent Assembly in Bolivia.
Locating the Representation of Indigenous Women’, Latin American Research Review, 46 (2), 5–28.
Rubinelli, L. (2020), Constituent Power: A History, Cambridge: Cambridge University Press.
Rubio-Marín, R. (2020), ‘Women and Participatory Constitutionalism’, International Journal of
Constitutional Law, 18 (1), 233–59.
Rubio-Marín, R. (2022), Global Gender Constitutionalism and Women's Citizenship: A Struggle for
Transformative Inclusion, Cambridge: Cambridge University Press.
Rubio-Marín, R. and H. Irving (2019), ‘Women as Constitution-Makers: The Promises and the
Challenges of Participation’, in R. Rubio-Marín and H. Irving (eds), Women as Constitution-Makers:
Case Studies from the New Democratic Era, Cambridge: Cambridge University Press, pp. 1–30.
Rubio-Marín, R. and M.I. Morgan (2004), ‘Constitutional Domestication of International Gender Norms:
Categorizations, Illustrations, and Reflections from the Nearside of the Bridge’, in K. Knop (ed.),
Gender and Human Rights, Oxford: Oxford University Press, pp. 113–52.
Sapiano J. and B. Baines (2019), ‘Feminist Curiosity about International Constitutional Law and Global
Constitutionalism’, Journal of the Oxford Centre for Socio-Legal Studies, 1, 1–21.
Saunders, C. (2009), ‘Towards a Global Constitutional Gene Pool’, National Taiwan University Law
Review, 4 (3), 1–38.
Schwöbel-Patel, C. (2011), Global Constitutionalism in International Legal Perspective, Leiden:
Martinus Nijhoff.
Schwöbel-Patel, C. (2012), ‘The Appeal of the Project of Global Constitutionalism to Public International
Lawyers’, German Law Journal, 13 (1), 1–22
Sellers, P.V. (2022), ‘Jus Cogens: Redux’, American Journal of International Law: Unbound, 116,
281–86.
Shaw, J. (2000), ‘Importing Gender: The Challenge of Feminism and the Analysis of the EU Legal
Order’, Journal of European Public Policy, 7 (3), 406–31.
Shiner, A. (2019), ‘The Ideologies of Global Constitutionalism’, Global Constitutionalism, 8 (1), 12–28.
Spivak, G.C. (1988), ‘Can the Subaltern Speak?’, in C. Nelson and L. Grossberg (eds), Marxism and the
Interpretation of Culture, Urbana: University of Illinois Press, pp. 3–34.
206 Handbook on global constitutionalism

Suk, J. (2018), ‘Gender Equality and the Protection of Motherhood in Global Constitutionalism’, Global
Constitutionalism, 12 (1), 151–80.
Sullivan, K.M. (2002), ‘Constitutionalizing Women’s Equality’, California Law Review, 90 (3), 735–64.
Tambe, A. and M. Thayer (2021), ‘Introduction’, in A. Tambe and M. Thayer (eds), Transnational
Feminist Itineraries: Situating Theory and Activist Practice, Durham, NC, and London: Duke
University Press, pp. 1–9.
Taylor, U. (2006), ‘Street Strollers: Grounding the Theory of Black Women Intellectuals’, Afro-Americans
in New York Life and History, 30 (2), 153–71.
Teubner, G. (2010), ‘Fragmented Foundations: Societal Constitutionalism beyond the Nation State’, in
P. Dobner and M. Loughlin (eds), The Twilight of Constitutionalism?, Oxford: Oxford University
Press, pp. 328–42.
True, J. and A. Wiener (2019), ‘Everyone Wants (a) Peace: The Dynamics of Rhetoric and Practice on
“Women, Peace and Security”', International Affairs, 95 (3), 553–74.
Tzouvala, N. (2020), Capitalism as Civilisation: A History of International Law, Cambridge: Cambridge
University Press.
Umoren, I.D. (2021), ‘Ideas in Action: Eslanda Rodeson’s International Thought after 1945’, in P.
Owens and K. Rietzler (eds), Women’s International Thought: A New History, Cambridge: Cambridge
University Press, pp. 93–112.
Wiener A., A.F. Lang, Jr., J. Tully, M.P. Maduro and M. Kumm (2012), ‘Global Constitutionalism:
Human Rights, Democracy and the Rule of Law’, Global Constitutionalism, 1 (1), 1–15.
Williams, S.H. (2019), ‘Dialogic Democracy, Feminist Theory and Women’s Participation in
Constitution-Making’, in R. Rubio-Marín and H. Irving (eds), Women as Constitution-Makers: Case
Studies from the New Democratic Era, Cambridge: Cambridge University Press.
 PART III

LEGAL THEORIES
15. Natural law at the foundation of global
constitutionalism
Mary Ellen O’Connell

By the mid-1980s, academic legal theorists working in the Western tradition generally iden-
tified two primary categories of law within states, positive law and constitutional law. They
identified one category of law at the international level, positive law. This Handbook is an
inquiry into whether there is more than positive law at the international level – it asks whether
constitutionalism exists in some ways comparable to the constitutionalism of states (Lang
and Wiener, Chapter 1 in this Handbook). This chapter adds another inquiry. It argues that in
addition to positive law and constitutional law natural law also exists. Indeed, the chapter goes
further by providing evidence that natural law is essential to the existence of both positive law
and constitutional law.
The Handbook editors took as their starting place the existence of a ‘global legal and
political order’. They invited contributors to explore whether that order is becoming ‘more
constitutional’. The assumption in their question is that no constitution currently exists at the
supra-national level. The assumption reflects a consensus in the Handbook on what a constitu-
tion is and the factors of law and politics have given rise to national constitutions. The authors
generally agree that the current global legal and political order incorporates constitutionalist
principles but not a constitution per se. This chapter builds on the consensus. It helps iden-
tify uniquely constitutionalist legal principles as rules of positive law subject to heightened
requirements for modification or change. Durable, enduring, and nonderogable principles,
such as the prohibition on the use of force or the prohibition on genocide may be categorized
as ‘constitutionalist’, but they are not uniquely constitutional. They are also natural law
principles.
The editors opened the first edition with a basic description of what a constitution or con-
stitutionalism can accomplish: Constraint on political decision-making (Lang and Wiener
Chapter 1 in this Handbook). Of course, all of law does this, whether characterized as
constitutional or not. We know from anthropological and legal historical studies that before
the emergence of law, human action was ordered through kinship ties and other such social
norms, religious belief, and physical force. Constitutionalism is a late development within
the story of law. Following its first emergence, the first systematic thinking about law led to
the theory of natural law. Natural law includes an explanation of positive law, as well as the
basis for international law. During the time period when theorists were advancing positive law
to the exclusion of natural law, the need for some restrictions on positive law was perceived
to, in effect, replace natural law. Constitutional law was introduced as a check on positive
law-making. Yet, the deficits of constitutional law in the role of normative authority over
positive law is increasingly understood today. Scholars working on issues of both domestic

208
 Natural law at the foundation of global constitutionalism 209

and international law are returning to a comprehensive understanding of law, which includes
positive, constitutional, and natural law.1
This chapter takes the discussion further by showing that, while constitutional legal and
political theory may help identify principles properly classified as ‘constitutionalist’, natural
law theory is needed to determine which of these principles are nonderogable and which
may be altered through positive law mechanisms. Natural law theory alone can explain why
some principles are inherent in the very concept of law and endure so long as a legal system
endures. Natural law premises and principles form the foundation upon which constitutional
and positive law are built.
The chapter begins with an introduction to law and natural law and indicates how natural
law concepts gave rise to modern international law. As international law emerged, theories of
political realism and legal positivism emerged as well, challenging the very concept of natural
law. The second section shows, however, that natural law is critical to the existence of law –
both to the law’s underlying premises and to its higher norms. The final section distinguishes
the natural law principles and premises connected with international law from international
law’s positivist aspects, including its constitutionalist features. While not essential to law in
the way natural law and positive law are, constitutionalism nevertheless plays an important
role in distinguishing among positive law rules. Some positive law is easily modifiable.
Constitutional principles are more difficult to change but need not necessarily endure in the
way natural law premises and principles must.

NATURAL LAW, POSITIVE LAW, AND INTERNATIONAL LAW

Constitutional law is the most recent of the fundamental legal categories to develop in human
societies. Basic notions of law emerged first, then followed by increasingly sophisticated
theories of law, beginning with natural law theory which included an explanation of positive
law. Complex factors in Europe – including the rise of science, the rise of Protestantism, and
the rise of the modern state, led to the decline of natural law. In its place, legal and political
theorists looked to positive law and constitutions. Natural law, however, had preceded and
formed the basic legal concepts underlying these later developments. While some theorists
continued to acknowledge the need for natural law theory, others rejected it, sometimes vehe-
mently. Opponents nevertheless took for granted many assumptions traceable only to natural
law theory, not positivism or constitutionalism. This section provides a basic definition of law
and briefly explains the evolution of natural law teaching to indicate that all notions of law in
the West today depend on natural law.

1
Some theorists never abandoned natural law. See, e.g., Finnis (1980). They are being joined by an
ever-larger contingent. ‘The continuing interest in natural law concepts [has] now renewed once more
…’ Kalmbach (2017); Crowe and Lee (2019) pp. 13–30; O’Connell (2019). Growing interest in the
2020s in connection with United States constitutional law is noteworthy. Harvard law professor, Adrian
‘Vermeule advocates recovery of the natural law tradition that undergirded Western law for over two
millennia and provided the basis for American law from before the founding of the country until it was
unceremoniously discarded in the mid-twentieth century’ Tamanaha (2022), commenting on Vermeule
(2022).
210 Handbook on global constitutionalism

A Early Law and Natural Law

Law emerged in human communities for providing order within and between communities.
Order means predictable conduct, which is the condition necessary for planning, organization,
and peaceful, non-conflictual relations. Anthropological evidence supports the conclusion that
families, physical force, and religious belief were the first ordering mechanisms and followed
by law. Law evolved as an alternative to physical force and religion while incorporating
aspects of both in the interest of attaining peace. Like religion, law is a ‘complex, intricate
aspect of human culture’ but, like religion, it is also a ‘normative social practice’ for guiding
human behavior, giving rise ‘to reasons for action’ (Marmor and Sarch 2019). As a means of
providing social order, law is uniquely premised on the concept of equality. The other ordering
mechanisms are premised on physical power or socially constructed hierarchical status.
Ancient Greek philosophy began the systematic examination of phenomenon of law, in the
context of thinking about the good life of individuals and of society. By the 4th century BCE,
the Greek philosophers, Plato, Aristotle, and, most importantly, their successors known as the
Stoics produced a theory of natural law (Duke 2019; Tasioulas and Verdirame 2022). ‘The
Stoics originated the idea of natural law as such by explicitly bringing together the notions of
“law” (nomos) and “nature” (physis) …’ (Taitslin 2019, p. 31). The Stoics taught that through
observing and reasoning about the natural world, the regular patterns and orderly arrangements
of the natural law offered insights into how human communities should be organized. The
law of nature could be translated into rules for harmonious life in community. They further
concluded that as order in nature was pervasive, law for the creation of an orderly society must
be universally applicable (Taitslin 2019, p. 32). The natural, orderly world was a creation of
the divine. Patterning social life on natural order supported human flourishing. The Stoics
also observed that all human beings share the capacity to reason. From this they were able to
develop a ‘radically cosmopolitan, universalist’ vision of law (Neff 2014, pp. 59–60).
The Roman philosopher and jurist Cicero drew on the Stoics and other philosophical
schools in the first and second centuries BCE (Horsley 1978, n. 14; pp. 42–50). He refined the
element of transcendence found in Stoic thought.2 Not only did nature give insight to divine
intention or transcendent knowledge, one could reflect on divine meaning as a distinctive
aspect of reasoning about the world while also reflecting directly on nature. Cicero taught that
contemplation of the divine – in or apart from nature – inspires understanding of the norms that
should be observed as legal norms. He, like Aristotle and the Stoics before him, understood the
aims of law are the realization of peace and justice.
Cicero further explained natural law by contrasting it with positive law. Positive law is
made through consent-based procedures, such as the process of parliamentary legislation
and treaty-making, as well as designated material acts, including the practice of states in the
formation of customary international law rules (Green and Adams 2019). Cicero identified two
categories of positive law in his day, the jus civile applicable to Romans and the jus gentium
applicable to the many disparate communities of non-Romans who fell under Roman control.
Both were a mix of conventional and customary law. The jus gentium, like natural law, applied
universally, the jus civile did not. All positive law, regardless of category, had to comply with

2
‘Transcendence’ refers to ‘[e]xistence or experience beyond the normal or physical level.’
Oxford Dictionaries, accessed 21 June 2016, https://​www​.oxforddictionaries​.com/​us/​definition/​english/​
transcendence.
 Natural law at the foundation of global constitutionalism 211

the normative standards of natural law to be valid. Thus, for Cicero, there could be no positive
right to resort to war in conflict with the natural law norm of peace. War could be justified only
in the interest of establishing peace.
The natural law of the ancient era was blended with Christian and other religious teaching
during the Middle Ages. The most famous synthesizer was St. Thomas Aquinas, known as
the ‘paradigmatic’ natural law theorist (Duke 2019). His approach is still known as ‘classical
natural law’ (Doomen 2011, p. 882) While technically expanding Cicero’s two major catego-
ries of law, natural and positive, to four, adding eternal law and divine law. Because eternal
law is known to God alone and divine law was incorporated in Cicero’s term ‘natural law’, the
two-part division into natural and positive law remained important. However, the distinction
of Aquinas’s contribution from later approaches to natural law remained in his emphasis on
divine law as separate from what is learned by reasoning about the natural world. Divine law
in contrast to eternal law is revealed to humanity through sacred texts and other forms of rev-
elation.3 This method led to the most important normative precepts of law, including the con-
clusions that law is a public good, that legal duties must be fulfilled in good faith, and that the
application of law must be fair and achieve justice, meaning that like cases are treated alike.

B Political Realism and Legal Positivism

The emergence of scientific method, which relies on material evidence to support proposi-
tions, together with other factors, resulted in a shift in legal and political theory away from
transcendent sources to reasoning on the basis of observing nature alone. The concept of
‘nominalism’ began to throw doubt on the existence of objects or concepts without physical
reality. The shift coincided with the Reformation and resulting religious divisions in Europe
(Berman 1983, p. 25). The authority of the Church as an arbiter of the natural law eroded and
‘gradually elements of divine revelation were replaced by reference to reason or the “nature”
of things’ – a division developed between ‘Naturrecht’ [natural law] and ‘Vernuftrecht’ [law
of reason] (Walter forthcoming). In English the term ‘natural law’ continued to be used for
both branches, accounting for some of the present day confusion over what exactly ‘natural
law’ means. ‘[J]urists’ reluctance to ground natural law in divine edicts led to a collapse of
natural law legislated by God into positive law by the eighteenth century’ (Daston and Stolleis
2008, p. 10).
The founder of modern international law, Hugo Grotius, was part of this development to some
extent for the instrumental reason of moving past theological differences between Protestants
and Catholics, which had ignited the brutal wars of religion in Europe. He famously wrote in
the Prolegomena of his seminal work, The Law of War and Peace, that the book reflected what
the law would be even if there were no God. Otherwise, the book is faithful to Aquinas and
Aquinas’ principal successors, the Scholastics, and among them, Francisco Suarez (Grotius
1995; Neff 2014; Capps 2020; Berman 1983). Grotius also followed Aquinas and Suarez in
finding as part of natural law, positive law rules, including the Roman jus gentium. He taught
that the jus gentium was needed for its detail and that it should be interpreted in the light of
natural law. Grotius’s efforts led to the first ‘detailed body of specific rules’ for the governing
of international relations (Neff 2014, p. 141).

3
These terms have to an extent added to the confusion over what natural law is.
212 Handbook on global constitutionalism

Grotius’ British contemporary, the political philosopher Thomas Hobbes, in line with
another, earlier political theorist, Machiavelli, presented a major challenge to the very possibil-
ity of law over sovereigns. As a Protestant, Hobbes rejected any claim by the Church to exer-
cise legal authority over sovereigns as a normative matter. In addition, owing to his experience
in the English Civil War, Hobbes strove, above all, for the institution of a strong government to
ensure order within the state through physical force and other forms of coercion. For Hobbes,
without the coercive power of a single governmental authority, both law and morality were
limited in how they could keep peace among states. National leaders have a duty to defend
their internal orders against the inevitable violence and aggression exercised by states against
each other in the ungoverned space beyond states. Along with Machiavelli, Hobbes is linked
to the ideas that launched the contemporary political science theory of realism. Realism relies
on a dark assessment of human nature – that people are ultimate selfish and anti-social so that
‘the basis of political obligation is interest pure and simple’ (Lauterpacht 1946, pp. 24–5). This
assessment led Hobbes not only to construct a blueprint for order within states that required
centralized governmental control, he shifted decisively away from law as divine command to
law as the product of sovereign command (Boyle 1987, pp. 383, 391; Dyzenhaus 1992).
John Locke, the highly influential English political commentator, adopted key points from
Hobbes. Locke’s work, in turn, is reflected in the thinking of the founders of the United States.
Locke took from Hobbes a focus on the positive law of states coercively enforced by strong
central government. He distinguished himself in his Two Treatises of Government by also
arguing for some legal restraint on governments but did not look to the existing alternative of
international law for this purpose. Instead, Locke devised a legal fiction of a ‘social contract’
in which the people gave up some rights they enjoyed in the ‘state of nature’ to governments in
exchange for legal limits on government power. ‘[P]eople in the state of nature conditionally
transfer some of their rights to the government in order to better ensure the stable, comfortable
enjoyment of their lives, liberty, and property. Since governments exist by the consent of the
people in order to protect the rights of the people and promote the public good, governments
that fail to do so can be resisted and replaced with new governments’ (Tuck 1999). For Locke,
violent revolution is justified against tyrannical governments. In this, he parted company deci-
sively from Hobbes, who abhorred the idea of civil war. Hobbes had promoted the sovereign
authority of governments to maintain order, in particular, by preventing civil war.
Still, Hobbes’ views that Locke shared on sovereign authority is also evident in the writing
of the leading international law scholar to succeed Grotius, Emerich de Vattel. Vattel’s major
work, The Law of Nations, appeared in 1758. Vattel cites Grotius and invokes natural law, yet
his ideas are a major departure from the natural law of Aquinas. Vattel reconceives natural law
as solely science-based. It results from individual reasoning on the lessons of nature for the
institution of law. For Vattel it is the person of the sovereign who applies his reason and con-
science to discern lessons for law. As a sovereign, he is the equal of other sovereigns, meaning
no one can sit in judgment of the decisions of the other. There is no law superior to individual
sovereigns. This means that treaties are the principal form of international law – they are pos-
itive law as the law made by sovereigns (Allott 2002, pp. 56–62).
Vattel’s efforts to promote national sovereign authority created a challenge for
nineteenth-century international lawyers. Vattel’s concept of sovereignty combined with the
rising interest in constitutional law theory among legal and political theorists. The British
legal theorist and follower of Hobbes, John Austin, famously defined law in 1832 as the
command of a sovereign backed by a sanction, and stated that international law was not law
 Natural law at the foundation of global constitutionalism 213

because its rules do not emanate from a single sovereign in a position to coerce obedience.
What some saw as international law was for him merely a system of positive morality (Austin
2009, pp. 141–2). International legal theorists faced a dilemma. They did not wish to appear
unscientific by clinging to classical natural law, nor did some of them wish to limit their own
sovereign’s power through a natural law concept that placed ultimate normativity beyond sov-
ereign prerogatives. Freedom to use military force unrestrained by natural law restrictions was
proving critical to the violent establishment of European overseas empires. However, Austin
was correct to the extent that international law cannot qualify as law without an explanation
as to why it binds sovereigns. Two German theorists rose to prominence for their attempts
to preserve both international law and absolute sovereignty. Georg Jellinek argued that a
‘sovereign state, through entering into a legal relation with another state, subjected itself to
international law by an act of “self-limitation”…’ (Nussbaum 1954, pp. 234–5; Kleinschmidt
2015, p. 376). He admitted, however, that the sovereign state could end its ‘auto-limitation’ at
any time. In 1899, Heinrich Treipel introduced a concept of the ‘common will’, arguing that
coming together to express a commitment in law could limit state discretion to ignore the duty
to obey. The ‘common will’ did not seem to be the product of positive law, however, leaving
only natural law theory to explain how such a community-wide commitment could overcome
individual sovereign prerogative (Nussbaum 1954, pp. 234–5).
Perhaps because it had links to the older natural law tradition, the common will idea was not
easily dismissed. Common will, together with Immanuel Kant’s proposition in 1795 of a world
federation to prevent war, helped lead to the establishment of the first major inter-governmen-
tal organization, the League of Nations. The League and Permanent Court of International
Justice (PCIJ), established by League members in 1920, reflected the continuing competition
between classical natural law theory and positivism alone in explaining international law. The
League Covenant was established for the more effective development and implementation of
such natural law norms as the prohibition on the use of force, the peaceful settlement of dis-
putes, the promotion of economic prosperity, and the realization of self-determination. It was,
however, a positive law instrument, reflecting Hobbesian views in that its provisions could be
enforced through sanctions and armed force. Any member could simply end their membership,
as did Germany, Japan, and Italy.
The Statute of the PCIJ expressly drew on both classical natural law and positive law. Judge
Kōtarō Tanaka confirmed this in a dissenting opinion in 1966:

[I]t is undeniable that in Article 38, paragraph 1(c), some natural law elements are inherent. It extends
the concept of the source of international law beyond the limit of legal positivism according to which,
the States being bound only by their own will, international law is nothing but the law of the consent
and auto-limitation of the State. But this viewpoint, we believe, was clearly overruled by Article 38,
paragraph 1(c), by the fact that this provision does not require the consent of States as a condition of
the recognition of the general principles. States which do not recognize this principle or even deny its
validity are nevertheless subject to its rule …
The final draft, namely Article 38, paragraph 1(c), is the product of a compromise between two
schools, naturalist and positivist … (ICJ, South West Africa Cases (Ethiopia v. South Africa)(Liberia
v. South Africa), Judgment of 18 July 1966, Dissenting opinion, Judge Tanaka, 1966 ICJ Reports,
285–315).

Despite the reliance on both natural and positive law in the PCIJ Statute and the success of the
court, the remainder of the twentieth century was increasingly focused on constitutional law
within states. Interest was fading as to whether constitutions, international organization con-
214 Handbook on global constitutionalism

stituent instruments, or other forms positive law made any sense without natural law theory.
One of the leading twentieth century legal theorists, Hans Kelsen, attempted to replace natural
law and the inadequate state will theory of positive law (Fillafer and Feichtinger 2019, pp. 434,
437.) He argued that all law is made binding by the wide social acceptance of pacta sunt
servanda – consent to legal agreements binds. This social acceptance is the Grundnorm, which
Kelsen also described as belief in the binding force of customary law (Nussbaum 1954). Rules
and principles that can be linked to the Grundnorm impose obligations and are legitimately
subject to coercive enforcement (Kelsen 1992, p. 52). Kelsen sought to base the Grundnorm
and all other aspects of law on positivism alone. He was an adamant critic of natural law owing
to his commitment to science and liberal, constitution-based democratic governance. He was
the author of Austria’s post-imperial constitution and argued that the concept of absolute and
enduring law conflicts with the sovereign authority of the people to change any law and the
course of scientific discovery that could lead to new insights incompatible with unchanging
norms. Kelsen also argued that natural law method left too much to subjective conclusions
(Fillafer and Feichtinger 2019, p. 436).
These positions are largely reflected in the most influential Anglo-American theory of
general law in the twentieth century, H.L.A. Hart’s Concept of Law. Hart, too, based legal
validity on social acceptance. Unlike Kelsen, however, Hart understood the internal contra-
diction of arguing that all law is subject to change under the theory of positivism. That would
include consent itself, without which there is no positive law. Hart also saw the need for
a source of normativity for law outside the consent-based provisions of positivism. He was
a post-World War II scholar, who, like all Europeans of his generation, well understood that
Fascists had acted lawfully under positive law, even with respect to their most debased actions.
Hart recognized the need for ‘a minimum content of Natural Law’ (Hart 1961, p. 189 emphasis
added; Doomen 2011, p. 882; Lachenmann 2011, para. 27).
Yet, Hart’s scholarship reflects little more than this basic requirement that law be founded
on and reflect enduring moral norms. He did not grapple with how to identify such norms
in a secular age. Hart’s contemporary and student of Kelsen, Alfred Verdross, took up the
challenge of adapting classical natural law in response to Kelsen’s critique, in particular, with
respect to subjectivity. Through the early 1980s, Verdross pointed out that positivism depends
on individual interpretation cut off from standards beyond the self. In this respect, it is positiv-
ism that suffers from subjectivism. Nevertheless, Verdross saw the need for a secular source
of transcendent knowledge to substitute for divine revelation. He proposed deriving natural
law principles by deduction from widely held rules of positive international law (Verdross
and Koeck 1983, p. 18). With little credit to Verdross, this has become the preferred approach
to identifying jus cogens. Since the 2000s, members of the United Nations International Law
Commission have described jus cogens as a form of ‘special’ customary international law. The
approach starts with a customary international law rule, then cites the type of evidence used in
establishing rules of custom to argue the rule under consideration is distinct from typical cus-
tomary rules. The ILC reports make clear that this is a positivist method, unrelated to natural
law. The result, however, is a method that leads to constitutional principles, not peremptory
norms, as will be discussed.
Peremptory norms require something more than positivist consent. They require a link to
an extra-positive source, in other words, natural law and authentic natural law incorporates
transcendent knowledge (Porter 2004). John Finnis and other ‘New Naturalists’ have tried to
reduce natural law to individual reasoning from nature without transcendence. Their results
 Natural law at the foundation of global constitutionalism 215

have been criticized as reflecting subjective, often conservative views (Crowe 2019, pp. 4–9).
Verdross seems not to have either openly embraced transcendence or to have rejected it. By
the late twentieth century, however, it was clear to several leading international law scholars
that the field could not respond adequately to contemporary challenges without a forthright
embrace of classical natural law incorporating secular sources of transcendent knowledge.
Judges Christopher Weeramantry and Cançado-Trindade of the International Court of Justice
(ICJ) looked not simply to widely held, common legal principles held around the world but
to the normative teaching of all cultures (Weeramantry 2004; Cançado-Trindade 2013).
Aesthetic philosophy leads to the same principles. It is a secular philosophy that through the
study of beauty finds universal, objective support for the traditional theologically based con-
clusions of natural law (Follesdal 2022; O’Connell 2019).

INTERNATIONAL LAW AND NATURAL LAW PREMISES AND

PRINCIPLES

The discussion above both explained what natural law is and the role it has played in the estab-
lishment of all legal systems, whether national, regional, or international law. This section
will focus in on how natural law continues to account for the basic premises or constitutive
concepts of international law. Natural law also remains the sources of certain essential sub-
stantive principles, as well as the nature of certain substantive principles. This section presents
both of these major contributions of natural law theory, first to the premises of international
law and, second, as a source of jus cogens norms and general principles. The discussion here
sets the stage for the final section where the differences in how natural law contributes to the
international legal system are contrasted with the contributions of constitutionalism.
Natural law provides a method for explaining basic premises about international law as
a distinctive institution. Natural law is also the source of, as well as the principles found in,
the extra-positive sources categorized as jus cogens or ‘peremptory norms’, and the general
principles of law – the third primary source of international law as set out in Article 38 of the
Statute of the International Court of Justice (ICJ Statute).

A Pacta Sunt Servanda

The most basic premise of all law is pacta sunt servanda, agreements are binding. In other
words, certain types of promises or consent lead to binding legal duties. Without the principle
of pacta sunt servanda there would be no law. Why a promise or consent has the power to
bind depends on an explanation external to Natural law, therefore, accounts for the essential
fact about law – it creates duties of compliance (Fitzmaurice 1959, p. 195; Kleinschmidt 2015,
p. 371; Van Ittersum 2017, p. 56). Natural law theory also leads to the premises that interna-
tional law is universal law and that peremptory norms or jus cogens and general principles are
nonderogable. This means natural law norms and principles are superior to positive law and in
the case of conflict supersede positive law rules.
216 Handbook on global constitutionalism

B Jus Cogens

The substantive jus cogens consist of the prohibitions on aggression, torture, slavery, geno-
cide, apartheid, prolonged arbitrary detention, and certain war crimes. These are all fundamen-
tally moral principles in contrast to general principle, which support in abstract way fairness
in a legal system through principles such as equality and proportionality. Like jus cogens there
can be no derogation from such inherent general principles, discussed in more detail below.
Jus cogens norms are distinctive in that they prohibit specific forms of conduct. As such they
are directly moral norms that supersede immoral positive law. General principles are discussed
in the next section.
In 1970, the ICJ made an indirect reference to jus cogens by listing norms that are erga
omnes, compliance with which is owed to the international community as a whole, not just
one or a few states that have suffered a specific injury. The list included norms commonly
classified today as jus cogens:

[A]n essential distinction should be drawn between the obligations of a State towards the international
community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection.
By their very nature the former are the concern of all States. In view of the importance of the rights
involved, all States can be held to have a legal interest in their protection; they are obligations erga
omnes.
… Such obligations derive, for example, in contemporary international law, from the outlawing of
acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights
of the human person, including protection from slavery and racial discrimination (Barcelona Traction,
Light & Power Co. (Belg. v. Spain), 1970 I.C.J. 3, 32 (Feb. 5))

Thus, the ICJ not only described a special category of norms, it provided a list that has
achieved consensus as unquestionably jus cogens norms. The court also explained an
important procedural aspect of jus cogens. All states have an interest in seeing these norms
respected. Jus cogens norms are obligations owed to all. They are also nonderogable and may
not be superseded by positive law.

C General Principles

Legal principles of equality, fairness, good faith, necessity, and proportionality are all general
principles of law. They are inherent in legal systems and may not be eliminated through adopt-
ing positive law. They are, therefore, explained only by natural law. These aspects of the law
exist regardless of state will or the consent of the governed. These extra-positive aspects are
best explained using the classic natural law method, which incorporates reason, observation
of nature, and openness to transcendence. Duties such as good faith performance of legal
obligations are general principles derived from natural law but the more technical aspects
of procedure, such as the jurisdiction of courts to enforce particular rules, are not. They are
positive law. Positive law procedural rules do not have the nonderogable quality of natural law
norms; they are subject to change through positive law method. For example, the jus cogens
norm against slavery is absolute, but whether, how, and where a particular slaveholder is
prosecuted are positive law questions.
The principle that a treaty between two states may not change the rights of a third state
is a classic general principle of natural law in the same category as good faith and equality.
 Natural law at the foundation of global constitutionalism 217

These general principles tend to be abstract, taking form from facts in contrast to the specific
substantive content of jus cogens. Like jus cogens, general principles may not be overridden
by treaties or customary rules and are, therefore, explained by natural law, but they are not so
much ‘higher’ norms as foundational norms. International law could not be law without them.
Still, they lack the moral quality characteristic of jus cogens.
The International Law Commission’s Third Report on General Principles of Law identifies
general principles that are inherent to what makes international law a legal system. The Report
explains that they ‘perform a systemic function’ and are formed within the system separately
from the positive law rules of treaties and customary international law. In this chapter, the
understanding is that inherent general principles are ‘discerned’ rather than ‘formed’. In other
words, a natural law versus a positive law method is employed. The most important aspect
of general principles is summed up in the Report in these terms: General principles are not
subject to change through the mere consent of states or other subjects of the law. Inherent
general principles play a ‘systematic function’, which means they provide the normative
conditions that ensure international legal processes meet the standard of legality. The perfor-
mance of treaties, for example, must be carried out in good faith. ‘The principle of good faith
is … relied on as the common guiding beacon that will orient the understanding and interpre-
tation of obligations …’ (ILC, Third Report on General Principles, July 2022, p. 23, citing,
Sempra Energy International v Argentine Republic, ICSID Case No. ARB/02/16, Award, 28
September 2007, International Centre for Settlement of Investment Disputes, para. 298). Good
faith, which is ‘at once a general principle of law and a general principle of international law,
controls the exercise of rights by States’ (ILC, Third Report on General Principles, pp. 44–45,
citing United States – Import Prohibition of Certain Shrimp and Shrimp Products, Appellate
Body Report, 6 November 1998 (WT/DS58/AB/R), Dispute Settlement Reports 1998, vol.
VII, p. 2755, at para. 158).
One of the most common legal procedures is the interpretation of texts. In international
law this means first and foremost treaties but extends to other legally relevant documents
from United Nations General Assembly resolutions to decisions of courts and tribunals. Legal
interpretation relies on the application of general principles. ‘Reference to general rules of
international law in the course of interpreting a treaty is an everyday, often unconscious part
of the interpretation process’ (ILC Report of the Study Group, Fragmentation of International
Law: Difficulties Arising from the Diversification and Expansion of International, UN Doc.
A/CN.4/L.682 (13 April 2006) (hereinafter ‘Report’)). General principles supply ‘procedural
standards’. The enforcement procedures of international law from the application of counter-
measures to the use of armed force are regulated by general principles as much as the interpre-
tation of texts. The general principles of necessity, proportionality and attribution are essential
components of the law on both countermeasures and resort to force. Judith Gardam and Bin
Cheng classify necessity and proportionality as general principles, despite the ICJ’s reference
to them as rules of customary international law in the Nuclear Weapons case (Legality of the
Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 245; Gardam
2004, pp. 4–5; Cheng 1953, pp. 70–7).
Law would lose its character of legality without these principles. They are nonderogable
and, so, do not fit positive law because they are not changeable through the sort of positive
action that may result in new treaties or rules of customary international law. The ICJ rarely
discusses them in any detail, but knowing what to look for quickly leads to references in judicial
decisions. They are simply not identified expressly as ‘general principles’. Judges constantly
218 Handbook on global constitutionalism

look to standards such as good faith, reasonableness, effectiveness, necessity, proportionality,

attribution, abuse of rights, and equality. They cannot be overridden by contrary agreement or
the formation of new rules of custom. This unchanging feature of inherent general principles is
similar to a key feature of jus cogens and may account for why some scholars classify certain
general principles as jus cogens norms.
General principles and jus cogens clearly have aspects in common, but it is the position here
that the more persuasive view is to include only ethical or moral norms among the jus cogens
norms. Inherent, structural, or other norms integral to the system of international law as a legal
system belong more appropriately in the general principles category. These principles may not
be overridden by treaties or customary rules and are explained by natural law, but they are not
so much ‘higher’ norms as foundational norms.
This section has discussed premises and principles of international law that depend on
natural law theory. A key point is that natural law elements are distinguishable from all
positive law aspects. Some natural law aspects are included as examples of constitutionalist
principles. This is reasonable so long as other types of constitutionalist principles that rely
on positive law method are distinguished. The two categories of law under the single label
‘constitutionalism’ is the final topic. The next section continues the discussion considering
two categories of positive law rules and natural law.

NATURAL LAW AND GLOBAL CONSTITUTIONALISM

In the late twentieth century, scholars began to explore the proposition that a constitution or
principles of constitutionalism exist or should exist at the international level. Consideration
of these questions has produced a sizable literature in legal and political theory, much of it
reflected in the pages of this Handbook. The scholarship has resulted in a broad consensus on
at least two points: No constitution exists at the global level that is comparable to the model
constitutions of the United States and France. These constitutions feature ‘specific procedural
and substantive limits that reflect liberal political values, including democracy, separation
of powers, human rights and judicial review’ (Bodansky 2011, p. 373).4 Nevertheless, there
is also broad acceptance respecting the existence of a ‘body of law that sets forth the funda-
mental (that is, superior and more difficult to change) rules’ of the international community
(Bodansky 2011, p. 373).
The ILC’s report on Fragmentation of International Law by the International Law
Commission explains:

Much of the concern over the fragmentation of international law emerges from the awareness of the
‘horizontal’ nature of the international legal system. The rules and principles of international law are
not in a hierarchical relationship to each other. Nor are the different sources (treaty, custom, general
principles of law) ranked in any general order of priority. This is the key difference between interna-
tional law and domestic legal systems. Whereas domestic law is organized in a strictly hierarchical
way, with the constitution regulating the operation of the system at the highest level, there is no such
formal constitution in international law … (p. 166)

4
A few scholars, however, do find a constitution at the global level, see, Fassbender (2009).
 Natural law at the foundation of global constitutionalism 219

The study accepts the international community holds ‘some considerations’ as ‘more impor-
tant than others, and must be legally recognized as such’. It lists only two approaches to
reasoning about relative hierarchy, ‘natural law’ and ‘political justice’. It takes no position
on whether the international legal system is nevertheless in a process of ‘constitutionalizing’
(Report, p. 167).
The editors of this book posit that a process of ‘constitutionalization’ is underway, moving
from the minimum consensus on the existence of superior rules to the model of national
constitutions. They argue that the process entails enhancement of law and institutions around
four functions: the establishment of the rule of law; separation of powers; facilitation of
constituent powers; and protection of rights. At either end of the continuum, minimalist to
maximalist, constitutions, according to the editors, do two things: Enable and constrain polit-
ical decision-making (Lang and Wiener, Chapter 1 in this Handbook; Klabbers, Peters, and
Ulfstein 2009). These summary points from the global constitutionalism discussion are suffi-
cient for the purposes of this chapter and this section, which aims at indicating the distinctive
role of natural law with respect to constitutions and constitutionalism. Other chapters in the
volume debate aspects of the editors’ views respecting global constitutionalism, including the
empirical question as to whether the international community has a constitution or can be char-
acterized as constitutionalized or constitutionalizing. All authors acknowledge that the world
has international law, but they take various positions as to whether, in addition to international
law, there is also the specialized form of law – constitutional law – that emerged originally for
the express purpose of creating and limiting the powers of national governments.
Because the international community has no government comparable to those of states,
to the extent the world has a constitution or ever acquires one, it will be distinctive from the
national models. Nevertheless, there are clearly principles of international law that fit the min-
imalist criteria of fundamental, superior, and difficult to change. The international legal system
also includes explanations of how law enables and constrains political decision-making. This
section considers examples that apply to each constitutionalist category, but also separates
them between natural law and positive law. The first two sections have introduced natural law
and the principles and premises that endure so long as law exists. These can be said to be ‘hard
to change’, but, of course, they are more than that. They are impossible to change, so long as
they are discerned as natural law. Other rules are difficult but not impossible to change and
may, therefore, be constitutionalist. As changeable, however, they are explained by positive,
not natural law theory. The discussion that follows is divided between the overlapping natural
law premises and principles and the uniquely constitutionalist rules.

A Natural Law Constitutional Principles

Constitutions enable and constrain political decision-making, so does natural law. Natural law
does far more than that, however. Natural law premises underlie all legal concepts. Natural law
principles are superior to all non-natural law rules. Constitutions depend on natural law theory,
but natural law is wholly independent of constitutionalism.
The founders of the United States justified their effort to establish an independent, sovereign
state on the basis of natural law concepts. They claimed in the Declaration of Independence
the ‘separate and equal station to which the Laws of Nature’ entitled the British colonies from
Maine to the Carolinas. Six years after the end of the War of Independence against Great
Britain (1776–1783), many of the same men who wrote or signed the Declaration drafted a new
220 Handbook on global constitutionalism

constitution. Government organs were already in place under the Article of Confederation, but
they needed reform. The Constitution of 1789 both enabled and constrained the new govern-
ment, as the editors of the Handbook explain constitutions are meant to do (Lang and Wiener,
Chapter 1 in this Handbook). As the editors further detail, constitutions fulfill these two core
purposes through ensuring the rule of law, providing for separation of powers, facilitating
popular participation, and protecting human rights. The US Constitution and Bill of Rights
arguably perform all four of these functions. They are products of positive law methodology
in that they were adopted by the consent of representatives of the 13 former colonies. To
ensure the rule of law and protection of rights, however, required that the Constitution rest on
pre-existing natural law.
Legal scholars adhering to ‘originalist’ interpretation of the Constitution seem to overlook
the fact that natural law premises and principles long pre-date the US Constitution and made
it possible. Originalists seeks to interpret the words of the Constitution exactly as the draft-
ers intended because those words are considered the highest legal authority. The drafters,
however, invoked natural law as the basis of validity for their own law-making actions. For
them, natural law is superior to the Constitution they drafted. Natural law also establishes the
premises on which all law depends – that law is a good, that it is binding, and that it must be
consistent with moral norms. Constitutions are products of positive law-making. The terms
are valid because of consent. The Founders accepted that if the Constitution conflicted with
natural law, natural law must prevail.
Natural law is in fact needed to supply the legal basis for constitutions, to enable political
decision-making, and to identify the ultimate norms with which decision-makers must abide.
Most tangibly, natural law substantive principles, invalidate contrary state action even if
that action is consistent with the constitutions. To the extent constitutions contain principles
mandating compliance, the source of the mandate is natural law theory, not constitutional law
theory. The limits of legal rules are also established in natural law theory. If, for example, the
international community were to adopt a constitution, it would have to include the prohibition
on the use of force. As explained in the first section, the prohibition on force is inherent in
the very concept of law. It is also the first moral norm incorporated in international law. The
prohibition is an enduring, nonderogable norm. Bodansky refers to constitutions containing
‘superior’ norms, but the highest level norms, those that invalidate any other norm regardless
of their adoption through positive law, or constitutional law if they conflict, are natural law jus
cogens. Constitutions are not the highest law in ensuring the superiority of law over politics,
natural law is.
Natural law is also the source of all principles that are not subject to change through the
positive law method. Some of these natural law principles are also categorized as constitu-
tional. All of jus cogens are explained in natural law, as just mentioned with respect to the jus
cogens prohibition on the use of force. The other jus cogens are discussed as human rights;
in addition to being peremptory norms, these include the prohibitions on genocide, slavery,
torture, disappearance, and apartheid. Samantha Besson, writing in this Handbook, argues
these rights are part of global constitutional order. The bans on genocide and the other grave
crimes are not just constitutional, they are mandated by natural law. So long as there is law,
these prohibitions must be part of it. They meet Bodansky’s term ‘fundamental’ and, for him,
therefore, found in constitutions.
Perhaps of greater interest are the general principles of law. In contrast to jus cogens,
general principles have not been subject to the extensive debates about their relation to natural
 Natural law at the foundation of global constitutionalism 221

law or constitutions to date. Starting in 2019, the International Law Commission (ILC) took
up the topic of general principles bringing new attention to the category. The ILC began by
placing different types of general principles in positivist versus non-positivist categories. The
evidence for the categorization is strong and should withstand the critique from ILC members
who may see a larger role for states to influence the meaning of specific general principles if
they are nothing more than positivist. Yet, general principles not subject to change through
positive law method are not positivist. Equality, good faith, attribution, necessity, and propor-
tionality are inherent in the very concept of law. They are essential to the rule of law. They do
not change with state practice. Scholars who have considered general principles in depth agree
that they are best explained in natural law theory. Like jus cogens, general principles may also
be considered constitutionalist.
Anne Peters examines the constitutionalist quality of the general principle of proportion-
ality in this volume (see Chapter 24 in this Handbook). Proportionality regulates the way
basic legal processes are performed, such as the use of countermeasures for law enforcement.
When a state, for example, suspends treaty performance as a countermeasure, the suspension
must be proportionate to the injury suffered. In the ICJ’s Gabçikovo-Nagymoros decision,
the court held that Slovakia’s unilateral implementation of a by-pass channel on the river
Danube was a disproportionate response to Hungary’s suspension of cooperation in a joint
river management plan. The ICJ ordered the parties to negotiate a peaceful resolution of their
dispute (Gabčikovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997,
p. 7). Peters relates how proportionality has been found by the US Supreme Court to be an
implicit part of the US Constitution and has similarly been found by courts in several states to
be part of their constitutional order. Proportionality has been included expressly in more recent
constitutions, including all of the constitutions of Central and Eastern Europe, Latin America,
Australia, New Zealand, South Africa, and others. Peters makes the case for characterizing
proportionality as a ‘high-grade’ constitutional principle because it is an ‘overarching’ struc-
tural principle, reducing fragmentation and fulfilling the ‘constitutional role of creating unity’
(see Peters, Chapter 24 in this Handbook). Proportionality is, however, more than a constitu-
tional principle. It could be eliminated from all constitutions but would remain part of the law
because proportionality is a natural law principle.

B Uniquely Constitutionalist Principles

In addition to proportionality, other rules perform the role of unifying legal systems, including
the international one. Some of these fit under the constitutional function of ‘separation of
powers’ and some support popular participation in law-making and governance. To the extent
these rules are based on positive law, rather than natural law, they may be counted as uniquely
‘constitutionalist’. They do not overlap with natural law principles.
The ILC Report on Fragmentation contains a review of the premises, principles, rules,
and processes that unify international law in contrast to the social and legal factors that tend
toward fragmentation of the field, breaking it down into sectors. The Report does not indicate
that any theory of law such as the one presented here is part of what unifies international law.
It does list the categories of durable law – jus cogens and general principles. Other examples
featured in the Report are of rules tending toward orderly society but subject to change through
positive law mechanisms. Many of these are also found in national constitutions or constitu-
tional jurisprudence. They are changeable, but may be subject to additional conditions when
222 Handbook on global constitutionalism

compared with non-constitutional positive law. Two examples are briefly reviewed here: The
‘later-in-time’ rule and provisions of the United Nations Charter.
The ILC Report’s example of the ‘later-in-time’ rule qualifies as uniquely constitution-
alist for the international legal system. It is a common rule applied by courts everywhere. It
has some connection to the natural law procedural principles like due process because the
later-in-time rule helps subjects of the law know what law is binding on them at any specific
time (Fuller 1969). More directly, however, the later-in-time rule is a changeable rule of posi-
tive law that guides courts to respect the on-going work of political decision-makers. In other
words, it supports separation of powers. A court may prefer an older treaty rule or statutory
rule on a particular matter for reasons of policy but must apply the newer treaty rule as adopted
by the executive and/or legislative branches of governments in treaty form or as a statute. The
later-in-time rule helps to resolve conflicts among rules and principles. It is a practical, unify-
ing feature of international law, but has its limits. A later treaty or statute cannot invalidate an
earlier natural law principle.
The United Nations Charter is another example of positive law that qualifies as constitu-
tionalist owing to the fact its rules are difficult to change (Bodansky 2011, p. 373). Charter
Article 103 is featured in the ILC Report as a provision of great importance for unifying
international law and countering fragmentation. Bardo Fassbender argues in this Handbook
that the Charter is more than constitutionalist in character but is or is ‘closely associated’ with
a constitution for the international community. ‘The UN Charter shows a number of strong
constitutional features. In particular, it includes (explicitly and implicitly) rules about how the
basic functions of governance are performed in the international community; that is, how and
by whom the law is made and applied, and how and by whom legal claims are adjudicated.
It also establishes a hierarchy of norms in international law’ (Fassbender, Chapter 25 in this
Handbook). In fact, natural law establishes the hierarchy of norms, but the Charter does feature
a uniquely constitutionalist hierarchical principle in Article 103. Article 103 mandates that
the Charter prevails in cases of conflict with other treaty obligations. This is constitutionalist
for the international system, especially when it is recalled that amending the Charter requires
super-majority voting in both the General Assembly and the Security Council, where even
one permanent member may veto a change. These amendment provisions make the Charter
clearly part of the global community’s higher law. Yet, the Charter is changeable, as is even
Article 103. Indeed, the Charter can be terminated. In that case, only the immutable principles
of natural law codified in its provisions would remain.

CONCLUSION

Scholars who see a global constitution or constitutionalism generally distinguish among legal
rules and principles as constitutionalist or not. This chapter adds another vital level of analysis.
Underlying all of law are certain premises of natural law. The basic premise, for example, that
law is binding is beyond constitutions because it supports the binding nature of constitutions.
It is a premise of natural law. In addition, certain principles are inherent to law. They do not
change on the basis of positive law, even the heightened requirement of positive constitutional
law principles. The jus cogens norms and general principles are in this category. They are
natural law principles that ensure the normativity of law. Without them law is not law. Some
are included by scholars in the category of constitutionalist, such as the principle of equality
 Natural law at the foundation of global constitutionalism 223

and the prohibition on the use of force. Nevertheless, all of positive law, which includes con-
stitutions, could be terminated tomorrow. Natural law would continue, so long as there is law.

REFERENCES
Allott, P. (2002), The Health of Nations, Cambridge: Cambridge University Press.
Austin, J. (2009[1832]), The Province of Jurisprudence Determined, Cambridge: Cambridge University
Press.
Berman, H.J. (1983), Law and Revolution: The Formation of the Western Legal Tradition, Cambridge,
MA: Harvard University Press.
Bodansky, D. (2011), ‘The constitution of constitutionalism’, in J. Klabbers, A. Peters, and G. Ulfstein
(eds), The Constitutionalization of International Law, Oxford: Oxford University Press, pp. 373–6.
Boyle, J. (1987), ‘Thomas Hobbes and the invented tradition of positivism: reflections on language,
power, and essentialism’, University of Pennsylvania Law Review, 135, 383–426.
Capps, P. (2020), ‘Natural law and the law of nations’, in A. Orakhelashvili (ed.), Research Handbook
on the History and Theory of International Law, Cheltenham, UK/Northampton, MA: Edward Elgar
Publishing, pp. 58–89.
Cançado-Trindade, A.A. (2013[2005]), International Law for Humankind: Towards a New Jus Gentium,
Leiden: Martinus Nijhoff.
Cheng, B. (1953), General Principles of Law: As Applied by International Courts and Tribunal, London:
Stevens & Sons.
Crowe, J. (2019), Natural Law and the Nature of Law, Cambridge: Cambridge University Press.
Doomen, J. (2011), ‘The meaning of “international law”’, The International Lawyer, 45 (3), 881–93.
Duke, G. (2019), ‘Aristotle as natural law theorist’, in J. Crowe and C.Y. Lee (eds), Research Handbook
on Natural Law Theory, Cheltenham, UK/Northampton, MA: Edward Elgar Publishing, pp. 13–30.
Dyzenhaus, David (1992), ‘Why positivism is authoritarian’, American Journal of Jurisprudence, 37,
pp. 83–112.
Fassbender, B. (2009), The United Nations Charter as the Constitution of the International Community
Leiden: Martinus Nijhoff Publishers.
Fillafer, F.L. and J. Feichtinger (2019), ‘Natural law and the Vienna School: Hans Kelsen, Alfred
Verdross, and Eric Voegelin’, in I. Bryan and J. McGarry, Hans Kelsen and the Natural Law
Tradition, Leiden: Brill Publishers, pp. 425–61.
Finnis, J. (1980), Natural Law and Natural Rights, 2nd edn, Oxford: Oxford University Press.
Fitzmaurice, G.G. (1959), ‘The law and procedure of the International Court of Justice 1954–1959’,
British Yearbook of International Law, 35, pp. 183–231.
Fuller, L. (1969), The Morality of Law, revd edn, New Haven, CT: Yale University Press.
Gardam, J. (2004), Necessity, Proportionality and the Use of Force by States, Cambridge: Cambridge
University Press.
Green, L. and Adams, T. (2019) ‘Legal positivism’ in E.N. Zalta (ed.), Stanford Encyclopedia of
Philosophy, revd edn, https://​leibniz​.stanford​.edu/​friends/​members/​view/​legal​-positivism/​.
Grotius, Hugo (1995[1646][1625]), De Jure Belli ac Pacis (The Law of War and Peace), F.W. Kelsey
(trans.), Clark, NJ: The Lawbook Exchange.
Hart, H.L.A. (1961[1970]) The Concept of Law, Oxford: Clarendon Press.
Horsley, R. (1978), ‘The law of nature in Philo and Cicero’, The Harvard Theological Review, 71 (1–2),
35–59.
International Law Commission (2006), ‘Fragmentation of international law: difficulties arising from the
diversification and expansion of international law’, Yearbook of the International Law Commission,
II (Pt. Two), pp. 175–84.
International Law Commission (2022), ‘Draft conclusions on identification and legal consequences
of peremptory norms of general international law (jus cogens)’, Yearbook of the International Law
Commission, II (Pt. Two).
International Law Commission (2022), ‘Third report on general principles of law’, Yearbook of the
International Law Commission, II (Pt. Two).
224 Handbook on global constitutionalism

Kalmbach, S. (2017), ‘Hugo Grotius: On the conquest of Utopia by systematic reasoning’, in S.

Kadelbach, T. Kleinein, and D. Roth-Isigkeit (eds), System, Order, and International Law: The Early
History of International Legal Thought from Machiavelli to Hegel, Oxford: Oxford University Press.
Kelsen, H. (1992[1934]), Introduction to the Problems of Legal Theory (Reine Rechtslehre or Pure
Theory of Law), B.L. Paulson and S.L. Paulson (trans.), Oxford: Oxford University Press.
Klabbers, J., A. Peters, and G. Ulfstein (2009), The Constitutionalization of International Law, Oxford:
Oxford University Press.
Kleinschmidt, H. (2105), ‘Naturrecht und Völkerrecht? Beobachtungen zu Wandlungen der
Rechts-Quellentheorie seit Ende des 19. Jahrhunderts’, Historiches Jahrbuch, 135, 364–411.
Lachenmann, F. (2011), ‘Legal Positivism’, Max Planck Encyclopedias of International Law.
Lauterpacht, H. (1946), ‘The Grotian tradition’ British Yearbook of International Law, 23, pp. 1–53.
Marmor, A. and A. Sarch (2019), ‘The nature of law’, in E.N. Zalta (ed.), Stanford Encyclopedia of
Philosophy, https://​plato​.stanford​.edu/​archives/​fall2019/​entries/​lawphil​-nature.
Neff, S. (2014), Justice Among Nations: A History of International Law, Cambridge, MA: Harvard
University Press.
Nussbaum, A. (1954[1947]), rev’d edn, A Concise History of the Law of Nations, New York: The
Macmillan Company.
O’Connell, M.E. (2019), The Art of Law in the International Community, Cambridge: Cambridge
University Press.
Porter, J. (2004), Nature as Reason: A Thomistic Theory of the Natural Law, Grand Rapids, MI: Wm. B.
Eerdmans Publishing.
Stolleis, M., and L. Daston (2008), ‘Introduction: nature, law and natural law in early Modern Europe’,
in M. Stolleis and L. Daston (eds), Natural Law and Laws of Nature in Early Modern Europe,
Jurisprudence Theology, Moral and Natural Philosophy, London: Routledge.
Taitslin, A. (2019) ‘Stoic Natural Law as right reason’, in J. Crowe and C.Y. Lee (eds), Research
Handbook on Natural Law Theory, Cheltenham, UK/Northampton, MA: Edward Elgar Publishing,
pp. 31–56.
Tamanaha, B. (2022), ‘Beware Illiberal Natural Law’, Washington University in St. Louis Legal Studies
Research Paper No. 22-05-01, https://​ssrn​.com/​abstract​=​4109402.
Tasioulas, J. and G. Verdirame (2022), ‘Philosophy of international law’, in E.N. Zalta (ed.), Stanford
Encyclopedia of Philosophy, https://​plato​.stanford​.edu/​entries/​international​-law/​.
Tuck, R. (1999), The Rights of War and Peace, Oxford: Oxford University Press.
Van Ittersum, M.J. (2017), ‘Global constitutionalism in the Early Modern Period: the role of empires,
treaties and natural law’, in A.F. Lang, Jr. and A. Wiener (eds), Handbook on Global Constitutionalism,
Cheltenham, UK and Northampton, MA, USA: Edward Elgar, pp. 47–59.
Verdross, A. and H.F. Koeck (1983), ‘Natural law: The tradition of universal reason and authority’, in R.
St. J. MacDonald and D. Johnston (eds), The Structure and Process of International Law: Essays in
Legal Philosophy, Doctrine and Theory, The Hague: Martinus Nijhof, pp. 17–50.
Vermeule, A. (2022), Common Good Constitutionalism, Cambridge, UK: Polity Press.
Walter, C. (forthcoming), ‘The role of religion in the formation of international law in Europe’, in P.
D’Argent et al (eds), Oxford Handbook of International Law in Europe, Oxford: Oxford University
Press.
Weeramantry, C. (2004), Universalizing International Law, Leiden: Martinus Nijhoff.
16. International legal constitutionalism, legal
forms and the need for villains
Jean d’Aspremont

INTRODUCTION

Constitutionalism-bashing has been in vogue for some time in international legal scholarship.
International legal scholars have deployed an incredible amount of energy to discredit any
pattern of argument, structure of thought and conceptual frameworks that comes with consti-
tutionalist overtones. In many respects, such anti-constitutionalist fury among international
lawyers is bewildering given the inflated importance and weight granted to international legal
constitutionalism on these occasions. Such ferocity is also questionable in the light of the
reasonable awareness by most constitutionalist thinkers of the limits of their projects. What
is more, variants of constitutionalism are so numerous that it is not sure that the idea means
the same for all those who are determined to repudiate it. It is against this backdrop that this
chapter ventures into the origins and causes of international lawyers’ unbridled fury against
what seems a rather marginal movement in international legal thought. This chapter particu-
larly makes the argument that it is the attachment to some legal forms that has fuelled the
passionate crusade against constitutionalism and that contemporary debates on international
constitutionalism are nothing more than the continuation of a more fundamental discussion on
the concept of international law.
This chapter is divided in two main sections. In the first, the varying perceptions of inter-
national constitutionalism in contemporary international legal scholarship are explored. It is
demonstrated that criticisms of international constitutionalism are not only a very contem-
porary phenomenon, but also that they come from the whole spectrum of international legal
scholars. In the second main section, attention turns more specifically to the relation between
constitutionalism and legal forms, the possible causal relationship between the varying degree
of attachment of constitutionalist thinkers to legal forms, and the fury against constitutional-
ism witnessed in contemporary legal scholarship. This chapter ends with some concluding
remarks on the need of international legal thought to construct villains to help define it.
Two remarks are warranted at this preliminary stage. First, this chapter is neither a defence
nor a rebuttal of constitutionalist thinking. Rather, it rests on an endeavour to unravel some
of the dynamics at work in the general debate about international constitutionalism in inter-
national legal scholarship. Second, a terminological observation is necessary. In international
law literature, constitutionalist patterns of argument, structures of thought, and conceptual
frameworks are deployed, deciphered, analysed, and criticised through a wide array of denom-
inations: multi-level constitutionalism (Kleinlein 2012a, p. 387), transnational constitution-
alism (Kleinlein 2012a, p. 387), global constitutionalism (Kuo 2010; Schwöbel 2011, 2012;
Wiener et al., 2012), postnational constitutionalism (Walker 2003, p. 53) and compensatory
constitutionalism (Peters 2006, pp. 579–610). Because the following discussion focuses
exclusively on international legal scholarship and grapples with both constitutionalist thinking

225
226 Handbook on global constitutionalism

and critiques thereto, the generic denomination of ‘international legal constitutionalism’ is

preferred.1

THE MANY FACETS OF INTERNATIONAL LEGAL

CONSTITUTIONALISM

No one would challenge that constitutionalist patterns of argument, structures of thought and
conceptual frameworks have long informed international legal scholarship. In the late nine-
teenth century, some international lawyers shared a calling for a cosmopolitan sense of global
public conscience.2 However, it was probably not until the beginning of the twentieth century
that the first serious constitutionalist turn in international legal thinking was witnessed, geared
towards the substantive unity of international law and the rule of law (Verdross 1926).3 These
early constitutionalist approaches were emboldened by the liberal-cosmopolitan movement
that arose in reaction to the Second World War, especially in Germany,4 and to some extent
in Anglo-Saxon scholarship, as is illustrated by the work of Wolfgang Friedmann (1964) and
Clarence Wilfred Jenks (1958). Nevertheless, among all the many ancestors of today’s inter-
national legal constitutionalism,5 it is probably Alfred Verdross that is currently considered the
main forebear (see Simma 1994, pp. 259–61; de la Rasilla del Moral 2010a, 2010b; Broude
and Andreas 2012; Kleinlein 2012b, p. 708; see the remarks of Fassbender 2007, p. 312;
Collins 2009, pp. 253–4).
The number of international legal scholars openly adopting constitutionalist patterns of
argument, structures of thought, and conceptual frameworks is more limited than is usually
assumed.6 In contrast, international legal scholars taking arms against constitutionalist think-
ing are aplenty. A quick scan of the literature suffices to note that constitutionalism-bashing
scholarship dramatically outweighs literature promoting constitutionalist thinking. Such
disproportion is self-reproducing, as the more vocal and prolific anti-constitutionalist scholar-
ship becomes, the fewer scholars venture to vindicate constitutionalist patterns of argument,
structures of thought and conceptual frameworks.7
To their credit, constitutionalist scholars, albeit sometimes under pressure from their
critics, do not baulk at bringing the limits of their project to the surface. For instance, they
recognise that international legal constitutionalism comes to portray the world according

1
On the difference between constitutionalism and constitutionalisation, see the remarks of
Tsagourias (2007a, p. 1).
2
On the sense of a global public consciousness in the work of Westlake, Bluntschli, Mancini and
Lorimer, see Koskenniemi (2002, pp. 11–97).
3
On Verdross as one of the fathers of constitutionalism, see Fassbender (2007). See also de la
Rasilla del Moral (2010a).
4
For an overview of the German legal scholarship in this respect, see Oeter (2008, p. 39).
5
On Herman Mosler as another ancestor of international constitutionalism, see Fassbender (2007,
p. 313).
6
See Somek who claims that ‘unsurprisingly, constitutionalisation talk falls on fertile ground in
a country where the national constitutional is revered as the repository of legal reasons’ (2009a, p. 22).
On the nuances of mainstream European scholarship and the idea that European scholarship cannot be
reduced to constitutionalist thinking, see Kumm (2009b).
7
In these circumstances, it is no surprise that constitutionalist thinkers turn more defensive these
days. See, for example, Peters (2006, p. 607).
 International legal constitutionalism, legal forms and the need for villains 227

to a constitutionalist lexicon that is loaded by their national constitutional tradition (see the
remarks of Kennedy 2008, p. 854) and domestic biases (Fassbender 2007, p. 308). They
also acknowledge that they are engaged in a rehabilitation of institutions (see the remarks of
Kennedy 2008, p. 855). Likewise, they do not always seek to obfuscate the descriptive, nor-
mative and evaluative dimensions of constitutionalist thinking (Peters 2012) and the tensions
that may arise between them (Fassbender 2007, p. 320). Even the development of some form
of critical constitutionalism is observable (Klabbers 2004, 2009).8 Such critical introspection
and acknowledgement are of course not complete. Nor does it excuse or alleviate the problems
that come with constitutionalism. The point here is simply that constitutionalist thinkers are
perhaps not as dogmatic and blindfolded as they are usually portrayed by their nemeses. It is
in this sense that the rage witnessed in international legal scholarship against those constitu-
tionalist thinkers can also be seen as disproportionate, reinforcing the feeling that the actual
importance of constitutionalist thinking tends to be magnified by its critics.

International Legal Constitutionalism as Orthodoxy or Eccentricity?

Critics of international legal constitutionalism, while all claiming that it is a mainstream

approach of some sort, diverge as to whether it constitutes some dangerous orthodoxy or
some inappropriate eccentricity.9 For instance, more traditional international lawyers perceive
international legal constitutionalism as an overly progressive critique of traditional scholar-
ship.10 For them, international legal constitutionalism draws on some problematic normative
paradigms, most notably the existence of an international society that shares ‘global values’.11
In their eyes, international legal constitutionalism flirts with natural law, brings about unac-
counted changes in the existing law (Stone Sweet 2009), and comes down to a form of political
activism (Stone Sweet 2009). Because its formal categories are meant to be ‘derived’ from
global values, international legal constitutionalism is thus said to rest on an ‘old strategy of
natural law’ (Somek 2009a, p. 25). For these scholars, international legal constitutionalism
is similarly discredited for trying to ensure the autonomy of international law towards state
sovereignty and state consent (for some remarks, see Kleinlein 2012a, p. 387) and it has
similarly been criticised as manifesting a vain idealism of unity and coherence (Somek 2007).
It has also been suggested that the formal unity pursued by international constitutionalists is
a mirage luring scholars into believing that international law is more akin to constitutional law
than private law, and that this may well end up cementing the fragmentation of the primary
rules of international law (Klabbers 2004).12 Along the same lines, it has been contended that

8
For a claim of a Kantian form of constitutionalism that is a mind-set about how to act in a political
world and to judge between fixed textual understandings and predetermined objectives, see Koskenniemi
(2007b).
9
For an insightful overview of constitutionalism and its critiques, see Tsagourias (2007a) and in
particular the contribution of Werner (2007, p. 329).
10
See the remarks of Klabbers on the moralism behind constitutionalism (2008, p. 16).
11
For a criticism of this dimension of constitutionalist theories, see d’Aspremont (2007). See also
Collins (2009).
12
On the different conceptions of formal unity, see the interesting work of Prost (2011).
228 Handbook on global constitutionalism

constitutionalism – which is usually seen as a countermove to the so-called fragmentation of

international law13 – actually exacerbates fragmentation (Klabbers 2004, p. 53).14
At the other end of the academic spectrum, scholars generally seen – or self-described –
as ‘critical’ have taken issue with international legal constitutionalism for its foundational
problems (Werner 2007, pp. 330–31). They have also berated constitutionalists’ striving for
the reinvention of sovereign authority at the international level (see Kennedy 1994, p. 14) or
for their reproduction of domestic tensions.15 International constitutionalists have also been
criticised for attempting to find a substitute for sovereignty in an international system where
choices are made by experts having recourse to technical vocabularies (Koskenniemi 2007a,
p. 29; see also the criticism by Koskenniemi 2007b; see, however, Koskenniemi 2009). In the
same vein, these critics have ridiculed international legal constitutionalism for its attempt to
control politics (Werner 2007, p. 330) or its postponement of political problems (Klabbers
2004, p. 46; see also the criticisms of Patterson 2015). Some other critics in this category have
pinpointed the hegemonic overtones of their agenda purportedly dedicated to the promotion of
global values (d’Aspremont 2007).16 By the same token, international legal constitutionalism
has been criticised for being anti-pluralistic and holistic (Krisch 2010) and for legitimising the
order in place.17 From the same end of the academic spectrum, the methodology of interna-
tional legal constitutionalism has been attacked for being a hotchpotch (Stone Sweet 2009).
Interestingly, some of these critics have continued to deem constitutionalism a worthy enter-
prise and have accordingly sought to salvage constitutionalist patterns of argument, structures
of thought, and conceptual frameworks of some sort by floating avenues for reform (Schwöbel
2012; see also Klabbers 2004; Schwöbel 2011, esp. ch 4, 2012; Schiff Berman 2013). Such
attempts to reform constitutionalism have made the determination of the orthodox or eclectic
nature of constitutionalist thinking even more relative.
Constitutionalists have tried to rebut some of these criticisms wherever they come from, that
is whether they originate from more traditional scholars or from more critical scholars. For
instance, they have contended that international legal constitutionalism acknowledges politics
and does not necessarily put an end to it (Peters 2009, p. 407). They have similarly refuted
allegations that constitutionalism is a conscious or unconscious reaction against fragmenta-

13
For a description of constitutionalism as a fragmentation counter-move, see Klabbers (2004,
pp. 31, 49, 2014, p. 266); Dunoff and Trachtman (2009, p. 2); Koskenniemi (2007a, p. 19, 2007b, p. 18).
For some claims by constitutionalists that constitutionalism reins in fragmentation, see de Wet (2012,
pp. 1224, 1229); Fassbender (2007, pp. 309–11); Tomuschat (1999, p. 89).
14
On the idea that constitutionalism and fragmentation are mutually reinforcing and ­co-constitutive
phenomena, see Kleinlein (2012b).
15
On the idea that domestic biases of constitutionalist thinking means importing tensions of domes-
tic structures of thought, see Werner (2007, p. 353); Kleinlein (2012a, p. 408). See also Schwöbel (2012,
p. 19). See Somek who claims that ‘unsurprisingly, constitutionalisation talk falls on fertile ground in
a country where the national constitution is revered as the repository of legal reasons’ (2009a, p. 22);
Kennedy (2008, p. 854).
16
See also Koskenniemi (2009, p. 17), according to whom constitutionalism and empire go
well together even though constitutionalism is closely connected to transparency and accountability;
Koskenniemi (2005); Werner (2007, pp. 341, 347). See also Schwöbel (2012, p. 2); for a discussion of
this dimension of constitutionalism and of the critique thereof, see van Mulligen (2011).
17
On the idea that the notion ‘constitution’ carries an element of legitimisation, see Klabbers (2004,
pp. 45, 47, 2014, p. 266); Kumm (2009a, p. 260); Kleinlein (2012a, p. 413); Schwöbel (2012, p. 13).
 International legal constitutionalism, legal forms and the need for villains 229

tion.18 They have claimed that fragmentation reinforces constitutionalisation (de Wet 2012,
p. 1229) or that global values come down to fluid common interest (see Kleinlein and Peters
2014). They have also asserted that it is possible to reconcile global constitutionalism with
pluralism (Stone Sweet 2009; Schiff Berman 2013). Whatever the merits of these rebuttals,
it is the fact that all these attacks against constitutionalism emanate from the entire academic
spectrum – that is, from both traditional and critical international lawyers – that ought to draw
the attention here.

One Constitutionalism or Several Constitutionalisms?

Historical and non-historical taxonomies on the variety of existing constitutionalist patterns

of argument, structures of thought and conceptual frameworks abound in international legal
scholarship. This variety in the cognition of international legal constitutionalism, however,
shows the multifaceted character of constitutionalist thinking in international law. For the
sake of the argument developed in the next section, it suffices to say that, to a large extent, the
multifacetedness of constitutionalist thinking comes down to tweaks in the articulation of three
coexisting – and sometimes co-constitutive – poles: the ‘descriptive’, the ‘normative’ and the
‘evaluative’. According to the account made here, these three dimensions of international
legal constitutionalism constitute three recurring components at work in most constitutionalist
international legal scholarship. Each of them calls for a few observations.
First, international legal constitutionalism comes with a descriptive dimension in that it
purports to describe international law in constitutionalist terms. In this sense, it provides
a descriptive framework that produces an image of international law as actually being based
on (and revolving around) existing constitutional mechanisms such as jus cogens, erga omnes
obligations and human rights (for an illustration of such descriptive moves in international
legal constitutionalism see Tomuschat 1993, p. 210; Simma 1994; de Wet 2006, 2012,
pp. 1213–19; Klabbers et al. 2009; Peters 2009, 2012, 2015). Such a descriptive framework
simultaneously allows constitutionalist thinkers to find confirmation that these international
legal rules perform constitutional functions (Peters 2006, p. 610). In the same vein, it becomes
possible to claim that public international law has grown autonomous from state consent
(see, for example, Tomuschat 1993; see the remarks of Kleinlein 2012b, p. 704) and is able
to ‘explain’ some recent changes in international law (Werner 2007, p. 331; Wiener 2009;
Kleinlein 2012b, p. 706; Schwöbel 2012, p. 14; van Aaken 2012, p. 155).
It is worth noting that this descriptive dimension of constitutionalism – and the allegedly
empirical findings made by virtue of it – are barely disputed by most international lawyers,
whether or not they espouse a constitutional approach to international law. They accept
a great deal of this descriptive framework and many of the findings it produces. This is so
because they have come to observe some constitutionalist moves in the case- law of courts.19
Their inclination to accept such findings is also informed by the extent to which they see

18
See Peters (2015, p. 65) arguing that a constitutional perspective allows for a more adequate
description of the internal order as it stands, exactly because of the latter’s fragmented character.
19
See the constitutionalist overtones of the decision Case T-306/01, Yusuf and Al Barakaat
International Foundation v Council and Commission, 21 September 2005, [2005] ECR II-3533; Case
T-315/01, Kadi v Council and Commission, 21 September 2005, [2005] ECR II-3649. On the constitu-
tionalist aspects of that decision see d’Aspremont and Dopagne (2008).
230 Handbook on global constitutionalism

constitutionalisation at work in international institutions (see, for example, Peters 2011; de

Wet 2012, p. 1219).20 Indeed, following the reinforcement of the autonomy and institutions
of international organisations,21 most international lawyers will agree with constitutionalists
that some ‘micro-constitutionalisation’ (Peters 2006, p. 593) can be witnessed within interna-
tional organisations, thereby providing some support for the broader descriptive framework
proposed by international constitutionalists (Kleinlein 2012a, p. 403; see also the remarks of
Stone Sweet 2009).
The second dimension of international legal constitutionalism is unsurprisingly normative.
International legal constitutionalism bears a normative dimension in that it purports to reinvent
and reform international law according to constitutionalist lexica and values.22 The normative
character of international legal constitutionalism and its tables of values necessarily come
with a programme for action for international lawyers and the identification of a need for new
rules of international law.23 Such values – and thus such programmes for action – include the
furtherance of legal unity, the consolidation of human rights, the further relaxation of the role
of consent and regulation of politics through institutions (see, for example, Tomuschat 1993;
see the remarks of Werner 2007, pp. 329, 330), and the autonomisation of international law
from state sovereignty (Peters 2006, pp. 586, 2009, p. 398; see, for example, Tomuschat 1993,
p. 237; Kumm 2004; on this aspect of constitutionalism, see the remarks of Kleinlein 2012a,
p. 387).
A third – and sometimes overlooked – dimension of international legal constitutionalism
pertains to the evaluative yardsticks it provides.24 This dimension builds on the combination
of the aforementioned normative and descriptive frameworks with a view to identifying those
areas of the international legal order where action is needed from international lawyers (for
some illustrations, see Kumm 2004; Peters 2006, 2009, p. 405, 2012, p. 135; Klabbers et al.
2009, pp. 4, 10, 348, 351–2; Wiener 2009; de Wet 2012, p. 1219). This evaluative dimension
of international legal constitutionalism has been dubbed the ‘critical potential’ (Peters 2006,
p. 510; see also Peters 2009, p. 411) of constitutionalism by constitutionalist thinkers them-
selves. It is interesting to note that, to a certain degree, this evaluative dimension of constitu-
tionalism can be understood as having developed in reaction to earlier charges according to

20
In the context of international institutional law, it should be noted that for some scholars, constitu-
tionalism comes with a slightly different meaning and refers to the placement of limits on the exercise of
power of international organisations. See, for example, Klabbers (2004, p. 32).
21
For an explicit use of the label ‘constitutions’ to qualify the constitutive instrument of interna-
tional organisations, see the Constitution of the International Labour Organization, 9 October 1946, 38
U.N.T.S. 3; see also Constitution of the Food and Agricultural Organization of the United Nations, 16
October 1945, Arts 3(8), 19, 1 UNYB 194 6–1947, 693, 694, 697; Constitution of the United Nations
Educational, Scientific and Cultural Organization, 16 November 1945, 4 U.N.T.S. 275; Constitution
of the World Health Organization, 22 July 1946, 14 U.N.T.S. 185; Constitution and Convention of the
International Telecommunication Union, 22 December 1992, 1825 U.N.T.S. 3.
22
For some illustrations, see Peters (2009, 2012, esp. pp. 129–35); Tomuschat (1993). On this
aspect of constitutionalism, see the remarks of Kennedy (2008). See also van Mulligen (2011, p. 303);
Schwöbel (2012, p. 10).
23
It is in that sense that it has been claimed that constitutionalism comes with managerialism. See the
remarks of Koskenniemi (2007b, p. 17).
24
The evaluative dimension of mainstream international constitutionalism is of course very different
from Koskenniemi’s constitutionalism, which is also evaluative but is more akin to Kantian freedom. See
Koskenniemi (2009).
 International legal constitutionalism, legal forms and the need for villains 231

which constitutionalists are ‘sorry comforters’ (the expression is from Kleinlein 2012a, p. 413)
and which had targeted the descriptive dimension of international legal constitutionalism
(Peters 2009, p. 411).
Although it is common that a normative agenda is accompanied by a descriptive framework
and vice versa, it is worth noting that it is the articulation between the ‘descriptive’ and the
‘normative’ in international legal constitutionalism that has fuelled most discussion in the
literature (Werner 2007, p. 329; van Mulligen 2011; Kleinlein 2012b; see also Schwöbel
2012; van Aaken 2012). For instance, it has been argued that such multifacetedness comes
with paradoxes (Werner 2007). The articulation of the descriptive and normative dimensions
of constitutionalism has been similarly criticised as bringing about a mixture of methodologies
(Stone Sweet 2009). It has also been said that the coexistence of these two dimensions of inter-
national legal constitutionalism contributes to the hybridity of such an approach (van Mulligen
2011, p. 279) and makes it necessarily torn by dilemmas (van Mulligen 2011, p. 278). It is this
methodological syncretism (Stone Sweet 2009) inherent in the multifacetedness of interna-
tional legal constitutionalism that has generated the great variety of charges described in the
previous section.
It must be acknowledged that there is nothing surprising in the aggregation of descriptive
and normative enterprises as that witnessed in relation to international legal constitutionalism.
It has long been demonstrated in jurisprudence and legal theory that the descriptive cannot be
estranged from the normative (Perry 1998, pp. 438, 466). It is thus very common for scholarly
projects that seek to map a certain practice to end up remaking and re-imagining that practice
according to a specific normative agenda (Kennedy 2008, p. 835; see also Koskenniemi
2007b, p. 17).25 In this respect, it is important to note that while the ‘normative’ often informs
the ‘descriptive’, the opposite is also true. This is also the case in international legal con-
stitutionalism, as the existing constitutional features observed by virtue of the descriptive
framework project an image of constitutionalisation as corresponding to an ineluctable and
irresistible march of mankind towards a fully constitutional order (de Wet 2012, p. 1219). In
this sense, there is no doubt that the descriptive and normative aspects of international legal
constitutionalism are mutually reinforcing.26
The same holds for the evaluative part of constitutionalism, which is necessarily interwoven
with the descriptive and the normative of which it is a continuation. In the case of international
legal constitutionalism, the descriptive and the normative, when taken together, shed light on
some specific problems that require some type of intervention (Kennedy 2008, p. 845), for
instance by creating a certain demand for a certain type of legitimacy (Kleinlein 2012b, p. 713;
for an illustration, see Peters 2006, 2009, p. 410). These three dimensions can thus be seen as
interwoven.

25
It is also in this sense that constitutionalism has been famously described by Weiler as ‘a prism
though which one can observe a landscape in a certain way, an academic artefact with which one can
organise the milestones and landmarks within the landscape . . . an intellectual construct by which one
can assign meaning to, or even constitute, that which is observed’ (1999, p. 223).
26
For van Mulligen, the ‘descriptive’ and the ‘normative’ can be reconciled by virtue of a Kantian
transcendental argument (2011, p. 279).
232 Handbook on global constitutionalism

CONSTITUTIONALISM AND THE ATTACHMENT TO LEGAL

FORMS: THE CAUSE OF THE FURY?

It is worth noting that most constitutionalist scholars, contrary to some of their ancestors,27
deny that they espouse methodological moves and paradigms similar to those of natural law
(Peters 2009, p. 409). Instead, they claim that natural law methods and content-dependency
have been absorbed by positive international law (in the same vein, see the remarks of
Kleinlein 2012a, p. 398; Klabbers 2014, p. 267). Irrespective of the labels, however, it seems
difficult to deny that international legal constitutionalism espouses some form of objectivism
reminiscent of that found in natural law. Second, constitutionalist scholars, subject to some
exceptions (see, for example, Tomuschat 1999, p. 28; Fassbender 2007, p. 320), generally
balk at describing their methodological choices as positivistic. As they are seeking to reinvent
international law and move away from state consent (see above), they are wary of using
such a loaded label which could be interpreted as contradicting their own ‘anti-sovereignty’
agenda. Yet, it is difficult to contest that some of their methodological postures are grounded
in constructions traditionally found in legal positivism (van Mulligen 2011, p. 303; Klabbers
2014, p. 267) – whatever this means – be it the idea of ‘rules’, the use of the doctrine of sources
and the reliance on state practice, content-independence or the distinction between law and
non-law (d’Aspremont and Kammerhofer 2014).
This flirting of international legal constitutionalism with methodological postures found
in both natural law and legal positivism means that international legal constitutionalism
rests on an ‘interplay between legal positivism and naturalism’ (Klabbers 2014, p. 267). For
constitutionalists, such blended methodological constructions – which have been criticised
for their hybridity (Stone Sweet 2009) – are necessary to realise the progressive agenda of
international legal constitutionalism while allowing it ‘not to lose touch with actual state
practice’ (Fassbender 2007, p. 320) and preserve its credibility (see, for example, Tomuschat
1999, p. 26; Klabbers 2014, p. 285).
There are several reasons why the finding of such an interplay between legal positivism and
natural law does not call for further discussion here. First, there is probably nothing really new
in an approach to international law that oscillates between naturalistic and positivistic postures
(see Koskenniemi 2005). For instance, the same holds for other attempts to make sense of
global governance, such as Global Administrative Law (Somek 2009b; d’Aspremont 2012).
Second, that such dual flirting is not fully acknowledged by international constitutionalists
themselves is not of great relevance. Most doctrines and theories are built on unconscious or
unrecognised methodological moves. Third, natural law and legal positivism are the object
of so many diverse understandings that such labels may at times be a bit empty. For all these
reasons, it seems more relevant to focus on another – but far more fundamental – ambiguity
that permeates the patterns of argument, structures of thought and conceptual frameworks at
work in constitutionalist thinking, namely, the role that the latter bestows upon legal forms. It
is the object of the following sub-section to elaborate on the ambivalence pertaining to the role
of legal forms in international legal constitutionalism.

27
This is in contrast to Verdross who had no qualms basing himself on natural law. See Simma
(1995); see also Kleinlein (2012a, p. 412).
 International legal constitutionalism, legal forms and the need for villains 233

International Legal Constitutionalism and Legal Forms

It is necessary to formulate two preliminary remarks. First, formalism is understood here

as the theoretical and methodological posture28 whereby the ascertainment of norms as
legal rules and/or the determination of the content of legal rules is made contingent on the
content-independent operation of some legal forms. Legal forms are construed here as types of
content-independent constraints on patterns of argument, structures of thought and conceptual
frameworks. Second, it is essential to distinguish between legal positivism and formalism, and
recall that the natural law tradition has never come down to a repudiation of legal forms. It
could even be said that formalism – and especially formal law-ascertainment – was born with
the natural law tradition.29 In that sense, the ambiguous relationship between international
legal constitutionalism and formalism is not simply the mechanical reflection of its simultane-
ous flirting with both legal positivism and natural law, the attachment to legal forms not nec-
essarily being the expression of the positivist leaning of international legal constitutionalism.
The attachment to legal forms of international legal constitutionalism is witnessed through-
out its three dimensions as they have been introduced above, namely, the ‘descriptive’, the
‘normative’ and the ‘evaluative’. Each of these dimensions is dependent on some degree of
formalism although the degree of their reliance on formalistic patterns of argument, structures
of thought and conceptual frameworks vary. It is the descriptive dimension of constitution-
alism that is most dependent on legal forms. Indeed, international legal constitutionalism
continues to describe international law (and the world) in terms of rules and, hence, is very
dependent on legal forms to apprehend such rules.30 The world – and the international legal
order – apprehended by constitutionalist descriptive frameworks appears to be a world made
of rules pertaining to jus cogens, erga omnes obligations, hierarchy, supremacy of human
rights, and so on. Yet, the descriptive dimension is not the only dimension of international
legal constitutionalism that envisages the world and the international legal order in terms of
rules and is thus in need of legal forms. The same holds for the world – and the international
legal order – projected by the ­normative agenda of international legal constitutionalism. The
global values of international legal constitutionalism, and thus its programme of action, are
supposed to be translated into new rules themselves constructed through legal forms.31 The
evaluative framework of constitutionalism is similarly rule-based, for it is meant to assist in
the identification of those rules that are deficient and of those rules by which the former are
supposed to be replaced. In that sense, international legal constitutionalism, in all its dimen-
sions, is built on the very idea of rules (Tomuschat 1993, pp. 216–17, 1999, pp. 25–6). The
‘rulism’ of international legal constitutionalism found at all levels is what makes it dependent
on legal forms. To capture existing rules, to envisage new rules, or to identify deficient rules,

28
On the extent to which theory and methodology cannot be severed, see d’Aspremont (2014b,
pp. 177–98).
29
By advocating a bipartite classification of law, based on the distinction between natural and
positive law, Aquinas – who coined the term ‘positive law’ – and later Hugo Grotius, although they still
abided by a substantive conception of validity, resorted to a pedigree test to identify law. On this point,
see Finnis (1996, p. 199).
30
On the idea of ‘rules’ and its relationship with formalism, see d’Aspremont (2014a).
31
It is in this sense that it has been claimed that constitutionalism comes with managerialism. See the
remarks of Koskenniemi (2007b, p. 17).
234 Handbook on global constitutionalism

constitutionalist patterns of argument, structures of thought and conceptual frameworks all rest
on the operation of legal forms (Klabbers 2014, p. 284).
The aforementioned ‘rulism’ of international legal constitutionalism is not the only driver
of constitutionalism’s continuous attachment to legal forms. Other parameters explain such
a reliance on legal forms. For instance, legal forms are supposed to bring about legitimacy
(Peters 2009, p. 409) and credibility (see, for example, Tomuschat 1999, p. 26; see the remarks
of Klabbers 2014, p. 285) to those patterns of argument, structures of thought and conceptual
frameworks promoted by constitutionalist thinking. Legal forms are also meant to endow
constitutionalist lexica with some sort of constraining power (Schwöbel 2012, p. 8), for, short
of legal forms, state autonomy would be left intact (Peters 2006, p. 603). Without formalism,
it is claimed that international legal constitutionalism ‘remains ultimately incoherent and, what
is worse, runs the risk of becoming a fig leaf for hegemonic exercises of power cross-dressed
in a mantle of universal values’ (Klabbers 2014, p. 290).
This attachment to legal forms explains why constitutionalist scholars continue to adhere to
a more or less formal understanding of the sources of international law and the law-ascertain-
ment mechanisms that come with it.32 Indeed, constitutionalist scholars continue to uphold
formal mechanisms of law-identification to preserve the possibility of a distinction between
law and non-law which they see as being indispensable for the authority of law, the viability
of the legal system as well as the rule of law without which their agenda could not be real-
ised (Tomuschat 1999, pp. 26–9). The indispensable role of legal forms also explains why
constitutionalists loathe the ‘deformalisation’ of international law (Peters 2009, p 409; on the
notion of deformalisation and its various manifestations, see d’Aspremont 2011), including the
‘softening’ of international law (Peters 2006, p. 603).
It must be acknowledged that constitutionalist patterns of argument, structures of thought
and conceptual frameworks can simultaneously be non-formalistic and purely content depend-
ent (Peters 2009, p. 406). Although the traditional kinship between formalism and voluntarism
as well as state-centricism is far from being self-evident (d’Aspremont and Kammerhofer
2014) constitutionalist thinkers deem a departure from legal forms to play down the allegedly
dominant state-centricism in international law or seek to undo the role of consent in consti-
tutionalist patterns of argument, structures of thought, and conceptual frameworks (Walter
2007, pp. 191–215). This aforementioned move away from legal forms in international legal
constitutionalism is certainly not surprising. It is not difficult to see the extent to which the
attachment to legal forms can simultaneously lay down lethal constraints to the project of
international legal constitutionalism. Indeed, in the eyes of constitutionalists, legal forms can,
at times, dangerously frustrate its agenda, and especially the substantive unity, the demotion
of consent, and what they call the legal control of politics (see, for example, Fassbender 2007;
p. 320; Klabbers 2014, p. 285). A move away from legal forms is also necessary to allow
international legal constitutionalism to swallow the ‘transnational’ and ‘informal’ (de Wet
2012, p. 1222) – which could not be apprehended through legal forms – and subject them to its
constitutional structures and global values.33

32
In the same sense, see Werner (2007, p. 330). For Klabbers (2008), much of the debate on consti-
tutionalism in international law can be seen as a debate on sources in disguise.
33
It is interesting to note that the exact same move is witnessed in Global Administrative Law (see
d’Aspremont 2012).
 International legal constitutionalism, legal forms and the need for villains 235

The Debate on International Legal Constitutionalism as a Mirror of the Abhorrence

and Reverence of Legal Forms

By adhering to some formalism, international legal constitutionalism reproduces all the

problems that come with formalism, and especially the obfuscation of politics and the fake
determinacy of patterns of argument, structures of thought and conceptual frameworks. By
emancipating itself from legal forms, international legal constitutionalism runs the risk of
arbitrariness and hegemony while also making it impossible to preserve the autonomy of law.
In that sense, the ambiguous relationship with formalism makes constitutionalist patterns of
argument, structures of thought and conceptual frameworks look as though they bring the
worst of two worlds.
Yet, such a bleak account is simplistic and oblivious of the fact that international legal
constitutionalism is never looked at from formalism-friendly and formalism-unfriendly per-
spectives by a single observer at a time. The merit which observers see in the attachment of
constitutionalism to legal forms will generally be accompanied by some resentment towards
their anti-formalistic postures, and vice versa. Most observers make an evaluation of constitu-
tionalism depending on their own understanding of the – actual or desired – role of legal forms
in international law as a whole. The merits and weaknesses we see in the patterns of argument,
structures of thought and conceptual frameworks promoted by international constitutionalists
ultimately hinges on our understanding of the – actual or desired – role of legal forms. It is
our attachment or repudiation of legal forms that will determine whether we see international
legal constitutionalism as a mainstream or a marginal approach as well as being (dangerously
or appropriately) orthodox or (dangerously or appropriately) eccentric, as was discussed
above. In summary, the way we look at constitutionalism is determined by our understanding
of formalism.
The foregoing is certainly not meant to defend international legal constitutionalism. Although
I have come to reckon that my broadside against constitutionalism a decade ago (d’Aspremont
2007, pp. 219, 255) was slightly disproportionate, as is most of the constitutionalism-bashing
witnessed in international legal thought, I continue to believe that constitutionalist patterns of
argument, structures of thought and conceptual ­frameworks cannot be salvaged. Like others,
I am of the opinion that it does not suffice to reimagine the world according to a constitution-
alist lexicon to make it better (Kennedy 2008, p. 856), as I do not think that if the world were
built on the paradigms contemplated by constitutionalists it would necessarily be better. Yet,
all the fury against international legal constitutionalism that is unfolding in international legal
scholarship remains excessive. It is excessive, as was discussed above, because international
legal constitutionalism is more marginal and more nuanced than is claimed by its critics. As
was demonstrated by the second part of this chapter, the current rage against constitutionalism
is similarly excessive because, in the end, it is the expression (and continuation) of a more
fundamental debate (and anxiety) about the role of legal forms in international legal thought as
a whole. This means that what all those anti-constitutionalist fighters are after is probably not
the constitutionalist patterns of argument, structures of thought and conceptual frameworks
that are promoted by constitutionalist thinkers.
236 Handbook on global constitutionalism

CONCLUDING REMARKS: CONSTITUTIONALISM AND THE

NEED FOR VILLAINS IN INTERNATIONAL LEGAL THOUGHT

A final observation on the emergence and resilience of epistemic rages against some particular
approaches to law – like the fury against international legal constitutionalism discussed in
this chapter – is warranted. The discussion above has incidentally shown that international
legal constitutionalism has joined natural law, formalism, voluntarism, consensualism, legal
positivism and others – which are often all conflated under the bogey of ‘Westphalia’ – as one
of the new villains of international legal scholarship. Indeed, the anti-constitutionalist fashion
witnessed today shares some resemblance with the fury witnessed in relation to natural law,
formalism, voluntarism, consensualism, and legal positivism throughout the twentieth century.
Just as for natural law, formalism, voluntarism, consensualism and legal positivism before it,
the elevation of international legal constitutionalism as one of the new villains of international
legal thought has often been nothing more than the continuation of a more fundamental debate
on the role of legal forms, often at the cost of exaggerations, tweaks, stretches, disproportions
and straw men.34
That international legal thought has found a new villain in international legal constitu-
tionalism is, in itself, nothing remarkable. What is worth noting, however, is that the field
has added a new villain to an already long list. It is true that disciplinary fields, such as
international law, always need a bunch of villains. Indeed, villains in the consciousness of
professionals in social sciences play a defining role in terms of both ideals (and methods) of
the discipline and disciplinary identity. The same defining role is played by international legal
constitutionalism – just as for natural law, formalism, voluntarism, consensualism and legal
positivism before it. International legal constitutionalism has now been elevated into one of
the necessary evils against which the profession must define itself and its ideals, especially in
relation to legal forms. Should this be bemoaned? Certainly not. International legal thought
has always advanced by burning and re-burning its – constantly resuscitated (Kennedy 2000)
– villains. Yet, burning and re-burning the villains in search of ideals and identity is one thing.
Extending the lists of villains to be burnt is another. The question which the contemporary
anti-constitutionalist fury leaves us with is whether multiplying the villains of international
legal thought contributes to the refinement of the latter, given that, in the end, the question
debated remains exactly the same.

REFERENCES
Broude, T. and Andreas, L.P. (2012), ‘Precursors to international constitutionalism: the development of
the German constitutional approach to international Law’, Goettingen Journal of International Law,
4 (2), 349–62.
Collins, R. (2009), ‘Constitutionalism as liberal-juridical consciousness: echoes from international law’s
past’, Leiden Journal of International Law, 22 (2), 251–87.
D’Aspremont, J. (2007), ‘The foundations of the international legal order’, Finnish Yearbook of
International Law, 18, 219–55.

34
For some general remarks on the straw men constructed around legal positivism, see d’Aspre-
mont and Kammerhofer (2014).
 International legal constitutionalism, legal forms and the need for villains 237

D’Aspremont, J. (2011), Formalism and the Sources of International Law, Oxford: Oxford University
Press.
D’Aspremont, J. (2012), ‘Droit administratif global et droit international’ (‘Global administrative law
and international law’), in C. Bories (ed.), Le Droit Administratif Global, Paris: Pendone, pp. 83–94.
D’Aspremont, J. (2014a), ‘The idea of rules in the sources of international law’, British Yearbook of
International Law, 84, 103–30.
D’Aspremont, J. (2014b), Epistemic Forces in International Law, Cheltenham, UK and Northampton,
MA, USA: Edward Elgar.
D’Aspremont, J. and F. Dopagne (2008), ‘Two constitutionalisms in Europe: pursuing an articulation of
the European and international legal orders’, Heidelberg Journal of International Law (ZaÖRV), 68,
939–77.
D’Aspremont, J. and Kammerhofer, J. (2014), ‘The future of international legal positivism’, in J.
Kammerhofer and J. d’Aspremont (eds), International Legal Positivism in a Postmodern World,
Cambridge: Cambridge University Press, pp. 1–19.
De la Rasilla del Moral, I. (2010a), ‘The unsolved riddle of international constitutionalism’, International
Community Law Review, 12 (1), 81–110.
De la Rasilla del Moral, I. (2010b), ‘At King Agramant’s camp – old debates, new constitutional times’,
International Journal of Constitutional Law, 8 (3), 580–610.
De Wet, E. (2006), ‘The international constitutional order’, International and Comparative Law
Quarterly, 55 (January), 51–76.
De Wet, E. (2012), ‘The constitutionalisation of public international law’, in M. Rosenfeld and A. Sajo
(eds), The Oxford Handbook of Comparative Constitutional Law, Oxford: Oxford University Press,
pp. 1209–30.
Dunoff, L. and J.P. Trachtman (2009), ‘A functional approach to global constitutionalism’, Harvard
Public Law Working Paper No. 0 8–57, Harvard University, Cambridge, MA.
Fassbender, B. (2007), ‘The meaning of international constitutional law’, in N. Tsagourias (ed.),
Transnational Constitutionalism: International and European Perspectives, Cambridge: Cambridge
University Press, pp. 307–28.
Finnis, J. (1996), ‘The truth in legal positivism’, in R. George (ed.), The Autonomy of Law: Essays of
Legal Positivism, Oxford: Oxford University Press, pp. 195–214.
Friedmann, W. (1964), The Changing Structure of International Law, New York: Columbia University
Press.
Jenks, C.W. (1958), The Common Law of Mankind, London: Stevens.
Kennedy, D. (1994), ‘The international style in postwar law and politics’, Utah Law Review, 7 (1),
7–118.
Kennedy, D. (2000), ‘When renewal repeats: thinking against the box’, New York University Journal of
International Law and Politics, 32 (Winter), 335–500.
Kennedy, D. (2008), ‘The mystery of global governance’, Ohio Northern University Law Review, 34,
827–860.
Klabbers, J. (2004), ‘Constitutionalism lite’, International Organizations Law Review, 1 (1), 31–58.
Klabbers, J. (2008), ‘The paradox of international institutional law’, International Organizations Law
Review, 5 (1), 151–73.
Klabbers, J. (2009), ‘Setting the scene’, in J. Klabbers, A. Peters and G. Ulfstein, The Constitutionalisation
of International Law, Oxford: Oxford University Press, pp. 1–44.
Klabbers, J. (2014), ‘International legal positivism and constitutionalism’, in J. Kammerhofer and J.
d’Aspremont (eds), International Legal Positivism in a Postmodern World, Cambridge: Cambridge
University Press, pp. 264–90.
Klabbers, J., A. Peters and G. Ulstein (2009), The Constitutionalisation of International Law, Oxford:
Oxford University Press.
Kleinlein, T. (2012a), ‘Alfred Verdross as a founding father of international constitutionalism’,
Goettingen Journal of International Law, 4 (2), 385–416.
Kleinlein, T. (2012b), ‘Constitutionalization in international law’, Beiträge zum ausländischen öffentli-
chen Recht und Völkerrecht, 231, 703–15.
238 Handbook on global constitutionalism

Kleinlein, T. and A. Peters (2014), ‘International constitutional law’, Oxford Bibliographies, accessed
12 April 2017 at http://​www​.​oxfordbibl​iographies​.com/​view/​document/​obo​-9780199796953/​obo​
-978019979695 3–0039.xml.
Koskenniemi, M. (2002), The Gentle Civilizer of Nations: The Rise and Fall of International Law
1870–1960, Cambridge: Cambridge University Press.
Koskenniemi, M. (2005), ‘International law in Europe: between tradition and renewal’, European
Journal of International Law, 16 (1), 113–24.
Koskenniemi, M. (2007a), ‘The fate of public international law: between technique and politics’, Modern
Law Review, 70 (1), 1–30.
Koskenniemi, M. (2007b), ‘Constitutionalism as mindset: reflections on Kantian themes of international
law and globalization’, Theoretical Inquiries in Law, 8 (9), 9–36.
Koskenniemi, M. (2009), ‘The politics of international law – 20 years later’, European Journal of
International Law, 20 (1) 7–19.
Krisch, N. (2010), Beyond Constitutionalism: The Pluralistic Structure of Postnational Law, Oxford:
Oxford University Press.
Krisch, N. (2014), ‘The decay of consent’, American Journal of International Law, 108 (1), 1–40.
Kumm, M. (2004), ‘The legitimacy of international law: a constitutionalist framework of analysis’,
European Journal of International Law, 15 (5), 907–31.
Kumm, M. (2009a), ‘The cosmopolitan turn in constitutionalism’, in J. Dunoff and J. Trachtman (eds),
Ruling the World? Constitutionalism, International Law, and Global Governance, Cambridge:
Cambridge University Press, pp. 258–325.
Kumm, M. (2009b), ‘On the past and future of European constitutional scholarship’, International
Journal of Constitutional Law, 7 (3), 401–15.
Kuo, M.-S. (2010), ‘Between law and language: when constitutionalism goes plural in a globalising
world’, Modern Law Review, 73, 858–82.
Oeter, S. (2008), ‘The German influence on public international law’, in Société française pour le droit
international, Droit International et diversité juridique, Journée franco-allemande, Paris: Pedone,
pp. 29–42.
Patterson, D. (2015), ‘Review essay: the dark future of constitutionalism’, 19 March, accessed 8 May
2017 at http://​ssrn​.com/​abstract​=​2580783.
Perry, S.R. (1998), ‘Hart’s methodological positivism’, Legal Theory, 4 (4), 427–67.
Peters, A. (2006), ‘Compensatory constitutionalism: the function and potential of fundamental interna-
tional norms and structures’, Leiden Journal of International Law, 19 (January), 579–610.
Peters, A. (2009), ‘The merits of global constitutionalism’, Indiana Journal of Global Legal Studies, 16
(2), 397–411.
Peters, A. (2011), ‘The constitutionalisation of international organizations’, in N. Walker, J. Shaw and S.
Tierney (eds), Europe’s Constitutional Mosaic, Oxford: Hart, pp. 253–85.
Peters, A. (2012), ‘Are we moving towards constitutionalisation of the world community’, in A.
Cassese (ed.), Realising Utopia. The Future of International Law, Oxford: Oxford University Press,
pp. 118–35.
Peters, A. (2015), ‘Constitutional fragments: on the interaction of constitutionalisation and fragmentation
in international law’, Working Paper No. 2, Centre for Global Constitutionalism, University of St
Andrews, St Andrews.
Prost, M. (2011), The Concept of Unity in Public International Law, Oxford: Hart.
Schiff Berman, P. (2013), ‘Jurisgenerative constitutionalism: procedural principles for managing legal
pluralism’, Indiana Journal of Global Studies, 20 (2), 665–95.
Schwöbel, C. (2011), Global Constitutionalism in International Legal Perspective, Leiden: Nijhoff.
Schwöbel, C. (2012), ‘The appeal of the project of global constitutionalism to public international
lawyers’, German Law Journal, 13 (1), 1–22.
Simma, B. (1994), ‘From bilateralism to community interest in international law’, Collected Courses,
250, 259–61.
Simma, B. (1995), ‘The contribution of Alfred Verdross to the theory of international law’, European
Journal of International Law, 6 (1), 33–54.
Somek, A. (2007), ‘Kelsen lives’, European Journal of International Law, 18 (3), 409–51.
 International legal constitutionalism, legal forms and the need for villains 239

Somek, A. (2009a), ‘From the rule of law to the constitutionalist makeover: changing European concep-
tions of public international law’, University of Iowa Legal Studies Research Paper Number 0 9–25,
University of Iowa, Iowa City, IA.
Somek, A. (2009b), ‘The concept of “law” in global administrative law: a reply to Benedict Kingsbury’,
European Journal of International Law, 20 (4), 985–95.
Stone Sweet, A. (2009) ‘Constitutionalism, legal pluralism, and international regimes’, Indiana Journal
of Global Legal Studies, 16 (2), 621–45.
Tomuschat, C. (1993), ‘Obligations arising for states without or against their will’, Collected Courses,
241, 209–12.
Tomuschat, C. (1999), ‘International law: ensuring the survival of mankind on the eve of a new century’,
Collected Courses, 281, 9–438.
Tsagourias, N. (2007a), ‘Introduction – constitutionalism: a theoretical roadmap’, in N. Tsagourias (ed.),
Transnational Constitutionalism: International and European Perspectives, Cambridge: Cambridge
University Press, pp. 1–14.
Tsagourias, N. (ed.) (2007b), Transnational Constitutionalism: International and European Perspectives,
Cambridge: Cambridge University Press.
Van Aaken, A. (2012), ‘Functional approach to international constitutionalism: the value added of
a social science contribution’, Archiv für Rechts und Sozialphilosophie (ARSP), 127, 155–71.
Van Mulligen, J.G. (2011), ‘Global constitutionalism and the objective purport of the international legal
order’, Leiden Journal of International Law, 24 (2), 277–304.
Verdross, A. (1926), Die Verfassung, der Volkerrechtsgemeinschaft (The Constitution of the International
Legal Community), Vienna: Springer.
Walker, N. (2003), ‘Post national constitutionalism and the problem of translation’, in J. Weiler and M.
Wind (eds), European Constitutionalism Beyond the State, Cambridge: Cambridge University Press,
pp. 27–54.
Walter, C. (2007), ‘International law in a process of constitutionalization’, in J. Nijman and A.
Nollkaemper (eds), New Perspectives on the Divide Between National and International Law, Oxford:
Oxford University Press, pp. 191–215.
Weiler, J. (1999), The Constitution of Europe, Cambridge: Cambridge University Press.
Werner, W. (2007), ‘The never-ending closure: constitutionalism and international law’, in N. Tsagourias
(ed.), Transnational Constitutionalism: International and European Perspectives, Cambridge:
Cambridge University Press, pp. 329–67.
Wiener, A. (2009), ‘Global constitutionalism: thinking beyond modernity’, paper presented at ‘The
Practice(s) of Global Constitutionalism’ at the International Studies Association convention, New
York, 15–17 February, accessed 8 May 2017 at http://​ssrn​.com/​abstract​=​2364728.
Wiener, A., A.F. Lang, J. Tully, M. Poiares and M. Kumm (2012), ‘Global constitutionalism: human
rights, democracy and the rule of law’, Global Constitutionalism, 1 (1), 1–15.
17. Interactional legal theory, the international rule
of law and global constitutionalism
Jutta Brunnée and Stephen J. Toope1

A constitutional political and legal order, suggest Lang and Wiener in their introduction to this
Handbook (Chapter 1), both ‘limits … political decision-making’ and ‘enables the creation
of new institutions and laws’. They go on to identify three principles that ‘make manifest
these limiting and enabling functions: the rule of law, a balance or separation of powers, and
constituent power’. An emergent global constitutional order, therefore, should exhibit ‘some
variation’ of these features. The best prism through which to consider the emergence of such
an order, argue Lang and Wiener, is that of ‘constitutionalization’, for it gives pride of place to
practices and processes, thereby acknowledging the contested nature of global constitutional-
ism and the diversity of prevailing understandings.
We agree that a focus on practices and processes is the most useful way to imagine building
up any form of constitutional order in international society. However, as we show, for consti-
tutionalism that reaches beyond the creation of institutions and laws to exist, there are implicit
norms that must animate these practices and processes. These norms are internal to law, and
are themselves largely procedural, although they are rooted in thin substantive commitments
that have been adopted widely around the globe.
The terrain of ‘constitutionalism’, or ‘constitutionalization’, as defined by the editors of
this Handbook, can be fruitfully explored through the lens of the practice-based, interactional
theory of international law that we have developed over the past couple of decades. In that
theory, we posit that legal norms arise from social norms based on shared understandings.
What distinguishes law from other types of social ordering is adherence to specific require-
ments of legality, commonly associated with the rule of law. When norm creation meets these
criteria and is matched with norm application that also satisfies the legality requirements –
when there exists what we call a ‘practice of legality’ – actors can pursue their purposes and
organize their interactions through law.
While this interactional account of international law most obviously illuminates the idea of
an international ‘rule of law’, it also sheds light on the other two elements of constitutionalism
identified by the editors. As concerns the separation of powers, it reveals that international
law is not primarily dependent upon specific methods of law-making or a particular set of
actors, institutions or dispute settlement mechanisms. The rule of law can exist as a form of
constitutionalism without a rigorous institutional separation of powers, but we will argue that
this constitutionalism requires an internalized separation of the overlapping roles played by
key international actors (Dyzenhaus 2014).
Our interactional approach also shows that both order and authority come from within law,
from continuing practices that meet conditions of legality. Our basic approach aligns with

1
We thank Emanuel Adler and David Dyzenhaus for their extremely helpful comments on an earlier
version, and Samuel Mosonyi for helpful research assistance.

240
 Interactional legal theory, the international rule of law and global constitutionalism 241

a conception of constitutionalism that understands legal systems to be held together by ‘intrin-

sic qualities that give law its authority’ (Dyzenhaus 2012, p. 233, emphasis added). Indeed, it
suggests that a ‘circular’ understanding of legality, in which authority is internal to law, leads
to a more robust account of the rule of law than a ‘linear’ understanding, which must locate
‘law’s starting point in something other than law itself’ (Walters 2016, p. 40). Such a circular
approach obviates the need for puzzling over the nature of ‘constituent power’ (or, given
our legally based understanding of constitutionalism, ‘constituent authority’), a significant
theoretical advantage when considering a complex and diverse international society without
a shared political identity (Brunnée and Toope 2023).
Interactional law is not fully fledged constitutionalism in the sense that the conditions of
legality we describe construct practices of legality, nor necessarily the ‘institutional’ structures
of constitutionalism as often understood by political scientists. However, through its particular
practice-focused conception of the rule of law, the interactional law framework provides
insight into the construction of what might be called ‘constitutional processes’. We do not
discern fully formed constitutionalism in current global society, but we do see evidence of
a modest rule of law. Of course, the sense of any ‘law’ influencing global affairs is undermined
by the aggressive war launched by the Russian Federation against Ukraine and by a growing
body of evidence that war crimes have been committed in the prosecution of that brutal war.
Nevertheless, interactional international law shows us some means to bolster a modest rule of
law, thus serving to illuminate processes that might further the construction of more inclusive
constitutional norms and institutions. Despite current anxieties and profound challenges, there
does remain a path forward that resists a descent into global chaos.
As those processes are reinforced, the interactional law framework demonstrates that
a feedback loop can be created whereby actors within global society can learn collectively to
value the rule of law more highly, thereby allowing for greater strides in constitutionalism.
However, none of this is inevitable. Building interactional law, and reinforcing the rule of
law, is a constant effort of practice – as we describe it, a practice of legality. Building robust
constitutionalism requires the collective acceptance of internal principles of the rule of law,
as well as the iteration of processes and mechanisms of legality that instantiate transparency,
predictability and other indicators of healthy legal systems. This is hugely difficult, and will
remain so in our increasingly conflict-ridden world.
We want to be clear that the characteristics of constitutionalism, based in large part on the
rule of law, are not immutable. As we show, the criteria of legality that undergird the practice
of legality are in large measure historically contingent. They have arisen in the post-Enlighten-
ment world and are based primarily on process values that are associated with liberal com-
mitments to autonomy and social communication. By the same token, it is conceivable that
a future society will have a different understanding of ‘law’, which no longer fits within the
framework of legality as we understand it. However, what we call the criteria of legality have
proven to be resilient or ‘sticky’, and there is flexibility within the concept of legality. It is
possible to imagine a rule of law that is not fixed in deep Western values, and a prospective
constitutionalism that is attendant to the global reality of profound diversity.
In this chapter we first summarize the interactional approach to international law. Secondly,
we connect that approach to ‘circular’, practice-oriented and interpretative understandings
of the rule of law. In the third section of the chapter, we will show how those conceptions of
the rule of law can help to support a limited ‘constitutionalism’ that is still at a nascent stage
in international society. Finally, we argue that a constitutionalism that is expressed primarily
242 Handbook on global constitutionalism

through the rule of law is more open to diversity than might at first appear to be the case;
indeed, we suggest that it is likely to be more open than forms of political constitutionalism
that focus on constituent authority.

A BRIEF ACCOUNT OF INTERACTIONAL INTERNATIONAL LAW

In this section, we provide a summary account of the interactional theory of international law.2
For ease of presentation, we treat the three components of the framework sequentially, but
we want to stress that they are actually in a dynamic relationship, constantly reinforcing or
undercutting one another. What is more, there is no single entry point in the construction and
deconstruction of law, even though we begin our explanation with the role of shared under-
standings. For example, we might conclude a treaty that formally posits a ‘rule’ that actually
has little support in practice. However, by using the treaty provision as a tool of ‘education’
or to promote discourse, through continuing argument and interpretation we might build up
shared understandings and legal practice that come to support the norm and engender a sense
of obligation.

Shared Understandings

Social norms are grounded in an underlying set of shared understandings supporting first
the need for normativity, and then particular norms that shape behaviour. Actors work to
generate and promote specific understandings, whether through norm entrepreneurship or
through the discourse of epistemic communities. Shared understandings can emerge, evolve
or fade through processes of social interaction and social learning (Brunnée and Toope 2010,
pp. 56–65). Once in existence, shared understandings are analogous to what Searle calls ‘back-
ground knowledge’ (Searle 1995, p. 132), the set of societal assumptions that give context
to all interpretation. Shared understandings ground norms that shape how actors perceive
themselves and the world, how they form interests and set priorities, and how they make or
evaluate arguments. Wenger articulates a similar concept as ‘background practice’ that is
constituted through everyday practices (Wenger 1998; Brunnée and Toope, 2010, pp. 62–5).
This account of normative evolution does not suggest that there can never be relatively stable
norms. It simply highlights that such stability is actually dynamic, dependent upon continuing
practice for reinforcement.

The Criteria of Legality

Legal norms are embedded in and must be broadly in line with the practices and understand-
ings of the society in which they operate (Postema 1994[1999]; Reinold and Zürn 2014).
However, shared understandings alone do not make law. Many social norms exist that never
reach the threshold of legal normativity. What distinguishes legal norms from other types of
social norms is not form or pedigree, nor a particular type of institutionalization, but adherence

2
We borrow the concept of ‘interactional law’ from Lon Fuller. He used the term to highlight the
limitations of ‘the prevailing conception of law as a one-way projection of authority’ (Fuller 1969a,
p. 221) and the importance of appreciating law as closely tied to its social context (Fuller 1969b[2011]).
 Interactional legal theory, the international rule of law and global constitutionalism 243

to criteria of legality. The most widely referenced set of legality criteria was proposed by Lon
Fuller. We adopt the criteria as shorthand for the rule of law, not because they are necessarily
exhaustive, or indeed the only criteria one could imagine, but because they are clear and
coherent.
In his writings, Fuller tended to apply the criteria of legality most often to the legislative
function, but they are relevant beyond that context (Klabbers 2008; Luban 2010). For Fuller,
legal norms must be general, prohibiting, requiring or permitting certain conduct. They must
also be promulgated, and therefore accessible to the public, enabling actors to know what the
law requires. Law should not be retroactive, but prospective, enabling citizens to take the law
into account in their decision-making. Actors must also be able to understand what is permit-
ted, prohibited or required by law – the law must be clear. Law should avoid contradiction,
not requiring or permitting and prohibiting at the same time. Law must be realistic and not
demand the impossible. Its demands on citizens must remain relatively constant. Finally, there
should be congruence between legal norms and the actions of officials operating under the law
(Fuller 1969a, pp. 46–91; Murphy 2005, pp. 240–1) and, as a result, a ‘stable reciprocity of
expectations between lawgiver and subject’ (Fuller 1969a, p. 209).
Prominent legal theorists have suggested that Fuller’s criteria of legality are purely about
efficacy (Raz 1979, pp. 223–6; Hart 1983, p. 350). Rationalist international relations (IR)
scholars too are likely to argue that all that the criteria of legality do is to signal clearly how
agents should behave. On this reading, law simply enables the efficient functioning of society
by sending coherent signals that make interaction predictable. Participation in such a system is
rational because an individual agent is benefited by both the possibility of exchange in material
interests and predictability in relationships (Simmons 2000).
Reciprocity in this rationalist sense is also a common explanation given by international
lawyers for the existence of legal norms. Rosalyn Higgins argues that there is no point in
searching for an explanation of obligation; international law functions on the basis of recipro-
cal obligations rooted in interests (Higgins 1994). Other legal theorists have looked to a type
of systemic reciprocity flowing from the long-term interests of states in the predictability
provided by law (Henkin 1979; Chayes and Handler Chayes 1995). As part of a surge of
rationalist explanations of international law by North American scholars, Andrew Guzman has
argued that, along with reputation and retaliation, reciprocity explains why states comply with
international law even in the absence of coercive enforcement mechanisms (Guzman 2008).
We believe that reciprocity is deeper than the exchange flowing from the calculation of
material interests (Brunnée and Toope 2010, pp. 37–42). When actors in the system believe
that all interactions are shaped by reciprocal commitment to the criteria of legality, law will
tend to attract its own adherence – an internalized sense of ‘obligation’ will have been created.
Hence the criteria of legality are not merely signals but are conditions for the existence of law.
Only when these conditions are met and when, as we are about to describe, they are upheld by
a community of legal practice, can we imagine actors feeling obliged to shape their behaviour
in the light of the promulgated rules.

The Practice of Legality

In international society, the deeper sense of reciprocity that we have just described is even
more salient because states are subjects, law-makers (Scelle 1956) and administrative agencies
all at once (Waldron 2006). Because obligation depends in large part upon the reciprocity or
244 Handbook on global constitutionalism

mutuality of expectations among participants in the legal system – a reciprocity that is collec-
tively built and maintained – it exists only when international legal practices are ‘congruent’
with existing norms and the requirements of legality.
The idea of communities of practice (Wenger 1998; Adler 2005), therefore, rounds out
our understanding of the relationship between law and shared understandings. The key point
is that interactional law does not arise simply because a community of practice has grown
around a given issue or norm. Only when this community is engaged in a practice of legality,
can shared legal understandings, be they procedural or substantive, modest or ambitious, be
produced, maintained or altered. We suggest that there exist multiple, overlapping communi-
ties of legal practice. An overarching community of practice maintains basic substantive (for
example, sovereignty and sovereign equality) and procedural (for example, rules governing
treaty-making) background norms, as well as understandings concerning the requirements of
legality that we discussed previously. More particularized communities grow within specific
issue areas, for example, in the context of treaty regimes such as the climate regime or the
World Trade Organization (Brunnée and Toope 2011).
Another important point is underscored by focusing on the role of communities of practice
that ‘cut across state boundaries and mediate between states, individuals and human agency,
on the one hand, and social structures and systems, on the other’ (Adler 2005, p. 15). For our
purposes, the central insight is that it is not enough to cast socially shared understandings in
legal form; they cannot simply be ‘posited’. Positive law can be an element of interactional
law, often an important element, but it is not necessarily coextensive with it. The communities
of practice concept instructs that positive law is a method of ‘fixing’ legal understandings
– a function that is particularly important in large, diffuse societies. It may also assist in
meeting requirements of legality, such as promulgation, clarity, transparency, or predictability
(Brunnée and Toope 2010; Hurd 2015). However, without sufficiently dense interactions
between participants in the legal system, positive law will remain, or become, dead letter.
Perhaps most importantly, the salient interactions must be of a specific kind. They must consti-
tute a practice of legality – norm application (for example, legal argumentation, interpretation,
implementation or enforcement measures) that meets the requirements of legality.
The interactional account also highlights, then, that the mere declaration of common values
in formal law can be deceptive. Without a community of legal practice built around and
upholding criteria of legality (Brunnée and Toope 2010, p. 69), supposed shared values will
remain lofty rhetoric. Yet, for a community of practice around international legal norms to
emerge, it is not necessary to imagine the existence of a homogenous ‘international commu-
nity’ sharing a common ‘life world’ (Habermas 1989), vision or definition of ‘the good life’.
A community of practice requires only that members ‘must share collective understandings’ of
‘what they are doing and why’ (Adler 2005, p. 22). It is not necessary, then, to have a morally
cohesive ‘community’ before law-making is possible. A community of legal practice must
only share a common understanding of the requirements of legality and engage in a practice
of legality. As we will detail in our discussion of the nascent global rule of law below, the
fact that the requirements of legality are ‘formal’ or ‘procedural’, rather than ‘substantive’ in
nature is particularly important in the context of global society. They allow one to imagine
and build up a community of legal practice that is congenial to diversity but also permits
and encourages the gradual increase of global interaction and deeper normative convergence
(Brunnée and Toope 2010, pp. 43–5, 77–82).
 Interactional legal theory, the international rule of law and global constitutionalism 245

CIRCULAR CONCEPTIONS OF LAW AND CONSTITUTIONALISM

Linear theories of law trace ‘authority’ and ‘legitimacy’ back to an originating source of law.
In Mark Walter’s evocative phrase, law is ‘held up by a string’ (Walters 2016, p. 33). The
traditions of natural law fit this description because the source of law is the deity or reason. All
law reaches back to the external morality created through divine revelation or right thinking.
However, linearity is also characteristic of legal positivism, and it tends as well to undergird
the legal conceptions of IR realists. Although for various types of positivists the source of law
is described differently, there is always a source and – what matters for present purposes – the
source is outside law itself. For John Austin, the source of law was the power of the uncon-
strained sovereign (Austin 1879[2002], lecture 1). Hans Kelsen described his ‘grundnorm’
simply as a logical postulate (Kelsen 1967, p. 202), while H.L.A. Hart argued that it is a social
fact constituted through official practice that he called a ‘rule of recognition’ (Hart 1994, ch.
6).
The idea that law is ultimately justified by a source outside itself makes any form of legal
constitutionalism difficult to sustain. Yet constitutionalism is often thought of as ‘government
established by law and limited by law from exercising arbitrary power’ (Walters 2016, p. 37).
How can government be established ‘by law’ if law itself is established by something other
than law? It cannot, which is the basis of the theory of ‘political constitutionalism’, represented
today by proponents such as Jeremy Waldron. Waldron argues that it is democratic principles
that legitimate a legal order; these principles fall outside law, so the constitution is a political,
not a legal construct (Waldron 2006, p. 18). The fundamental question for all constitutions, on
this theory, is, what ‘people’ serves as the source of authority, or constituted power?
As David Dyzenhaus argues: ‘political constitutionalists and legal positivists seem commit-
ted to the claim that the legal constitution is ultimately a formal one – one that consists only of
formal authorization rules’ (Dyzenhaus 2016, p. 16). There are no substantive commitments,
no matter how thin. ‘Authority’ and ‘legitimacy’ are merely expressions of right process
within law, finding their ultimate justification in external political morality, the justification of
a people’s agreement to be governed.
A similarly linear move is made by realists who perhaps unwittingly support a view of
constitutionalism close to that of Carl Schmitt. Schmitt famously argued that the sovereign has
unbounded power to throw off ordinary law in cases of emergency or exception: ‘Sovereign
is he who decides on the exception’ (Schmitt 2005, p. 5). Realists share this form of positivist
linearity, where again authority is rooted outside law, in the ability to escape the application of
law through the exercise of material power.
When constitutional authority, be it the sovereign or the people or some other source, is
traced to an origin outside of law, as it is in all linear theories, it is placed beyond the constrain-
ing influence of legality. This conception is a significant weakness of linear theories of law.
We suggest that a more robust account of constitutionalism emerges from a ‘circular’ tradition
of law, of which interactional international law forms a part. In this tradition, the constitution
is a legal construct, not an instrument of material power or even of constitutive political power.
The point is not that law is dominating as a discipline, but rather that the circular tradition
allows both the constitution of authority and the disciplining of law, through the requirements
of legality.
This circular tradition is grounded in the ‘practical reasoning’ or ‘practical wisdom’ of
Aristotle (Aristotle 1976, s. X:ix), wherein law is best understood as a discursive exercise, as
246 Handbook on global constitutionalism

a form of rhetoric that is purposive, not merely descriptive of fact, and inherently connected
to argument. This rhetorical tradition in law was further influenced by the secular humanists
of the Enlightenment, thinkers such as Giambattista Vico, who argued that many of life’s
important conundrums are simply not amenable to dualistic Cartesian analysis. Instead, life’s
challenges call for creativity in drawing analogies and in finding similarities among seemingly
different elements, thereby creating new understandings of reality. This process is the mature
exercise of judgement or practical reason, a demonstration of prudence in the light of experi-
ence (Mootz 2008, p. 1282).
In parallel, the discursive tradition found rich expression in the evolution of the common
law of England. Here, too, truth is not a data point to be ‘discovered’ in the material world, or
even in explicit texts, but is emergent in the interplay between fact and reason: the drawing of
analogies from parallel practices and the working out of complex ideas through argument. As
Walters notes, quoting a seventeenth-century treatise on legal method: ‘Answers in difficult
cases were found through an interpretive oscillation between law “in concreto” and law “in
abstracto”, a movement “from the particular to the speciall” and then “from the speciall to the
general”’ (Walters 2016, p. 35).
The circularity of law is expressed as a ‘network of interlocking strands of normative value
that bend back upon themselves, never reaching an end’ (Walters 2016, p. 34). All law, includ-
ing the constitution itself, is created and refined, shifted and reinforced, through continuing
practices of contestation, interpretation, application and enforcement. These practices are
themselves shaped, and what counts as ‘practical reason’ or ‘prudence’ is guided by ‘strands
of normative value’, themselves subject to continuing debate and interpretation.
This understanding of law founds a constitutionalism that is distinctively legal. The ‘basic
norms of good governance … [are] immanent within law itself’ (Walters 2016, p. 47). In
Fuller’s terms, they are the ‘internal morality of law’, what we prefer to call simply ‘criteria of
legality’, grounded only in thin substantive commitments to relative autonomy and the need
to foster communication. As well as providing a rich account of the rule of law, this legally
focused construction of constitutionalism obviates the need to identify ‘constituent authority’
outside of law since law’s authority is provided by internal qualities ‘without which there is
neither law nor authority’ (Dyzenhaus 2012, p. 233). Interestingly, Fuller actually made the
same point in chiding his positivist critics for ‘falsification of reality’ by simply assuming the
existence of law-making authority (Fuller 1969a, p. 148).
A circular view of law and constitutionalism can also help explain how the division of
powers can still be an element of constitutionalism even in a ‘horizontal’ system where actors
are legislators, administrative agencies and judges all at once (Scelle 1956; Waldron 2006).
Perhaps counterintuitively, although international law exhibits institutionalized separation of
powers only in specific settings (for example, in certain international organizations such as the
World Trade Organization), the internal requirements of legality that underpin international
legal practice ensure that the same actors who make international law are subject to certain
disciplines when they interpret it – when they occupy the role of decision-makers or ‘judges’,
as it were (Dyzenhaus 2014). Thus, the rule of law, understood as a continuing practice of
legality, contains within it implicit ‘separation of powers’, operationally if not structurally.
It remains to be explored whether or not this circular view of law can support a constitu-
tionalism transcending state borders. Is there a global rule of law that could give rise to robust
constitutionalism in international society?
 Interactional legal theory, the international rule of law and global constitutionalism 247

A GLOBAL RULE OF LAW?

Although, as we have seen, originating concepts can be traced back to ancient Greece, the rule
of law as we express it today – and the legality requirements that are commonly associated
with it – were articulated in Europe, over the course of the Enlightenment (Tamanaha 2004).
During the Protestant Reformation of the sixteenth century, a prior step towards the modern
conception of the rule of law had been taken: law began to be decoupled from divine or
natural justice. This decoupling coincided with the emergence of sovereign states (Bartelson
1995) looking to assert their powers through an emphasis upon the centrality of positive law.
As ‘law’ came to be identified with state-made law, the Enlightenment’s turn to science and
reason, combined with the rise of mercantilist liberalism, entailed demands for individual
freedom and equality before the law (Tamanaha 2004, p. 39).
A fully developed understanding of the rule of law emerged as European governments were
called upon to protect a diversity of visions of ‘the good’ pursued by free and equal citizens
(Tamanaha 2004, p. 35). Building on this tradition, it is no surprise that various articulations
of the requirements of legality, including Fuller’s, are fundamentally concerned with enabling
autonomous actors to pursue their diverse goals through law. At the same time, they seek to
ensure that governing authorities act in accordance with the letter and spirit of existing laws
(are ‘constrained’ by law). It is this context that reveals why reciprocity between citizens and
government was at the core of Fuller’s conception of the rule of law (Fuller 1969a). That is,
only when the law and its application meet the requirements of legality, will it be able to guide
citizens’ decision-making, while at the same time limiting what governments can do through
law.
Is it possible to transpose a conception of the rule of law that emerged within nation states to
protect the liberty and equality of individuals against governmental power to the international
arena (Krisch 2012)? Moreover, even if such a transposition were possible, can an historically
contingent and Eurocentric conception of the rule of law provide a foundation for a truly
global rule of law (Reus-Smit 2011), let alone any form of global constitutionalism?
The answer to the question whether or not it is possible to transpose a conception of the rule
of law from the domestic to the international setting is multifaceted. Although Fuller’s canon
of legality was concerned with constituting as well as limiting authority, he also articulated
a broader conception, encompassing not only the disciplining of the legislative and executive
functions, but also the shaping of other modes of legal ordering, including customary law and
contractual relationships among legally equal actors (Fuller 1969a, 1969b[2011]). Moreover,
because congruence and reciprocity are the pivot points for Fuller’s version of the rule of law,
it provides a powerful insight for international law: even when a legal order appears to be
hierarchical, it is in fact horizontal in important respects. This insight reveals how a horizontal
order, which does not have the features commonly associated with domestic law, can still be
a legal order.3 Also, precisely because states, as the still-dominant international actors, occupy
multiple roles at once, transposing the concept of the rule of law to the international level is
not only possible but necessary (Waldron 2006). In this setting, its operation is best understood

3
Fuller frequently used customary and international law as illustrations of his argument that hori-
zontal forms of order could be law (Fuller 1969a, 1969b[2011]). He did, however, consider international
society at the time to lack sufficient ‘community’ and international law to be insufficiently developed for
certain legal forms to be appropriate means for resolving polycentric questions (Knop 2010).
248 Handbook on global constitutionalism

broadly, as both enabling and constraining justification as well as contestation, rather than as
concerned only with ensuring compliance or constraining authority (Hurd 2015; Kanetake and
Nollkaemper 2016).
This conception of the rule of law is also useful because it can accommodate the growing
roles of individuals and other non-state actors in the international legal order. It sets out
requirements that all actors must adhere to – and will be enabled and constrained by – if they
are to engage in legal interaction. Furthermore, it recognizes that the various actors in interna-
tional society constitute overlapping and sometimes contesting communities of practice.
A final observation is in order: a basic reason of logic supports the argument that we can
transpose a rule of law that emerged in nation states to the international setting. Although it is
argued that we cannot compare states to individuals, this argument tends to reify states and to
disconnect them from their social reality. States are, in their ambitions and actions, controlled
by people. People, be they state leaders or international lawyers, experience interactions in
international society that can induce social learning, reinforcing commitments to legality, just
as they can in the domestic sphere. That is why individual autonomy and equality before the
law in domestic law have equivalents in state sovereignty and sovereign equality at the inter-
national level (Brunnée and Toope 2010, pp. 34–6). Just as the rule of law is meant to protect
diverse goals and outlooks of autonomous and equal actors in the domestic context, it must
provide for analogous diversity at the international level. Indeed, deep diversity characterizes
international society, and traditions of autonomy and equality are crucial to ensuring the cul-
tural and political independence that contemporary international law seeks to uphold (Brunnée
and Toope 2010, p. 82).
Perhaps counter-intuitively, the need for a rule of law that can operate in today’s deeply
diverse international society also helps explain why a conception that seems to be historically
and culturally contingent could provide the foundation for a genuinely global rule of law, and
even a nascent form of global constitutionalism. The requirements of legality that underpin
our description of interactional international law are primarily formal in nature, or ‘proce-
dural’, in Fuller’s terminology (Fuller 1969a, pp. 96–7). As we already noted, although these
requirements constrain the ability of actors, including powerful actors, to proceed in arbitrary
or entirely self-serving fashion, they do not themselves entail thick substantive commitments
(Klabbers 2008; Luban 2010). They do, however, connect to conceptions of autonomy and the
need to foster communication that constitute a set of ‘thin’ substantive commitments (Brunnée
and Toope 2010, pp. 33, 35).
A substantively thin conception of the rule of law built around formal requirements of legal-
ity and upheld by collective practices of legality is particularly suited to international society’s
highly variegated political context. Nothing precludes actors from promoting substantive
understandings in international law. Indeed, international law does include a stock of general
and regime-specific substantive norms, including norms first promoted by weaker actors.
Our point is merely that shared substantive commitments cannot be assumed to exist a priori
(as most natural law approaches would insist), or enacted through ‘valid’ rules (as positivist
approaches suggest). However, a thin international rule of law is possible and, arguably, its
requirements are all the more important in the absence of shared substantive values and goals
(Koskenniemi 1990), or as actors work towards shared substance. That is the very point of the
rule of law, in domestic and international society.
So far, we have suggested why a rule of law akin to what emerged from the European
Enlightenment experience might be both practically useful and normatively desirable at
 Interactional legal theory, the international rule of law and global constitutionalism 249

the international level. Now we want to go further and suggest that a modest but genuinely
global rule of law, built around requirements and practices of legality, has in fact come to be
embraced by international society, including by most of its non-Western members. This argu-
ment may seem audacious, given international law’s notorious colonial history (Anghie 2005;
Pahuja 2011). Indeed, we want to be clear that we are not proposing a comfortable ‘progress’
narrative from a European-inspired domestic instantiation of the rule of law to international
acceptance. The processes by which the international rule of law is coming into being are
complex and, at different points, imposition preceded genuine interaction.
The rise of modern sovereign states in Europe entailed a decisive turn to a positivist
conception of the international legal order, one in which, initially, only existing (Western)
states could participate (Koskenniemi 2002). European states used international law to retain
their privileged positions, and to assert power over non-Western states and peoples, notably
by withholding recognition from ‘non-civilized’ peoples and treating their territories and
resources as free for the taking, through the legal doctrine of res nullius. The late nineteenth
century, therefore, witnessed the geographical expansion of Western influence and the
delivery of Eurocentric international legal rules to the world. In the early twentieth century,
international law became global simply by virtue of the admission of the new states that met its
membership requirements, but that is not the end of the story (Becker Lorca 2014).
The projection of international law to the ‘periphery’ is certainly part of the origins of the
international legal order, and the rule of law, as they operate today, but this account, as recent
scholarship has carefully documented, overlooks the increasingly active role that non-Western
international lawyers assumed in appropriating classical international law, and ‘transforming
European international law into a universal regime’ (Becker Lorca 2014, p. 15). Rather than
simply accepting international law as it stood, growing numbers of international lawyers from
the ‘periphery’ studied international law in Europe, appropriated its discourse in order to
exploit the avenues for resistance that it offered and, gradually, worked to change some of its
core content. More than just an export item, international law became, in Becker Lorca’s pow-
erful phrasing, a ‘mestizo’ legal order, a hybrid that emerged out of the ‘encounter between
Western and non-Western worlds’ (Becker Lorca 2014, p. 23).
One particularly powerful illustration of this aspect of international law’s history can
be found in the gradual shifting and ultimate replacement of the criteria for statehood.
Non-Western international lawyers and the states they represented first operated within the
Eurocentric gatekeeper standard of ‘civilization’, working to show that their societies met the
standard. Then, gradually, they worked to shift the standard, looking to establish that societies
other than European-style states were in fact ‘civilized’ on their own cultural terms. This shift
became the foundation for developing world international lawyers’ ultimate goal: fact-based
criteria for statehood that were decoupled from standards of civilization. This formalist stance
was enshrined in the Montevideo Convention (Becker Lorca 2014).
Superficially, this approach suggests that the newly minted international lawyers of the
developing world were ‘positivists’. However, it is likely that this positivism was a strategic
appropriation. These ‘semi-peripheral international lawyers’ needed to reinforce a fragile sov-
ereignty and to displace the assertion of universal (Christian) values emanating from Europe
(Becker Lorca 2014). What is more, their positivism was not so much an uncritical acceptance
of a particular legal theory, but rather an attempt to ‘assimilate international law into practical
knowledge’, reconstructing European international law through interaction with domestic law
shaped by local cultures (Becker Lorca 2014, p. 60).
250 Handbook on global constitutionalism

The reference to practical knowledge is important, for it connects us back to the ‘communi-
ties of practice’ that are essential to the construction, maintenance and vitality of international
law. Even though colonial international law was fundamentally positivist, the Enlightenment
tradition also brought with it the commitments to legality that ground a non-positivist under-
standing of international legal practice. Legality requirements such as generality, transparency
and consistency all afford opportunities to weaker actors today (as with the early non-European
developing states) to challenge the strong and to work through law to promote diverse perspec-
tives and interests. They may facilitate efforts to shift shared understandings over time, giving
rise to more assertive substantive law (Brunnée and Toope 2010).
Other scholars have identified this capacity of international law to provide space for
contestation but have seen the empowerment as distinctly limited (Koskenniemi 1990). Our
understanding of the ‘space’ provided by law is more encompassing, being rooted in a culture
of legality, not merely a culture of formalism (Brunnée and Toope 2017). Today, we can
see limited legality requirements as reaching around the globe, through the past efforts of
‘semi-peripheral international lawyers’ and their allies. While it is true, therefore, that notions
of the rule of law are historically contingent, it is noteworthy that they have been globally
influential and have shown remarkable resilience. Albeit in different ways and to different
extents, international law’s most important law-making modes, including customary, treaty
and certain soft law-making processes, are all underpinned by the requirements of legality
(Brunnée 2017). A clear example is the almost universal agreement on the rules of treaty
law, which are tightly intertwined with legality requirements, as encapsulated in the Vienna
Convention on the Law of Treaties (Brunnée and Toope 2010). Although, treaty law allows
individual states more room than customary law for ‘tailoring their legal obligations’ (Hurd
2015), many treaty law devices, such as entry-into-force, reservations, amendment or with-
drawal regimes, tend to be designed so as to minimize checker boarding as much as possible
and to promote generality of treaty obligations.

CONCLUSION
The interactional theory of international law, linking to circular understandings of law and
revealing the fundamental role of criteria of legality in buttressing a robust practice of legality,
points the way to a legally focused understanding of constitutionalism that could potentially
be built in international society. In treating the rule of law as the fundamental component
of constitutionalism, we reduce the need to find an inclusive political community to justify
constitutionalism. Communities of legal practice require only agreement on the need for law,
and shared commitment to criteria of legality. This is a distinct advantage in a profoundly
diverse international society. Of course, one cannot presume even the agreement on a need for
law. Assertions of almost unconstrained sovereignty and states’ ‘rights’ to use force, despite
the express terms of the UN Charter, are rife amongst contemporary authoritarian regimes
ranging from Myanmar to Eritrea, from Venezuela to Russia. Resisting this understanding of
IR remains an urgent task. We also show how a limited version of the separation of powers
can exist through the legality requirements that shape internalized role differentiation in inter-
national actors.
Conceptions of law are historically contingent. However, the thin substantive commitments
required by the criteria of legality and by interactional international law have been widely
 Interactional legal theory, the international rule of law and global constitutionalism 251

embraced as international law has been transformed over the last century from a purely
Eurocentric law to a mestizo law, reshaped by the intentional acts and arguments of develop-
ing world lawyers and their allies. This mestizo law, as it is continuously upheld and changed
through the work of communities of legal practice, could help to build a stronger form of con-
stitutionalism than currently exists in international society. That trajectory is, however, by no
means assured as recent events on the eastern borders of Europe have shown with distressing
clarity.

REFERENCES
Adler, E. (2005), Communitarian International Relations: The Epistemic Foundations of International
Relations, Abingdon: Routledge.
Anghie, A. (2005), Imperialism, Sovereignty and the Making of International Law, Cambridge:
Cambridge University Press.
Aristotle (1976), [The Nicomachean] Ethics, trans. J.A.K. Thomson, Harmondsworth: Penguin.
Austin, J. (1879), Lectures on Jurisprudence, or The Philosophy of Positive Law, 2 vols, revd R.
Campbell (ed.) (2002), 4th edn, Bristol: Thoemmes Press.
Bartelson, J. (1995), A Genealogy of Sovereignty, Cambridge: Cambridge University Press.
Becker Lorca, A. (2014), Mestizo International Law: A Global Intellectual History 1842–1933,
Cambridge: Cambridge University Press.
Brunnée, J. (2017), ‘The sources of international environmental law: An interactional account’, in
S. Besson and J. D’Aspremont (eds), The Oxford Handbook on the Sources of International Law,
Oxford: Oxford University Press.
Brunnée, J. and S.J. Toope (2010), Legitimacy and Legality in International Law: An Interactional
Account, Cambridge: Cambridge University Press.
Brunnée, J. and S.J. Toope (2011), ‘Interactional international law and the practice of legality’, in
E. Adler and V. Pouliot (eds), International Practices, Cambridge: Cambridge University Press,
pp. 108–35.
Brunnée, J. and S.J. Toope (2017), ‘The rule of law in an agnostic world: The prohibition on the use
of force and humanitarian exceptions’ in W. Werner, M. De Hoon and A. Galán (eds), The Law
of International Lawyers: Reading Martti Koskenniemi, Cambridge: Cambridge University Press,
pp. 137–66.
Brunnée, J. and S.J. Toope (2023), ‘The authority of international law’, in E. Benvenisti and D. Kritsiotis
(eds), Cambridge: Cambridge University Press.
Chayes, A. and A. Handler Chayes (1995), The New Sovereignty: Compliance with International
Regulatory Agreements, Cambridge, MA: Harvard University Press.
Dyzenhaus, D. (2012), ‘Constitutionalism in an old key: Legality and constituent power’, Global
Constitutionalism, 1 (2), 229–60.
Dyzenhaus, D. (2014), ‘Hobbes on the international rule of law’, Ethics & International Affairs, 28 (1),
53–64.
Dyzenhaus, D. (2016), ‘The idea of a constitution: A plea for Staatsrechtslehre’, in D. Dyzenhaus and
M. Thorburn (eds), Philosophical Foundations of Constitutional Law, Oxford: Oxford University
Press, pp. 9–32.
Fuller, L.L. (1969a), The Morality of Law, revd edn, New Haven, CT: Yale University Press.
Fuller, L.L. (1969b), ‘Human interaction and the law’, American Journal of Jurisprudence, 14 (1), 1–36,
reprinted in K.I. Winston (ed.) (2011), The Principles of Social Order: Selected Essays of Lon L.
Fuller, revd edn, Oxford: Hart, pp. 211–46.
Guzman, A.T. (2008), How International Law Works: A Rational Choice Theory, Oxford: Oxford
University Press.
Habermas, J. (1989), Theory of Communicative Action, Vol. 2: Lifeworld and System, trans. T. McCarthy,
Boston, MA: Beacon Press.
Hart, H.L.A. (1983), Essays in Jurisprudence and Philosophy, Oxford: Clarendon Press.
252 Handbook on global constitutionalism

Hart, H.L.A (1994), The Concept of Law, 2nd edn, Oxford: Oxford University Press.
Henkin, L. (1979), How Nations Behave: Law and Foreign Policy, 2nd edn, New York: Columbia
University Press.
Higgins, R. (1994), Problems and Process: International Law and How We Use It, Oxford: Clarendon
Press.
Hurd, I. (2015), ‘The international rule of law and the domestic analogy’, Global Constitutionalism, 4
(3), 365–95.
Kanetake, M. and A. Nollkaemper (2016), ‘The international rule of law in the cycle of contestation
and deference’, in M. Kanetake and A. Nollkaemper (eds), The Rule of Law at the National and
International Levels: Contestation and Deference, Oxford: Hart, pp. 445–60.
Kelsen, H. (1967), Pure Theory of Law, trans. M. Knight (2009), Clark, NJ: Lawbook Exchange.
Klabbers, J. (2008), ‘Constitutionalism and the making of international law: Fuller’s procedural natural
law’, No Foundations, 5, 84–112.
Knop, K. (2010), ‘The Hart-Fuller debate’s silence on human rights’, in P. Cane (ed.), The Hart-Fuller
Debate in the Twenty-first Century, Oxford: Hart, pp. 61–78.
Koskenniemi, M. (1990), ‘The politics of international law’, European Journal of International Law, 1
(1), 4–32.
Koskenniemi, M. (2002), The Gentle Civilizer of Nations: The Rise and Fall of International Law
1870–1960, Cambridge: Cambridge University Press.
Krisch, N. (2012), ‘Legitimacy and Legality in International Law: An Interactional Account by Jutta
Brunnée and Stephen J. Toope (book review)’, American Journal of International Law, 106 (1),
203–9.
Luban, D. (2010), ‘The rule of law and human dignity: Reexamining Fuller’s canons’, Hague Journal on
the Rule of Law, 2 (1), 29–47.
Mootz, F.J. (2008), ‘Vico’s “ingenious method” and legal education’, Chicago-Kent Law Review, 83
(3), 1261–302.
Murphy, C. (2005), ‘Lon Fuller and the moral value of the rule of law’, Law and Philosophy, 24 (3),
239–62.
Pahuja, S. (2011), Decolonizing International Law: Development, Economic Growth and the Politics of
Universality, Cambridge: Cambridge University Press.
Postema, G.J. (1994), ‘Implicit law’, Law and Philosophy, 13 (3), 361–87, reprinted in W.J. Witteveen
and W. van der Burg (eds) (1999), Rediscovering Fuller: Essays on Implicit Law and Institutional
Design, Amsterdam, Amsterdam University Press, pp. 255–75.
Raz, J. (1979), The Authority of Law, Essays on Law and Morality, Oxford: Clarendon Press.
Reinold, T. and M. Zürn (2014), ‘“Rules about rules” and the endogenous dynamics of international law:
Dissonance reduction as a mechanism of secondary rule-making’, Global Constitutionalism, 3 (2),
236–73.
Reus-Smit, C. (2011), ‘Obligation through practice’, International Theory, 3 (2), 339–47.
Scelle, G. (1956), ‘Le Phénomène Juridique du Dédoublement Fonctionnel’ (‘The juridical phenomenon
of role splitting’), in W. Schätzel and H.-J. Schlochauer (eds), Rechtsfragen der internationalen
Organisationen: Festschrift für Hans Wehberg zu seinem 70. Geburtstag, Frankfurt: Klostermann,
pp. 324–42.
Schmitt, C. (2005), Political Theology: Four Chapters on the Concept of Sovereignty, trans. G. Schwab,
Chicago, IL: University of Chicago Press.
Searle, J.R. (1995), The Construction of Social Reality, New York: Free Press.
Simmons, B. (2000), ‘The legalization of international monetary affairs’, International Organization,
54 (3), 573–602.
Tamanaha, B.Z. (2004), On the Rule of Law: History, Politics, Theory, Cambridge: Cambridge
University Press.
Waldron, J. (2006), ‘The rule of international law’, Harvard Journal of Law & Public Policy, 30 (1),
15–30.
Walters, M.D. (2016), ‘The unwritten constitution as a legal concept’, in D. Dyzenhaus and M. Thorburn
(eds), Philosophical Foundations of Constitutional Law, Oxford: Oxford University Press, pp. 33–52.
Wenger, E. (1998), Communities of Practice: Learning, Meaning, and Identity, Cambridge: Cambridge
University Press.
18. The shifting relationship between
functionalism and global constitutionalism
Jeffrey L. Dunoff

What is the relationship between functionalism and global constitutionalism? The question
does not admit of a straightforward answer, because each term is used in a diversity of
ways, and because the relationship has shifted over time. Nonetheless, functionalism and
functionalist approaches continue to play important roles in debates over the possibility,
significance and normative desirability of global constitutionalism. To better understand the
state – and the stakes – of the encounter between functionalism and global constitutionalism,
this chapter reviews the most important and influential ways that scholars have approached
this relationship.
First, during the inter-war and post-war years, functionalism and constitutionalism were
commonly understood as antagonists. Specifically, the term ‘functionalism’ in international
relations theory denoted a particular strategy of international cooperation and organization
that stood in opposition to constitutionalist approaches. For champions of this strategy,
functionalism also served as a normative account of international organization superior to
constitutionalist strategies of cooperation (Mitrany 1948, 1971, 1975). Over time, however,
the meaning of functionalism changed and the term came to be associated with a methodology
or approach thought to be useful in illuminating the purposes or functions of constitutional
norms and structures. This version of functionalism has been highly influential in recent
decades in studies of both global constitutionalism and comparative constitutionalism. As
used in these writings, functionalism is less a mode of organizing international cooperation
than an analytic tool that scholars can use to identify, analyze and critique different constitu-
tional orders. Much more recently, functionalism has begun to be used in yet another sense, to
describe a particular form of ‘functional constitutionalism’ (Isiksel 2016). In these writings,
most developed in the context of European Union (EU) studies, functionalism is seen as a dis-
tinctive feature or style of post-national constitutional orders.
As is evident, these differing approaches to the relationship between functionalism and
constitutionalism reflect, in part, differing conceptualizations of ‘functionalism’.1 More rel-
evant to this Handbook, however, these shifts also reflect differing preoccupations of those
who study constitutionalism beyond the state. Hence this chapter can be read not only as
a typological account of the shifting relationship between ‘functionalism’ and ‘constitutional-
ism’, but also as an initial, albeit necessarily incomplete, intellectual history of the encounter

1
The term, of course, is widely used in different disciplines, and has taken on many different shades
of meaning. For discussions of functionalism in anthropology, see, for example, Malinowski (1944); in
sociology, see, for example, Parsons (1951); in cognitive science, see Block (1980); in literary criticism,
see, for example, Iser (1975). For the use of the term in international relations, see, for example, Groom
and Taylor (1975). In international law, the term is often used in the context of international organiza-
tions law, see, for example, Klabbers (2015).

253
254 Handbook on global constitutionalism

between these two concepts that outlines an important trajectory in the scholarly literature.
While this intellectual history is useful as a heuristic device, it is important to emphasize that
this account should not be confused with an evolutionary claim. In particular, more recent and
newly developing approaches to the relationship between functionalism and constitutionalism
should not be understood as replacing or subsuming previous approaches. To the contrary, at
least some of the competing conceptualizations of functionalism and constitutionalism can
coexist simultaneously, since they do not necessarily contradict, and can even complement
and enrich, each other. Indeed, we might even view the various iterations of the relationship
between functionalism and constitutionalism as a set of separable but mutually reinforcing
frames through which to approach many of the debates over global constitutionalism explored
throughout this Handbook.

FUNCTIONALISM AND CONSTITUTIONALISM AS OPPOSING

STRATEGIES FOR ADVANCING INTERNATIONAL
COOPERATION

As the contributions to Part I of this Handbook demonstrate, debates over the appropriate
locus of political authority, and the appropriate constitutional constraints on that authority,
are hardly new. With the increasing dominance of the nation-state from the sixteenth century
onwards – and particularly with the successes of the eighteenth-century French and American
constitutions – constitutional discourse became almost exclusively embedded within a statist
paradigm. By the mid- and late-twentieth century, however, the statist paradigm came under
increasing stress. Growing interdependence and the development of new international bodies
raised pressing questions about the best institutional designs and strategies for promoting
international cooperation. Over the next decades, a complex and uneven relocation of political
authority away from states and towards international bodies, networks and non-state actors
gave rise to new questions, explored elsewhere in this Handbook, regarding how best to organ-
ize and control inter-, supra-. trans- and post-national systems of governance.
For current purposes, however, the story of the uneasy relationship between functionalism
and global constitutionalism begins in the immediate post-World War II era, when arguments
about the relationship of constitutionalism and functionalism took a very particular form.
Important triggering events in this narrative are the drafting and entry into force of the United
Nations Charter and the treaty creating the European Coal and Steel Community.
The Charter and the new United Nations organization were immediately and widely
understood in constitutional terms. For example, in his speech to the final session of the San
Francisco Conference, US President Harry S. Truman repeatedly analogized the Charter to the
US Constitution (Truman 1945), and the United Nations’ (UN’s) first General Counsel and
Director of the Legal Department characterized the Charter as ‘the constitutional instrument
which governs the organizational structure of a world community’ (quoted in Fassbender
2009, p. 3). Contemporaneous scholarly and popular writings also frequently employed con-
stitutional terminology.2 In a nutshell, this view of the new organization held that:

2
See, for example, Claude Jr. (1964) discussing ‘constitutional interpretation and development’ and
‘areas of constitutional controversy and change’ at the UN. It is important to note, however, that many
observers (then and now) rejected the constitutional characterization, claiming, for example, that ‘it
 The shifting relationship between functionalism and global constitutionalism 255

The UN Charter establishes a general, multipurpose organization. It also affirms the legally binding
quality of key rules for international state conduct, among them principles of nonintervention,
peaceful settlement of disputes, decolonization, respect for human rights, the sovereign equality
of states, and the duty of cooperation. But the Charter goes far beyond being a statement of agreed
principles and rules. It actually authorizes the creation of an elaborate system of major organs and
subsidiary agencies, numerous committees and commissions, and a nexus of cooperation between
the central body and a network of specialized agencies, regional organizations, and nongovernmental
organizations throughout the world. The UN Charter furnishes the fundamental constitutional law for
operating the only general purpose, near-universal organization operating in the world today. (Joyner
1997, pp. 435–6, emphasis added)

The constitutionalist understanding of the UN, which celebrated the UN’s general, multipur-
pose ambit, was contrasted with ‘functional’ approaches to international cooperation. Perhaps
the most influential statement of this opposition can be found in the writings of David Mitrany,
who explicitly argued for the normative superiority of a ‘functional’ approach to international
cooperation as opposed to a ‘political-constitutional’ approach (Mitrany 1948, 1971, 1975).
Like those who endorsed constitutional conceptions of the UN, Mitrany understood that
increasing interdependence required the creation of new forms of transnational politics and
organization. However, Mitrany believed that comprehensive efforts at international cooper-
ation, such as efforts to create ‘world government’, ‘world federation’ or any other ‘compre-
hensive and closed political system’ were overly ambitious and doomed to fail (Mitrany 1971,
p. 533). Mitrany argued, instead, that international cooperative efforts should address discrete,
narrow transnational issues, such as disease control or allocation of the broadcast spectrum,
where specialized, technical knowledge could promote international cooperation and increase
social welfare. Mitrany believed that this ‘functional’ strategy would ‘cut … across existing
political ideological, geographical and racial divisions, without in the process breeding fresh
distinctions and divisions of its own’ (Mitrany 1971, p. 538). Moreover, he thought that if
states began to transfer responsibilities over specific issues to international bodies, and if those
bodies were successful, over time citizens would become less attached emotionally to their
national governments. He further believed that these successes would create new bonds and
interdependencies among peoples, which would both enhance welfare and reduce the risks of
war, leading over time to a ‘working peace system’ (Mitrany 1966, p. 92). Thus, for Mitrany:

It is not necessary, and in a way not desirable that functional links should cover the whole range of
international activities. To lay the basis for a peaceful international community it should be enough if,
gradually, those activities were brought under joint control which concern the essential needs of the
peoples at large; and, of course, those which by their nature are a threat to general security. Whereas
with the present ways of ‘planned’ controls of economic and social life, the seeming success in
covering the whole field and the whole range internationally would in fact tend to a totalitarian con-
centration, inevitably distant and heavy-handed, and so difficult to maintain in willing co-operation.
(Mitrany 1971, p. 541)

Thus, practical and normative reasons lead Mitrany to call for a ‘turn to a functional approach
to build up an international community, to tackle concrete problems’ and to reject ‘spectacular
attempts at world constitution-making’ (Mitrany 1965, p. 134).

would not be accurate to describe the UN Charter as “the constitution” of the international community’
(de Wet 2006, p. 54).
256 Handbook on global constitutionalism

The view that functionalism and constitutionalism were mutually exclusive would, for
several reasons, over time fade from prominence. First, as the understanding of the UN as
a constitutional order lost currency, there was no longer a need to advocate for a competing
vision of international cooperation.3 Second, Mitrany’s version of functionalism was largely
appropriated (as well as critiqued and revamped) by scholars working in the field of European
integration. Haas and others eventually transformed Mitrany’s functionalism into an approach
called neo-functionalism, which argued that social actors would shift their political energies
to supranational institutions, which, in turn, would supply coordinative solutions. Successful
efforts, under this view, would produce ‘spillover’ effects, as shrewd political actors would
realize that they could better pursue their goals through European, as opposed to domestic,
politics and would push to extend supranational policy-making to new domains.4
Nevertheless, the opposition between functionalism and constitutionalism did not entirely
disappear from the scholarly literature. For example, in a widely cited 1974 paper, Gardner
argued for ‘the functional approach to world order’ in terms strikingly reminiscent of
Mitrany’s:

The hope for the foreseeable future lies, not in building up a few ambitious central institutions of uni-
versal membership and general jurisdiction as was envisaged at the end of the last war, but rather in
the much more decentralized, disorderly and pragmatic process of inventing or adapting institutions
of limited jurisdiction and selected membership to deal with specific problems on a case-by-case
basis, as the necessity for cooperation is perceived by the relevant nations. (Gardner 1974, pp. 558,
573)

The opposition also continues to appear in writings on the law of international organizations.
For example, Klabbers argued that the law of international organizations ‘emanate[s] from two
contending theories’, functionalism and constitutionalism, and proceeds to ‘pit the two against
each other’ (Klabbers 2011, p. 1).
Despite these and other writings, as a general matter the conceptualization of functionalism
and constitutionalism as antagonists generally faded, and the two concepts would be under-
stood in a quite different configuration in debates over global constitutionalism and compara-
tive constitutionalism, to which we will now turn.

3
That said, this view never totally disappeared, and would periodically find expression in schol-
arly works and judicial writings. For a sampling, see, for example, Doyle (2009), Fassbender (1998),
Advisory Opinions and Orders of the International Court of Justice, Voting Procedures on Questions
Relating to Reports and Petitions Concerning the Territory of South-West Africa, 1955 I.C.J. 67, 106
(June 7) (Lauterpacht, J., sep. op.) (‘A proper interpretation of a constitutional instrument must take into
account … its [that is, the Charter’s] operation in actual practice and in the light of the revealed tenden-
cies in the life of the Organization.’); International Status of South West Africa, 1950 I.C.J. 128, 186,
187 (July 11) (de Visscher, J., dissenting) (‘a treaty of a constitutional character like the United Nations
Charter’).
4
For an overview of the enormous literature on neo-functionalism and European integration, see
Sandholtz and Stone Sweet (2012) and Schmitter (2004).
 The shifting relationship between functionalism and global constitutionalism 257

FUNCTIONALISM IN DEBATES OVER GLOBAL

CONSTITUTIONALISM AND COMPARATIVE
CONSTITUTIONALISM

By the 1990s and early 2000s, leading conceptualizations of the relationship between function-
alism and constitutionalism had evolved considerably. In two separate and rapidly expanding
literatures – global constitutionalism and comparative constitutionalism – functionalism came
to be seen as a fruitful analytic tool for describing, analyzing and critiquing constitutionalism.
We briefly describe each of these literatures, in turn.

Global Constitutionalism

The 1990s saw an intensification of constitutional discourse at many transnational sites of

governance, including particularly the EU and the World Trade Organization (WTO). This
development, in turn, arose out of two related, and reinforcing, trends. The first was glo-
balization, or the increased flow of people, goods, capital, services and ideas across national
borders. Heightened cross-border flows increased demand for certain types of international
law, including prominently international economic law, which in turn (generally) facilitated
even more trade in goods, services, capital, and so on.
At roughly the same time, scholars and others began to highlight the ‘fragmentation of
international law’ (Koskenniemi and Leino 2002). This refers to the fact that international law
is made in a highly decentralized manner, often in specialized regimes, such as trade, human
rights, investment, environment, and so on. Each of these differentiated areas of law has its
own treaties, principles, and institutions. However, the values and interests advanced by any
particular regime are not necessarily consistent with those advanced by a different specialized
regime. As specialized law-making in any particular regime tends to be relatively insulated
from developments in other regimes, this ‘system’ risks inconsistencies, and potentially
conflicting jurisprudence and legal uncertainty (see, for example, Koskenniemi and Leino
2002). Both individually and together, these developments sparked enormous interest in global
constitutionalism, which many viewed as a way of introducing hierarchy and order – or at
least a set of coordinating mechanisms – into an otherwise fragmented and plural international
legal order. Many contributions to the global constitutionalism literature devoted substantial
attention to the problem of defining terms such as ‘constitutional’ and ‘constitutionalism’
in the international context – one example of the ‘problem of translation’ encountered in
transposing ideas and concepts developed in the domestic context to the international domain
(Walker 2003). Some authors adopted normatively ‘thick’ definitions that placed great weight
on elements such as separation of powers, rule of law, and, particularly, fundamental rights
(see, for example, Paulus (2009), p. 69). These definitions, in turn, sparked concerns that
familiar domestic constitutional arrangements were inappropriately being used as the baseline
for international variants of constitutionalization and, over time, many exchanges over global
constitutionalism were perceived to be excessively focused on definitional and terminological
issues, with reasoned argument often displaced by definitional fiat.
In response, several scholars sought to sidestep the definitional quagmire and instead
‘develop a functionalist approach to identifying and analyzing international constitutionaliza-
tion’ (Dunoff and Trachtman 2009, pp. 1, 9). For example, Dunoff and Trachtman developed
a ‘functional approach’ focused on the purposes that international constitutional norms are
258 Handbook on global constitutionalism

intended to serve. They identified three core functions: ‘(1) enabling the formation of interna-
tional law (i.e., enabling constitutionalization), (2) constraining the formation of international
law (i.e., constraining constitutionalization), and (3) filling gaps in domestic constitutional law
that arise as a result of globalization (i.e., supplemental constitutionalization)’ (Dunoff and
Trachtman 2009, p. 10).5 These functions are complemented by a set of seven mechanisms
through which the functions are commonly implemented: ‘(1) horizontal allocation of author-
ity, (2) vertical allocation of authority, (3) supremacy, (4) stability, (5) fundamental rights, (6)
review, and (7) accountability or democracy’ (Dunoff and Trachtman 2009, p. 10).
Related functionalist approaches were developed by other scholars; indeed, one comprehen-
sive review of writings in this area concluded that functionalist approaches constitute one of
the two leading approaches found in the literature.6 For example, Peters argues that, although
no formal international constitution exists, certain international norms fulfill ‘constitutional
functions’. Specifically, she identifies several fundamental norms that serve as substitutes for
the de-constitutionalization at the domestic level produced by globalization (see, for example,
Peters 2006).7 Similarly, Zemanek undertakes a ‘functional analysis’ of the UN Charter.
After noting that the Charter lacks a well-developed system of separation of powers or com-
pulsory judicial review, he rejects the claim that the Charter serves as a constitution for the
international community (Zemanek 2012, p. 25). Relatedly, scholars have increasingly used
functionalist approaches to analyze important concepts central to debates within the global
constitutionalism literature. By way of example, Thornhill developed a functionalist approach
to constituent power. He argues that, in conjunction with constitutional rights, constituent
power has always acted not as an externally founding source of political agency, but as an
inner projection of the political system, which served the internal organization of the political
system as a distinct societal domain (Thornhill 2012).
Functionalist approaches have several virtues. First, unlike definitional approaches, which
often mistakenly suggest that international constitutionalism is an ‘all or nothing’ affair,
the functionalist approach makes clear that constitutionalism consists of a type – rather
than a quantum – of rules. Second, in rejecting a ‘check list’ approach that seeks to identify
a set of necessary and sufficient conditions for determining whether an international order
is constitutionalized or not, functionalist approaches productively shift scholarly attention
from terminological squabbles to substantive analysis. Finally, in decentering the normative
commitments often associated with definitional approaches to constitutionalism, functionalist
approaches recognize a wide variety of potential constitutional orders, and thus open the door
to more pluralist understandings of international constitutionalism (for influential accounts of
constitutional pluralism, see, for example, Walker 2002; Kumm 2009, p. 258; Stone Sweet
2012). On the other hand, some critics wonder if the ‘normative desaturation’ associated with
functional approaches ‘masks the stakes of the debate’ by obscuring the (inevitable) normative

5
Tomuschat similarly refers to constitutional norms as ‘meta-rules’, or ‘rules on how the bulk of
other rules are produced, how they enter into force, how they are implemented and who, in case of differ-
ence over their interpretation and application, is empowered to settle an ensuing dispute’ (1993, p. 216).
6
In his review of the literature, Kleinlein (2012) argues that the majority of writings on international
constitutionalism focuses either on the separation of international law from state will or on claims that the
international legal order fulfills or complements constitutional functions.
7
See, for example, Peters (2006). This compensatory constitutionalism is quite similar to what
Dunoff and Trachtman identify as ‘supplemental constitutionalism’ (2009, pp. 14–18).
 The shifting relationship between functionalism and global constitutionalism 259

commitments associated with functional approaches (see, for example, Lang 2012; Albert
2012).
For current purposes, the ultimate merits of a functionalist approach to global constitution-
alism are of less import than three other observations. First, functionalist approaches to global
constitutionalism are substantively indeterminate. That is, they can lead to a wide variety of
conclusions regarding the presence or absence of constitutionalization on the international
plane. Thus, adopting a functionalist perspective leads Peters to identify international norms
that serve to advance ‘compensatory constitutionalism’, while Zemanek’s functionalist
approach leads him to deep skepticism regarding the UN Charter’s constitutional features.
Similarly, Dunoff and Trachtman, who writing together developed a widely cited functionalist
approach, reach radically different conclusions regarding the WTO’s constitutional attributes
and status when writing individually (Dunoff 2006; Trachtman 2006).
Second, functionalist approaches typically do not explicitly position themselves in oppo-
sition to or competition with other methodological and theoretical approaches found in
the global constitutionalism literature. Indeed, we could embrace, say, a feminist or realist
orientation to global constitutionalism, and still employ a functionalist approach. Instead,
‘functionalists’ tend to position themselves in opposition to non-constitutional approaches to
the emerging international legal order, such as global legal pluralism and global administrative
law (for example, Krisch 2010; Dunoff 2010).
Third, the nature of the relationship between functionalism and global constitutionalism
has dramatically changed from what it was in the immediate post-war era. At that time,
‘functionalism’ was understood as a strategy for promoting international cooperation that
stood in opposition to ‘constitutionalist’ approaches. In contrast, functionalism later came to
be understood as a methodology or approach for identifying and analyzing the constitutional
elements of different international regimes. Similar understandings are found in the literature
on comparative constitutional law, to which we now briefly turn.

Comparative Constitutional Law

Comparative constitutional law examines the factors that shape constitutions and constitu-
tional processes, as well as the economic, political, and social consequences of constitutions.
It explores cross-national differences in constitutions, processes of constitutional ‘borrowing’,
and various features of constitutional design and redesign.
Across virtually all of comparative law ‘functionalism’ is a – perhaps ‘the’ – dominant
methodological approach. As one classic comparative law text declares, ‘The basic method-
ological principle of all comparative law is that of functionality’ (Zweigert and Kotz 1998,
p. 34).8 The functional approach is premised on the claim that ‘the legal system of every
society faces essentially the same problems, and solves those problems by quite different
means though very often similar results’ (Zweigert and Kotz 1998, p. 34). Functionalist
approaches to comparative constitutional law are likewise premised on an:

underlying assumption ... that whereas most relatively open, rule-of-law polities face essentially the
same set of constitutional challenges, they may adopt quite different means or approaches for dealing

8
Zweigert and Kotz overstate the case as other approaches are used in comparative constitutional
law; see, for example, Jackson 2012 (discussing alternative methodologies).
260 Handbook on global constitutionalism

with these challenges. By referring to constitutional jurisprudence and practices of other presumably
similarly situated polities, we might be able to gain better understanding of our own set of constitu-
tional values and structures and enrich, and ultimately advance, a more cosmopolitan or universalist
view of our constitutional discourse. At a more concrete level, constitutional practice in a given polity
might be improved by emulating pertinent constitutional mechanisms developed elsewhere. (Hirschl
2005, p. 127)9

To claim that functionalism is a dominant approach in comparative constitutional law is

emphatically not to claim that it is an uncontroversial approach. To the contrary, the meaning
and normative significance of functionalism constitutes one of the most enduring and most
contested issues in comparative law. As one leading commentator notes, ‘[t]he functional
method has become both the mantra and the bête noire of comparative law’ (see, for example,
Michaels 2006, p. 340).10 For current purposes, the merits of vigorous debates over the con-
ceptual coherence and feasibility of functionalism in comparative constitutional law are less
significant than the fact that functionalism has been and remains the dominant approach to the
field, and that the understanding of functionalism in this area is both similar to and different
from the understanding of functionalism found in the global constitutionalism literature.
First, functionalism in global constitutionalism and in comparative constitutional law
shares several similarities. Specifically, in each field, functionalism provides a methodol-
ogy, or a mode of analysis, that can be applied to the identification, analysis, and critique of
constitutional phenomena. Moreover, and relatedly, the term is used both descriptively and
normatively. Descriptively, functionalism identifies certain features found or strategies used
in different constitutional orders or outcomes. Normatively, it lends itself to projects of con-
stitutional reform, as it identifies doctrinal or institutional developments thought to produce
more desirable constitutional orders. Finally, functionalism encounters similar critiques in
both areas, specifically as being too abstract (that is, a-historical and a-contextual), thereby
obscuring its own politics (Frankenberg 1985; Schneiderman 2009; see also Teitel 2004).
In other ways, functionalism in these two areas is substantially different. Perhaps the most
important difference consists in global constitutionalism’s focus on the purpose of rules and
institutions, as compared with the focus on problems found in comparative constitutional law
literature. In writings on global constitutionalism, functionalist scholars examine whether
certain constitutional functions, such as the protection of fundamental rights or the judicial
review of executive or legislative action, are fulfilled in various international domains. In the
comparative constitutional law literature, in contrast, the problem takes center stage and the
relevant inquiry is into the different ways that different systems address similar issues. From
this perspective, legal and political institutions are understood not as doctrinal constructs but
as social responses to problems, and institutions are understood to be useful or productive only
insofar as they produce solutions to certain problems.

9
See also Tushnet (1999, p. 1228): ‘[f]unctionalism claims that particular constitutional provisions
create arrangements that serve particular functions in a system of governance. Comparative constitu-
tional study can help identify those functions and show how different constitutional provisions serve the
same function in different constitutional systems.’
10
In this chapter, Michaels analyzes at least seven different conceptualizations of functionalism.
 The shifting relationship between functionalism and global constitutionalism 261

FUNCTIONALISM AS A FEATURE OF CONSTITUTIONALISM

More recently, a new way of understanding the relationship between functionalism and con-
stitutionalism has started to emerge in the literature. In this new approach, functionalism is
understood to be a feature, or a type, of constitutionalism.
The most fully developed version of this argument is found in scholarship by Isiksel, who
writes that ‘the EU’s legal system can and should be understood as both functionalist and con-
stitutional at the same time’ (Isiksel 2016, p. 76). By this, Isiksel does not mean to suggest that
the EU ‘is the functional equivalent of a constitutional system’, or that its complex institutional
structure fulfills the roles that constitutional systems are expected to discharge. Rather, the
claim is that the EU is ‘a particular kind of constitutional regime’ (Isiksel 2016, p. 73), namely,
a ‘functional’ constitutional system because it possesses three distinct elements.
First, unlike domestic constitutional systems of comprehensive scope, ‘the EU’s legal
system is functionally delimited’ (Isiksel 2016, p. 78). In particular, ‘the European Union
issues norms which govern a loosely defined but functionally delimited sphere of public policy’
(Isiksel 2012, p. 111). Importantly, Isiksel emphasizes that ‘[f]unctional delimitation should
not be confused with functional specialization, since the cardinal objective of economic union
is not specialized or self-contained’ (Isiksel 2016, p. 79, original emphasis). To the contrary;
the EU’s competences extend across a broad array of policy objectives implicated by the core
project of economic union. Significantly, this understanding completes the conceptual move
to delink ‘constitutionalism’ from the statist paradigm: ‘[i]nsofar as it acknowledges its own
limited scope but nevertheless operates as a fully-fledged constitutional system within that
scope, the EU legal order effectively decouples constitutional authority from the attribute[s] of
sovereignty’ (Isiksel 2016, p. 80).
Second, the EU’s constitutional system ‘is framed by a narrowly defined telos’ (Isiksel
2012, p. 111).11 The telos is that of economic union, understood ‘in a capacious sense to
include market integration, market regulation, and economic and monetary (and perhaps
ultimately fiscal) union’ (Isiksel 2016, p. 83). This purposive orientation contrasts with many
conventional understandings of constitutionalism. In particular, it contrasts with the ‘func-
tionalism’ used in the global constitutionalism literature reviewed above, where constitutional
norms are understood as ‘rules about rules’ and lack a strong normative orientation. From
that perspective, constitutional norms provide the framework within which ordinary political
issues are addressed; in Isiksel’s version, in contrast, constitutional norms are a means of
entrenching substantive policy preferences that member states have already agreed to (Isiksel
2012, p. 111).12
Finally, the EU exemplifies functional constitutionalism because the EU’s authority and
legitimacy ‘rest ... primarily upon a functionalist pattern of justification’ (Isiksel 2016, p. 87).
Given that the EU’s constitutional system is grounded in the telos of market integration with
the goal of increasing wealth and, ultimately, producing a peaceful legal order in Europe, its
legitimacy is contingent upon its ability to deliver these goods.13 This functionalist justification

11
Many others view the EU’s constitutional evolution in non-telelogical terms, see, for example,
Shaw (2003).
12
Isiksel notes that, over time, the EU’s aspirations grew beyond simple economic integration, and
now encompasses a number of ‘more capacious political objectives’ (2012, p. 117).
13
For an earlier version of this particular claim, see Scharpf (1999).
262 Handbook on global constitutionalism

contrasts sharply with the justificatory discourses associated with other constitutional orders.
Far more common, for example, are constitutional orders that rest their legitimacy on their
founding as an act of pouvoir constituant or their democratic pedigree.
One might contest the empirical and conceptual adequacy of this account of the EU, and it
remains to be seen whether scholars will apply the concept of ‘functional constitutionalism’
to other international legal regimes. But this approach is nonetheless significant in at least two
respects. First, it productively demonstrates that it is still possible to repurpose the term func-
tionalism, and to redefine its relationship to constitutionalism. Unlike the post-war era, where
the two terms were understood as mutually exclusive strategies of international cooperation,
in Isiksel’s account, functionalism identifies and demarcates a distinctive type of constitu-
tion – one that is functionally delimited, teleological in orientation and justified in functional
terms. It also differs from the use of the term in recent writings on global constitutionalism and
comparative constitutionalism. In those literatures, ‘functionalism’ denoted a methodological
approach to understanding constitutional orders – a ‘tool of the knower rather than a feature of
the known’ (Isiksel 2016, p. 73). In contrast, in Isiksel’s account, functionalism is understood
as a defining property of a particular kind of constitutional order. Second, and relatedly, the
‘functionalist constitutionalism’ writings illustrate the vitality of the term ‘functionalism’ and
its enduring ability to enrich our understanding of evolving forms of global constitutionalism.

CONCLUSION

This chapter has reviewed the multifaceted relationship between the terms ‘functionalism’ and
‘constitutionalism’. The trajectory of their complex and shifting encounters has been neither
linear, nor ‘progressive’ in the sense of moving toward an ultimate goal. Rather the terms
‘functionalism’ and ‘constitutionalism’ serve as rich and flexible resources that can help us
understand ongoing developments in global governance. As repurposed by successive scholars
over time, ‘functionalist’ approaches and accounts have opened up new ways of understanding
constitutionalism, generated new insights and suggested new research agendas. As we have
seen, functionalism encompasses a variety of traditions, approaches and styles of thought.
While the lack of a clear and singular definition can, at times, be problematic, the rich intellec-
tual vibrancy of functionalist approaches suggests that they remain at least as well positioned
as any competitors to continue to illuminate the theoretical and normative questions raised by
global constitutionalism.

REFERENCES
Albert, R. (2012), ‘The cult of constitutionalism’, Florida State University Law Review, 39 (2), 373–416.
Block, N. (1980), ‘Introduction: What is functionalism?’, in N. Block (ed.), Readings in the Philosophy
of Psychology, Cambridge, MA; Harvard University Press, pp. 171–84.
Claude Jr., I. (1964), Swords into Plowshares: The Problems and Progress of International Organization,
3rd edn, London: University of London Press.
De Wet, E. (2006), ‘The international constitutional order’, International and Comparative Law
Quarterly, 55 (1), 51–76.
Doyle, M.W. (2009), ‘The UN Charter – a global constitution?’, in J.L. Dunoff and J.P. Trachtman
(eds), Ruling the World? Constitutionalism, International Law, and Global Governance, Cambridge:
Cambridge University Press, pp. 113–32.
 The shifting relationship between functionalism and global constitutionalism 263

Dunoff, J.L. (2006), ‘Constitutional conceits: The WTO’s “Constitution” and the discipline of interna-
tional law’, European Journal of International Law, 17 (3), 647–75.
Dunoff, J.L. (2010), ‘International law in perplexing times’, Maryland Journal of International Law, 25
(1), 11–36.
Dunoff, J.L. and J.P. Trachtman (2009), ‘A functional approach to international constitutionalization’, in
J.L. Dunoff and J.P. Trachtman (eds), Ruling the World? Constitutionalism, International Law, and
Global Governance, Cambridge: Cambridge University Press, pp. 3–36.
Fassbender, B. (1998), ‘The United Nations Charter as constitution of the international community’,
Columbia Journal of Transnational Law, 36 (3), 529–619.
Fassbender, B. (2009), The United Nations Charter as the Constitution of the International Community,
Leiden: Martinus Nijhoff.
Frankenberg, G. (1985), ‘Critical comparisons: re-thinking comparative law’, Harvard International
Law Journal, 26 (2), 411–56.
Gardner, R. (1974), ‘The hard road to world order’, Foreign Affairs, 52 (3), 556–76.
Groom, A.J.R and P. Taylor (eds) (1975), Functionalism: Theory and Practice in International
Relations, London: University of London Press.
Hirschl, R. (2005), ‘The question of case selection in comparative constitutional law’, American Journal
of Comparative Law, 53 (1), 125–55.
Iser, W. (1975), ‘The reality of function: A functionalist approach to literature’, New Literary History,
7 (1), 7–38.
Isiksel, T. (2012), ‘On Europe’s functional constitutionalism: Towards a constitutional theory of special-
ized international regimes’, Constellations, 19 (1), 102–20.
Isiksel, T. (2016), Europe’s Functional Constitution: A Theory of Constitutionalism Beyond the State,
Oxford: Oxford University Press.
Jackson, V. (2012), ‘Comparative constitutional law: methodologies’, in M. Rosenfeld and A. Sajo
(eds), The Oxford Handbook of Comparative Constitutional Law, Oxford: Oxford University Press,
pp. 54–74.
Joyner, C.C. (1997), ‘Conclusion: The United Nations as international law-giver’, in C.C. Joyner (ed.),
The United Nations and International Law, Cambridge: Cambridge University Press, pp. 432–58.
Klabbers, J. (2011), ‘Contending approaches to international organizations: Between functionalism
and constitutionalism’, in J. Klabbers and Å. Wallendahl (eds), Research Handbook on the Law of
International Organizations, Cheltenham, UK and Northampton, MA, USA: Edward Elgar, pp. 3–30.
Klabbers, J. (2015), ‘Foreword, The transformation of international organizations law’, European
Journal of International Law, 26 (1), 9–82.
Kleinlein, T. (2012), Konstitutionalisierung im Volkerrecht: Konstruktion und Elemente einer idealis-
tischen Volkerrechtslehre (Constitutionalization in the Law of the People: Construction and Elements
of an Idealistic Legal Doctrine), London: Springer.
Koskenniemi, M. and P. Leino (2002), ‘Fragmentation of international law? Postmodern anxieties’,
Leiden Journal of International Law, 15 (3), 553–79.
Krisch, N. (2010), Beyond Constitutionalism: The Pluralist Structure of Postnational Law, Oxford:
Oxford University Press.
Kumm, M. (2009), ‘The cosmopolitan turn in constitutionalism: On the relationship between consti-
tutionalism in and beyond the state’, in J.L. Dunoff and J.P. Trachtman (eds), Ruling the World?
Constitutionalism, International Law, and Global Governance, Cambridge: Cambridge University
Press, pp. 258–324.
Lang, A. (2012), ‘Book review: Ruling the world?’, American Journal of International Law, 106 (1),
197–203.
Malinowski, B. (1944), A Scientific Theory of Culture and Other Essays, Chapel Hill, NC: University of
North Carolina Press.
Michaels, R. (2006), ‘The functional method of comparative law’, in M. Reimann and R. Zimmermann
(eds), The Oxford Handbook of Comparative Law, Oxford: Oxford University Press, pp. 339–82.
Mitrany, D. (1948), ‘The functional approach to world organization’, International Affairs, 24 (3),
350–63.
Mitrany, D. (1965), ‘The prospect of integration: Federal or functional?’, Journal of Common Market
Studies, 4 (2), 119–49.
264 Handbook on global constitutionalism

Mitrany, D. (1966), A Working Peace System, Chicago, IL: Quadrangle Books.

Mitrany, D. (1971), ‘The functional approach in historical perspective’, International Affairs, 47 (3),
532–43.
Mitrany, D. (1975), The Functional Theory of Politics, London: Robertson.
Parsons, T. (1951), The Social System, London: Routledge and Kegan Paul.
Paulus, A.L. (2009), ‘The international legal system as a constitution’, in J.L. Dunoff and J.P. Trachtman
(eds), Ruling the World? Constitutionalism, International Law, and Global Governance, Cambridge:
Cambridge University Press, pp. 69–111.
Peters, A. (2006), ‘Compensatory constitutionalism: The function and potential of fundamental interna-
tional norms and structures’, Leiden Journal of International Law, 19 (3), 579–610.
Sandholtz, W. and A. Stone Sweet (2012), ‘Neo-functionalism and supranational governance’, in E.
Jones, A. Menon and S. Weatherill (eds), The Oxford Handbook of the European Union, Oxford:
Oxford University Press, pp. 18–33.
Scharpf, F.W. (1999), Governing in Europe, Oxford: Oxford University Press.
Schmitter, P.C. (2004), ‘Neo-neo-functionalism?’, in A. Wiener and T. Diez (eds), European Integration
Theory, Oxford: Oxford University Press, pp. 45–74.
Schneiderman, D. (2009), ‘Functionalism’s shortfalls or how to depoliticize global constitutionalism’,
EJIL Talk!, accessed 2 May 2017 at http://​www​.ejiltalk​.org/​functionalisms​-​​shortfalls​-or​-how​-to​
-depoliticize​-global​-constitutionalism/​.
Shaw, J. (2003), ‘Process, Responsibility and Inclusion in EU Constitutionalism’, European Law
Journal, 9 (1), 45–68.
Stone Sweet, A. (2012), ‘A cosmopolitan legal order: Constitutional pluralism and rights adjudication in
Europe’, Global Constitutionalism, 1 (1), 53–90.
Teitel, R. (2004), ‘Comparative constitutional law in a global age’, Harvard Law Review, 117 (8),
2570–96.
Thornhill, C. (2012), ‘Contemporary constitutionalism and the dialectic of constituent power’, Global
Constitutionalism, 1 (3), 369–404.
Tomuschat, C. (1993), ‘Obligations arising for states without or against their will’, Recueil des Cours,
214, 195–374.
Trachtman, J.P. (2006), ‘The constitutions of the WTO’, European Journal of International Law, 17 (3),
623–46.
Truman, H.S. (1945), ‘Address in San Francisco at the Closing Session of the United Nations Conference’
(June 26, 1945), in Documents of the United Nations Conference on International Organization, 1,
680–87.
Tushnet, M. (1999), ‘The possibilities of comparative constitutional law’, Yale Law Journal, 108 (6),
1225–310.
Walker, N. (2002), ‘The idea of constitutional pluralism’, Modern Law Review, 65 (3), 317–59.
Walker, N. (2003), ‘Postnational constitutionalism and the problem of translation’, in J. Weiler and M.
Wind (eds), European Constitutionalism Beyond the State, Cambridge: Cambridge University Press,
pp. 27–54.
Zemanek, K. (2012), ‘Can international law be “constitutionalized”?’, in M. Kohen, R. Kolb and D.L.
Tehindrazanarivelo (eds), Principles and Fundamentals of International Law in the 21st Century,
Leiden: Martinus Nijhoff, pp. 25–45.
Zweigert, K. and H. Kotz (1998), An Introduction to Comparative Law, 3rd edn, trans. T. Weir, Oxford:
Oxford University Press.
19. Global constitutionalism and international
public authority in the crisis of liberal
internationalism
Armin von Bogdandy, Matthias Goldmann and Ingo Venzke1

1 THE INTERNATIONAL PUBLIC AUTHORITY APPROACH

The purpose of this chapter is, first, to reconstruct the relationship between global constitution-
alism and international public authority. Taken together, both approaches revolve around two
key questions. First, what is international public authority? Second, what are the conditions for
the legitimate and effective exercise of international public authority?
This reconstruction takes place against the background of past research on the subject.
It forces us to reassess the value of that research and to outline prospects for the future.
International institutions counted among the favourite subjects of research in public interna-
tional law in the first decade of the 2000s. 2 Processes of globalization had caused international
institutions to change in both quantitative and qualitative dimensions. Superposing state
authority in one policy field after another, the legality and legitimacy of international institu-
tions’ exercise of authority became the subject of critique both in scholarship and the public
at large. It prompted the search for standards of legality and legitimacy applicable to such
exercises of authority. Proposals focused on human rights, the rule of law, and principles of
participation, transparency, and accountability. They animated the research on global constitu-
tionalism and international public authority, among others.3
A lot has changed in this regard within only a few years. First, political platforms favouring
quite explicitly the national interest over the common weal of humanity have gained momen-
tum. As Brexit and the withdrawal of the US from several international organizations show, it

1
The present chapter draws on our article ‘From Public International Law to International Public
Law: Translating World Public Opinion into International Public Authority’ (2017) 28 European Journal
of International Law 115–45.
2
E.g., E. Benveniśtî, The Law of Global Governance (Hague Academy of International Law,
2014); J. Brunnée and S. Toope, Legitimacy and Legality in International Law. An Interactional Account
(Cambridge University Press 2010); S. Cassese, ‘Administrative Law without the State? The Challenge
of Global Regulation’, 37 New York University Journal of International Law and Policy (NYUJILP)
(2005) 663; B. Chimni, ‘International Institutions Today: An Imperial Global State in the Making’, 15
European Journal of International Law (EJIL) (2004) 1; B. Kingsbury, N. Krisch, and R. Stewart, ‘The
Emergence of Global Administrative Law’, 68 Law and Contemporary Problems (2005) 15; J. Klabbers,
A. Peters, and G. Ulfstein (eds), The Constitutionalization of International Law (Oxford University
Press 2009); J. Pauwelyn, R. Wessel, and J. Wouters (eds), Informal International Lawmaking (Oxford
University Press 2012).
3
For many: Lang and Wiener, Chapter 1 in this Handbook; A. von Bogdandy, M. Goldmann, and I.
Venzke, ‘From Public International to International Public Law: Translating World Public Opinion into
International Public Authority’, 28 European Journal of International Law (2017) 115.

265
266 Handbook on global constitutionalism

is no longer a marginal position to seek to unwind international institutions, all the while the
global expansion of business activities continues unabated.4 Second, governments showing
different degrees of authoritarian inclinations have hampered decision-making in international
organizations,5 sought to wrest international organizations from the control of liberal democ-
racies,6 or founded their own organizations focused on securing their control over their people,
often with the help of digitalized surveillance technology.7 Third, neo-liberal narratives and
free-market ideologies that helped sustain the rationale of international economic institutions
have lost more of their appeal as globalization’s discontents have become more apparent to
a greater number of people.
Still, the need for international institutions finds ample recognition in current public
discourse and practice. The Covid-19 crisis, climate change, the migration crisis, or the
widespread practice of tax evasion have underlined the impossibility of tackling worldwide
challenges in the absence of international institutions. Each of these crises has brought inter-
national institutions into the pole position of global political developments and changed their
practice significantly.
These developments amount to a highly ambivalent and contradictory pattern of attitudes
towards international institutions. World public opinion seems divided about them. Liberal
internationalists might wish to strengthen international institutions in order to better further
common interests, although the expansion of their power might raise concerns regarding their
legitimacy.8 Sovereigntists and autocrats might be willing to cooperate selectively in the frame
of international institutions if it furthers their interests, always worried about expanding inter-
national public authority that encroaches upon their sovereignty.9 Those critical of economic
globalization might in principle desire global cooperation to address global problems, but are

4
From the backlash literature: K. Alter and M. Madsen, ‘Beyond Backlash: The Consequences of
Adjudicating Mega-politics’, Northwestern Public Law Research Paper No. 21–30 (2021).
5
E.g. in the context of the Council of Europe: S. Steininger, ‘Managing the Backlash? The PACE
and the Question of Participation Rights for Russia’ (2018) VerfBlog, https://​doi​.org/​10​.17176/​20181012​
-131857​-0. On the ECtHR, see L. Helfer and E. Voeten, ‘Walking Back Human Rights in Europe?’ 31
European Journal of International Law (2020) 797; M. Madsen, The Narrowing of the European Court
of Human Rights? Legal Diplomacy, Situational Self-Restraint, and the New Vision for the Court (Brill
2021).
6
A. von Bogdandy and P. Villarreal, ‘International law on pandemic response: a first stocktaking in
light of the coronavirus crisis’, Max Planck Institute for Comparative Public Law & International Law
(MPIL) Research Paper 2020-07 (2020).
7
T. Ginsburg, ‘Authoritarian International Law?’ 114 American Journal of International Law
(2020) 221; T. Ginsburg, Democracies and International Law (Cambridge Univerisity Press 2021).
8
M. Zürn and M. Ecker-Ehrhardt, ‘Politisierung als Konzept der Internationalen Beziehungen’ in
Michael Zürn and Matthias Ecker-Ehrhardt (eds), Die Politisierung der Weltpolitik (Suhrkamp 2013) 7;
P. Furia, ‘Global citizenship, anyone? Cosmopolitanism, privilege and public opinion’ (2005) 19 Global
Society 331; F. Ghassim, M. Koenig-Archibugi, and L. Cabrera, ‘Public Opinion on Institutional Designs
for the United Nations: An International Survey Experiment’ 66 International Studies Quarterly (2022)
sqac027. Further evidence is to be found in the detailed studies published at www​.WorldPublicOpinion​
.org.
9
L. Mälksoo, Russian Approaches to International Law (Oxford Univerisity Press 2015); S.
Chesterman, ‘Can International Law Survive a Rising China?’, 31 European Journal of International
(2021) 1507.
 Global constitutionalism and international public authority 267

wary about their redistributive impact, fearing to suffer serious disadvantages once again.10
Meanwhile, libertarians might prefer non-governmental networks based on distributed ledger
technology to provide crucial services and prevent fraud.
In response to this pattern of views about international institutions, we reassess our theory
of international public authority. The purpose of our theory is complementary to that of global
constitutionalism. Both approaches understand international institutions as collective public
entities created for the exercise of international public authority, rather than as contractual
vehicles for inter-state coordination. Like global constitutionalism, we develop this theory
with a view to re-introducing the ‘public’ in global governance – a concept that downplayed
the difference between the public and the private, between the statal and the suprastatal.
Switching from ‘public international law’ to ‘international public law’ therefore implied it as
a task of international law to ensure the legitimacy and effectiveness of international institu-
tions. The difference between our theory and global constitutionalism is that we problematize
the notion of ‘authority’, i.e., the acts of international institutions which fall into the scope of
international public law.
The chapter undertakes this reassessment of the international public authority approach
by way of a dialectical exchange with diverging views of international institutions, carving
out in particular its complementary character with global constitutionalism (Section 2). The
following section sets out our concept of international public law and reconstructs the main
principles governing its exercise (Section 3). In a nutshell, the exercise of international public
authority is the adoption of an act that affects the freedom of others in pursuance of a common
interest. This understanding helps single out activities that require grounds of legitimacy that
go beyond the consent of member states to the institution’s foundational act. Singling out
those activities is a precondition for increasing their legitimacy. It also opens avenues for
more effective regulation.11 In addition to the principles of participation, transparency, and
accountability that have been at the centre of most research in the past decades, we believe
that the current challenges mapped here make it necessary for international public authority to
also meet substantive criteria that have evolved in practice, namely fundamental human rights,
sustainability, and the principle of common but differentiated responsibility (Section 4). The
chapter concludes with a view on the implications of the crisis of liberal internationalism for
both concepts, which calls into question both the existence of a global constitution and the
identification of a relevant ‘public’ (Section 5).

10
B. Chimni, ‘Capitalism, Imperialism, and International Law in the Twenty-First Century’, 14
Oregon Review of International Law (2012) 17; I. Venzke, ‘The Law of the Global Economy and the
Spectre of Inequality’, 9 London Review of International Law (2021) 111.
11
Legitimacy and effectiveness are not opposing concepts. Effective political problem solving is
a possible source of output legitimacy but certainly not sufficient under a public law paradigm. See the
seminal F.W. Scharpf, Governing in Europe: Effective and Democratic? (Oxford University Press 1999),
at 6ff.
268 Handbook on global constitutionalism

2 THE INTERNATIONAL PUBLIC AUTHORITY APPROACH

IN A COMPARATIVE PERSPECTIVE

This part elaborates our approach in a Socratic way, engaging with the texts that guided our
reflections and might cast them into doubt. The first set of texts juxtaposes our approach
to understandings informed by private law thinking. Traditional private law approaches to
international law emphasize the contractual character of treaties and accept international
institutions under the condition that they serve defined, apolitical functions. At the height of
globalization, these approaches have been reformulated by systems theoretical approaches to
globalization that replaced states with functional regimes as the basic unit of the international
order. By contrast, rational choice approaches recalibrated the traditional private law paradigm
by shifting from state consent to state interest. This prepared the ground for authoritarian posi-
tions that prefer selective commitments to international institutions closely controlled by the
capitals of powerful member states (Section A). The second set of texts engages us with more
critical, contextual positions. Being rooted in American Legal Realism, we count transnational
legal process and critical legal studies among them. They seek to go beyond legal formalism
and understand law as an instrument of power, although disagreeing on whether that is a good
thing or not. More recently, ‘law and political economy’ has emerged as a new, contextual
approach that shares the critical perspective on the law, but wishes to transform its substantive
character (Section B). The third step presents three approaches that fit neatly into the public
law paradigm. Each of these approaches depicts certain aspects of that thinking. Our approach
aims at combining their strengths and addressing some of their weaknesses (Section C).

A International Public Authority versus the Private Law Paradigm

1 The traditional private law paradigm: bilateralism, coordination, consent

In the past, the ‘public’ in public international law was explained by the fact that its main
subjects are states – that is, public institutions – not because it governs the exercise of public
authority.12 In fact, the very lack of public authority – that is, anarchy – was often seen as the
defining feature of the international order.13 Accordingly, many consider public international
law to be a horizontal order of co-existence based on consent.14 Thus, it mostly operates on the
basis of a private law paradigm. Accordingly, international institutions do not possess legal
personality; in fact, they are hardly more than permanent conferences of the states parties with
bureaus to support their activities.15

12
M. Janis, ‘Jeremy Bentham and the Fashioning of “International Law”’, (1984) 78 American
Journal of International Law (AJIL) 405, at 408.
13
J. Austin, The Province of Jurisprudence Determined (1832), at 208; G. Hegel, Grundlinien der
Philosophie des Rechts (1821), at para. 333.
14
H. Triepel, Völkerrecht und Landesrecht (1899); L. Oppenheim, International Law: A Treatise
(1905); J. Westlake, International Law (1904); G.F. von Martens, A Compendium of the Law of Nations:
Founded on the Treaties and Customs of the Modern Nations of Europe, translated by William Cobbett
(1802); more recent authors include P. Weil, ‘Towards Relative Normativity in International Law?’, 77
American Journal of International Law (1983) 413, at 441; R. Wedgwood, ‘The International Criminal
Court: An American View’, 10 EJIL (1999) 93, at 99ff.
15
Cf. F. von Liszt, Das Völkerrecht (11th edn, 1918) 138 et seq.
 Global constitutionalism and international public authority 269

Surely, the private law paradigm has always attracted much critique.16 It is inadequate for
many, if not most, parts of public international law today. In the attempt to cater to common
interests, international law has meanwhile developed a sophisticated institutional structure that
is hard to reconcile with ideas of horizontal relations based on (state) consent alone.17 Our shift
towards international public law rests on the conviction that the private law paradigm, due
to its focus on national interest and horizontal structures, is insufficient, in particular, when
it comes to the operation of this institutional structure. International public law, by contrast,
lays bare its authority, reads international law in relation to common interests, and confronts
problems of legitimacy.
Thinking in terms of international public law does not categorically replace the private law
paradigm. Some fields and practices of international law may still be understood in analogy
to contracts.18 What is more, the private law paradigm does provide tools to react to a changed
reality.19 First of all, private law instruments can further the common good. Contracts and
property are essential to a functioning, welfare-enhancing economy; private law instruments
like emissions rights might contribute to fighting climate change.20 Second, in contemporary
international legal practice, private and public law aspects are often closely intermingled.
Emmanuelle Jouannet has argued that even modern ‘liberal’ international law – that is, the
contemporary international law of coordination that follows the private law paradigm – is not
only based on sovereign equality but also on democracy and human rights.21 This view is cor-
roborated by developments in investment arbitration.22 Eyal Benveniśtî has used present-day
private law theories in order to advance far-reaching proposals for the understanding and
development of international law.23 He presents states as trustees of humanity and recon-
structs their sovereign control over a territory along progressive theories of private property.24
However, this approach concerns relationships between states and foreign citizens under their
jurisdiction. It does not deal with international institutions. Indeed, in his recent book, The Law
of Global Governance, Benveniśtî himself opts for global administrative law, thereby leaving
the private law paradigm behind when he turns to international institutions.25

16
See already J. Bluntschli, Das moderne Voelkerrecht der civilisirten Staten als Rechtsbuch darg-
estellt (1872).
17
N. Krisch, ‘The Decay of Consent: International Law in an Age of Global Public Goods’, 108 AJIL
(2014) 1. This development reaches back about one century. See in detail M. Goldmann, Internationale
öffentliche Gewalt. Handlungsformen internationaler Institutionen im Zeitalter der Globalisierung
(Springer 2015), at 19–93.
18
J. Weiler, ‘The Geology of International Law: Governance, Democracy and Legitimacy’, 64
Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV) (2004) 547.
19
Cf. J. d’Aspremont (ed.), Participants in the International Legal System: Multiple Perspectives on
Non-State Actors in International Law (Routledge 2011).
20
See the sharp overview in D. Caruso, ‘Private Law and State-Making in the Age of Globalization’,
39 NYUJILP (2006) 1.
21
E. Jouannet, The Liberal-Welfarist Law of Nations (Cambridge University Press 2012), at 205–15.
22
Overview in S. Steininger, ‘What’s Human Rights Got To Do With It? An Empirical Analysis of
Human Rights References in Investment Arbitration’ Leiden Journal of International Law (2017) 1.
23
E. Benveniśtî, ‘Sovereigns as Trustees of Humanity’, 107 AJIL (2013) 295.
24
Ibid., at 384–415.
25
E. Benveniśtî, The Law of Global Governance (Brill 2014), at 79–80.
270 Handbook on global constitutionalism

2 Systems theory: the renewed lex mercatoria

A different private law paradigm has been proposed by systems theoretical approaches.26
Inspired by the evolution of post-industrial society, these approaches consider functional
systems, rather than individuals or states as the core units of social organization. The different
functional systems (law, economics, politics, and so on) are believed to evolve in isolation
from each other. They also globalize at different speeds. The political system typically lags
behind.27 For this reason, systems theory considers the idea of an overarching public order,
which is central to international public law thinking, as a lost cause. Instead, it places its bets
on spontaneous interactions within the various social systems of world society.28
The renewed lex mercatoria serves as a principal case in point.29 Such a global legal regime
is understood as developing in line with the rationality of its corresponding social system. The
relationship between legal regimes reflects the profound contradictions and collisions that
prevail in world society, thus giving rise to a global legal pluralism of different legal regimes.30
Even the emergence of human rights as a – somehow – constitutional standard in international
law remains limited to the political realm, thus to one functionally differentiated system of
society and is far from being truly universal.31 Collisions among different legal regimes may
at best be tamed through mechanisms of horizontal coordination, by ‘reciprocal observation,
anticipatory adaptation, cooperation, trust, self-commitment, reliability, negotiations, and
a context of permanent reference to one another’.32 The private law paradigm ought to explain
this form of horizontal coordination.
System theoretical approaches are related to calls for private international law or a new
transnational (or global) law as the appropriate legal response to global governance.33 They
argue that the increasing importance of private, informal, and transnational phenomena, as
well as all of the various hybrids they produce, renders public law approaches ill-suited, if not
hopeless, to take care of common interests.34
It is to be admitted that strictly hierarchical, state-centred, and unitary conceptions of public
law are no longer convincing. But there are good reasons to doubt that rules established
between private actors can live on their own, whether factually or normatively speaking.

26
Details in A. von Bogdandy and S. Dellavalle, ‘The Lex Mercatoria of Systems Theory:
Localisation, Reconstruction and Criticism from a Public Law Perspective’, 4 Transnational Legal
Theory (2013) 59.
27
N. Luhmann, Die Gesellschaft der Gesellschaft (Suhrkamp 1997), at 65ff, 92ff, 102ff.
28
Ibid., at 48ff.
29
Seminal: G. Teubner, ‘Global Bukowina’: Legal Pluralism in the World Society’, in G. Teubner
(ed.), Global Law without a State (Dartmouth 1997) 3, at 6.
30
Ibid., at 40.
31
 G. Teubner, Verfassungsfragmente: Gesellschaftlicher Konstitutionalismus in der Globalisierung
(Suhrkamp 2012), at 82–5.
32
 A. Fischer-Lescano and G. Teubner, Regime-Kollisionen: zur Fragmentierung des globalen
Rechts (Suhrkamp 2006), at 52; Teubner, supra note 31, at 225ff.
33
For private international law, see H. Watt, ‘Private International Law Beyond the Schism’, 2
Transnational Legal Theory (2011) 347; for transnational law, see G.-P. Calliess and P. Zumbansen,
Rough Consensus and Running Code: A Theory of Transnational Private Law (Hart 2009); for global
law, see H. Lindahl, Fault Lines of Globalization: Legal Order and the Politics of A-Legality (Oxford
University Press 2013).
34
P. Zumbansen, ‘Transnational Legal Pluralism’, 1 Transnational Legal Theory (2010) 141.
 Global constitutionalism and international public authority 271

Factually, the past decade has seen the return of the state as an economic actor.35 Sovereign
wealth funds and state-owned enterprises have become crucial economic actors,36 protection-
ism abounds,37 industrial policy is celebrating a renaissance,38 and the Covid-19 pandemic has
underlined the role of the state as an investor and economic support system. Normatively, the
claim for the desirability of a ‘public’ dimension expresses the awareness and conviction that
social interactions are, and should be, regulated by rules that emerge from discourses about
common interests.39 Neither the ambitious political vision for peace and justice, nor the artic-
ulation and promotion of more specific common interests can be achieved by regimes based
solely on spontaneous private ordering. In recognition of this, world public opinion places its
hopes on the effective regulation by legitimate international institutions.

3 From rational choice to authoritarian international law

The private law paradigm has been reinterpreted by (neo-)realist international lawyers who
are sceptical of the prowess of international law, of international institutions, and of legally
curbing state power. From their viewpoint, a public law approach looks utterly misguided.
Jack Goldsmith and Eric Posner caused a stir with such a view one-and-a-half decades ago.40
According to them, authority beyond states is plainly impossible, as a matter of fact and for
normative reasons. For democratic states, the domestic constituency is the only relevant factor.
And governments are bound to do what is best for them. States are therefore unlikely to truly
pursue common projects with other states, let alone cosmopolitan ones.41 Any international
obligation, even if it results from a freely concluded treaty, is suspicious since it constrains the
domestic democratic process.42 State interest has therefore replaced state consent.
The criticisms of this approach are manifold. For example, it categorically denies that
international commitments – in the form of a treaty or otherwise – could well be an expression
of domestic democratic interests, regardless of the immediate benefits arising from such com-
mitments at a given time. It considers states as billiard balls that are able to articulate a unitary
interest, ignoring that international commitments might play a role in domestic conflicts. It
further disregards that international cooperation enables individual states to do together what
they could not do alone. Finally, it only views international constraints as problematic and
does not take into account the constraints that individual states would impose upon one another
in the absence of international cooperation.
Other rational choice approaches provide a more contextualized analysis, but share the
attempt to link everything happening in the field of international law to a certain vision of

35
I. Bremmer, The End of the Free Market: Who Wins the War Between States and Corporations?
(Penguin 2010).
36
I. Willemyns, ‘Disciplines on State-Owned Enterprises in International Economic Law: Are We
Moving in the Right Direction?’ (2016) 19 Journal of International Economic Law 657; A. Gelpern,
‘Sovereignty, Accountability, and the Wealth Fund Governance Conundrum’ 1 Asian Journal of
International Law (2011) 289.
37
J. Heath, ‘The New National Security Challenge to the Economic Order’ 129 Yale LJ (2019) 1020.
38
R. Wade, ‘Return of Industrial Policy?’ 26 International Review of Applied Economics (2012) 223.
39
Cf. M. Goldmann, ‘A Matter of Perspective: Global Governance and the Distinction between
Public and Private Authority (And Not Law)’ 5 Global Constitutionalism (2016) 48.
40
J. Goldsmith and E. Posner, The Limits of International Law (Oxford University Press 2005).
41
Ibid., at 212.
42
Ibid., at 218–19.
272 Handbook on global constitutionalism

human and state behaviour where self-interest constitutes the principal source of motiva-
tion.43 Some of this research recognizes that it might be rational for self-interested states to
confer tasks to international institutions with some degree of autonomy.44 Yet even these
approaches ultimately continue to take the maximization of state interests to be the main, if
not single, reason for action. This yardstick is both unduly reductive and highly indeterminate.45
Behavioural approaches to international law modify this yardstick, but do not mitigate these
concerns. Rather than considering context and structures as influential factors of social evo-
lution, they seek to safeguard the individualistic, rationalistic framework by psychologizing
state interest.46
In a number of ways, authoritarian views of international law stand on the shoulders of the
rational choice approach. By ‘authoritarian views’, we refer to the practice, rather than the
theory of authoritarian states. This concerns particularly Russia and China, but also includes
Western democracies afflicted by problematic rulers like the United States under President
Trump. Official views of international law articulated by such regimes often take up the lan-
guage of the traditional private law paradigm, including a selective approach to international
cooperation and carefully concealed hegemonic aspirations euphemized as ‘harmony’.47 In
practice, though, two tendencies emerge. One is what Tom Ginsburg has termed ‘autocratic
international law’. It comprises cooperative arrangements among autocratic or barely demo-
cratic regimes that focus on areas of their particular interest, especially security and surveil-
lance issues.48 The other tendency concerns the influence of such governments within existing
international organizations. Examples include China’s approach to the WHO,49 the United
States’ approach to international trade law under Trump,50 or Russia’s relation to the Council
of Europe and the European Court of Human Rights.51 One could summarize their impact as
the attempt to influence international institutions to favour the interests of the regime and to

43
E.g., J. Dunoff and J. Trachtman, ‘Economic Analysis of International Law’, 24 NYUJILP (1999)
1, at 1; A. Guzman, How International Law Works: A Rational Choice Theory (Oxford University Press
2008).
44
E.g., B. Simmons, ‘Money and the Law: Why Comply with the Public International Law of
Money?’, 25 NYUJILP (2000) 323; J. Trachtman, ‘The Economic Structure of the Law of International
Organizations’, 15 Chicago Journal of International Law (2014) 162.
45
M. Koskenniemi, ‘Global Governance and Public International Law’, 37 Kritische Justiz (2004)
241, at 247ff; R. Cooney and A. Lang, ‘Taking Uncertainty Seriously: Adaptive Governance and
International Trade’, 18 EJIL (2007) 523.
46
A. van Aaken, ‘Behavioral International Law and Economics’, 55 Harvard International
Law Journal (2014) 421, at 426, 432; T. Broude, ‘Behavioral International Law’, 163 University of
Pennsylvania Law Review (UPLR) (2015) 1099, at 1116–18.
47
L. Mälksoo, ‘Russia and China Challenge the Western Hegemony in the Interpretation of
International Law’ (2016) EJIL Talk, 15 July 2016 http://​www​.ejiltalk​.org/​russia​-and​-china​-challenge​
-the​-western​-hegemony​-in​-the​-interpretation​-of​-international​-law/​ accessed 1 March 2017.
48
Ginsburg, Authoritarian International Law?’, supra note 7.
49
E.g. Shaffer, Emerging Powers and the World Trading System: The Past and Future of
International Economic Law (Cambridge University Press 2021).
50
H. Koh, ‘Trump Change: Unilateralism and the “Disruption Myth” in International Trade’ 44 Yale
Journal of International Law (2019) 96.
51
K. Dzehtsiarou and D. Coffey, ‘Suspension and Expulsion of Members of the Council of Europe:
Difficult Decisions in Troubled Times’ (2019) 68 International & Comparative Law Quarterly 443; L.
Mälksoo and W. Benedek (eds), Russia and the European Court of Human Rights: The Strasbourg Effect
(Cambridge Univerisity Press 2017).
 Global constitutionalism and international public authority 273

obstruct them where this is not happening. This amounts to a truncated, Italo-Western version
of the rational choice approach, one which focuses on the interests of the regime and its stabi-
lization, rather than the interests of the state or the population, however defined. As sizeable
as these tendencies have become, it evidently does not provide a foundation for the law of
international institutions that would be acceptable to democratic societies.

B International Public Authority versus Social Sciences Approaches

1 Global governance and transnational legal process

The international public law approach shares three insights with global governance studies.52
First is the recognition of the significance of institutions and processes beyond the state. The
most visible mark of their significance might be the degree of autonomy that international
institutions enjoy vis-à-vis state governments.53 Second, research on global governance notes
the importance of informality of many institutions, procedures and instruments. It stresses
the need to go beyond established legal concepts that cannot grasp such informality.54 Third,
as is obvious from the use of the term ‘global’ rather than ‘international’, global governance
emphasizes the multilevel character of processes and interactions. We share these three
insights and agree that these mechanisms should not be neglected but, rather, be made the
object of legal reconstructions. We also share the idea that a convincing concept of law must
be broader and more differentiated than the classic triad of treaty, custom, and general princi-
ples. And although we focus more narrowly on international phenomena, we have other levels
of governance on the radar, especially because both the effectiveness and the legitimacy of
international institutional activity, and of international public law, heavily depend on domestic
public law.
However, global governance studies display serious normative and cognitive shortcomings
endemic in many liberal international relation theories, many of which come into view through
the prism of public law. Global governance is mainly understood as a technocratic process
concerned with ‘problem solving’.55 It is focused on pursuing defined goals effectively but is
rather silent about how to define goals or about how to strike inevitable normative balances
when pursuing any single goal. What is more, a concern for the workings of power relations is
largely absent.56 On the cognitive side, global governance studies lack a conceptual framework
for distinguishing and identifying those instruments that raise questions of legitimacy and
those that do not.

52
Seminal: J. Rosenau, ‘Governance, Order, and Change in World Politics’, in J. Rosenau and E.
Czempiel (eds), Governance without Government (Cambridge University Press 1992) 1.
53
I. Venzke, ‘International Bureaucracies from a Political Science Perspective: Agency, Authority
and International Institutional Law’, in A. von Bogdandy et al (eds), The Exercise of Public Authority by
International Institutions: Advancing International Institutional Law (Springer 2010) 67.
54
This distinguishes our approach from J. d’Aspremont, Formalism and the Sources of International
Law: A Theory of the Ascertainment of Legal Rules (Oxford University Press 2011), at 128–30.
55
Koskenniemi, supra note 45, at 241. On the related liberal bias of international organizations, see
M. Barnett and M. Finnemore, ‘The Power of Liberal International Organizations’, in M. Barnett and R,
Duvall (eds), Power in Global Governance (Cambridge University Press 2005) 161, at 163–69.
56
A-M. Slaughter, ‘The Accountability of Government Networks’, 8 Indiana Journal of Global
Legal Studies (2000–2001) 347.
274 Handbook on global constitutionalism

The same may be said of transnational legal process.57 The latter is characterized by an
emphasis on law as a continuous process of consecutive decisions instead of a stable system
of rules.58 It provides important insights as to why decisions are obeyed, whether for reasons
of self-interest, identity or as a result of repeated interaction.59 Much like global legal plu-
ralism,60 it accommodates the input of a host of new actors and develops a broader view on
different sites for the generation of legal normativity beyond the classic realm of governmental
interaction. Its main normative argument boils down to suggesting that the variety of many
different processes sustains the normativity of the outcome. Precisely why this should be the
case remains unclear.
The public law approach responds to these limits of governance studies and transnational
legal process with its focus on the exercise and justification of public authority. It thereby
avails itself of the dual function of modern public law. Accordingly, public authority may
only be exercised if it is based on an authorizing act (constitutive or enabling function), and its
exercise controlled and limited by substantive and procedural standards (limiting function).61
For this reason, public law helps to translate concerns about the legitimacy of governance
activities into meaningful arguments of legality. Work under the concept of global governance
or transnational legal process is typically insufficient for this purpose because it does not
provide a basis for the identification of those acts that are critical. Nor does it show how those
acts may be framed in terms of law.

2 Critical approaches
The normative implications that many studies of global governance and theories of transna-
tional legal process draw – the more actors and the more forms of law, the merrier – meets with
a strong critique from perspectives that highlight diffuse governance processes and informality
as a fig-leaf for the exercise of power.62 Whereas advocates of global governance studies,
transnational legal process, and global legal pluralism might view plurality and informality
as mechanisms to break into the centres of state power, Martti Koskenniemi and others see
it, above all, as the subjugation of that same power to vested economic interests. Against the
move to informality, they uphold the legal form and formal language of the law as a possible
shield against private power and a possible vehicle for progressive politics.63 They draw
attention to how dominant interpretations in international law reflect power imbalances and

57
H. Koh, ‘Transnational Legal Process’, 75 Nebraska Law Review (1996) 181.
58
F. Hanschmann, ‘Theorie transnationaler Rechtsprozesse’, in Buckel, Christensen and
Fischer-Lescano (eds), Neue Theorien des Rechts (2006) 347, at 357.
59
Koh, supra note 57.
60
Cf. P. Berman, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (Cambridge
University Press 2012).
61
See below Section 3.B; see also N. Walker, Intimations of Global Law (Cambridge University
Press 2015), at 90–91; B. Kingsbury, ‘International Law as Inter-Public Law’, in H. Richardson and M.
Williams (eds), Moral Universalism and Pluralism (Nomos 2009) 167.
62
Chimni, supra note 2; A. Anghie, Imperialism, Sovereignty and the Making of International Law
(Cambridge University Press 2005), at 115.
63
Koskenniemi, supra note 45, at 241; M. Koskenniemi, ‘The Politics of International Law: 20
Years Later’, 20 EJIL (2009) 7; with different background but similar direction, see E. Benveniśtî and G.
Downs, ‘The Empire’s New Clothes: Political Economy and the Fragmentation of International Law’, 60
Stanford Law Review (2007) 595.
 Global constitutionalism and international public authority 275

entrench biases.64 This has been particularly critical in international legal relations between
the Global North and the Global South since colonial times.65 Oscillating between the progress
narrative of civilization and racialized suppression, international law has facilitated the global
expansion of the economic models of the North.66 Human rights provided little rescue.67 But
the language of law, critical scholarship suggests, offers at least a marginal degree of resist-
ance to such exercises of power in the name of economic efficiency or morality.68 Even if one
does not share critical scholarship’s fundamental scepticism about legitimizing the exercise of
power through law, the critical approach forcefully underlines the epistemological and politi-
cal challenges that legal scholarship has to meet.
Another important point stressed by critical scholarship is the political nature of the public–
private divide. As Hans Kelsen has already shown with great clarity, the view that some fields
are necessarily to be left to private ordering whereas only some others can be subject to public
ordering is deeply ideological.69 American critical legal studies and feminist scholarship,
in particular, have deepened and elaborated this insight.70 We agree that the public–private
distinction has shielded and perpetuated relationships of dominance in the past and present
by the pretence that they belonged to the private realm. However, as we further elaborate
below,71 responses to this problem can and should proceed without giving up the distinction
in its entirety. First, the private sphere is certainly not immune from governmental interfer-
ence. Second, in contemporary legal practice, the public/private distinction has lost its static
character. The public sphere extends over whatever issue the competent institutions decide it
to extend. The private sphere provides no safe haven for oppressive relationships. Third, as
we argue in the next section, the public/private distinction continues to exercise an important
function for the identification and formulation of common interests.

3 International law and political economy

A new generation of critical approaches has emerged in the context of multiple crises afflict-
ing societies at the turn of the 2020s, ranging from the distant reverberations of the financial
crisis to climate change. These approaches are grouped under the term ‘Law and Political

64
M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2nd
edn, Cambridge University Press 2005); D. Kennedy, ‘Theses about International Law Discourse’, 23
German Yearbook of International Law (1980) 353.
65
For many: A. Anghie, Imperialism, Sovereignty, and the Making of International Law (Cambridge
University Press 2005); see also Boysen, Chapter 13 in this Handbook.
66
N. Tzouvala, Capitalism ss Civilisation. A History of International Law (Cambridge University
Press 2020), at 44 et seq.
67
U. Baxi, The Future On Human Rights (Oxford University Press 2007); S. Moyn, Not enough:
Human Rights in an Unequal World (Harvard University Press 2018); E. Weitz, A World Divided: The
Global Struggle for Human Rights in the Age of Nation-States (Princeton University Press 2019); M.
Goldmann, ‘Contesting Austerity: Genealogies of Human Rights Discourse’ (2020)(2020-09) Max
Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2020-09
(2020).
68
M. Koskenniemi, The Gentle Civilizer of Nations (Cambridge University Press 2002), at 495.
69
H. Kelsen, Pure Theory of Law, translated by Max Knight (2nd edn, 1967), at 281–4.
70
D. Kennedy, ‘The Stages of the Decline of the Public/Private Distinction’, 130 UPLR (1981–1982)
1349, at 1352; N. Fraser, Unruly Practices: Power, Discourse, and Gender in Contemporary Social
Theory (University of Minnesota Press 1989).
71
In detail, see Section 3.B.1 below.
276 Handbook on global constitutionalism

Economy’ (LPE), and they seem the most likely heirs of critical legal scholarship. LPE owes
much of its emergence to the high levels of poverty, racial injustice, inequality, and political
polarization prevalent in the United States, deeming legal scholarship in law and economics
or originalist approaches to constitutional interpretation complicit in them.72 It has resonated
with many European scholars dissatisfied about the role of law in entrenching neoliberalism
and environmental degradation.73 Hence, there is a common set of convictions uniting this
still rather amorphous movement that centres on the principles of equality and democracy
and seeks to recalibrate the relation between freedom and equality. It differs from classical
critical scholarship by considering law not simply as epiphenomenal of political conflicts, but
as a contingent discourse that forms these conflicts – hence enabling lawyers to pursue reform
agendas.74 In a nutshell, it seems that researchers simply cannot afford to forego the potential
of law for achieving justice. While one should not rush to equalize law with justice, discarding
law as useless for the purpose of justice would leave it at the free disposal of the politically
and economically powerful.
One could argue that LPE in international law emerged from self-reflections in critical
legal scholarship and its engagement with scholarship taking a Global South perspective, like
Third World Approaches to International Law (TWAIL). Many international legal scholars
in the Global South had expressed arguments like the ones that now resurface in LPE.75 Also
David Kennedy has more recently highlighted the implication of international law in forming
North-South relations.76 Meanwhile, LPE has mushroomed in international legal scholarship,
particularly in contributions emphasizing the significance of equality for human rights enjoy-
ment77 and international economic law.78
For the public law approach to international institutions, the rise of LPE implies that one
cannot reduce international public law to formal or procedural principles alone; it needs to
strive for fair and equitable outcomes.

C Public Law Approaches

A rich field of legal conceptualizations of international institutions seeks to implement the

public law approach to various degrees. One can distinguish institutional, constitutional and

72
J. Britton-Purdy et al, ‘Building a Law-and-political-economy Framework: Beyond the
Twentieth-century Synthesis’ (2019) 129 Yale LJ 1784; A. Harris and J. Varellas, ‘Law and Political
Economy in a Time of Accelerating Crises’ 1 Journal of Law and Political Economy (2020) 1.
73
P. Kjaer (ed.), The Law of Political Economy: Transformation in the Function of Law (Cambridge
University Press 2020); I. Kampourakis, ‘Bound by the Economic Constitution: Notes for “Law and
Political Economy” in Europe’ 1 Journal of Law and Political Economy (2022) 301.
74
I. Venzke and K. Heller (eds), Contingency in International Law (Oxford University Press 2021).
75
See, in particular, M. Bedjaoui, Towards a New International Economic Order (UNESCO 1979).
76
D. Kennedy, “Law and the Political Economy of the World”, 26 Leiden Journal of International
Law (2013) 7.
77
Baxi, supra note 67; J. Dehm, ‘Highlighting inequalities in the histories of human rights:
Contestations over justice, needs and rights in the 1970s’, 31 Leiden Journal of International Law
(2018) 871; S. Moyn, Not Enough. Human Rights in an Unequal World (Belknap 2018); I. Venzke,
International Law and the Spectre of Inequality (2019), available at https://​cf​.bc​.uva​.nl/​download/​
oraties/​oraties​_2019/​Venzke​_Ingo​.pdf (last visited 18 February 2022).
78
J. Linarelli, M. Salomon and M. Sornarajah, The Misery of International Law: Confrontations with
Injustice in the Global Economy (Oxford University Press 2018).
 Global constitutionalism and international public authority 277

administrative law approaches. By and large, they pursue the twofold intention of furthering
the potential of international public authority while hedging its risks. None of these approaches
laments the decline of the Westphalian order. Rather, they aim at rendering global governance
more efficient as well as more legitimate. While important differences exist between these
approaches, the common ground is considerable, and we think that elaborating this common
ground propels a better exchange of ideas. In particular, we suggest that they can all work
well with, and gain from, the notion of international public authority and an agreed set of legal
principles to ensure its legitimacy and effectiveness.

1 International institutional law

International institutional law focuses on international organizations as subjects of international
law, describing both their externally relevant activities and their internal law with a view to
carving out common principles embedded in the legal design and practices of all international
institutions.79 For international public law, international institutional law provides a break-
through as it features a concept that contains the first nucleus of international public authority.
As is well known, according to international institutional law, an international organization
requires the possibility of forming ‘a will of its own’ in the pursuit of its objectives.80 This is
to be understood against the former understanding, which viewed international organizations
as permanent intergovernmental venues, hence, as part of the domestic administration of the
member states.81
The capacity of autonomous decision-making of international institutions enables them
to formulate common interests for their member states. In this respect, international institu-
tional law was mainly developed according to a functionalist understanding of international
institutions. As Jan Klabbers has recently shown, the functionalist orientation of international
institutional law stems from the insight that nations are heavily interdependent and therefore
inevitably need to cooperate in permanent, non-sporadic ways. Paul Reinsch, who Klabbers
identifies as the first scholar of international institutional law, embedded this approach into
a progress narrative. He believed that de-politicized, technical organizations would have
a calming effect on overbearing national interests, which would eventually contribute to
world peace.82 Two world wars later, David Mitrany advocated institutions that would provide

79
C. Amerasinghe, Principles of the Institutional Law of International Organizations (Cambridge
University Press, 2nd edn, 2005); J. Klabbers, An Introduction to International Institutional Law
(Cambridge University Press, 2nd edn, 2009); H.G. Schermers and N. Blokker, International Institutional
Law: Unity within Diversity (Martinus Nijhoff, 5th edn, 2011).
80
Cf. Legality of the Use by a State of Nuclear Weapons in Armed Conflicts, Advisory Opinion, 8
July 1996, ICJ Reports (1996), at 75, para. 19; see also Schermers and Blokker, supra note 79, at para.
44. On the autonomy of international organizations, see R. Collins and N.D. White (eds), International
Organizations and the Idea of Autonomy (Routledge 2011).
81
D. Kennedy, ‘The Move to Institutions’, 8 Cardozo Law Review (1968) 841.
82
J. Klabbers, ‘The Emergence of Functionalism in International Institutional Law: Colonial
Inspirations’, 25 EJIL (2014) 645. See also P. Reinsch, ‘International Unions and Their Administration’,
1 AJIL (1907) 579. Connecting functionalism with the progress narrative advocated by Weber: J. Steffek,
‘Max Weber, Modernity and the Project of International Organization’ (2016) 29 Cambridge Review of
International Affairs 1502. G.F. Sinclair, To Reform the World: International Organizations and the
Making of Modern States (Oxford University Press 2017).
278 Handbook on global constitutionalism

welfare services to their members, among them many newly independent states.83 Wolfgang
Friedmann’s seminal work on the law of cooperation epitomizes the underlying paradigm shift
in the focus of international law from concerns regarding state sovereignty to the welfare of
the citizens and the self-preservation of mankind.84 While states would remain the principal
subjects of international law, a supranational society created by global and regional interna-
tional organizations with legal personality would rise to the level of an actor in its own right.85
Recognizing the vertical structure of international institutional law and its focus on common
interests, Philip Allott designated it as ‘international public law’.86
Today, international institutional law holds great potential as a framing device for inter-
national public authority since international organizations are of enormous significance for
public affairs in times of global governance. It is no wonder that this stream of research has
greatly evolved as of late.87 New instruments, competencies, and procedures of international
organizations have come into its focus.88 In order to live up to the challenges of global govern-
ance, international institutional law could easily be extended so as to encompass not only the
activities of international organizations in a strict sense but also the actions of less formalized
institutions, such as the Organization for Security and Co-operation in Europe, or non-binding
instruments.89
The limits of the international institutional law approach lie elsewhere. Although this school
of thought views the welfare of individuals as its overarching concern, it does not regard them
as subjects of international law90 and is unconcerned about their freedom.91 Accordingly, the
putatively technical character of their tasks – their advantage, according to Mitrany – shields
them from requirements of additional legitimacy beyond state consent. The emergence of
claims in world public opinion for such legitimacy shows that this view faces an increasing
number of problems. Remarkably, Klabbers’ textbook presents international institutional law
as being caught up in the tension between autonomous international institutions and member
states. He leaves no space for the role of individuals.92 And, yet, he also builds on a strand of
the public law approach that takes the individual most seriously – namely, constitutionalism.93

83
D. Mitrany, A Working Peace System (Oxford University Press 1943); D. Mitrany, ‘The Functional
Approach to World Organization’, 24 International Affairs (1948) 350.
84
W. Friedmann, The Changing Structure of International Law (Columbia University Press
1964), at 12; see further A. von Bogdandy, Strukturwandel des öffentlichen Rechts: Entstehung und
Demokratisierung der europäischen Gesellschaft (Suhrkamp 2022).
85
Von Bogdandy, supra note 84, at 37ff, 213ff.
86
P. Allott, The Health of Nations: Society and Law beyond the State (Cambridge University Press
2002), at 297.
87
See J. Klabbers, ‘The EJIL Foreword: The Transformation of International Organizations Law’,
26 EJIL (2015) 9.
88
Ibid., see also A. Boyle and C. Chinkin, The Making of International Law (Oxford University
Press 2007); Pauwelyn, Wessel and Wouters, supra note 2; D. Sarooshi, International Organizations and
Their Exercise of Sovereign Powers (Oxford University Press 2005).
89
A good example for how this can be done is E. Alvarez, International Organizations as
Law-Makers (Oxford University Press 2005).
90
Friedmann, supra note 84, at 40ff.
91
Recently, J. Alvarez, ‘Is Investor-State Arbitration “Public”?’, Institute for International Law and
Justice Working Paper No. 6 (2016).
92
Klabbers, supra note 79.
93
Cf. Klabbers, Peters and Ulfstein, supra note 2.
 Global constitutionalism and international public authority 279

2 Global constitutionalism
The broadest strand of legal scholarship that deals with global governance phenomena from
a public law perspective is global constitutionalism.94 Like international institutional law, it
is driven by the intuition that a strictly horizontal conception of the international order needs
to be supplemented by considerations for its more vertical structures.95 In the language of
constitutionalism, and in contrast to international institutional law, these structures amount to
a common order encompassing the entire international community. Thus, with the exception
of functionalist approaches,96 most constitutional approaches ultimately base this order on the
freedom of individuals and their capacity for self-determination.97
Global constitutionalism comprises a variety of strands. Whereas some authors use the
constitutionalist approach to redefine the international legal order as a whole,98 others, closer
to our concern, use it in order to develop a framework of principles governing international
institutions.99 Scholars in this camp rely on an analogy with domestic law, advocating that
activities of international institutions should be investigated in the light of the experience of
domestic constitutional law in liberal democracies with its focus on freedom.100
Accordingly, global constitutionalism suggests that many of the standards of domestic
constitutional law may be instructive for the legal regimes governing international public
authority.101 While overly simplistic analogies must be avoided, global constitutionalism

94
See Lang and Wiener, Chapter 1 in this Handbook. For its ancient roots, see Walker, supra note
61, at 87–8. For its thrust, see A. Peters, ‘Compensatory Constitutionalism: The Function and Potential of
Fundamental International Norms and Structures’, 19 Leiden Journal of International Law (2006) 579;
see also the editorial A. Wiener et al, ‘Global Constitutionalism: Human Rights, Democracy and the Rule
of Law’, 1 Global Constitutionalism (2012) 1.
95
The contrast between horizontal and vertical perceptions of world order becomes apparent by
cross-reading the separate opinion of President Guillaume and the joint separate opinion of Judges
Higgins, Kooijmans and Buergenthal in the Case Concerning the Arrest Warrant of 11 April 2000 (DR
Congo v Belgium), Judgment, 14 February 2000, ICJ Reports (2002) 35, at 63.
96
E.g., J. Dunoff and J. Trachtman, ‘A Functional Approach to International Constitutionalization’,
in J. Dunoff and J. Trachtman, Ruling the World? (Cambridge University Press 2009), at 3.
97
Cf. A. Cançado Trindade, International Law for Humankind: Towards a New Jus Gentium (Brill
2010), at 213; C. Tomuschat, ‘International Law: Ensuring the Survival of Mankind on the Eve of a New
Century: General Course on Public International Law’, 281 Recueil des Cours (1999) 9, at 161–2; A.
Peters, ‘Humanity as the A and Ω of Sovereignty’, 20 EJIL (2009) 513.
98
Cf. J. Frowein, ‘Konstitutionalisierung des Völkerrechts’, in K. Dicke et al (eds), Völkerrecht und
Internationales Privatrecht in einem sich globalisierenden internationalen System (2000) 427. This is
classified as a semantic strategy, according to O. Diggelmann and T. Altwicker, ‘Is There Something
Like a Constitution of International Law?’, 68 ZaöRV (2008) 623, at 632ff.
99
Lang and Wiener, Chapter 1 in this Handbook; M. Ruffert and C. Walter, Institutionalised
International Law (C.H. Beck 2015); B. Fassbender, ‘The United Nations Charter as Constitution of
the International Community’, 36 Columbia Journal of Transnational Law (1998) 529; D. Cass, The
Constitutionalization of the World Trade Organization (Oxford University Press 2005).
100
See, e.g., Peters, supra note 97, at 583–4. On freedom as the overarching concept of modernity, see
Hegel, supra note 13; I. Berlin, ‘Two Concepts of Liberty’, in I. Berlin, Four Essays on Liberty (1969)
118; J. Rawls, A Theory of Justice (Clarendon Press 1972), at para. 32; Preamble of the UN Charter: ‘We
the peoples of the United Nations determined … to promote social progress and better standards of life
in larger freedom.’
101
M. Kumm, ‘The Legitimacy of International Law: A Constitutionalist Framework of Analysis’, 15
EJIL (2004) 907.
280 Handbook on global constitutionalism

rightly stresses the importance for international public authority of core principles such as
human rights, the rule of law and democratic inclusion.102
While we share global constitutionalism’s core intuition about freedom, about citizens as
the ultimate subjects of legitimacy of multiple constitutional orders,103 and the concern for core
principles, we depart from its more value-laden variants and, more generally, harbour some
reservations about the use of the concept of constitution for the international level. Global
constitutionalism, like constitutionalization, somehow suggests a progression towards a global
polity or even federal union that appears problematic.104 It might imply a degree of hierarchy,
closure and a quest for ultimate reasons that is unattainable – only think of the dazzling ques-
tion of a pouvoir constituant in world society. Constitutional pluralism seeks to avoid this
difficulty,105 but it is doubtful whether this is a viable approach for global constitutionalism,
i.e. for social orders not characterized by shared background convictions and institutional
frameworks for dispute resolution like the European Union.106 The decay of a unipolar geopo-
litical constellation that provided the basis for a liberal international order and its replacement
with a multipolar, more confrontational one suggests scepticism towards the idea of global
constitutional principles.107

3 Global administrative law

A third approach to deal with the phenomena of global governance in a specifically legal way
seeks inspiration from administrative law thinking rather than from constitutionalism. Here
again, different varieties exist. Probably the most far-reaching one is the project of global
administrative law, which suggests that much of global governance can be understood as
administration and demands that it be regulated by administrative law principles such as trans-
parency, participation, reasoned decision-making, and mechanisms of review.108 While some

102
M. Kumm et al, ‘How Large Is the World of Global Constitutionalism?’, 3 Global Constitutionalism
(2014) 1; M. Koskenniemi, ‘Constitutionalism as Mindset: Reflections on Kantian Themes about
International Law and Globalization’, 8 Theoretical Inquiries 8 (2007) 9, at 22.
103
E.g., N. Walker, ‘The Idea of Constitutional Pluralism’, 65 MLR (2002) 317; A. Peters, ‘Dual
Democracy’, in Klabbers, Peters and Ulfstein (eds), The Constitutionalization of International Law
(2009) 263; J. Habermas, ‘Does the Constitutionalization of International Law Still Have a Chance?’, in
J. Habermas, The Divided West (2006), 115, at 141–142.
104
I. Kant, Zum Ewigen Frieden (1795).
105
Seminal: N. MacCormick, ‘Beyond the Sovereign State’, 56 Modern Law Review (MLR) (1993) 1.
106
In this regard, with a view to global constitutionalism, see A. von Bogdandy, ‘Pluralism, Direct
Effect, and the Ultimate Say: On the Relationship between International and Domestic Constitutional
Law’, 6 IJCL (2008), at 397; on the Kadi cases, see, e.g., M. Avbelj, F. Fontanelli, and G. Martinico
(eds), Kadi on Trial: A Multifaceted Analysis of the Kadi Trial (Routledge 2014). On constitutionalism
within the EU, see Bogdandy, supra note 84. Radical pluralist approaches, by contrast, deny the exist-
ence of any overarching universal legal rules or the idea of overcoming different fragmented global legal
regimes, see N. Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (Oxford
University Press 2011).
107
See G. Ikenberry, ‘The end of liberal international order?’ 94 International Affairs (2018) 7.
108
Kingsbury, Krisch and Stewart, supra note 2, at 28; R. Stewart, ‘Remedying Disregard in Global
Regulatory Governance: Accountability, Participation, and Responsiveness’, 108 AJIL (2014) 211;
recently see also Benveniśtî, supra note 2; Walker, supra note 61, at 106.
 Global constitutionalism and international public authority 281

scholars aim at the deductive development of such principles,109 others proceed inductively
and use the normative reservoir of domestic or European administrative law.110
The common denominator of this strand of research – the emphasis on domestic adminis-
trative law – bears a great potential for innovation. Our approach corresponds inasmuch as
we stress the usefulness of intra-disciplinary exchange in legal studies: the study of the law of
international public institutions should be informed by the study of domestic public institu-
tions.111 The full development of international law as international public law appears hardly
feasible without building on national administrative legal insights and doctrines elaborated in
the past century.
Our approach differs from the global administrative law approach as we regard it as being
too ‘global’. It risks effacing or blurring the distinctions that are essential to the construction,
evaluation and application of norms concerning public authority. Our very term international
public law stresses that the validity, legality, legal effects, and legitimacy of acts under interna-
tional law depend on criteria that are specific to the international legal order. Whenever a legal
issue comes up with respect to any act, the first step to tackle it legally is therefore to determine
the legal order to which it belongs. Moreover, we wonder what would be the overarching legal
basis of a global administrative law. Would it be general principles or would it have a status
of its own, above positive law? The notion of global administrative law evokes a fusion of
domestic administrative and international law that gives too little consideration to the fact that
the validity and legal effects of international and domestic law follow very different rules.
In addition, global administrative law hinges on the imprecise concept of administration.
It casts its net very widely and extends its scope to the whole range of activities and actors
on various levels. While it taps into a public law repertoire, it applies its standards not only
to entities that qualify as international organizations but also to those that straddle the public/
private divide just as well as hybrid institutions or even private transnational bodies.112 What
is then understood as administration is also extremely wide and, notably, includes the activity
of international courts and tribunals.113
Global administrative law draws together very different institutions and acts that raise
demands for legitimacy that are markedly different. Administrative principles may be part
of the cure for some, but not for all. In contrast to global administrative law, as well as to
international institutional law and constitutionalism, we place the concept of international
public authority on centre stage. It allows us to focus on the specific requirements of typical
instruments. Indeed, global administrative law is now using the concept of authority, and our
elaboration will continue on this path.114

109
B. Kingsbury, ‘Omnilateralism and Partial International Communities: Contributions of the
Emerging Global Administrative Law’, 104 Journal of International Law and Diplomacy (2005) 98.
110
R. Stewart, ‘US Administrative Law: A Model for Global Administrative Law?’, 68 Law and
Contemporary Problems (2005) 63; D. Esty, ‘Good Governance at the Supranational Scale: Globalizing
Administrative Law’, 115 Yale Law Journal (2006) 1490.
111
M. Jestaedt and O. Lepsius (eds), Rechtswissenschaftstheorie (Mohr Siebeck 2008).
112
Examples include the International Organization on Standardization or the Internet Corporation
for Assigned Names and Numbers.
113
R. Stewart and M. Ratton Sanchez Badin, ‘The World Trade Organization: Multiple Dimensions
of Global Administrative Law’, 9 IJCL (2011) 556.
114
Cf. A. Cassese, ‘Global Administrative Law: The State of the Art’, 13 IJCL (2015) 465.
282 Handbook on global constitutionalism

3 IDENTIFYING INTERNATIONAL PUBLIC AUTHORITY

This section elaborates the concept of international public authority. The function of this
concept is to identify acts of international institutions that should be legally reconstructed
according to the public law paradigm because they advance common interests in a way that
impacts upon the freedom of others. This allows for a much broader legal reconstruction of
complex social relationships compared to classical international law.

A International Character

Whether an act amounts to an exercise of international public authority, in contrast to domestic

or supranational authority, depends on the provision it invokes as a legal basis, be it implicitly
or explicitly. If this provision belongs to public international law, then such an exercise of
authority is international. What then belongs to the realm of public international law? The
established sources of treaties, custom, and general principles provide guidance in most cases.
Some acts, however, are based on soft legal instruments – for example, the Basel Accords
by the Basel Committee on Banking Supervision. Soft law created by states or international
institutions should be included in the canon of possible legal bases because, in the context
of global governance, it often plays a functionally equivalent role to hard law.115 The choice
between soft law and hard law as a legal basis should not allow governments and international
institutions to escape normative requirements, and, indeed, the respective legal regimes are
often similar.116
The insistence on the distinction between domestic and international law is criticized for
being too limited.117 We do not deny the global, multilevel or transnational structure of many
policies. However, we see the more narrow focus as justified by two main considerations.
First, reconstructive legal scholarship needs to respond to the basic structures of the law. As
we argued in respect to global administrative law, legal analysis and legal argument should
distinguish between domestic and international law and, therefore, also between domestic and
international authority.118 This distinction is crucial to enabling a thorough analysis of the twin
concerns of legitimacy and effectiveness in the pursuit of common interests. The validity,
legality, legitimacy, and legal effects of an act depend largely on the legal order to which it
belongs. Likewise, whenever the question arises whether the protection of common interests
requires additional forms of authority, then the challenge of making such authority legitimate
and effective varies with the legal order in which it is rooted. Nobody will claim that the
exercise of international authority is legitimized in a way that corresponds to the mechanisms
that legitimize domestic authority. Neither a world parliament nor a world government exists.
Domestic courts treat exercises of international public authority differently from domestic

See Section 3.C below.

115

Cf. Goldmann, supra note 17, at 387ff.

116
117
Cf. L. Viellechner, Transnationalisierung des Rechts (Velbruck 2013), at 287ff.
118
A. von Bogdandy, Dann and Goldmann, ‘Developing the Publicness of Public International Law:
Towards a Legal Framework for Global Governance Activities’, 9 German Law Journal (2008) 1375, at
1393.
 Global constitutionalism and international public authority 283

authority, thereby granting international institutions wider discretion.119 Likewise, interna-

tional institutions cannot regulate a certain issue in the same way as domestic institutions.
Rather, they normally rely on the executive capacity of the domestic level.
The second argument for our focus rests on a principled consideration of political freedom.
International law and international authority have a unique potential for political inclusion. If
politics and policies are to serve several polities, there is no other legal order that is capable
of achieving a similar degree of inclusion. Notwithstanding the many conceptual and practical
challenges of democratizing international institutions, there are no viable alternatives in sight.
Hegemony, informal governmental networks or outsourcing to private institutions fare much
worse in this respect. Thus, our choice for international law as the legal order that has the
potential to be the most inclusive polity echoes Winston Churchill’s bon mot on democracy:
‘It’s the worst, except for all the others.’

B Publicness

1 The public–private distinction

It is far more difficult to pin down what makes international authority public. Given the
various meanings as well as trenchant critiques of the public–private distinction,120 this
difficulty is not surprising, especially in light of the messy complexities that mire global
governance.121 A distinction of this kind arguably does more harm than good, for example, by
leaving the exercise of power in the private realm out of sight.122 We agree that it is impossible
to understand the cosmos of global governance without considering private and hybrid actors.
Yet the importance of such actors does not render the public–private distinction useless but,
rather, confirms its significance.
This dichotomy enables us to distinguish – to give but one example – entities as different as
the UN and Blackwater (which is today known as Academi). It is undeniable that international
institutions such as the UN or the World Bank operate under a different legal regime compared
to transnational corporations. The public–private divide, with all of its problems, provides an
important stock of knowledge to elaborate this difference. Granted, there are attempts at build-
ing overarching legal regimes, in particular, by using human rights.123 But even if some aspects
of human rights apply directly to private institutions,124 a plethora of differences remain.125
The distinction between public and private law responds to a fundamental differentiation in
modern societies. Most will agree that, whatever the eventual definitions, private action – in
particular, private economic activity – and public action belong to different social spheres

119
E.g., Kadi, supra note 106; Bundesverfassungsgericht, Bananas, Case 2 BvL 1/97, Judgment of 7
June 2000; ECtHR, Bosphorus v Ireland, Appl. No. 45036/98, Judgment of 30 June 2005.
120
See Section 2.B.2 above.
121
Some even contest the feasibility of the distinction, see Section 2.A.3 above. See also L. Casini,
‘Down the Rabbit-Hole’: The Projection of the Public/Private Distinction beyond the State’, 12 IJCL
(2014) 402, at 419ff.
122
Fraser, supra note 70.
123
Teubner, supra note 31; Viellechner, supra note 117.
124
OECD Guidelines for Multinational Enterprises, available at https://​www​.oecd​.org/​corporate/​
mne/​www​.oecd​.org/​daf/​inv/​mne/​48004323​.pdf (last visited 5 January 2023). From the rich theoretical
debate, see Watt, supra note 33, at 400–2.
125
U. Kischel, Rechtsvergleichung (Beck 2015), at 345ff.
284 Handbook on global constitutionalism

and must respond to different operational logics and justificatory requirements.126 Public and
private law provide the legal frameworks for activities that follow different rationales. Most
importantly, private law allows actors to act solely in pursuit of their self-interest, whereas
public law requires a higher standard, often coined as the pursuit of a common interest.
Though of continental European origin, the distinction has spread through the world of
common law. It is important to note that the United Kingdom shares this understanding of
public law.127 The experience of the USA is different, but no other legal order has a comparable
tradition in regard to constitutional adjudication. And, even with respect to it, the twentieth
century witnessed the consolidation of administrative law.128
Of course, there have been attempts to overcome the public–private divide, the most notable
example being state socialism, but its consequences were highly dysfunctional. It is difficult
to apply the distinction to certain features of global governance or to Chinese State-Owned
Enterprises; however, that alone gives no reason to abandon it. The apparent hybridity of some
institutions, often advanced as an argument against the distinction,129 rather reinforces it – any
observation of hybridity requires an understanding of the individual components that render
something hybrid. For instance, a hybrid car is a car that uses a combustion engine and an elec-
tric motor, and a mule is a cross between a horse and a donkey. There are, as always, difficult
cases of qualification, but this does not undermine the utility of conceptual differentiations.

2 Publicness and common interest

Concepts enable us to understand and deal with reality. Our overall aim is to provide a legal
concept in line with calls in world public opinion for effective and legitimate international
action that advances common, or public, interests. According to world public opinion, the
public character of an act thus derives from its relation to common interests. It depends on the
social sphere from which it originates. If the activity is part of the sphere where self-interest is
a sufficient justification, the act is private; if it belongs to the sphere where common interests
are predominant, it is public. We therefore define the publicness of international authority and
international public law in accordance with the basic differentiation in modern societies. Of
course, the differentiation is less clear in world society than in most domestic societies, but it
should be apparent that the UN, the Basel Committee and the World Bank are categorically
different from, say, Academi, Goldman Sachs, or Exxon.
Contrasting this approach with other understandings of publicness further exposes its main
thrust. In public international law, there is a widespread understanding that international law
is public because it governs the relations between public institutions, with its opposite being

126
This goes back to Hegel, supra note 13, at paras 182ff. For contemporary society, cf. T. Parsons,
The Structure and Change of the Social System (1951); N. Luhmann, Soziale Systeme: Grundriss einer
allgemeinen Theorie (Akademic 1984); H. Arendt, The Human Condition (University of Chicago Press
1958), at 22ff; recently, see A. Honneth, Das Recht der Freiheit: Grundriss einer demokratischen
Sittlichkeit (Suhrkamp 2011), at 317ff.
127
M. Freedland, ‘The Evolving Approach to the Public/Private Distinction in English Law’, in J.-B.
Auby and M. Freedland (eds), La distinction du droit public et du droit privé: regards français et britan-
niques (2004) 101, at 105–6; see also M. Loughlin, ‘The Nature of Public Law’, in C. Mac Amhlaigh et
al (eds), After Public Law? (2013) 11, at 14–15.
128
Most notably in the Administrative Procedure Act of 1946, 60 Stat. 237; see R. Stewart, ‘The
Reformation of American Administrative Law’, 88 Harvard Law Review (1974–1975) 1667.
129
Alvarez, supra note 91.
 Global constitutionalism and international public authority 285

private international law (or conflict of laws).130 But as global governance studies have shown,
there are more actors involved than states. Another understanding uses the public–private dis-
tinction to define the competences of (domestic) administrative courts131 or a specific regime
of (domestic) administrative responsibility.132 This is also not an option for the international
realm since such institutions or regimes hardly exist there.133 Closer to our interest is the
definition whereby ‘public’ refers to a relationship of subordination not justified by direct
consent.134 However, the convoluted structure of most instances of global governance makes
it nearly impossible to define ‘publicness’ in terms of hierarchy or asymmetric relationships.
Moreover, hierarchy and asymmetric relationships imply an element of ‘authority’, and we do
not wish to equate publicness and authority.
According to yet another conception, an institution is public if it operates under a privi-
leged legal regime. In the past, one function of public (or administrative) law was to protect
administrative institutions against judicial review by the common courts. This definition
is persuasive in light of the concerns articulated in world public opinion, given the broad
immunity of international institutions in domestic courts and the scarcity of international
review. Immunities raise doubts about the legitimacy of their acts. Indeed, some institutions
advance policies that would not withstand the control of domestic courts, as the saga of the
Kadi cases demonstrates.135 However, this immunity derives from the international character
of those institutions. Therefore, it would make little sense to also use this feature for defining
publicness.
By contrast, in our context, it makes a lot of sense for publicness to turn on the pursuit of
a common interest or common good.136 This understanding comes with a considerable pedi-
gree.137 It already existed in antiquity, as reflected in the distinction in Roman law between
ius publicum and ius privatum, although one should certainly not overlook the differences
between Roman society and today’s society.138 For our purpose, the pursuit of a common
interest hinges on the legal mandate, whatever its legal qualification, including soft law. We
thus define an exercise of authority as public if the actor claims that the legal basis of the act
mandates it to advance a common interest.

130
On this, see Section 2.A.1 above.
131
Readers with a background in the common law should note that this function renders the public–
private distinction highly important in many domestic legal orders.
132
C. Mac Amhlaigh, ‘Defending the Domain of Public Law’, in C. Mac Amlaigh et al (eds), After
Public Law (Oxford University Press 2012) 103 (regarding para. 6 of the UK Human Rights Act 1998
(c42), which establishes responsibility for public entities only).
133
Exceptions include the administrative tribunals of international organizations. In detail, see
Schermers and Blokker, supra note 79, at 462–7.
134
A. Cassese, ‘“Le droit tout puissant et unique de la société”: Paradossi del diritto amministrativo’,
59 Rivista trimestrale di diritto pubblico (2009) 879; Kelsen, supra note 69, at 281ff.
135
Cf. Avbelj, Fontanelli and Martinico, supra note 106; Kadi, supra note 106.
136
Although we use ‘common interests’ and ‘common good’ as synonyms, we are aware that they
are linked to different traditions of political and legal thought. See A. Hirschman, The Passions and the
Interests (Princeton University Press 1977).
137
E.g., Rousseau, Du contrat social ou Principes du droit politique (1762), book 1, ch. VI and VII;
Hegel, supra note 13, para. 258; Rawls, supra note 100, at 35ff, 201ff. Recently, see J. Best and A.
Gheciu, ‘Theorizing the Public as Practices: Transformations of the Public in Historical Contexts’, in J.
Best and A. Gheciu (eds), The Return of the Public in Global Governance (2014) 15, at 32.
138
Arendt, supra note 126, at 38.
286 Handbook on global constitutionalism

3 The claim to advance a common interest

The definition lends itself to legal operationalization because it refers to the legal basis of an
act and is therefore open to legal interpretation. The first interpretative step is to determine the
norm that the actor invokes explicitly or implicitly as a legal basis, followed by an interpreta-
tion of that norm to determine if it requires the pursuit of a common interest. Other conditions
of legality that the act must meet are not relevant for the purposes of its classification as public.
We focus only on the claim to have a mandate to pursue a common interest because the pub-
licness criterion that we propose only defines the legal regime that determines the conditions
for the legality of the act. In addition, for an act to qualify as public, it suffices that there is
a reasonable presumption of acting under the claimed mandate. Whether the mandate actually
exists and covers the activity is a different question – one of legality – which is to be settled
subsequently in accordance with the respective substantive and procedural requirements.
It does not affect its qualification as being public. As in the case of domestic legal orders,
illegal exercises of public authority exist.139 This is where our definition differs from Benedict
Kingsbury and Megan Donaldson, who require that an act meets certain substantive or proce-
dural principles in order to be considered public.140
This complex definition serves another important function: to distinguish the common
interest from the activities of public interest groups. Whereas such groups claim to further
the common interest, they lack a specific mandate. Indeed, many public interest groups, such
as Greenpeace or Transparency International, play an important role and contribute to the
common interest. They may be mandated by their members, but they claim to advance inter-
ests of individuals that extend beyond their membership. International organizations, by con-
trast, are entitled to advance policies in the common interest. International as well as domestic
law makes a clear difference in this respect. Of course, some might consider international
organizations to be just as self-interested as private corporations and as demonstrating less
public spirit than some non-governmental organizations. However, from a legal standpoint,
the difference in the mandate to pursue the common interest is all too obvious.
Our understanding of what makes an act public begs the question regarding how to define
a common or public interest in a pluralistic world society. As Kelsen, critical legal studies,
and feminism have shown, to define something as public is a highly political issue that has
important repercussions.141 Several possibilities come to mind. One might resort to a list of
issues believed to be too important to be left to the private realm. However, such a criterion is
too vague and too contested. Jeremy Waldron, similar to Kingsbury and Donaldson, suggests
certain elements of the public rule of law. Among them are the idea of a rule by legal rules,
the limitation of discretionary powers and the availability of legal review.142 However, this
approach certainly does not grasp what world public opinion sees as the core international

139
Mutatis mutandis, this idea has been applied by the International Court of Justice, in the Certain
Expenses of the United Nations (Article 7, paragraph 2, of the Charter), Advisory Opinion, 20 July 1962,
ICJ Reports (1962) 151. Only in cases of gravest shortcomings is the act null and void. Cf. C-275/10,
Residex Capital IV CV v Gemeente Rotterdam, [2011] ECR I-13067.
140
B. Kingsbury and M. Donaldson, ‘From Bilateralism to Publicness in International Law’, in U.
Fastenrath et al (eds), From Bilateralism to Community Interest (Oxford University Press 2011) 79, at
84.
141
See Section 2.B.2 above.
142
J. Waldron, ‘The rule of law in contemporary liberal theory’ 2 Ratio Juris (1989) 79.
 Global constitutionalism and international public authority 287

common interests, namely poverty reduction, human rights advancement, environmental

protection, and economic stability.
In the end, it is only the public itself – that is, a social order and its institutions – that can
define common interests. An actor may thus claim to articulate a common interest if it is
mandated to act on behalf of a social order (including the international community). At first
sight, this replaces one problematic definition with another: What is a social order? Two
thousand years of political theory have dealt with this question.143 Given the deep cleavages in
the discussion, it is advisable to rely on the law instead of tying the definition of publicness to
a specific theory. This also allows for a plurality of approaches. At the same time, there is wide
consensus that a community requires at least an institutional framework for the articulation of
a common interest.144 That is a question of the interpretation of its mandate.
Of course, many theoretical and empirical questions persist. For example, one might debate
whether the international community is a community of states or of individuals or whether
the UN General Assembly is mandated to articulate its interests.145 Be that as it may, the term
‘international community’, though contested, is well established in international law and poli-
tics, as is the term ‘community interest’.146
To sum up, publicness is established by reference to the legal mandate – hard or soft –that
the act invokes explicitly or implicitly. If the mandate equips an international institution with
the power to define and pursue a common interest, any authority that the institution might
exercise in this frame should be qualified as public. But what is authority?

C Authority

To provide an understanding of the authority for international institutions is just as intricate.

Traditionally speaking, public authority is equated with state power, sovereignty, and the
legitimate means of coercion. On this account, international institutions would not exercise
authority. However, many citizens experience international institutions as having a powerful
impact on their lives. Our concept of international public authority is a scholarly response
that elaborates such perceptions. It credits the fact that impact can have many faces other than
physical coercion and overwhelming force, so that a broader definition of authority is needed.
Inspired by world public opinion and the core idea of the public law approach, we take
freedom to be the decisive criterion for broadening the concept of authority. Authority is
defined as the acts based on international law that impact other actors’ freedom. Such impact
may materialize by changing a legal position or by legally obliging a person to act in a certain

143
For a review of recent proposals, see M. Koskenniemi, ‘Projects of World Community’, in A.
Cassese (ed.), Realizing Utopia: The Future of International Law (2012) 8. Further, see A. Paulus, Die
international Gemeinschaft im Völkerrecht (Brill 2001), at 9ff; for a definition of publicness on the basis
of discourse theory, see M. Goldmann, ‘A Matter of Perspective. Global Governance and the Distinction
between Public and Private Authority (and Not Law)’, 5 Global Constitutionalism (2016) 48; in the
context of the EU: von Bogdandy, supra note 84.
144
Note that their capacity to articulate a common interest is the reason why international organiza-
tions enjoy legal personality. See Ruffert and Walter, supra note 99.
145
For a sceptical outlook, see Paulus, supra note 143, at 326–8.
146
B. Simma, ‘From Bilateralism to Community Interest in International Law’, 250 Recueil des cours
(1994) 221; Paulus, supra note 143, at 225ff; see also the International Law Commission, Articles on the
Responsibility of International Organizations, Doc. A/66/10 (2011), Arts 33(1), 42(b), 48(1)(b).
288 Handbook on global constitutionalism

way or to suffer a sanction, but it may also be factual. The impact may affect humans not only
individually but also – as is usually the case with international public authority – collectively
– that is, when an act addresses entities such as states.147
To posit freedom as the guiding idea is, of course, a choice, but it is a reconstructive
one supported by both theoretical reflection and legal developments. In many legal orders,
public law is guided by this idea. Freedom, as we understand it, refers to the freedom of
individuals – that is to say, both their private and their public freedom. The public freedom of
individuals consists, on the most abstract level, in meaningful inclusion in the political process
that determines the common interest. Private freedom embraces the full development of the
individual.148 This concept of freedom is far broader than that of liberty, which merely stands
against interference with rights such as property rights. It squares neatly with the triad of obli-
gations to respect, protect and fulfil in contemporary human rights law.149 Acts that impact on
this freedom are so important that they require specific justification. The legal aspect of that
justification is our topic.
Our understanding of international public authority as international law-based acts impact-
ing other actors’ freedom is broad, but it is distinct from yet broader concepts such as power,
hegemony, dominance or leverage. Exercises of international public authority imply the claim
to be mandated by international law to impact somebody else’s freedom. As is the case with
publicness, this does not mean that an illegal act would disqualify as an exercise of authority.
There can be illegal exercises of authority, and the act might become the object of a legal
dispute. In many legal orders, it is crucial that an exercise of public authority (puissance
public, öffentliche Gewalt) can be challenged as illegal and quashed by appropriate institutions
without losing its qualification as an exercise of public authority. Similarly, it is worth remind-
ing our readers that this understanding of authority is to be distinguished from legitimacy:
authority implies a rebuttable claim to legitimacy.150 In this respect, our concept is in line with
Joseph Raz’s influential understanding of authority.151
What does it take to affect freedom? The authority of domestic public institutions rests,
according to received wisdom, on their competence to use physical coercion to make a person
or entity act as they command. Sometimes, acts of international institutions are backed up by
credible means of coercion, such as some UN Security Council resolutions.152 However, this is

147
See already von Bogdandy, Goldmann and Dann, supra note 118, at 1381–2.
148
The four freedoms of Roosevelt, see Roosevelt, Four Freedom Speech, State of the Union
Address, 6 January 1941; see also the preamble of the UN Charter.
149
Committee on Economic, Social and Cultural Rights, General Comment no. 12, 12 May 1999,
para. 15; A. Eide, ‘Economic, Social and Cultural Rights as Human Rights’, in A. Eide, C. Krause and
A. Rosas (eds), Economic, Social and Cultural Rights. A Textbook (Brill 2001) 9, at 23–4.
150
In international law, the two concepts are sometimes presented as synonymous, for example in the
New Haven School, see J. Hathaway, ‘America, Defender of Democratic Legitimacy’, 11 EJIL (2000)
121; W. Reisman, The View from the New Haven School of International Law (Cambridge University
Press 1992).
151
J. Raz, The Authority of Law (Oxford University Press 1979), 5ff; J. Raz, The Morality of Freedom
(Oxford University Press 1988), 22ff, 53ff, 69.
152
E.g. SC Res. 678 (1990). Some might doubt that these acts can still be considered as the public
authority of an international institution. We assume that this is the case so long as the institution is not
just a mask for one hegemonic state.
 Global constitutionalism and international public authority 289

not typically the case. We identify and explain three ‘softer’ and more common mechanisms
through which international institutions might affect freedom.153
One type of mechanism that often provides policies with ‘teeth’, so to speak, are financial
sanctions or benefits. Related is a further mechanism that ensures compliance via the threat
of exclusion from the international community if a state does not heed the policies of inter-
national institutions. It rests on an important feature that undergirds international institutions’
authority: reputation. According to this logic, it is also possible to argue that non-binding
or even non-legal acts can amount to exercises of international public authority in that they
impact freedom.154 Whoever violates non-binding or non-legal instruments does not need to
fear damages or reprisals. But they might face other, more indirect sanctions.
Second, the authority of international acts can also rest on their capacity to shape the terms
of international discourse. An important example is the effect of international acts on the dis-
tribution of argumentative burdens.155 The function of precedents is illustrative. International
judicial decisions are not considered binding beyond the parties to the dispute.156 And, yet, the
dynamics of legal discourse and the normative expectation that like cases should be decided
alike trigger argumentative burdens for those who wish to make a legal argument.157 In order
to understand such authority, it is important to widen the view towards the social context and
discursive construction of authority.158
Third, acts of international institutions may further impact the freedom of others by influ-
encing their frames, knowledge, and perceptions.159 Governance by information has become
a particularly important instrument on the global level. Michel Foucault has analysed its
function in the modern state.160 His research on gouvernementalité emphasizes that binding
law is only one form of governing people. Once the modern state started aiming at governing
the economy and people’s social life, it developed a multiplicity of further instruments in order
to discipline people, to guide them and frame their mindsets.161 International institutions seek
recourse to governance by information in order to advance international policies. Examples
abound. The OECD provides comparative data about the performance of school policies. Its

153
In detail: Goldmann, supra note 17, at 337–58.
154
Presuming that all legal acts, hard and soft, are authoritative. J. Pauwelyn, R. Wessel and J.
Wouters, ‘Informal International Law as Presumptive Law: Exploring New Modes of Law-Making’, in
Liivoja and Petman (eds), International Law-Making (2014) 75, at 89.
155
I. Venzke, ‘Semantic Authority, Legal Change, and the Dynamics of International Law’, 12 No
Foundations (2015) 1.
156
Statute of the International Court of Justice 1945, 1 UNTS 993, Art. 59.
157
I. Venzke, How Interpretation Makes International Law: On Semantic Change and Normative
Twists (Oxford University Press 2012), at 62–64; see WTO, European Communities – Measures
Prohibiting the Importation and Marketing of Seal Products – Report of the Appellate Body, 22 May
2014, WT/DS400/AB/R.
158
Cf. H. Hart, The Concept of Law (Clarendon 1994), at 254–259. See further I. Venzke, ‘Between
Power and Persuasion: International Institutions’ Authority in Making Law’, 4 Transnational Legal
Theory (2013) 354; d’Aspremont, supra note 54, at 192–4; Friedmann, supra note 84, at 71.
159
E. Goffman, Frame Analysis: An Essay on the Organization of Experience (Harvard University
Press 1974); Regarding the psychological foundations, see R. Ryan and E. Deci, ‘Intrinsic and Extrinsic
Motivations: Classic Definitions and New Directions’, 25 Contemporary Educational Psychology
(2000) 54.
160
M. Foucault, Surveiller et punir. Naissance de la prison (1975), at 36.
161
M. Foucault, Sécurité, territoire, population (1977–1978) ; M. Foucault, Histoire de la sexualité
(1976).
290 Handbook on global constitutionalism

Program for International Student Assessment (PISA) publishes detailed reports every three
years as well as a ranking list.162 The UN Development Programme developed the Human
Development Index indicating the level of development, assessing the overall outcome of
domestic politics.163
Which acts ultimately amount to exercises of international public authority hinges on the
degree to which they impact freedom. Where to draw the line is a question of judgement or
political choice. Our theoretical framework cannot substitute such judgment or choice, but it
can inform it.

4 INTERNATIONAL PUBLIC LAW

Once an act is identified as an exercise of international public authority, it needs to meet the
standards of procedural and substantive principles of international law. Legal scholarship
may reconstruct a set of standardized instruments that facilitate the identification of acts of
international public authority and render a legal regime applicable to them, thereby ensuring
a basic level of legitimacy.164 This reconstruction proceeds in a dialectical fashion. As with
legal principles generally, it relies on trends in the practice of international institutions that
one might consider from the vantage point of freedom as particularly legitimate exercises of
international public authority.165 Many of these principles overlap with those advocated by the
literature on global constitutionalism and global administrative law.166
One can distinguish procedural and substantive principles. Procedural principles have been
in the focus of much of the literature on global administrative law. One can summarize these
principles with the triad of participation, transparency, and accountability. Each of these prin-
ciples finds ample recognition in international institutional practice. Institutional practice has
improved in respect of each of them over the last decades, even though much remains to be
criticized.167 It is being argued that these principles only apply where they are in the member
states’ best interests.168 Nevertheless, it stands to reason that many international organiza-
tions have introduced standards of participation, transparency, and accountability that apply

162
A. von Bogdandy and M. Goldmann, ‘Taming and Framing Indicators: A Legal Reconstruction
of the OECD’s Programme for International Student Assessment (PISA)’, in K.E. Davis et al (eds),
Governance by Indicators: Global Power through Classification and Rankings (2012) 52.
163
K. Davis, B. Kingsbury and S. Merry, ‘Indicators as a Technology of Global Governance’,
Institute for International Law and Justice Working Paper No. 2 (2010), at 22ff.
164
Cf. Goldmann, supra note 17, at 399 et seq.
165
A. von Bogdandy, ‘The Past and Promise of Doctrinal Constructivism: A Strategy for Responding
to the Challenges Facing Constitutional Scholarship in Europe’ 7 International Journal of Constitutional
Law (2009) 364; Habermas, supra note 103.
166
A. Peters, ‘Compensatory Constitutionalism: The Function and Potential of Fundamental
International Norms and Structures’, 19 Leiden Journal of International Law (2006) 579; B. Kingsbury
and M. Donaldson, ‘Global administrative law’ (2015) Max Planck Encyclopedia of Public International
Law, (Oxford University Press), mn 26 et seq.
167
Overview: Benveniśtî, The Law of Global Governance (Brill 2014); M. Goldmann, ‘Internationales
Verwaltungsrecht’ in Eifert, Möllers and Voßkuhle (eds), Grundlagen des Verwaltungsrechts, Band 1
(3rd edn, 2022), 325, 387.
168
I. Lischewski, Lawful by Design. Measuring Procedural Justice in Global Governance (Cambridge
University Press 2022).
 Global constitutionalism and international public authority 291

across the board, not least in the hope of tapping world public opinion to render their policies
effective.
The advantage of procedural solutions is that they skirt the contingency of substantive
choices to some extent. They rest on the conviction that just outcomes will derive from just
decision-making processes and adequate control mechanisms. However, the persistant high
levels of inequality within and among nations and the frequent failure of states and inter-
national institutions in adequately addressing global threats makes it necessary to turn to
substantive principles.
A review of international practice, which would exceed the scope of this chapter, would
probably yield three recurrent substantive principles: human rights; sustainability; and
common but differentiated responsibility. The application of core human rights to interna-
tional institutions is established in legal doctrine.169 This applies even though responsibility
for informal institutional structures is difficult to come by,170 and despite the deficits in inter-
national institutional practice.171 In fact, certain deficits in implementation do not affect the
legal status of principles. Moreover, sustainability has mushroomed as a substantive standard
for global justice. In essence, it demands equal respect for economic, environmental and social
factors. Spreading from environmental law172 to finance173 and development,174 it has become
a meta-principle that addresses essential interests common to the international community,
while skirting fundamental disagreements regarding other constitutional principles like human
rights and democracy. Lastly, negotiations in the frame of the UN Framework Convention on
Climate Change are guided by the principle of common but differentiated responsibility.175 It
is not entirely without precedent in international law because the economic power and size of
countries have played a role in a number of respects for decades, for example with regards to
membership contributions. The novelty is that it now modifies the idea of sovereign equality if
it comes to treaty obligations in regimes with a highly distributive character.

5 OUTLOOK

Some might consider that the project of translating world public opinion into international
public law to strengthen multilateral institutions is too reminiscent of the hopes triggered by

169
E.g. F. Mégret and F. Hoffman, ‘The UN as a Human Rights Violator-Some Reflections on the
United Nations Changing Human Rights Responsibilities’ (2003) 25 Hum Rts Q 314; D. Bradlow, ‘The
World Bank, the IMF, and Human Rights’ (1996) 6 Transnational Law and Contemporary Problems 47.
170
Cf. Court of Justice of the European Union, Joined Cases C-105/15 P to C-109/15 P, Mallis
et al. v European Commission and European Central Bank, judgment of 20 September 2016,
ECLI:EU:C:2016:702.
171
P. Reinisch, International Organizations before National Courts (Cambridge University Press
2000) 169 et seq.
172
UNGA, Rio Declaration on Environment and Development, A/CONF.151/26 (Vol. I), 12 August
1992, Annex I, Principle 1.
173
For particulars, see J. Bohoslavsky and M. Goldmann, ‘An Incremental Approach to Sovereign
Debt Restructuring: Sovereign Debt Sustainability as a Principle of Public International Law’ (2016) 42
Yale Journal of International Law Online 13.
174
Cf. the UN Sustainable Development Goals: https://​sdgs​.un​.org/​goals.
175
C. Stone, ‘Common but Differentiated Responsibilities in International Law’ (2004) 98 American
Journal of International Law 276.
292 Handbook on global constitutionalism

the fall of the iron curtain. Since then, concepts such as state power, bilateralism, geopoli-
tics or realism have crept back to the forefront of global politics.176 Given the impotence of
international institutions in the light of pressing crises such as the climate crisis, global health
risks and their impact, armed conflict in many parts of the world, or the refugee crisis on the
Mediterranean Sea,177 a theory of international public authority might be regarded as insuffi-
cient and myopic. However, the international public authority approach neither suggests, nor
implies, a progression to a harmonious world wisely regulated by illuminated international
institutions. Far from it. As set out at the beginning, our basic stance reflects the ambivalence
of world public opinion. More importantly, many international institutions, while impotent in
some respects, continue to impact people’s lives in many ways. The International Monetary
Fund (IMF), for instance, is far busier now than in the decade preceding the global financial
crisis. And the negotiations in the framework of the Paris Agreement, whatever their ultimate
fate, show that political projects for powerful international institutions are not a relict of the
past. Many individuals have an acute awareness of international public authority. They mis-
trust the policies of international institutions while calling on them to improve their lot. The
international public authority approach considers this as both a rational and a realist reaction
and tries to give it a legal frame.

176
W. Mead, ‘The Return of Geopolitics: The Revenge of the Revisionist Powers’, 93 Foreign Affairs
(2015) 69.
177
See Lang and Wiener, Chapter 1 in this Handbook .
 PART IV

PRINCIPLES AND PRACTICES

20. Global constitutionalism and the rule of law
Mattias Kumm

INTRODUCTION

The rule of law is a political ideal whose widespread political endorsement across the globe is
complemented by a great deal of disagreement about its content. That disagreement is not only
a function of different legal traditions emphasizing different elements as central to the ideal,
reflecting particular institutional and ideological histories.1 Scholars also debate more gener-
ally whether the rule of law is a thin ideal, focused primarily on formal features of the law,
perhaps complemented by certain minimal institutional requirements, or whether it is a thicker
ideal, including further commitments to democracy and human rights. These disagreements,
I argue, are ultimately about the nature and moral point of the rule of law as an ideal. In order
to gain a better understanding of what is distinctive about the rule of law as an ideal in the
constitutionalist tradition, what is at stake in these disagreements and how best to resolve
them, the following first engages in a ground-clearing exercise and negatively distinguishes
and contrasts the rule of law to three related but distinct ideas: the rule by law, the rule of
men (or persons), and the rule of reason. Then the chapter spells out in more detail a positive
conception of the rule of law tied to global constitutionalism, again proceeding in three parts.
First, it reaps the fruits from the ground-clearing exercise and describes the ideal of the rule
of law in general conceptual terms clarifying its moral point: The rule of law is an ideal that is
focused on the conditions that law must fulfill in order to actually have the authority it claims
to have. Second, it lays out what that means in more concrete terms in terms of domestic con-
stitutional requirements, before describing some of its implications for critically assessing and
progressively developing the global legal order.

THE RULE OF LAW OR WHAT? THREE DISTINCTIONS

The Rule of Law, Not the Rule by Law

Positive law is not just and not even primarily a constraint on power, but a way of organizing
and enhancing its effective exercise. Even though power can also be exercised in other ways
– for example, by drawing on purely physically coercive means of the police and the armed
forces or by constructing algorithms or interface structures that effectively limit choices an
individual is able to make in a specific domain – the distinctive feature of the law is that its
effective operation presupposes engagement with human agency. Law seeks to guide and con-
strain human behavior by engaging its addressees as agents and demanding compliance with

1
For a comparison of the German Rechtsstaatsprinzip, the British Rule of Law and the French Etat
de Droit, see Loughlin (2010, pp. 312–41).

294
 Global constitutionalism and the rule of law 295

its requirements.2 In engaging human agency, law is an important tool for organizing officials
coherently and enlisting compliant legal subjects in the government’s cause. Rule by law will
in many contexts be an attractive option for the powerful to structure the effective exercise
of power. From the German Empire in the late nineteenth century to the Communist Party in
China today, resistance to human rights and genuine competitive democracy may well go hand
in hand with an embrace of law, legal forms and institutions as a way of exercising power.
If leaders want to enhance their power and profit from the transaction-cost reducing potential
of rule by law, a number of basic formal and institutional features will be of interest to them.
First, the formal features of the law, whose moral significance is often emphasized by legal
theorists, are exactly the features that make law an effective and favored mechanism for the
exercise of power. Lon Fuller, for example, famously argued that eight formal principles that
ideally characterize law – its generality, publicity, prospectivity, intelligibility, consistency,
practicability, stability and congruence – constitute law’s ‘internal morality’.3 What is con-
vincing about that claim is that substantively just and fair laws would do well to also exhibit
these formal features to an appropriate degree, if they are to fulfill their purpose. But these
formal features of the law would also make unjust laws more effective. Ex post facto laws,
secret law, contradictory laws and so on are unable to effectively guide behavior and engage
human agency. Whatever else they might be, Fuller’s formal principles are first and foremost
of instrumental significance. If those in power want to benefit from the transaction-cost
reducing potential of rule by law and enlist the addressees of the law for their purposes,
making them complicit in their own domination, they need to respect these formal principles.
The complicated relationship between what Fuller calls law’s internal morality and its use as
an instrument of power is not just a feature of Fuller’s eight principles. It is also a feature of
courts. A powerful elite running a large and diverse country would do well, in many instances,
to also establish impartial and independent tribunals enabling individuals to complain about
transgressions of the law by other lower officials and individuals. The availability of legal
remedies before independent and impartial courts is not just a morally attractive way to secure
the rights of individuals against official abuses. It is also an effective instrument to use the
individual and his interests to ensure that officials – the agents of the powerful – actually do
their job and implement the positive directives enacted by the powerful, instead of following
their own agendas. In that way courts with appropriate jurisdiction and individuals who have
standing to bring cases against officials are a cost-effective and decentralized way to ensure
official discipline and rein in agency costs.4
Whatever else the moral point of the rule of law may be as a positive ideal, it requires more
than rule by law. At a minimum, its point is negative: ‘to prevent the law from turning into
a sheer form of domination, a manageable servant to political monopoly and instrumentalism’
(Palombella 2010, p. 3). For that more than formal principles and basic judicial protection is
required.

2
That law operates through human agency means that it presupposes the possibility of noncompli-
ance, even if noncompliant behavior is generally subject to the threat of sanctions. For a recent discussion
on the relationship between law and the threat of sanctions, see Schauer (2015).
3
Fuller (1969).
4
For an analysis of a wide range of constitutional rules from this perspective see Holmes (2012,
pp. 189–215).
296 Handbook on global constitutionalism

The Rule of Law, Not the Rule of Men

So what safeguards might there be to ensure that law will not be used merely as an instrument
of domination by the powerful, even when the powerful rule by law? One response to that
challenge insists that what matter ultimately are the rulers. To the extent rulers rule by law,
the decisive question is whose will should be the law? On the one hand, there is the issue of
numbers. Should the will of one person, a small group or a majority determine what the law
is? Should the command of a sovereign monarch be law or should the law reflect the will of
the majority as it is established in a legislative process? On the other hand, the focus might be
on the moral qualities of the rulers. What matters, it has been claimed, is that those who wield
power (and use law as an instrument of power) are virtuous. Only if philosophers become
kings or kings become philosophers can justice prevail and arbitrary and capricious power be
banished, Plato claimed. His central treatise, The Republic, is a book about the education of the
philosopher rulers (Plato 1969, Book V, XVIII). In contemporary times, Confucian ideas of
virtue are resurrected by the Communist Party in China to defend the rule of what is claimed
to be a meritocratic elite.5 Talk of virtue has the practical function of detracting both from
the question of who is qualified to make the determination whether someone has the virtues
required for a particular position of power and what that implies with regard to concrete, but
inevitably contested policy choices.
What all of these positions have in common is that they defend some version of the rule of
persons, not of law. So what might it mean for law to rule? Here again the negative answer
is easier to describe than the full-fledged positive ideal: The idea of one person or a group
of persons ruling over another implies that the will of one or one group can bind the rest.
Insisting on the rule of law rather than the rule of persons means rejecting a conception of law
that ties the law to the will of an individual or a group of rulers. The idea of the rule of law
implies a rejection of any purely voluntarist account of law, whether those who do the willing
be a sovereign monarch, a meritocratic elite of functionaries rising through the ranks of a van-
guard party, or a majority of the people. This just raises new questions: is it not always the case
that persons make law and interpret the law? If so, in which way is a strictly non-voluntarist
account of law plausible?

The Rule of Law, Not the Rule of Reason (Recta Ratio)

One way to make a non-voluntarist conception of law plausible is to conceive of it as closely

tied to reason. But if the rule of law is incompatible with the rule of persons, it is also a mistake
to identify it with the rule of reason (recta ratio). The rule of law as a modern ideal is deeply
connected to an idea of legality that emphasizes the centrality of positive law. Natural law or
justice is not a helpful point of reference, because the point of law is to settle authoritatively
what is to count as just among persons who may reasonably disagree about what that requires
in specific circumstances (see Waldron 1999). If there is a consensus among contemporary
jurisprudential thinkers it is that generally the justness of a norm is neither a necessary nor
sufficient condition for it to be recognized as law. Unjust law is not a contradiction in terms,
nor is the idea of a just norm not recognized as law. The rule of law as an ideal is not simply

5
For a discussion see Bell (2015).
 Global constitutionalism and the rule of law 297

the ideal of good and just law. Gustav Radbruch might be right to insist that as a conceptual
matter we must understand law as aspiring to justice (see Radbruch 1932), but the rule of law
does not require that aspiration to be fully realized. That leaves a puzzle: if the rule of law is
not compatible with an account of legality that is merely formal or voluntarist and does not
simply embrace an ideal of natural law or justice either, then how can we make sense of it?
It does not help to answer that question by insisting on the idea that the rule of law is directed
against the arbitrary exercise of power. The question then becomes what exactly constitutes an
arbitrary exercise of power. The idea of ‘arbitrariness’ is not an answer, but just another way
of asking the question. The challenge is to flesh out the idea of arbitrariness in a way that does
not reduce it to either a minimalist set of formal requirements connected to Fuller’s ‘internal
morality of the law’, or ‘the will’ of a person or group of persons, or a maximalist idea of
justice, which makes the idea of the rule of law trivial by reducing it to the idea of the rule of
just law. In light of the discussion of the distinctions between the rule of law, on the one hand,
and the rule by law, the rule of men and the rule of reason, on the other, it is thus possible to
formulate the question more clearly: what might an ideal of the rule of law that requires the
non-arbitrary exercise of power amount to, that provides the resources to identify and criticize
abuses of law as a mere instrument of power, but does so from a perspective that is internal to
the law and not simply from the perspective of justice?

A FRESH START: A CONSTITUTIONALIST CONCEPTION OF THE

RULE OF LAW

The Rule of Law, Law’s Claim to Legitimate Authority and Arbitrariness

The conceptual contours of the normative space that is occupied by a political ideal of the
rule of law is best defined by the distinctive claim that law makes. The distinctive claim that
law makes is its claim to legitimate authority.6 Law implicitly insists that you are obligated
to do what it requires, irrespective of what you believe justice requires. If the law establishes
a speed limit of 130 kilometers per hour, it is irrelevant that you rightly believe that you could
also exercise reasonable care and drive safely doing 200 kilometers per hour under the cir-
cumstances, given your superior driving skills, the excellent road conditions and the technical
features of the car you are driving. The fact that the law requires you not to drive more than
130 kilometers per hour settles the issue. The duty to do what the law requires replaces what-
ever other considerations you deemed to be relevant for guiding your behavior. As Raz (1979)
puts it, legitimate authority provides exclusionary reasons for action. That is what it means for
law to claim authority.
How then is law’s claim to legitimate authority connected to the ideal of the rule of law?
The problem of law is that even though it always claims authority, it does not necessarily have
the authority it claims to have. Whether or not law actually has the authority it claims to have
is a contingent question. The most plausible way to understand the distinct ideal of the rule
of law, I propose, is that it seeks to define the conditions under which law actually has the

6
On this point, I agree with Joseph Raz (1979, pp. 28–33). Linking law conceptually to claims
of authority is more precise then linking law to a ‘claim to rightness’ (Alexy 2010) or an ‘aspiration to
justice’ (Radbruch 1932) or other ways of fleshing out the ‘internal point of view’ (Hart 1960[2012]).
298 Handbook on global constitutionalism

authority it claims to have. A legal and political system that effectively institutionalizes the
rule of law is one that fulfills the conditions that need to be fulfilled for law to actually have
the authority it claims to have. The content of the rule of law thus becomes a function of the
normative grounds that justify its claim to authority. A conception of the rule of law is thus
dependent on a conception of legitimate authority.
Connecting debates about an adequate conception of the rule of law to the conditions under
which law rightly claims legitimate authority is a way to reframe debates about the rule of law
and the prevention of arbitrary power: If you believe, as arguably Kant did, that legitimate
authority is tied to the establishment of a positive legal order of any kind (see Weinstock
2017), then the minimal formal requirements for the existence of such a positive legal order
are the relevant requirements for an ideal of the rule of law. As a corollary, nothing the law
requires would count as arbitrary in the relevant normative sense of undermining law’s claim
to authority. Arbitrary power would simply be power not exercised legally. If, on the other
hand, you are a philosophical anarchist and believe that law only obligates to the extent it
accurately traces what justice requires, then your ideal of the rule of law will insist on a close
nexus between law and justice (Wolff 1970). Anything that does not comply with what justice
requires, would be arbitrary in the relevant sense. The criteria for arbitrariness that informs
the ideal of the rule of law is thus a function of what it takes for the law to actually have the
authority it claims to have.

Global Constitutionalism, Rule of Law and State Constitutional Requirements

However, what are the criteria for arbitrariness if you are neither a Kantian legalist nor a philo-
sophical anarchist? What if you are a constitutionalist? That question is of particular relevance,
given that the basic ideas drawn from the constitutional tradition of the American and French
revolutions have effectively been adopted by a majority of contemporary constitutions on all
continents and are reflected in universally binding human rights law. In that sense the univer-
salist project of eighteenth-century revolutionaries in France and the US after World War II
and after the end of the Cold War has become a global project. In the following, it must suffice
to describe rather than derive and argue for what I take to be the best understanding of constitu-
tionalism in the contemporary global context, as it relates to standards of legitimate authority.

DEFINING THE CONSTITUTIONALIST STANDARD OF

LEGITIMACY

In the constitutionalist tradition, law actually has the legitimate authority it claims if, and only
if, both in terms of the procedure used and results reached, it is justifiable in terms of public
reasons that those over whom laws claim authority might reasonably accept as free and equals
(the positive formulation) or cannot reasonably reject as free and equals (the negative formu-
lation), given reasonable disagreement about what justice and good policy requires. That is,
given that there is reasonable disagreement among free and equals about what justice and good
policy requires,7 legitimacy cannot plausibly be tied to justice actually being achieved. What

7
The modern classic here is Waldron (1999).
 Global constitutionalism and the rule of law 299

is required is that the procedures used and outcomes reached can be understood as good faith
reasonable effort to do justice to free and equals. That is the case if, and only if, those who
are addressees of the law might reasonably be imagined as accepting these results as free and
equals. If they can be imagined as reasonably accepting these results, it would be unreasonable
for them to reject them, even if they disagree with them in fact.
Note how this conception of constitutionalist legitimacy yields a particular understanding
of arbitrariness that goes beyond compliance with legal formalities without insisting on
full-fledged substantive justice: A legal imposition is arbitrary in the relevant sense if and to
the extent it is not justifiable to those on whom it is imposed as free and equals. A legal impo-
sition may be reasonably justifiable, even if it is not the best, fairest and most just substantive
solution to a given problem and even if it follows a procedure that is not the best, fairest and
most just.

FROM STANDARDS OF LEGITIMACY TO REQUIREMENTS OF

RULE OF LAW

Having connected the ideal of rule of law to the conditions under which law actually has the
authority it claims to have, and describing the standards for legitimate authority in the consti-
tutionalist tradition in abstract form, it is possible to move on to ask in more concrete terms,
what constitutional requirements the law has to fulfill to actually have the authority it claims
to have. That is, what are the concrete normative requirements of the rule of law in the consti-
tutionalist tradition understood in this way? What is the conception of constitutional legality
that fully reflects a commitment to the rule of law?8
The following list puts forward seven requirements that will simply be presented here,
without providing an argument as to how and why each plays a necessary role to operation-
alize the abstract standard of legitimacy described above. The first three concern basic insti-
tutional or procedural requirements, the second three concern substantive rights and the last
requirement concerns the legitimacy conditions connected to ensuring respect for the wider
international community.9
1. All legislative decisions of significant weight for those affected by it have to be made by
representative institutions, whose members were elected in free and fair periodic elections
based on an equal right to vote.
2. All acts of public authority are subject to judicial review by an independent and impartial
tribunal with the power to provide effective remedies, allowing all persons appropriately
affected by acts of public authorities to contest decisions as violative of their procedural or
substantive rights in a fair proceeding.

8
If the point of constitutional legality is to establish the conditions that ensure that law actually has
the authority it claims to have, the teleology of constitutional legality is identical to the teleology of the
rule of law. On the more general question of the relationship between concepts of law and the Rule of
Law see Waldron (2008).
9
The grounds for cosmopolitan dimension of constitutional legitimacy are developed in Kumm
(2013).
300 Handbook on global constitutionalism

3. All administrative decision-making must meet due process requirements, among other
things generally ensuring that addressees of administrative acts are put on notice and pro-
vided with an opportunity to comment on actions affecting them.
4. Rights enabling individuals to contest whether any infringements of liberty are justifiable.
5. Rights enabling individuals to contest whether any distinction made between them are
justifiable or violate the principle of equality.
6. Rights enabling individuals to contest the absence of meaningful possibilities to exercise
negative rights (social and economic rights, as well as negative rights interpreted as also
establishing positive protective duties).
7. Constitutional provisions requiring constructive engagement with the wider international
legal order of which it is a part, both in terms of enabling cooperation and participation in
treaty regimes and international institutions and in terms of requiring the domestic enforce-
ment of international law, subject to basic constitutionalist requirements.10

Rule of Law, Global Constitutionalism and Law beyond the State

If the rule of law is focused on precluding the arbitrary exercise of power, its scope cannot be
limited to the state level, because power is exercised also beyond the state: by powerful state
actors, by international organizations such as the European Union or the United Nations, or
by multinational corporations. As discussed above, a fully developed conception of the rule
of law beyond the state depends on an account of legitimate authority of law beyond the state.
This is not the place to recapitulate the wide-ranging literature on what the legitimacy of law
beyond the state requires. However, it is possible to discern a set of basic ideas that inform how
those committed to global constitutionalism identify, structure and interpret legal materials
and implicitly understand the legitimate authority that law claims.11 In the following I first
briefly describe three core ideas connected to an international rule of law before critically
discussing some often articulated concerns about the rule of law beyond the state.

10
Contrary to widely made implicit assumptions in constitutional theory and practice, national
constitutional legitimacy is not self-standing. Whether a national constitution and the political practices
authorized by it are legitimate does not depend only on the appropriate democratic quality and rights
respecting nature of domestic legal practices. Instead, national constitutional legitimacy depends, in part,
on how the national constitution is integrated into and relates to the wider legal and political world. The
drawing of state boundaries and the pursuit of national policies generate justice sensitive externalities
that national law, no matter how democratic, cannot claim legitimate authority to assess. It is the point
and purpose of international law to authoritatively address problems of justice-sensitive externalities of
state policies. International law seeks to help create the conditions and define the domain over which
states can legitimately claim sovereignty. States have a standing duty to help create and sustain an
international legal system that is equipped to fulfil that function. Only a cosmopolitan state – a state that
incorporates and reflects in its constitutional structure and foreign policy the global legitimacy conditions
for claims to s­ overeignty – is a legitimate state (Kumm 2013, p. 605).
11
The ideal of the rule of law in the global constitutionalist tradition competes with two quite
different positions found among international lawyers, both traditionally associated with positivism:
voluntarist statism (all international law is to be understood as emanating from the consent of each state
to be bound) and conventionalism (practices of recognition engaged in by relevant officials tell us how
to identify, structure and interpret legal materials). For a contemporary reformulation of the latter see
d’Aspremont (2011). For a general discussion see Kammerhofer (2015).
 Global constitutionalism and the rule of law 301

THE INTERNATIONAL RULE OF LAW AS AN IDEAL: THREE

DEFINING FEATURES

Global constitutionalists imagine international law as the law of an international community

constituted by law. Three structural features are central to an international law imagined in
this way.
First, the point of law in the constitutional tradition is to make collective action possible to
shape the world, rather than just be subjected to it. This is also true for law beyond the state.
One of its core points is to build capacity for collective action, to overcome coordination
and cooperation problems and shape the world and secure the production of global public
goods (Petersmann 2017). That is why those engaging with international law from the global
constitutionalist position tend to embrace and seek to foster enabling capacities of multilateral
institutions and emphasize non-consensual forms of law-making and development, whether
through customary international law or the interpretation of general principles of law. The
paradigmatic form of international law is not the transactional bilateral treaty based on the
consent of each state to be bound, and the legitimacy of international law does not depend on
the will of a state to be bound. Instead other participatory jurisgenerative processes tend to be
highlighted.
Second, sovereign states have a central role to play, but the role they play is circumscribed
by international law with regard to both its external and internal functions. Externally, states
serve the function to mediate the national and the global by engaging the wider global com-
munity, participating in the international jurisgenerative process and by faithfully executing
international law within its jurisdiction. With regard to its internal function international law
has pierced the veil of sovereignty and requires states to relate to those within its jurisdiction
in a way that respects constitutional principles. States have the function to establish the legal
framework within which those permanently under its jurisdiction practice self-determination,
both individually and collectively. Their core internal function is to create institutions, proce-
dures and practices that ensure that the rights of those within their jurisdiction are respected,
protected and fulfilled. Fundamentally the individual person – as free and equal – is the
ultimate point of reference for the justification of public authority, not the nation, not a com-
munity of faith, not a class and not a culture or civilization.
Third, a commitment to the rule of law is connected to the general prohibition of war as
a way of settling disputes. Except for the case of a state defending itself against an armed
attack (see Art. 51 UN Charter), the use of force is prohibited (see Art. 2 IV UN Charter)
unless specifically authorized by the UN Security Council (see Art. 42 UN Charter). Disputes
are to be settled peacefully (see Art. 2 III UN Charter), if need be by a court or tribunal.

THREE CHALLENGES

It is possible to identify three concerns that are raised about an international law imagined in
light of an ideal of the rule of law that has such a structure. They relate to fragmentation and
legal pluralism in the global legal order (1); deep diversity (2); and the priority of power (3).
The significance of the first two, I argue, is widely exaggerated as concerns for the rule of law,
whereas the third is too often misunderstood.
302 Handbook on global constitutionalism

A great deal has been made in recent decades of legal pluralism and the fragmentation of
international law as a problem for the rule of law. Legal pluralism can refer to different things.
On the one hand, it can refer to a plurality of sources. On the other hand, it might refer to
a plurality of legal systems.
With regard to a plurality of sources, the issue is not just that in international law there are
different sources with no generally recognized hierarchies between them: treaties, customary
international law and general principles coexist on the same level. The past decades have seen
a diversification of law-making and law-interpreting actors as well as the expansion of the
scope of international legal regulation. A wide range of new actors, international organizations
with law-making powers (see Alvarez 2005) or courts and tribunals (see Romano et al 2014),
making decisions have joined the scene.12
The plurality of sources may become a problem, if that plurality meant that the system
becomes incoherent or it establishes contradictory requirements. It would be a problem for
the rule of law, if addressees of the law were to find themselves in a situation where they are
confronted with competing legal norms, one requiring that A be done and another prohibiting
A. A well-developed legal system usually has the resources to integrate a plurality of sources
establishing rights or duties by establishing secondary norms that determine when and under
which circumstances a norm takes precedence over another. A centralized legal system, as
it characteristically exists on the state level, would typically have a constitution establishing
the highest norms and centralized institutions to legislate and adjudicate issues, when con-
flicts arise. However, international law is not centralized in that way. It is more fragmented.
Notwithstanding this fragmentation the plurality of sources of law is not generally a problem,
because there are adequate legal resources to address these kinds of conflicts: There are some
legal hierarchies (jus cogens norms, Art. 103 UN Charter), there are other conflict rules (the
more specific rule prevails (lex specialis), the rule enacted last in time prevails (lex posterior)),
as well as the usual techniques for interpreting norms in a way that preclude direct conflicts
between them.13 Not surprisingly, and notwithstanding a great deal of academic writing on this
issue, real conflicts are few and far between.
More challenging is the existence of a plurality of legal systems. Does it not undermine the
rule of law, that there can be legally irresolvable conflicts between different legal systems?
What if EU law requires something that the law of a member state prohibits constitutionally?
What if UN law requires something that violates EU law? The basic assumption underlying
much of this discussion is that each legal system determines what legal obligations there are
ultimately on the basis of its own internal standards.14 This might be a real problem in a world
of radical legal pluralism; where the ultimate legal rules constituting different legal systems
were grounded in radically different understandings of the prerequisites for legitimate author-
ity and were radically self-contained, allowing no constructive engagement with the outside.
But the problem is significantly attenuated if the internal standards with regard to each system
would be compatible with the standards of other systems. For example, if the EU refuses to

12
In the domestic context legal pluralism often refers to the coexistence of state and non-state – often
religious or tribal – sources of law, see Merry (1988).
13
For a study of these issues see Koskenniemi (2006).
14
Much of the literature takes for granted a Hartian jurisprudential framework, assuming that a legal
system is ultimately constituted by a rule of recognition, see Hart (1960[2012]). Note how the criterion
for a legal system is in that respect identical to a ‘self-contained legal regime’.
 Global constitutionalism and the rule of law 303

enforce a UN Security Council Resolution on the grounds that it would violate human rights to
do so, there would not be a problem if it turned out that the validity of the UN Security Council
Resolution is itself dependent on being compatible with similar human rights standards as
a matter of international law. Here a whole school of thought organized around the concept of
‘constitutional pluralism’ has emerged which insists that the plurality of legal systems we have
in fact are systems where the internal standards of legality are in part substantively convergent
and in part sensitive to the outside by integrating concerns for the coherence of the wider
whole.15 That is, what underpins each legal order is a common constitutionalist understanding
of its legitimate authority comprising basic principles that are recognized across legal systems
and facilitate the resolution of conflict. This does not make the theoretical possibility of
irresolvable legal conflict disappear, but it suggests that these conflicts will generally be rare
because of mutually accommodating doctrines. Also, when conflicts do occur, they often take
the form of contestation over principle in contexts where a decision-maker in another legal
system has failed to take them into account. Such contestatory engagement more often than
not leads to a more reasonable settlement, rather than a dramatic standoff. Even when there
is a dramatic standoff, there are circumstances where such a standoff better serves rule of law
principles properly understood then the smooth and effective functioning of oppressive laws.
In that way legal pluralism constrained and guided by constitutionalist principles should be
understood as a resource, not a threat to the rule of law.16
Is a conception of the rule of law informed by constitutionalist principles not ultimately too
normatively demanding for the international legal order, given its deep diversity? This ques-
tion can be understood in two different ways: first, it can be understood as a critical normative
question concerning the hegemonic and homogenizing force of an international rule of law
historically shaped by the West as it confronts legitimate diversity and difference across dif-
ferent traditions, cultures and identities. Second, it can be understood as a skeptical empirical
question about its reality and political feasibility, given the power relations in the world as they
are. Here diversity does not refer to the idea of legitimate difference, but the idea of powerful
resistance by actors who happen to disagree, whether they are reasonable or not.
Before I address either of these questions it is important to highlight a fact of central impor-
tance to lawyers. International law as it currently exists actually embraces constitutionalist
ideals. All of the three core features central to an international rule of law imagined within
a global constitutionalist framework described above are solidly grounded in existing positive
law. In that sense their embrace by existing international law is, for better or for worse, a matter
of fact. However deep diversity might be, it did not preclude whatever level of agreement was
necessary to establish basic constitutionalist commitments.
That raises the question of whether that law is not simply a hegemonic structure imposed by
the Western powers on the rest of the world. Assuming that such a criticism is geared towards
the relatively thick requirements couched in terms of rights, rather than the idea of collective
capacity building or the abdication of violence and the insistence on the peaceful settlement
of disputes, this is a debate that is too well rehearsed to require sustained engagement here. It
must suffice to make three short points. First, in practice there is no continent in which popular
movements have not embraced rights-based constitutionalism, often against the resistance of

15
Classical contributions are: Maduro (2003); Walker (2002); Kumm (2005). For a debate among
the protagonists see Avbelj and Komarek (2008).
16
For a similarly positive appraisal see Wiener (2008).
304 Handbook on global constitutionalism

established local powers who seek to deny rights in the name of culture, tradition and local
convention. Whether human rights are universally valid as moral principles or not, their appeal
is certainly not limited to the western world (and appears to be on the wane in the Western
world). The confident but misguided imperial European universalisms foisted on others at the
end of the barrel of a gun in the past, in the form of Christianity and ‘civilization’, appear to
have been replaced by a meek skepticism that remains unable to escape its Eurocentrism and
Western fantasies of power: The ‘West’ is imagined as capable of imposing human rights on
the rest of the world, while the active role that non-Western actors have played and continue to
play in building and sustaining the international legal order is apparently beyond imagination.17
Second, even though some rights are categorical and do not allow for contextually variant
application (for example, no torture or inhuman and degrading punishment), most rights are
couched in an abstract language of principle and require some kind of proportionality test on
application. Such a test is inherently sensitive to local circumstances and may legitimately lead
to considerable variance in the understanding of rights across jurisdictions. Third, rights are
applied and enforced internationally, to the extent they are enforced at all, only very deferen-
tially, typically allowing for a margin of appreciation in favor of more local state actors. Given
this structure, the concern is not so much that rights as universal standards are inappropriately
imposed elsewhere. Much more serious is the concern that persistent and grave rights viola-
tions occur without international law being equipped to support local groups and individuals
to effectively address and remedy those violations.
What about the claim that, notwithstanding the fact that international law in the books
appears to endorse constitutionalist ideals of the rule of law, in practice power relationships
determine the conditions under which law is given its due and when it is ignored? The charge
would be that much of what appears to be morally appealing in international treaties is simply
moral posturing and effectively cheap talk that is ignored much of the time. Dictators oppress
their subjects whether or not they have also signed and ratified international human rights trea-
ties (see Hathaway 2002), powerful states use force as they deem appropriate without much
concern for international law. And international institutions such as the UN Security Council
are likely to act mostly in cases where it is possible to cobble together a dubious coalition of
actors to do dubious things by dubious means, making it appear more desirable that they do
nothing. Exactly those features of international law that constitutionalists tend to focus on are
little better than forms of organized hypocrisy (Krasner 1999).
There is some truth in these claims, but there may be less of it than those who levy these
charges might believe.18 However, even to the extent they are true, the question is, what
follows from that? What does not follow is that law is inherently unable to address these types
of issues, that power is inherently anarchic, at least on the international level.19 More plausible
than throwing up your arms citing ‘realist’ positions and more constructive than claims about
hypocrisy relating to noncompliance are claims that there are structures within international
law that effectively enable this kind of noncompliance. Such criticism does not posit law
against power, but law against law: It is a critique of law in the name of an ideal of law that is
itself grounded in principles recognized as law. In the following I briefly lay out two structural

17
See for example Becker (2014).
18
For a critique of the Hathaway article see Goodman and Jinks (2003). For a general account of how
human rights treaties matter see Goodman and Jinks (2013).
19
For a modern statement and defense of such a ‘realist’ claim see Goldsmith and Posner (2005).
 Global constitutionalism and the rule of law 305

features within international law that exemplify distinct forms of legal hypocrisy. These ought
to be the focus of criticism from the perspective of an ideal of the rule of international law,
that is, from a perspective that remains internal to the law. The first example is an example of
legal hypocrisy in the form of ‘remedial slack’. The second is an example of ‘compartmental-
ization’. Each of the issues mentioned raises complicated questions of interpretation, policy
or institutional design that cannot be engaged with here. The point is to sharpen the sense of
the work that an ideal of critical legality connected to the rule of law in the constitutionalist
tradition might do.
The first issue exemplifying ‘remedial slack’ as a form of legally organized hypocrisy is the
issue of compulsory jurisdiction. The issue was of considerable importance for legal thinkers
such as Kelsen and Lauterpacht around the mid-twentieth century, but became utterly unfash-
ionable to address in the past decades, mostly because it is wrongly believed to be linked to
naive legalist ideas. When a powerful actor violates the rights of another actor in international
law there is still no guarantee that a legal remedy will be available. The past 25 years or so have
witnessed the development of what has been called an international judiciary (Alter 2014) and
there certainly has been a remarkable growth in the number of courts and tribunals and their
case load, but there are still many situations in which the party whose rights have been violated
has no judicial remedy. When Russia annexed Crimea and fostered war in eastern Ukraine, for
example, Ukraine did not have the possibility of getting relief in the form of a judgment by an
impartial and independent tribunal certifying that its rights had been violated and that Russian
claims to the contrary were spurious.20 International lawyers insist that a court can only have
jurisdiction over a state with the consent of that state. However, constitutionalists should be
skeptical of such a settlement. How can it be that notwithstanding a requirement that disputes
be settled peacefully and the general principle of nemo iudex in causa sua, and notwithstand-
ing the fact that with regard to domestic courts constitutionalists have generally won the battle
against the tendency of powerful state actors to have their actions immunized from scrutiny
by courts, in international law the deeply reactionary claim that sovereigns can only be subject
to the jurisdiction of courts if they have consented to it is still virtually unchallenged? The
answers that operate with arguments drawn from mid-twentieth-century debates might well
deserve a reassessment. What is clear is that the absence of such a possibility reduces the cost
of illegal practices of domination by powerful actors. Remedial slack undercuts the serious-
ness of the primary obligation imposed by international law.
Practically, of greater significance is perhaps the second example. A great deal of misery
and extreme poverty in the world is connected to corrupt, despotic and kleptocratic govern-
ments that ruin the life prospects of their citizens, who, by virtue of having been born in that
place, happen to have drawn the short straw in the birthright lottery. A great deal of the legal
efforts aimed at improving these kinds of situations focus either on improving human rights’
monitoring and naming and shaming, the establishment of human rights courts, or facilitating
humanitarian intervention by delinking it from the requirement of Security Council authoriza-
tion. However, when kleptocratic despots loot, ravage and pillage their country for their own
purposes, they generally do so with the help of weapons bought from developed countries,

20
Instead Ukraine was forced to make a claim based on a Treaty under which Russia had agreed on
the jurisdiction of the ICJ. See the pending case concerning Application of the International Convention
for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination
of All Forms of Racial Discrimination (Ukraine v Russian Federation).
306 Handbook on global constitutionalism

with expertise and license fees provided by helpful multinational companies selling the looted
goods on international markets, all while those in power receive symbolic validation and dip-
lomatic recognition and protection under international law. Without the ‘outside’, the project
of oppression would not get started. In that sense, developed countries are invariably enabling
and complicit in the misery that characterizes many despotically run or failing states, whose
citizens are condemned to live in misery. International law’s permissive norms enable such
complicity, without those complicit in these actions being liable under international law.
There are a variety of legal reforms that would go some way towards alleviating the problem,
all focused on effectively curtailing the resource and lending privilege of non-representative
governments, while imposing duties of care on outsiders doing business with the government
or otherwise providing money or buying goods to make sure that the goods they are buying
are not blood diamonds or the money for the bonds they are buying does not simply go to an
off-shore bank account or is used to pay off allies at home to support the oppressive enterprise.
The details do not matter here.21 What matters is to understand the structure of the pathol-
ogy. International law establishes binding human rights norms. There is much debate about
how these norms might more effectively be enforced, but none of the traditional debates had,
until relatively recently, focused on the international legal structure which is an enabler of
these practices. The nexus between human rights law and trade law and the structure of norms
governing the international capital markets was neglected. Here hypocrisy is enabled by
compartmentalization: Human rights experts focusing on human rights, but not trade or capital
markets, and vice versa. It is a feature of the constitutionalist perspective that it tends to be
more holistically focused. It resists this compartmentalization and has the resources to uncover
and critically analyze exactly such connections.
These examples illustrate how situations in which we might be inclined to simply say that
powerful actors violate the law are better described as situations of legal hypocrisy. The ena-
bling international rules relating to the resource and lending privilege may provide incentives
to bad actors to seize the levers of power, while the compartmentalization the legal profession
engages in hides the complicity of others. Furthermore, remedial slack international law
may ensure that violations of law are less costly then they might otherwise be. Rather than
powerful actors violating the law, these are instances where law enables, covers up or ignores
rights-violative actions. The rule of law as a critical ideal is not only useful to uncover the
workings of legal hypocrisy; it generally provides lawyers with good reasons to engage law
more critically, while having greater confidence in its power.

REFERENCES
Alexy, R. (2010), The Argument from Injustice, Oxford: Oxford University Press.
Alter, K. (2014), The New Terrain of International Law: Courts, Politics, Rights, Princeton, NJ:
Princeton University Press.
Alvarez, J. (2005), International Organizations as Law-Makers, Oxford: Oxford University Press.
Avbelj, M. and J. Komarek (2008), ‘Four visions of constitutional pluralism – symposium transcript’,
European Journal of Legal Studies, 2 (1), 323–67.
Becker, A.L. (2014), Mestizo International Law: A Global Intellectual History 1842–1933, Cambridge:
Cambridge University Press.

21
For a book-length analysis of these issues see Wenar (2015).
 Global constitutionalism and the rule of law 307

Bell, D.A. (2015), The China Model, Princeton, NJ: Princeton University Press.
D’Aspremont, J. (2011), Formalism and the Sources of International Law: A Theory of the Ascertainment
of Legal Rules, Oxford: Oxford University Press.
Fuller, L.L. (1969), The Morality of Law, revd edn, New Haven, CT: Yale University Press.
Goldsmith, J. and E. Posner (2005), The Limits of International Law, Oxford: Oxford University Press.
Goodman, R. and D. Jinks (2003), ‘Measuring the effects of human rights treaties’, European Journal of
International Law, 14 (1), 171–83.
Goodman, R. and D. Jinks (2013), Socializing States: Promoting Human Rights through International
Law, Oxford: Oxford University Press.
Hart, H.L.A. (1960), The Concept of Law, reprinted 2012, Oxford: Oxford University Press.
Hathaway, O. (2002), ‘Do human rights treaties make a difference?’, Yale Law Journal, 111 (8),
1935–2042.
Holmes, S. (2012), ‘Constitutions and constitutionalism’, in A. Sajó and M. Rosenfeld (eds), Handbook
of Comparative Constitutional Law, Oxford: Oxford University Press, pp. 189–216.
Kammerhofer, J. (2015), ‘International legal positivism’, in F. Hofmann and A. Orford (eds), Handbook
of International Legal Theory, Oxford: Oxford University Press, pp. 407–26.
Koskenniemi, M. (2006), ‘Fragmentation of international law: difficulties arising from the diversification
and expansion of international law’, report of the Study Group of the International Law Commission,
GA/CN.4/L.682, United Nations General Assembly, New York.
Krasner, S. (1999), Sovereignty as Organized Hypocrisy, Princeton, NJ: Princeton University Press.
Kumm, M. (2005), ‘The jurisprudence of constitutional conflict: Constitutional supremacy before and
after the constitutional treaty’, European Law Journal, 11 (3), 262–307.
Kumm, M. (2013), ‘The cosmopolitan turn in constitutionalism: An integrated conception of public law’,
Indiana Journal of Global Legal Studies, 20 (2), 605–28.
Loughlin, M. (2010), The Foundations of Public Law, Oxford: Oxford University Press.
Maduro, M.P. (2003), ‘Contrapuntal law: Europe’s constitutional pluralism in action’, in N. Walker
(ed.), Sovereignty in Transition, Oxford: Hart, pp. 501–37.
Merry, S.E. (1988), ‘Legal pluralism’, Law and Society Review, 22 (5), 869–96.
Palombella, G. (2010), ‘The rule of law as an institutional ideal’, in G. Palombella and L. Morlino (eds),
Rule of Law and Democracy: Internal and External Issues, Leiden: Palombella, pp. 3–37.
Petersmann, U. (2017), Multilevel Constitutionalism for Multilevel Governance of Public Goods,
Oxford: Hart.
Plato (1969), The Republic, in L.R. Loomis (ed.), Five Great Dialogues, New York: Gramercy, p. 362.
Radbruch, G. (1932), Rechtsphilosophie (Legal Philosophy), Leipzig.
Raz, J. (1979), The Authority of Law, New York: Oxford University Press.
Romano, C., K. Alter and Y. Shany (2014), ‘Mapping international adjudicative bodies, the issues
and players’, in C. Romano, K. Alter and Y. Shany (eds), The Oxford Handbook of International
Adjudication, Oxford: Oxford University Press, pp. 3–26.
Schauer, F. (2015), The Force of Law, Cambridge, MA: Harvard University Press.
Waldron, J. (1999), Law and Disagreement, Oxford, Oxford University Press.
Waldron, J. (2008), ‘The concept and the rule of law’, Georgia Law Review, 43 (1), 1–61.
Walker, N. (2002), ‘The idea of constitutional pluralism’, Modern Law Review, 65 (3), 317–59.
Wenar, L. (2015), Blood Oil, Oxford: Oxford University Press.
Weinstock, D. (2017), ‘Ripstein on Kant on revolution’, in S. Kisilevsky and M.J. Stzone (eds), Freedom
and Force: Essays on Kant’s Legal Philosophy, Oxford: Hart, pp. 129–40.
Wiener, A. (2008), The Invisible Constitution of Politics: Contested Norms and International Encounters,
Cambridge: Cambridge University Press.
Wolff, R.P. (1970), In Defense of Anarchism, New York: Harper & Row.
21. Balance of powers
Eoin Carolan

INTRODUCTION

A long-standing feature of constitutional theory at the level of the nation-state, the notion of
a balance of powers has also been evoked in the emerging field of global constitutionalism.
As the next section of the chapter suggests, there is a clear strategic logic to this approach.
The role which the balance of powers plays in domestic constitutional doctrine has obvious
appeal for advocates of a constitutionalising analysis of the supranational sphere. The idea
that structures of governance can be described in terms of an institutional balance tends to
confer a degree of descriptive coherence and normative legitimacy upon the system being
so described. However, the concept is not without its challenges. The third section considers
the implications of domestic criticisms for the concept’s potential application to the global
constitutionalist project. This section concludes that the ambiguity of the concept may provide
a degree of flexibility that has some value in a more fragmented international environment.
As the fourth section points out, however, a review of the European Union’s ‘institutional
balance’ indicates that this flexibility may, under certain conditions, undermine the normative
potential of the concept. As the chapter concludes, this highlights the necessity for an effec-
tive balance of powers analysis to take account of the processes by which inter-institutional
engagement occurs.

THE APPEAL OF A ‘BALANCE OF POWERS’

In domestic constitutionalism, the balance of powers typically serves two functions. First, it
provides a coherent descriptive account of a system’s institutional structures. This facilitates
mutual understanding between domestic actors of their respective positions, thereby also pro-
moting clarity and consistency in the system’s everyday operations. Secondly, the idea of an
institutional balance has an important normative function. This derives, at least in part, from
the intuitively positive connotations of the use of the term ‘balance’ rather than (for example)
‘separation’. The choice to describe a system as balanced can generally be regarded, therefore,
as a deliberate attempt to associate the system with certain normative goods: evenness, coher-
ence, stability or, perhaps most importantly, the absence of an over-mighty and potentially
tyrannous actor. This means that, while a balance of powers analysis – strictly speaking –
could involve no more than a descriptive account of the inter-institutional power distribution
that the relevant structures have created, it more commonly has at least a minimally normative
dimension.
Whether conceived as a system of hierarchical legal norms or multi-polar pluralism,
a constitutionalising analysis of the supranational sphere cannot avoid questions about the
dynamics and distribution of inter-institutional power. At a basic level, this is necessitated
by the empirical realities of a system of supranational authority without a global government.

308
 Balance of powers 309

Where ‘the postnational space is composed of overlapping legal arrangements that exercise
authority in complex ways’ (Kuyper 2014, p. 170), any account of that space must engage with
this phenomenon of relative and overlapping authority.
In this context, therefore, the balance of powers holds out the prospect that the fragmented
nature of the international legal order may be harnessed in positive ways that promote these
(or other values) so that ‘global checks and balances must be more subtle and must encompass
an institutional equilibrium’ (Peters 2005, p. 63). A balance of powers suggests that there is an
underlying logic or harmony to this densely complicated institutional architecture: a message
that has obvious attractions for a global constitutionalist project that ‘carries the promise that
there is some system in all the madness, some way in which the whole system hangs together
and is not merely the aggregate of isolated and often contradictory movements’ (Klabbers
2004, p. 49).
This understanding of the balance of power as a strategy associated with the pursuit of
certain normative goals can be found, for example, in the most influential early work on forms
of international legalism. The creation or restoration of a balance or equilibrium between
European peoples and states was a key objective of post-Westphalian writings on the pursuit
of peace. While Abbé de St-Pierre or Rousseau may have criticised classical formulations of
a European balance of powers, their theories nonetheless retained the notion of equilibrium
as a core normative concern. Perhaps most notably, a balance of powers at the international
level was a necessary aspect of Kant’s ideal model of an international order based on mutually
recognised norms of engagement between autonomous but inter-dependent states.
This internationalist emphasis on balance as a means of avoiding the dangers of a solitary
coercive authority had echoes of the classical models of mixed and balanced government at
the level of the national state. The Aristotelian and Polybian techniques of balance by cate-
gorical separation were highly influential for medieval theorists of stable government such as
Guicciardini, Giannotti or Machiavelli (Pocock 2003). In turn, these medieval theories seem
to have influenced the eighteenth-century interest in the possibility of using a diversity of
interests as a safeguard against excessive accumulations of power. The modern incarnation
of this approach envisages ‘a balance of powers at the global level [as] provid[ing] the space
for a state-based system to function in such a way that any single state or institution cannot
dominate the others’ (Lang Jr. 2013, p. 106).
These classical and medieval republican theories also emphasise the positive constitutional
implications of establishing an institutional balance between distinct and differing interests;
namely, that it would ensure a degree of universal value in the conduct of the state. Balance
therefore was an attempt not simply to counter tyrannous or arbitrary rule but also to meet
‘[t]he formal dilemma of the ... republic [as] an attempt to realize a universality of values
within a particular ... political structure’ (Pocock 2003, p. 84).
Here again, there are parallels with later work on an international balance of powers.
A similar approach can be seen, for example, in Kant’s focus on the ‘regulative’ effects of
securing balanced rather than solitary or unseparated power: by denying actors the possibility
of unitary action, the resulting multiplicity of authority makes necessary a degree of mutual
engagement in which the parties may make use of techniques of practical reasoning or moral
persuasion. This introduces a deliberative element to the practice of international politics,
a feature which has value and significance for not only republican (Pettitt 2014) but also other
theories of democratic government (Goodin 2008). Again, this is a theme that has been taken
up in more recent works on balance in the global constitutional context where it has been
310 Handbook on global constitutionalism

argued ‘to constitute and reinforce the pluralism of law, politics and morality [in a way that]
not only protects individuals but also better reflects the realities of the current global system’
(Lang Jr. 2013, p. 106).

THE CHALLENGES OF A BALANCE OF POWERS

This possible connection with older ideas of mixed and balanced government draws attention,
however, to the ambiguity of the equilibrium being pursued. Magill (2000) has highlighted
how institutional balance has been a critical component of very different conceptions of
both the nature of the state and of how it ought to be organised. While the achievement of an
institutional balance is the common goal of theories of mixed and balanced government and
of the separation of powers, there can be significant and important differences in how this
balance is conceived and created. Most obviously, the concept of balance has little if anything
to say about how it should be achieved. Is it a matter of separation or of mixing institutional
competences? And along what lines should the chosen strategy of separation or blending be
organised?
At the very least, the indeterminacy of these concepts underlines the necessity for further
choices to be made in developing a workable or effective balance of powers. This is considered
further below. In addition, it also suggests that the choice of terminology between separation
and balancing may be of primarily rhetorical significance given the lack of strong differen-
tiating factors between these two approaches. This has some relevance to the criticism that
has sometimes been expressed in the supranational context about the plausibility of this sort
of constitutional analysis in the absence of domestic typologies of separate powers (Conway
2011). The indeterminacy of the separation of powers doctrine means that these apparently
principled objections are largely meaningless. Institutional balance serves a similar purpose
to notions of the separation of powers: of organising a distribution of governmental power
that pursues particular normative goals. More fundamentally, almost all serious accounts of
a separation of powers approach regard it as a matter of separation and of balance – a point
well illustrated by how commonly such accounts also make use of the language of checks and
balances. There are, of course, important differences between specific models of institutional
organisation. The point is, however, that these differences cannot be accounted for by the lan-
guage of separation or balance. The two approaches are – at an abstract level – insufficiently
distinct to treat the choice of label alone as constitutionally conclusive.
That is not to say that there may not be reasons why the language of balance might be pre-
ferred in some of the literature on global constitutionalism. In particular, it seems plausible to
suggest that the choice of terminology may respond to certain specific features of the global
constitutional context and may have important signalling effects.
First, the language of balancing may have descriptive advantages in terms of its appropriate-
ness and relative neutrality. The most familiar versions of the separation of powers at national
constitutional level are often linked to the (simplistic) image of three separate institutions exer-
cising legislative, executive and judicial powers. The conspicuous absence of any analogous
arrangement of institutions or powers at the supranational level complicates the framing of
global constitutional questions in traditional separation of powers terms. By comparison, ideas
of institutional balance bring less baggage.
 Balance of powers 311

Secondly, the notion of balance may be seen as more accommodative of the fragmented
character of legal structures with a supranational or international dimension. While it is some-
what misleading even at a domestic level, the language of separation is capable of being con-
strued as supportive of formal divisions of competence with strong institutional boundaries.
This connects to characteristics that Rosenfeld has argued to be distinctive of the domestic
constitutional arrangements as ‘always present regardless of the particular constitutional
identity involved’ (Rosenfeld 2014, p. 190). At national level, in his view, ‘there is a cohesive,
unified, hierarchically ordered constitutional/legal system that maximizes formal convergence
among all diverse elements and interests’ whereas ‘transnational legal regimes seemingly lack
the means to secure the hierarchy and unity of legal norms that nation-state constitutions have
managed to institutionalize’ (Rosenfeld 2014, p. 190). The result is that ‘against the unity and
hierarchy of the nation-state, the transnational legal universe is one characterized above all by
layering and segmenting’ (Rosenfeld 2014, p. 192). From this point of view, an approach that
emphasises balancing rather formal separation can be justified as a pragmatic acknowledge-
ment of the heterarchical nature of the institutional arrangements at issue.
Thirdly, and perhaps most importantly, it arguably also points to differences of emphasis
and objective in the broader project of global constitutionalism. Whereas domestic theories of
separation are often concerned with guarding against the arbitrary rule of a powerful central
sovereign, the comparative political weakness of international organisations provides its own
degree of insurance against an over-mighty institution. The challenge for global constitution-
alism is frequently not to fragment authority but to coordinate the fragmented and contestatory
impulses associated with their multi-level and multi-actor systems of decision-making. The
concept of a balance of power may be more amenable to a process of managing these inputs.
This brings the discussion to the critical question for any serious efforts to develop a balance
of powers model: how should it actually be organised? Here, the issue of indeterminacy iden-
tified by Magill (2000) returns but in a potentially much more problematic way. The fact that
an approach based on ‘institutional balance’ may be susceptible to multiple interpretations is
not, in itself, a barrier to a workable theory. Experience at the domestic level has suggested that
‘important intellectual traditions comport with the basic view that multiple configurations of
our separations of powers are possible as well as normatively acceptable’ (Peabody and Nugent
2003, p. 34). Different models of separation may suit different political and institutional real-
ities and may pursue different normative goals. This has meant that the common label of ‘the
separation of powers’ has actually been justified and organised by reference to a number of
distinct, if sometimes overlapping, normative values. Classically, the model is associated with
the protection of political liberty against the potential tyranny of absolute power (Madison
et al. 1788 [1987], esp. nos 47 and 51; Vile 1967, p. 14). However, the model’s normative
value has been expressed in various other forms, from the familiar establishment of checks
and balances (Barendt 1995),1 as a method of promoting public goods in government (Barber
2013), as an accountability mechanism (Persson et al. 1997), as a safeguard against arbitrary
decision-making (Brown 1991; Carolan 2009) or, more generally, as a prerequisite for the
more compendious concept of the rule of law (Gwyn 1965; Verkuil 1989; Waldron 2013).
Reflecting certain aspects of their common intellectual heritage, there may be similar scope
for conceptual flexibility with approaches to constitutionalisation that prioritise the rhetoric

1
Myers v US (1926) 272 U.S. 52, 293.
312 Handbook on global constitutionalism

of balance. This means, however, that a workable theory of institutional balance faces similar
challenges. In particular, it seems essential for an operational account of institutional balance to
proceed from a more precise articulation of its animating values and goals. This follows from
the ambitious nature of any attempt to establish an overarching model of inter-institutional
engagement. This goes further, for example, than the Koskenniemi Report’s effort to develop
‘collision-rules’ for international legal actors (Koskenniemi 2006). That report focused on
substantive principles rather than overlapping institutional powers or competences. This
meant, however, that it was based on an agnostic neutrality between institutional values and
substantive institutional norms. By contrast, a ‘balance of powers’ analysis not only requires
a consideration of the relative positions and powers of specific institutional actors but should
also necessitate the taking of deliberate choices about the normative goals which the system
aims to secure.
From this normative perspective, the danger is that conceptual flexibility can produce an
ambiguity in practice that borders on the meaningless. In particular, a failure to strictly specify
what is meant by ‘balance’ may – as has been the experience on occasions with the separation
of powers – mean that the theory’s influence is primarily as a rhetorical defence of actions
undertaken on the basis of other considerations.

DESIGNING AN INTERNATIONAL BALANCE OF POWERS? THE

CASE OF THE EUROPEAN UNION

In this regard, the European Union (EU) offers an instructive example of the possibilities
and pitfalls of a balance of powers approach to global constitutional forms. The complex
multi-actor and multi-level character of the European Union’s political and institutional
dynamics means that its allocation of institutional powers has usually been conceptualised as
a model of ‘institutional balance’ rather than tripartite separation (de Búrca 1996). Jacqué’s
explanation of the Court of Justice of the EU’s decision in Meroni makes clear the practical
and strategic benefits of using a flexible notion of balance as the EU’s core yardstick of insti-
tutional legitimation:

For the Court, the principle [of institutional balance] is a substitute for the principle of the separation
of powers ... In the absence of a separation of powers, the principle of institutional balance made it
possible to guarantee to undertakings that a modification of the institutional balance would not call
into question the decision-making process envisaged by the treaties and the accompanying guarantees
provided by the treaties. (Jacqué 2004, p. 384)

This view of institutional balance approximates to a particular strand of separation of powers

thought which emphasises the broader democratic benefits of a system of institutional checks
and balances. On this analysis, the establishment of a system in which independent institutions
fulfil a mutual checking function promotes more democratically robust decision-making.
The existence and exercise of these independent institutional checks leads not only to more
balanced government but also to a way of governing in which the exercise of institutional
power is more visible, more subject to account, and more likely to promote the broader public
interest.
This is a form of argument which goes beyond the negative dimension to separating power
to focus on the potential for institutional separation to make a positive contribution to the
 Balance of powers 313

quality of government action. If the purpose of the separation of powers is to protect liberty,
simply providing for multiple forms of separation is arguably sufficient. The essence of the
negative separation strategy is that a division of power complicates its exercise such that
government itself becomes more difficult. Given that the goal of institutional scholars in the
EU context (as with many other global organisations) has generally been to alleviate some of
the difficulties of fragmentation and coordination that currently hinder government action at
the level of the EU, their focus on the positive potential of a system of institutional overlaps is
unsurprising. Thus, if the purpose of developing a separation of powers model is to enhance
the legitimacy of the EU, a system of negative checks is insufficient. Those checks must be
designed in a way that ensures that their exercise tends to produce these positive effects.
What effects might advocates of an institutional balance (or positive separation of powers)
for the EU have in mind? Before looking at specific EU examples, it may be helpful to think in
the abstract about the various ways in which requiring institutional separation may bring about
the kind of dialogic inter-institutional processes that promote certain normatively significant
values. Separation engenders inter-branch communication, which provides a degree of trans-
parency and publicity.2 The independence of the branches increases the informational (and
thus political) costs of pursuing policy objectives, which tends to encourage generality and
discourage attainder. If an institution wishes to target a particular group but is dependent on
the assistance of other institutions to achieve this, it can only be certain of success if it makes
its intentions clear. Separation does not preclude this, but it does limit the potential for surrep-
titious tyrannies. The burden of persuasion identified in the previous section also means that an
institution may, in practice, be required to explain its favoured course of action. The provision
of this type of institutional justification, in turn, means that the actions of that institution are
more susceptible to challenge and/or review by other agencies of government. This also has
the potential to enhance the degree of expertise in government by allowing other agencies with
particular experience or specialisations to identify and correct errors in the reasoning provided.
Taken together, these process values promote institutional accountability, which in turn fosters
the substantive principle of non-arbitrariness which is at the core of legitimate governance
(for this argument in more detail, see Carolan 2009, pp. 82–105). That a separation between
institutions can have such significant effects on the legitimacy of government is underlined
by the fact that it was, after all, this concern to prevent arbitrary government which animated
much of the original scholarship on the separation of powers (Brown 1998; Bressmann 2003).
A close analysis of the positive inter-institutional dynamics sketched out in the previous
paragraphs makes clear that institutional separation, of itself, is insufficient to support the
values identified therein. Separation does not automatically inculcate ­positive ­institutional
or systemic attributes. Nor, therefore, does a division of institutional authorities necessarily
bring about a balance of powers. What this account suggests is that an effective system of
institutional balance must take account of the nature, context and content of inter-institutional
relationships.
The fact that the EU’s institutional arrangements do not resemble those typically associated
with domestic governments need not, therefore, preclude development at European level
of a legitimising model of separated powers. Rosenfeld’s positive assessment of how ‘the
EU Council, Commission, Parliament, and the CJEU added together allow for a separation

2
Whether within government or to the public at large.
314 Handbook on global constitutionalism

of powers comparable to that of well-functioning nation-state constitutional democracy’

(Rosenfeld 2014, p. 194) exemplifies this approach. Equally, however, the simple establish-
ment of some form of institutional separation does not a system of checks and balances make.
While the division between various EU-level institutions may, in principle, be capable of so
functioning, a more detailed examination of how the EU’s institutional arrangements operate
in practice calls claims of a balance of powers into question.
In particular, there appears to be a significant gap between the idea of an EU of balanced
powers on the one hand, and the real-world power dynamics of EU decision-making, on the
other. This has been most starkly illustrated perhaps by the ad hoc nature of Europe’s response
to its post-2008 economic difficulties. If the point of a constitutional order (whether domesti-
cally or globally) is to establish a system of clear and foreseeable pre-commitments as a safe-
guard against the future (arbitrary) exercise of discretionary authority by the powerful, there
are legitimate questions to be raised about the rule of law within the EU. The response to the
economic and banking crisis has been driven by those bodies presently in a position of political
or economic power with little evidence of decisions being shaped by institutional, procedural
or formal constraints. Dawson has argued that the response can be explained largely from the
personal viewpoint of the German Chancellor because of her ‘willingness ... to frequently
agree measures during the crisis through inter-governmental fiat, in concert with selected euro-
zone states’ (Dawson 2015, p. 981). The references here to fiat and to ‘selected states’ speak
to the ad hoc, agenda-driven and largely rule-free nature of this decision-making (see Fabbrini
2013). Where formal limitations existed in the treaties, they have been circumvented by the
device of separate international agreements such as the Fiscal Compact Treaty. Where forms
of governance have been established, they – seemingly deliberately – ‘carry few mechanisms
to ensure political control and legal scrutiny’ (Dawson 2015, p. 977). In this environment, it
is unsurprising that the more ambiguous idea of institutional balance has exerted even less
influence.
Nor can this experience be explained away as an extraordinary (and therefore unrepresenta-
tive) response to an emergency situation. Jacqué’s earlier work on the evolution of institutional
balance within the EU’s legal order argued that this process had ‘taken place without prior
reflection, simply pulled along by the strongest current’ (Jacqué 2004, p. 387). This is a prac-
tical illustration of the risk that a constitutional ‘theory’ of institutional balance or balance of
powers may prove, in large part, an empty one.
Of course, this indeterminacy may have a certain practical appeal in an evolving insti-
tutional framework. Craig, for example, has suggested that the studied imprecision of this
institutional balance allows it to operate as ‘a device which enables the Community to move
forward in an incremental manner, without ever really resolving the issues of democracy and
legitimacy which lie at the heart of the debate about its future’ (Craig 1997, p. 113; see further,
Craig 1990). There may be pragmatic advantages to an account of institutional relations which
can easily be adjusted to take account of political bargains. As the EU’s response to the crisis
demonstrates, however, this is likely to lead to the ex post facto formalisation of prevailing
power imbalances rather than the normatively-appropriate ‘balance’ to which the rhetoric
aspires. This has been especially evident in how the EU’s approach to crisis issues has increas-
ingly resulted in the formal conferring of additional competences on EU-level institutions and
other actors composed of members of the national executive power (such as the European
Council, the Council, the Euro summits and the Eurogroup). ‘The response to the crisis has
 Balance of powers 315

. . . undermined the concept of institutional balance by way of a power shift towards executive
dominance’ (Dawson and de Witte 2015, p. 373).
Crucially, however, this is true even in more ‘normal’ times. A striking and unfortunate
feature of how the ‘balance’ between EU institutions has operated is the extent to which the
dynamics of these relationships have been driven by internal institutional concerns. This is
a particular problem given that the interests of these ‘separate’ authorities may – as bodies
established by a supranational entity and staffed by a bureaucratic elite – coincide in ways that
are not necessarily consistent with important constitutional goods.
This has led to the phenomenon of institutions developing internal policies or informal
working practices that exclude other institutions or the broader public (Curtin 2014). The con-
clusion by EU institutions of inter-institutional agreements is an early (and frequent) example
of this tendency (Riekmann 2007). A more recent and notable example of this is the use of
closed-door trilogues as part of the EU’s legislative process (de Ruiter and Neuhold 2012;
Reh et al. 2013). The trilogue process involves engagement between representatives of the
Council and European Parliament under the supervision of the Commission to produce agreed
rule-making provisions. For the institutions, this process has obvious advantages. It may be
efficient, it may allow for robust engagement and it tends to limit the scope for the adoption of
a particular institutional position to incur reputational costs. These advantages clearly come,
however, (in some instances deliberately) at the expense of democratically important princi-
ples of publicity, transparency and accountability.
Most problematically, these principles are the very procedural values which a positive
account of institutional balance should promote. This highlights the limitations of formal
or even rationalist accounts of a post-national balance of powers. The fragmented and
multi-layered nature of supranational structures may provide a practical check on the abuse
of coercive powers but the fact that dominion may be difficult does not equate to an institu-
tional balance. Nor, EU experience suggests, does the Madisonian assumption that ambition
checks ambition necessarily secure the system against a detrimental commonality of inter-
ests across institutional boundaries. These strategies of separating power or encouraging
inter-institutional rivalries may be a necessary element of efforts to legitimise and organise
the complex and multi-layered architecture of global constitutionalism but they do not, of
themselves, seem sufficient.

CONCLUSION

This review of the EU’s experience suggests that, if the notion of a balance of powers is to be
more than mere rhetoric so that it has genuine rule-of-law effects, it seems essential for there to
be a clear and consistent focus on the processes by which this balance may be created. It also
seems preferable for any notion of institutional balance to be understood not as a settled state-
ment of institutional fact but as an ongoing effort to manage the complex power dynamics of
a multi-actor system. This suggests that the focus of a global constitutionalist analysis should
be on the mechanisms by which inter-actor engagement occurs. From a practical perspective,
the fragmented nature of the international architecture means that a focus on process may be
more feasible. What this analysis suggests, however, is that it may also be a more conceptually
and normatively appropriate approach. A model based on a balance of formal powers may
be unworkable because of an absence of clear institutional boundaries at the international
316 Handbook on global constitutionalism

level – but that absence may itself be desirable as a means of promoting the normative goods
associated with inter-institutional contestation. Global constitutionalism may strive to identify
a system in the madness but that does not automatically equate to a system based on a unity or
hierarchy of top-down legal norms. An effective institutional balance need not be harmonious.
If the pursuit of a constitutionalising balance means that the contestation that inevitably occurs
at international level may support other legitimising process values, then the idea has some
potential to make a contribution to a normative case for a global constitutionalism.

REFERENCES
Barber, N. (2013), ‘Self-defence for institutions’, Cambridge Law Journal, 72 (3), 558–77.
Barendt, E. (1995), ‘Separation of powers and constitutional government’, Public Law, Winter, 599–619.
Bressmann, L.S. (2003), ‘Beyond accountability: arbitrariness and legitimacy in the administrative
state’, New York University Law Review, 78 (2), 461–556.
Brown, R.L. (1991), ‘Separated powers and ordered liberty’, University of Pennsylvania Law Review,
139 (6), 1513–66.
Brown, R.L. (1998), ‘Accountability, liberty and the constitution’, Columbia Law Review, 98 (3),
531–79.
Carolan, E. (2009), The New Separation of Powers, Oxford: Oxford University Press.
Conway, G. (2011), ‘Recovering a separation of powers in the European Union’, European Law Journal,
17 (3), 304–22.
Craig, P.P. (1990), Public Law and Democracy in the United Kingdom and the United States of America,
Oxford: Oxford University Press.
Craig, P.P (1997), ‘Democracy and rulemaking within the EC: an empirical and normative assessment’,
European Law Journal, 3 (2), 105–30.
Curtin, D. (2014), ‘Overseeing secrets in the EU: a democratic perspective’, Journal of Common Market
Studies, 52 (3), 684–700.
Dawson, M. (2015), ‘The legal and political accountability structure of post-crisis EU economic govern-
ance’, Journal of Common Market Studies, 53 (5), 976–93.
Dawson, M. and F. de Witte (2015), ‘Self-determination in the constitutional future of the EU’, European
Law Journal, 21 (3), 371–83.
De Búrca, G. (1996), ‘The quest for legitimacy in the European Union’, Modern Law Review, 59 (3),
349–76.
De Ruiter, R. and C. Neuhold (2012), ‘Why is fast track the way to go? Justifications for early agreement
in the co-decision procedure and their effects’, European Law Journal, 18 (4), 536–54.
Fabbrini, S. (2013), ‘Inter-governmentalism and its limits: assessing the EU’s answer to the euro crisis’,
Comparative Political Studies, 46 (9), 1003–29.
Goodin, R.E. (2008), Innovating Democracy, Oxford: Oxford University Press.
Gwyn, W.B. (1965), The Meaning of the Separation of Powers, New Orleans, LA: Tulane University
Press.
Jacqué, J.-P. (2004), ‘The principle of institutional balance’, Common Market Law Review, 41 (2),
383–91.
Klabbers, J. (2004), ‘Constitutionalism lite’, International Organizations Law Review, 1 (1), 31–58.
Koskenniemi, M. (2006), ‘Fragmentation of international law: difficulties arising from the diversification
and expansion of international law’, report of the Study Group of the International Law Commission,
A/CN.4/L.682, April, United Nations General Assembly, Geneva.
Kuyper, J. (2014), ‘The democratic potential of systemic pluralism’, Global Constitutionalism, 3 (2),
170–99.
Lang Jr., A.F. (2013), ‘Global constitutionalism as middle ground ethics’, in C. Navari (ed.), Ethical
Reasoning in International Affairs: Arguments from the Middle Ground, Basingstoke: Palgrave
Macmillan, pp. 106–26.
Madison, J., A. Hamilton and J. Jay (1787–88), The Federalist Papers, reprinted 1987, London: Penguin.
 Balance of powers 317

Magill, E. (2000), ‘The real separation in separation of powers law’, Virginia Law Review, 86 (6),
1127–98.
Peabody, B.G. and J.D. Nugent (2003), ‘Towards a unifying theory of the separation of powers’,
American University Law Review, 53 (1), 1–64.
Persson, T., G. Roland and G. Tabellini (1997), ‘Separation of powers and political accountability’,
Quarterly Journal of Economics, 112 (4), 1163–202.
Peters, A. (2005), ‘Global constitutionalism revisited’, International Legal Theory, 11 (Fall), 39–67.
Pettitt, P. (2014), On the People’s Terms, Cambridge: Cambridge University Press.
Pocock, J.G.A. (2003), The Machiavellian Moment: Florentine Political Thought and the Atlantic
Republican Tradition, 2nd edn, Princeton, NJ: Princeton University Press.
Reh, C., A. Héritier, E. Bressanelli and C. Koop (2013), ‘The informal politics of legislation: explaining
secluded decision making in the European Union’, Comparative Political Studies, 46 (9), 1112–42.
Riekmann, S.P. (2007), ‘The cocoon of power: democratic implications of inter-institutional agree-
ments’, European Law Journal, 13 (1), 4–19.
Rosenfeld, M. (2014), ‘Is global constitutionalism meaningful or desirable?’, European Journal of
International Law, 25 (1), 177–99.
Verkuil, P.R (1989), ‘Separation of powers, the rule of law and the idea of independence’, William &
Mary Law Review, 30 (2), 301–41.
Vile, M.J.C. (1967), Constitutionalism and the Separation of Powers, Oxford: Clarendon Press.
Waldron, J. (2013), ‘Separation of powers in thought and practice’, Boston College Law Review, 54 (2),
433–68.
22. Constituent power in global constitutionalism
Peter Niesen

Modern constitutionalism is based on the notion of constituent power. Constituent power

signals that constitutional orders are made, not found, and that their authorship of last resort
lies with the people. The notion connects the idea that all government needs to be subjected
to formal legal rules with a commitment to popular sovereignty, such that without eventual
recourse to an authorising people, or against its authoritative expression, claims to constitu-
tional validity will be fraudulent or void. But despite its central place in the modern under-
standing of constitutional government, constituent power has not played much of a role within
global constitutionalism, i.e. the study of constitutionalisation in the international realm. On
the contrary, as Loughlin has criticised (2010, pp. 67–9), leading conceptions have been devel-
oped in complete disregard to the question of constituent authorship. There are a number of
reasons that could be cited for the eclipse. Some authors have claimed that it is incoherent to
apply the notion beyond homogeneous nation states (Böckenförde 1991: p. 94), while others
have warned that it necessarily transports an allegiance to mythical founding moments. They
have seen the notion of constituent power as superfluous for constitutional government, or
even to contain ‘the seeds of its own destruction’ (Dyzenhaus 2007, p. 129). A widespread
suspicion is that in matters of global governance, in the absence of a pre-existing people,
adequate holders of constituent power may be lacking (Krisch 2016; Scheuerman 2019;
Nootens 2022). It is not immediately obvious which agents could take on the role of bearers of
constituent power in post-national orders, and it may be risky to stretch the notion too far. At
the same time, an outright rejection of constituent power, the central legitimating category of
the democratic revolutions, would leave constitutionalists in a dilemma. After all, according to
what standards will the new and ‘unbound’ processes of constitutionalisation (Wiener 2014,
p. 18) count as legitimate? While Legal Theory may justifiedly restrict its reconstructions
to the internal points of view of judges and legal procedures, International Political Theory,
in reflecting the overall legitimacy of border-crossing constitutional orders, needs to reflect
the perspectives of those subject to such orders (Niesen et al 2015; Patberg 2020). Indeed,
democratic constitutionalists have argued that without recourse to constituent power, there can
be no constitutionalism proper. In the absence of a plausible narrative of popular authorship,
post-state developments of legal integration would either fail to produce a ‘constitution’ in the
full sense of the term, or at any rate none that could be considered fully legitimate from the
point of view of democratic theory (Möllers 2011; Maus 2015).
In this chapter, I suggest that reverting to a notion of constituent power in global constitu-
tionalism is necessary, plausible and useful. Relying on the assumption that the constituent
power of the people is a key legitimating feature of state constitutions, I argue in two steps that
global constitutionalism needs to attend to the question of constituent power as well. I first
show that international treaties can affect domestic constitutions, unauthorised by constituent
power. I then argue that a similar problem of ‘constituent usurpation’ arises for supra-state
constitutions. In attempting to remedy this defect, I argue that it is plausible to extend the
concept of constituent power to normative orders beyond the state. I focus on the presump-

318
 Constituent power in global constitutionalism 319

tively most promising case, the European Union (EU), and the various candidates that have
been proposed as its pouvoirs constituants (constituent powers). However, I do not advocate
a one-conception-fits-all view and therefore add some brief reflections on other processes of
supra-state constitutionalisation. I conclude that in most, though not all cases, ascriptions of
constituent power will be relevant in a transformational, not a foundational perspective. The
usefulness of the concept of constituent power I locate in three dimensions throughout, in
its having an explanatory, a critical-restrictive, and an empowering function in processes of
global constitutionalisation.1

CONSTITUENT POWER – THE TRADITIONAL VIEW

Although the technical language of the pouvoir constituant was only introduced into consti-
tutionalist language in Emmanuel Sieyes’ What is the Third Estate?, its key features are fully
developed already in John Locke’s political theory. In this section, I first want to present its
general outline, before moving on to the complications it entails for constitutionalisation
beyond the state. Building on earlier influences,2 Locke distinguishes between ‘constituting’
and ‘constituted’ political bodies (1689[1967], II §§ 157, 212). The authority to constitute and
re-constitute institutions of government, first and foremost to allocate legislative authority,
lies with a people united in a horizontal compact. In investing the legislator with supreme
constituted power, the constituting people binds its creation to operating within well-defined
limits. Locke insists that the people have relinquished the power ‘only to make laws, and not
to make legislators’ (1689[1967], II § 141). This restriction holds for the subordinate exec-
utive and ‘federative’ (foreign policy) powers as well: No constituted power can change the
conditions under which they are authorised to operate, and none can convey their authorisation
to another. Where the legislative power allows this to happen, the people may revert to their
constituent role (Locke 1689[1967], II § 212). In such cases, legislative power falls back to the
people, who are then free to ‘constitute a new form of government’ (Locke 1689[1967], II §
132). In the French Revolution, Emmanuel Sieyes only had to systematise the central features
of Locke’s conception in contrasting a single pouvoir constituant with the various pouvoirs
constitués. He went beyond Locke in asserting that, under all circumstances, the pouvoir con-
stituant remains unbound by an existing constitution and is free to give itself a new one when-
ever it so pleases (Sieyes 1789[2003], p. 138; Rubinelli 2020). In Sieyes, the constituent power
of the people does not have to be triggered into existence through a transgression on the part
of the constituted powers. This move separates the mature doctrine of constituent power from
earlier conceptions of justified resistance against tyrannical rule, including Locke’s.3 Whereas
Locke did not say much about the activity of exercising constituent power, Sieyes emphasised

1
For the purposes of this chapter, I do not invoke a comprehensive notion of ‘constitutionalisation’.
As will become clear, I conceive of the allocation and regulation of public decision-making authority
as its central feature. In this I follow Markus Patberg (2020), whose work has been an inspiration
throughout.
2
One important predecessor is Lawson (1992), see Franklin (1978) and Niesen (2012). The system-
atic history of the idea of constituent power, avant and après la lettre, is developed in Kalyvas (2013),
Arato (2017, 45–106), Colón-Ríos (2020, 29–76).
3
We owe to Ingeborg Maus the sharp confrontation of constituent power and resistance-based con-
ceptions of democratic entitlements, see Maus (1992, pp. 43–148) and below. For the opposite view that
320 Handbook on global constitutionalism

two aspects. He pointed out that one can never fully specify in advance which form(s) the
activity of constitution-making is to take. He also thought that there is no principled reason
not to delegate constituent power to separate institutions, yet insisted, with Locke, that it could
never be delegated to other constituted powers (Sieyes 1789[2003], p. 139). In contrast to
Locke’s voluntaristic understanding of how a constituent people comes about, Sieyes thought
it could only arise from a pre-existing nation, which in turn was founded in natural law (Sieyes
1789[2003], p. 136f.). Yet for both, the question with whom constituent power lies only
afforded a single, tautological answer (‘the people’), and the composition of the people was
fixed, prior to the activity of constitution-making. Both expected the constituent power to take
the initiative in processes of constitution-making and exert causal force (Locke 1689[1967],
II § 96; Sieyes 1789[2003], p. 134). To sum up, despite their differences, the joint legacy of
the Locke-Sieyes tradition is the twofold role it ascribes to the category of constituent power.
From the outset, it is introduced to capture two ideas simultaneously: the idea of a claim to
continuous institution-making and institutional change on the part of the people, as well as
the idea of a permanent block to the threat of constituent usurpation, i.e. the absorption of
competence-changing authority by constituted powers.
We are now in a position to see how a problem of legitimacy can arise, based on the distinc-
tion between constitutive and constituted powers, from developments in international law, and
thereby prepare the challenge to global constitutionalism. For matters of foreign policy, Locke
proposes to institute a third constitutional branch, besides the legislative and the executive.
The ‘federative’ power is to encompass the authority to declare war, negotiate peace, and
enter into treaties and alliances with other states. Just like executive power, federative power
is accountable to the legislative as the supreme constituted power (Locke 1689[1967], II §
153; Poole 2021), not to the constituent people. Yet some federative treaties can circumscribe
the legislator’s competences and thereby modify the provisions set out by constituent power.
As an example, consider a free trade treaty that signs away the right to subsidise domestic
products through public funds.4 In establishing such a treaty, the federative power effects
a change to the existing constitution (given that in the default case, the use of public funds
was unregulated) in restricting the scope of legislative activity, something the legislative
power itself could not authoritatively abdicate, even if it wanted to, under Locke’s assignment
of competences. The usual democratic control mechanism for ‘federative’ decision-making,
which Locke only hints at, parliamentary ratification, cannot set right a violation of the sepa-
ration of powers – in this case, the separation of constituent and constituted powers (Patberg
2016) – since the constituted legislative will be acting ultra vires in modifying its own scope
and conditions of operation. Even where international treaties do not aspire to constitutional
status themselves, they will often have domestic constitutional impact. In practice, they come
into effect in most cases in bypassing constituent power. The problem is much exacerbated
once international treaties establish separate and independent decision-making bodies.
Consider a free trade agreement that not only regulates legislative competences, but instals an
independent panel for the arbitration of conflicts, as envisaged, for example, for conflicts over
direct foreign investments in the CETA (Comprehensive Economic and Trade Agreement)

‘resistance against tyrannical rule is a manifestation of constituent politics and an affirmation of popular
sovereignty’, see Kalyvas (2013).
4
For the debate surrounding ‘Economic Partnership Agreements’ between European and African
States, see Hurt et al 2013.
 Constituent power in global constitutionalism 321

treaties between the EU and Canada (Kumm 2015). Here, the several ‘federative’ powers aim
to establish bodies that not only effectively limit the scope of the member state legislatives
but create new decision-making and perhaps, in the long term, norm-setting agencies. Just as
legislators are limited to making laws and cannot establish new legislators, the constituted
‘federative’ power cannot outsource its decision-making capacities and constitute new bodies
to this effect. Bracketing, for the moment, the issue of when international treaty regimes, in
setting up independent arbitration panels or courts, could themselves legitimately claim con-
stitutional status, it is clear that they will modify existing domestic constitutional orders in an
unauthorised way, even under conditions of full legislative ratification.
Before we turn to supra-state constitutional orders, it seems worth insisting that even where
the subjects of international law are properly constituted democratic states, with parliamentary
oversight of their ‘federative’ powers in place, they can fail to comply with the democratic
programme of instituting public power domestically. This does not, however, entail that
international treaties necessarily compromise the democratic credentials of constituent power,
or that any consensual coordination between states must violate constitutional government.
The systematic issue could be addressed by bringing constituent power back into ‘federative’
decision-making. If the people, and not the legislative, were in control of the federative (cf.
Locke 1689[1967], II § 168), the separation of constituent and constituted powers could be
upheld. For example, where treaties are subjected to ratification through constituent power,
or to extraordinary representative bodies, their constitution-changing impact can begin to be
reined in. A general practice of the coordinated, simultaneous articulation of existing constit-
uent powers would go some way towards reconciling international treaty-making with the
priority of domestic constituent power. Also, the pouvoir constituant can provide negotiation
mandates for the federative power, be it in the name of peace, liberty or welfare, in the consti-
tution itself. However, even if domestic constitutions could in principle be immunised against
international legal encroachment through the activation of domestic constituent powers, this
may not entail that the same strategy worked for supra-state constitutions, to which we now
turn.

CONSTITUENT POWER AND SUPRA-STATE

CONSTITUTIONALISATION

Seen from the perspective of the Locke-Sieyes tradition, constitutionalisation processes

transcending the jurisdiction of single states have been propelled almost exclusively
through constituted powers like heads of the executive, arbitration panels, courts, and even
non-authoritative ‘systemic’ actors like professional lawyers. Gunther Teubner’s ‘societal
constitutionalism’ is especially impressive in its diagnosis of ‘emergent’ regimes that make
a travesty of the traditional political logic of authorisation and implementation, and ascribe
‘constitutional self-validation’ to the autonomous self-regulation of legally constituted private
actors (Teubner 2014, p. 92; for a systematic overview see Golia and Teubner 2021). Even
where we restrict our view to international organisations capable of claiming public authority,
it is obvious that the most productive and resilient examples of global constitutionalism do not
result from popular activity, or the set-up of extraordinary constituent bodies. On the contrary,
it is widely agreed that they result from the combination of two factors. On the one hand, the
international legal pedigrees of organisations like the UN and EU stem from member state
322 Handbook on global constitutionalism

consensus, likewise those of the World Trade Organization (WTO) and the human rights
regime of the Council of Europe. On the other hand, processes of constitutionalisation and
constitutional transformation of international organisations have been boosted by the autono-
mous operation of internally established decision-making bodies such as the Security Council,
the European Court of Justice, the Appellate Body of the WTO Dispute Settlement Panel, or
the European Court of Human Rights. To the extent that they have not sought authentication
from constituent power, both strands of this dual dynamic are bound to violate, as we have
seen in the preceding section, the architecture at least of domestic constitutional validity. But
state-unbound constitutionalisation processes differ from the cases discussed above in creating
comprehensive legal orders that themselves claim constitutional status. It is not clear that we
can project either the diagnosed problem or suggested solutions upon them.
Two examples can help illustrate how the problem of constituent usurpation reappears in
constitutionalisation beyond the state. While the first records the constitutionalisation of an
international organisation, the second describes institutional change within an already con-
stitutional framework. The first example concerns the Appellate Body of the WTO Dispute
Settlement Panel. In cases like Shrimp/Turtle or Bananas IV, the Appellate Body broadened
its decisional competences by introducing unifying ‘constitutionalising’ principles and values
that were arguably heterogeneous to the existing WTO treaty regime, among them ‘balancing’
and ‘proportionality’, but also by relying on substantive figures of argument like ‘equal treat-
ment’ and even ‘positive discrimination’ in order to safeguard equality of opportunity in trade
law (Cass 2005, Petersmann 2006). Sympathetic observers equate this strategy with ‘the build-
ing of a constitutional system by judicial interpretation’, a practice identified as the regular
mode of operation of, for example, the US Supreme Court (Cass 2001, p. 52). In contrast to the
US Supreme Court working away on a pre-existing constitution, however, the Appellate Body,
through generating and determining constitutional values, contents and judicial methods for
the WTO regime, has contributed to creating a constitutional order that did not exist before-
hand, in claiming access to a higher law of its own making. While the Appellate Body based
its claims to authority on widely shared principles, it has not clarified their status with regard
to a pouvoir constituant. In cementing the constitutionalisation of international trade law, the
Appellate Body therefore violated the Locke-Sieyes condition that constituted actors cannot
themselves assume constitution-making powers. It exemplifies the ‘displacement of constitu-
ent or democratic power towards judicial actors’ acting as if they were the ‘primary bearers of
constitution-making power’ (Thornhill 2012, p. 357).
The second example is slightly more contentious. The UN Security Council, in its post 9/11
anti-terrorist resolutions, has not only been accused of strengthening arbitrary domestic and
global executive rule, but also of assuming and abusing constituent power. In deciding to hold
member states responsible for the freezing of terror suspects’ accounts, on the basis of black-
lists open to arbitrary emendation, it transcended its existing legal mandate to decide single
cases and assumed the capacity to ‘legislate’ prospective general rules that have a deep and
broad impact on states and individuals. In taking on legislative functions, the Security Council
has been argued to violate the Locke-Sieyes constraint that constituted bodies are not in a posi-
tion to authorise changes in their competences (Cohen 2012). Note that this criticism sticks
regardless of potential disagreements over where the authority to change competences in the
organisational set-up of the UN lies. While the Appellate Body’s closet constitution-making in
the WTO has not faced much critical scrutiny, the ‘usurpation’ of constituent authority through
the five permanent members of the Security Council, ‘not in order to protect an existing con-
 Constituent power in global constitutionalism 323

stitutional order but to institute a new one’, has been seen as cause for alarm (Cohen 2012,
p. 277). A transfer of authority from the constitutive or legislative to the executive branch is
no less contested in international than in domestic constitutionalism, where the 1933 Enabling
Act (Ermächtigungsgesetz), in which a depleted and intimidated German Parliament handed
over legislative power to the National Socialist government, still provides a paradigm illustra-
tion (Maus 2015). While the WTO and UN examples display constitution-shaping practices by
a variety of types of actors, in different bodies, both raise the question of who ought to be con-
ceived of as authoritative constituting and constitution-changing actors. In this, they exhibit
the critical function the notion of constituent power can take on in global constitutionalism.

CONSTITUENT POWER IN THE EU

While the constitutionalist paradigm in international law originated as much in discussing the
United Nations as the EU (Fassbender 1998; Weiler 1999), much of the ‘emerging’ debate on
constituent power in global constitutionalism has focused on the latter (Patberg 2013; 2020).
The existence of the EU can be traced back to quasi-Lockean treaties, entered into by the
member states’ ‘federative’ powers, and has since taken on the character of a ‘federation of
states’ (fr. fédération; ger. Bund, see Beaud 2009). Federations of states are set up as perma-
nent associations, yet committed to upholding the separate political existence of their member
states (Schmitt 2008, p. 386). While federative law is supreme in important areas, no federal
monopoly on law enforcement needs to exist (Brunkhorst 2005). Members are free to join
or exit. Crucially, although the constitutional theory of federations of states, at least in Carl
Schmitt’s influential 1928 treatise, sees them emerge from a comprehensive ‘constitutional
treaty’ or ‘contract’, it rejects the view that a federation can rely on ‘its own constitution-making
authority’ (Schmitt 2008, pp. 385, 396). In line with the dual dynamic identified earlier (see
above, section on Constituent Power and Supra-State Constitutionalisation) the constitu-
tionalising empowerment of separate decision-making bodies in the EU has relied both on
treaty-based investiture (European Parliament) as well as on flagrant self-authorisation (for the
self-empowering jurisprudence of the European Court of Justice, see Thornhill 2012). Besides
the intergovernmental European Council, which raises questions of domestic constituent legit-
imacy in the member states (see above, section on Constituent Power – The Traditional View),
both the European Parliament and the Court contribute to communal norm-setting through
legislation and activist, law-shaping interpretation. Their activity thus risks to run afoul of
Locke’s warning that ‘when any one, or more, shall take upon them to make laws, whom the
people have not appointed so to do, they make laws without authority’ (Locke 1689[1967],
II § 212). But it is not clear who could replace ‘the people’ in a supra-state context, or what
‘appointment’ procedures could confer authority on their law-making.
From the perspectives of Locke, Sieyes or Schmitt, there are no constituent powers in the
EU besides those of its member states. A single pan-European pouvoir constituant in the tradi-
tional understanding would require to ‘cut off the chain of authorisation to the Member states
and establish itself as the original source of a supranational European authority’ (Preuss 2011,
p. 84). A unified demos to institute a unified polity would divest the member state demoi of
their authority. Nobody believes that such a homogeneous macro-subject exists, or can serve as
an explanatory basis for the EU’s constitutional set-up. Instead, a variety of alternative bearers
of constituent power have been proposed, bearing in mind the EU’s character as a multilevel
324 Handbook on global constitutionalism

polity. They can be organised along the lines of ‘monistic’ and ‘split’ conceptions.5 At the two
opposite ends of the monistic spectrum are the demoi-cratic and the ‘regional cosmopolitan’
views. The regional cosmopolitan reading of the EU acknowledges the continued legal and
political relevance of the member states in the multilevel polity, but restricts constitutional rel-
evance to individuals: ‘At the foundational level, there is no competition between the member
states and the European level; the basic unit for which both levels can claim legitimacy is the
individual, her dignity and autonomy. There is and there can only be one constituting subject
even in a multilevel configuration like the EU’ (Eriksen 2016, p. 199f.). The demoi-cratic
literature rejects the individualist as well as the supranationalist orientation of the regional
cosmopolitan account, but is similarly reductionist in ascribing the role of a ‘plural pouvoir
constituant’ exclusively to the peoples of the EU member states (Nicolaïdis 2013, p. 352).
Although demoi-crats grant that, genetically speaking, the member states, not their peoples,
have brought into existence the European federation of states, they invest member state
peoples with constituent authority in order to underline their inter-connectedness and openness
in taking each other’s claims into account. Constituent power in the demoi-cratic imagination
lies in the peoples severally, not collectively speaking: The aggregate of plural pouvoirs
constituants does not create a new pouvoir in addition to those of the several peoples (for the
latter alternative, see Cohen 2012, p. 132). The member demoi reflect the enlarged mind-sets
of their citizens, but again, in contrast to regional cosmopolitanism, individuals figure as
(suitably idealised) members of states rather than of the federative Union. Therefore, under
the demoi-cratic interpretation, ‘the accession to a specific democratic multilateral order [or]
the exit from such an order’, but also ‘the design and change of the basic rules’ remain in the
exclusive competence of the European peoples (Cheneval & Schimmelfennig 2013, p. 342).
In criticising the idea that the allocation of constituent power is an all-or-nothing affair,
Walker (2009, p. 172f.), Preuss (2011, p. 91) and Habermas (2012) have all turned against
the traditional unitary conception of constituent power, as well as against demoi-cratic and
regional cosmopolitan reductionism. Habermas locates the EU’s hybrid constituent authority
in a pouvoir constituant mixte, i.e. in the dual roles of its individual citizens, as members of
their nation-states and as members of the European federation (2012, pp. 34–7). In recognis-
ing member state ‘peoples as the other constitution-founding subject’ besides the federated
citizenry (2012, p. 35), he acknowledges the demoi-cratic impulse that supra-state constitu-
tionalisation is a higher-order process, starting from constituted elements and committed to
preserving their integrity. In Habermas’s view, the justification for the staying power of single
state pouvoirs constituant in multilevel systems is that they are to guarantee the preservation
of historically accomplished levels of justice and individual rights (2012, p. 39f.). While the
domestic pouvoirs constituant are to channel this conservationist function, their Union-wide
pendant is to ensure that European citizens, and not executive or judicial elites, are invested
as co-masters of their constitutional order. In a reversal of actual EU genealogy, the European
component of its split pouvoir constituant is to reflect the contemporary features of the feder-
ative polity and provide for a separate, free-standing authorisation of supra-state constitution-
alisation. One main indicator for the existence of such a Union-wide component of constituent

5
In employing the term ‘monistic’, I am not subsuming positions to the Locke-Sieyes-Schmitt
conception of a pre-existing collective subject, but draw attention to the fact that they allocate multi-level
constituent power at a single level of the complex polity.
 Constituent power in global constitutionalism 325

power is the European Parliament, the legislation of which is authorised in direct elections by
European citizens (Habermas 2017; Preuss 2011, p. 89).
This is not the place to discuss the merits and difficulties of the notion of a pouvoir con-
stituants mixte, and the respective virtues and weaknesses of the competing accounts.6 What
seems important is that while the accounts diverge in their allocations of a European pouvoir
constituant, their authors broadly concur in the function such allocations are meant to serve.
None of the accounts are offered as historical or causal theories of EU constitutionalisation,
but as reconstructions that speak to the question of EU legitimacy. Unlike the hard-nosed soci-
ological accounts of Thornhill or Teubner, or the attempts of International Relations scholars
to rationalise the steps taken toward constitutionalisation (Rittberger and Schimmelfennig
2007), they propose readings of what makes best normative sense of European integration as
it is. According to Habermas, for example, the hypothesis of a pouvoir constituant mixte is
capable of explaining features of the political system of the EU that would otherwise appear as
constitutional anomalies: the right to exit the federation, demonstrated by Brexit’s unilateral
termination of membership (Patberg 2018), or the rule of degressive proportionality in the
distribution of seats in the European Parliament. The structural idiosyncrasies of the European
Parliament are said to make coherent sense once we imagine a hybrid pouvoir constituant
would have chosen them (Habermas 2017). None of the authors discussed is under any
illusions about the genetic priority of executive agreement, or the stealth integration powers
of the European Court of Justice. This leaves us with the question: How can counterfactual
allocations of constituent power help resolve the critical issue of constituent usurpation?
My suggestion is to read the accounts discussed as initiating, in the allocation of constituent
power, a bootstrapping process that may help redress the obvious lacuna of ex ante warrant
in EU constitutionalisation. In an inversion of Locke’s view that constituted powers cannot
establish new legislators (Locke 1689[1967], II § 141), EU constitutionalists hold that they can
do so only on pain of creating new constituent powers that will then partially subject them to
their authority. They appear resigned to the fact that most processes of constitutionalisation are
de facto usurped, but their critical interpretations do yield criteria of future legitimacy. Legal
orders that aspire to constitutional validity can be seen to take on obligations to institutionalise
democratic authorisation ex post, reflecting their respective allocations of constituent power.
While a demoi-cratic reading will suggest involving the member state peoples, the pouvoir
constituant mixte and regional cosmopolitan accounts will aim at effectively empowering
European citizens to convey or withhold institutional authorisation. While such bootstrapping
empowerments will not obliterate unauthorised original acts of constitutional founding, they
may help hold at bay future encroachment by constituted actors.

STATE-UNBOUND CONSTITUENT POWER BEYOND THE EU

The EU is a special case, and it would be implausible to transfer the results of the preceding
section to the allocation or role of constituent power in other contexts of global constitutionali-
sation. While the advanced status of integration in the EU multilevel order requires a complex,

6
See Patberg 2017; 2020 for discussions of EU pouvoir constituant mixte, as well as Murkens 2021
and Niesen 2022 for the application of pouvoir constituant mixte to multinational constituent powers
within states (the UK).
326 Handbook on global constitutionalism

perhaps hybrid account of constituent power, other, less integrated international constitutional
orders like that of the United Nations may best be analysed along demoi-cratic or intergov-
ernmentalist lines (Fassbender 2007; Cohen 2012, but cf. Habermas 2012, pp. 53–69). Also,
not all developments within global constitutionalism are best approached from the federative
perspective of state consensus. While such a ‘molecular’ aggregation of constituted ‘atoms’
may give a convincing account for federations of states, the holistic perspective of systems
theory may provide a more adequate theoretical framework for the functional integration of
sectoral regimes (Teubner 2014; Thornhill 2012). Finally, some international orders, although
arguably aspiring to constitutional status, may best be characterised by their avowed absence
of constituent power, and therefore demand a different analysis altogether. The United Nations
Convention on the Law of the Sea (UNCLOS), in invoking the figure of a ‘common heritage
of mankind’ (Art. 136; cf. Pardo 1977), appears to exclude the potential legitimacy of con-
structive constituent activity in advance, in constitutionalising a hands-off approach under
a traditional category of natural law. Despite this diversity, it seems that if the methodology
employed in allocating a European pouvoir constituant in the preceding section is sound,
an a posteriori approach can be followed throughout to ascribe constituent power based on
structural features of the organisations envisaged. This will not capture all of the hopes that
were traditionally connected with the notion of a pouvoir constituant, such as the ex nihilo
foundation of constitutional orders, or the re-founding in their totality of orders that are
conceived of as fundamentally illegitimate (Sieyes 1789[2003], p. 137). In its employment in
global constitutionalism, the notion of constituent power will morph from a (presumptively)
foundational into a largely transformational category.
At the same time, an empirical, yet legitimacy-orientated approach to the various contexts
of global constitutionalisation suggests that in transcending the Locke-Sieyes doctrine, global
constitutionalism can no longer presume that the allocation of constituent power allows
for a tautological answer, or identifies a single definite actor capable of decision-making.
Its logic of discovery of constituent powers is largely reactive: It traces their emergence as
a by-product of processes of constitutionalisation. Where constitutions emerge, they create
their own authorities, thereby superseding the alleged social contract or natural law basis of
pouvoirs constituant. We can no longer assume that membership in a pouvoir constituant is
fixed before constitution-making has been brought to a definitive end. Since we also assume
that under the doctrine of constituent power, processes of constitutionalisation do not allow of
a definitive point of termination, this entails that global constitutionalism needs to conceive of
the composition of its pouvoirs constituants as open in principle.

CONSTITUENT POWER WITHIN AND BEYOND POLITICAL

INSTITUTIONS

In the preceding sections, I have argued that processes of global constitutionalisation neces-
sarily trigger the question of constituent power once they institute decision-making bodies,
thereby raising claims to authority in limiting domestic and enabling supra-state powers. I have
suggested that it is not implausible to continue to describe the need for the popular authorisa-
tion of public decision-making by sticking to the notion of constituent power if we manage to
sever its traditional connection to a single state demos and allow for its complex allocations
to various individual and/or collective actors. The critical bite of this revised notion lies in its
 Constituent power in global constitutionalism 327

capacity to diagnose constituent usurpation in processes of constitutionalisation beyond the

state, just like its predecessor conception did for the domestic case. Its explanatory potential
lies in its contribution to reconstructive accounts of claims to authority that are embodied in
supra-state orders aspiring to constitutional status, claims that may be fully discharged only
through large-scale institutional change, empowering individuals and peoples to decide on
decision-making structures or mandates that were created without their authorisation.
Against Locke and Sieyes, it seems right not to overstate the role a pouvoir constituant can
play in founding institutions ex nihilo, in taking on an initiative role besides the reactive and
transformative roles described above. This does not entail that the category is of no empirical
relevance, as the recent surge of interest in the category of constituent power in the EU in
times of crises suggests. At least ex negativo, the EU’s lack of capability to effectively and
legitimately respond to the contemporary financial, migration and geopolitical crises may
be traced back to the fact that its processes of constitution-making have so far all but lacked
popular contributions (Ackerman 2015). Yet not all plausible uses of the notion of constituent
power in global constitutionalism can be restricted to the ex post empowerment of future
constitution-owning actors. In ending this chapter, I want to draw attention to one way in
which the notion seems useful beyond its reactive critical and its explanatory employments.
Recall Sieyes’ point that neither can a pouvoir constituant be bound by an existing constitu-
tion, nor can it be restricted in its forms of expression. This means that besides its institutional
function in the formal authorisation of constituted bodies, there is a creative side to the exercise
of constituent power that can never be fully institutionalised (Maus 2011, p. 91). Also, in con-
trast to the state-based understanding of constituent power, a pre-institutional self-activation is
always up for grabs in global constitutionalisation. It is true that ‘[i]n the transnational order,
there is no uncontested collective such as the one that was assumed in a state context’, and
the ‘authority of the constitution’ cannot therefore derive from a pre-existing and consensual
‘construct of the people’ (Nootens 2022, p. 147). On the contrary, the identity and composi-
tion of the relevant collectives is open to contestation, for example when migrants, in staging
border-crossing protests, articulate their (defeasible) claim to be part of the relevant political
public to whose deliberation and transformation they contribute (Celikates 2019). This does
not entail, even if invocations of peoplehood are inevitable, that in re-building the fleet at
sea, the notion of constituent power cannot be the operative category. No authorisation is
needed for people to claim that all authorisation derives from them. This conceptual feature
suggests that constituent power is a useful candidate for the self-description of the claims of
transnational protest movements. Of course, such movements have grown accustomed to using
the reactive languages of ‘resistance’ and ‘disobedience’. While continuing to contest the
usurpation of authority, however, it seems that movements can formulate more far-reaching
ambitions of political impact where they use the language of constituent power. The World
Social Forum is one case in point. Besides its role as a fundamental opposition movement and
ritual, its ‘alter-globalisation agenda’ transcends protest and critique. It can be captured in
the language of constituent power, in that it attempts to create ‘institutional space(s) that are
capable of advancing rights in new and unexpected ways’ (Lang 2017, p. 30). In the context
of the EU, some transnational social movements such as DieM25, Attac, PlanB or Eurexit
are already now using public narratives of pouvoir constituant when they aim at a large-scale
transformation (Niesen 2019; Patberg 2020, pp. 41–67). Like claims to justified ‘disobedi-
ence’, invoking constituent power gives dissidents a claim to non-compliance with usurped
328 Handbook on global constitutionalism

authority. More constructive in its aims than mere ‘resistance’ claims, ‘constituent’ language
channels claims to eventual self-government, not just the absence of tyranny.

REFERENCES
Ackerman, Bruce (2015). ‘Three paths to constitutionalism – and the crisis of the European Union’,
British Journal of Political Science 45, 4, 705–14.
Arato, Andrew (2017). The Adventures of the Constituent Power. Beyond Revolutions? Cambridge:
Cambridge University Press.
Beaud, Olivier (2009). Théorie de la Fédération [‘Theory of Federation’]. Paris: Presses Universitaires
de France.
Böckenförde, Ernst-Wolfgang (1991). ‘Die verfassunggebende Gewalt des Volkes. Ein Grenzbegriff des
Verfassungsrechts’ [‘The constituent power of the people. A liminal concept of constitutional law’].
In: E.-W. Böckenförde, Staat, Verfassung, Demokratie. Frankfurt/M.: Suhrkamp, pp. 90–112.
Brunkhorst, Hauke (2005). Solidarity: From Civic Friendship to a Global Legal Community. Cambridge,
MA: MIT Press.
Cass, Deborah (2001). ‘The “Constitutionalization” of International Trade Law’, European Journal of
International Law 12, 1, 2001, 39–75.
Cass, Deborah (2005). The Constitutionalization of the WTO. Legitimacy, Democracy, and Community
in the International Trading System. Oxford: Oxford University Press.
Celikates, Robin (2019). ‘Constituent power beyond exceptionalism: Irregular migration, disobedience,
and (re-)constitution’, Journal of International Political Theory 15, 1, 67–81.
Cheneval, F. and F. Schimmelfennig (2013). ‘The case for demoicracy in the European Union’, Journal
of Common Market Studies 51, 2, 334–50.
Cohen, Jean (2012). Globalization and Sovereignty: Rethinking Legality, Legitimacy, and
Constitutionalism. Cambridge: Cambridge University Press.
Colón-Ríos, Joel (2020). Constituent Power and the Law. Oxford: Oxford University Press.
Dyzenhaus, David (2007). ‘The politics of the question of the pouvoir constituant’. In M. Loughlin and
N. Walker (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form.
Oxford: Oxford University Press, pp. 129–46.
Eriksen, Erik O. (2016). ‘The pouvoir constituent of the European Union’. In G.M. Genna, T.O. Haakenson
and I.W. Wilson (eds), Jürgen Habermas and the European Economic Crisis: Cosmopolitanism
Reconsidered. London: Routledge, pp. 192–214.
Fassbender, Bardo (1998). ‘The United Nations Charter as constitution of the international community’,
Columbia Journal of International Law 36, 529f.
Fassbender, Bardo (2007). ‘“We the Peoples of the United Nations”. Constituent Power and Constitutional
Form in International Law’. In M. Loughlin and N. Walker (eds), The Paradox of Constitutionalism:
Constituent Power and Constitutional Form, Oxford: Oxford University Press, pp. 269–90.
Franklin, Julian H. (1978). John Locke and the Theory of Sovereignty: Mixed Monarchy and the Right
of Resistance in the Political Thought of the English Revolution. Cambridge: Cambridge University
Press.
Golia, Angelo Jr. and Gunther Teubner (2021). ‘Societal Constitutionalism (Theory of)’. In J. Cremades
and C. Hermida (eds) Encyclopedia of Contemporary Constitutionalism, Springer: Cham.
Habermas, Jürgen (2012). The Crisis of the European Union: A Response. Cambridge: Polity Press.
Habermas, Jürgen (2017). ‘Citizen and state equality in a supranational political community: Degressive
proportionality and the pouvoir constituant mixte’, Journal of Common Market Studies 55, 2, 171–82.
Hurt, Stephen R., Donna Lee and Ulrike Lorenz-Carl (2013). ‘The argumentative dimension to the
EU-Africa EPAs’, International Negotiation 18, 67–87.
Kalyvas, Andreas (2013). ‘Constituent power’, Political Concepts 3, 1, politicalconcepts.org (last
accessed 27 June 2017).
Krisch, Nico (2016). ‘Pouvoir constituant and pouvoir irritant in the postnational order’, International
Journal of Constitutional Law 14, 3, 657–79.
 Constituent power in global constitutionalism 329

Kumm, M. (2015). ‘Ein Weltreich des Kapitals? Die Institutionalisierung ungerechtfertigter

Investorenprivilegien in TTIP und CETA’ [‘A world empire of capital? The institutionalization of
unjustified investors equity in TTIP and CETA’], Leviathan, 43 (3), 464–75.
Lang, Anthony F. (2017). ‘Global constituent power: Protests and human rights’. In A. Hehir and
R.W. Murray (eds), Protecting Human Rights in the 21st Century. London: Rowman and Littlefield,
pp. 19–33.
Lawson, George (1992[1659]). Politica Sacra et Civilis. Edited by C. Condren. Cambridge: Cambridge
University Press.
Locke, John (1689[1967]). Two Treatises of Government. Edited by P. Laslett. Cambridge: Cambridge
University Press.
Loughlin, Martin (2010). ‘What is Constitutionalisation?’ In P. Dobner and M. Loughlin (eds), The
Twilight of Constitutionalism. Oxford: Oxford University Press, pp. 47–69.
Maus, Ingeborg (1992). Zur Aufklärung der Demokratietheorie [‘Toward Enlightenment of Democratic
Theory’]. Frankfurt/M: Suhrkamp.
Maus, Ingeborg (2011). Über Volkssouveränität [On Popular Sovereignty]. Berlin: Suhrkamp.
Maus, Ingeborg (2015). ‘Verfassung und Verfassunggebung [‘Constitution and constitution-making’].
Zur Kritik des Theorems einer “Emergenz” supranationaler und transnationaler Verfassungen’. In I.
Maus, Menschenrechte, Demokratie und Frieden. Berlin: Suhrkamp, pp. 122–93.
Möllers, Christoph (2011). ‘Pouvoir constituant – constitution – constitutionalisation’. In A. von
Bogdandy and J. Bast (eds), Principles of European Constitutional Law. Oxford: Hart, pp. 169–204.
Murkens, Jo Eric Kushal (2021). ‘A written constitution – a case not made’, Oxford Journal of Legal
Studies 41, 4, 965–86.
Nicolaïdis, Kalypso (2013). ‘European demoicracy and its crisis’, Journal of Common Market Studies
51, 2, 351–69.
Niesen, Peter (2012). ‘Volkssouveränität als Herrschaftsbegrenzung [Popular sovereignty as limiting
domination]. Lockes Theorie des Verfassungsstaats’. In B. Ludwig and M. Rehm (eds), John Locke.
Zweite Abhandlung über die Regierung. Berlin: Akademie, pp. 131–52.
Niesen, Peter (2019). ‘Reframing civil disobedience: Constituent power as a language of transnational
protest’, Journal of International Political Theory 15, 1, 31–48.
Niesen, Peter (2022). ‘Two cheers for lost sovereignty referendums’, German Law Journal 23, 1, 44–55.
Niesen, Peter, Svenja Ahlhaus and Markus Patberg (2015). ‘Konstituierende Autorität. Ein Grundbegriff
für die Internationale Politische Theorie [‘Constituent authority. A basic concept for international
political theory’], Zeitschrift für politische Theorie 6, 2, 2015, 159–72.
Nootens, Genéviève (2022). Constituent Power beyond the State. Abingdon and New York: Routledge.
Pardo, Arvid (1977). ‘The emerging law of the sea’. In D. Walsh (ed.), The Law of the Sea, New York
and London: Praeger, pp. 33–76.
Patberg, Markus (2013). ‘Constituent power beyond the state: An emerging debate in international polit-
ical theory’, Millennium: Journal of International Studies 42, 1, 224–38.
Patberg, Markus (2016). ‘Against democratic intergovernmentalism: The case for a theory of constituent
power in the global realm’, International Journal of Constitutional Law 14, 3, 622–38.
Patberg, Markus (ed.) (2017). Symposium: ‘The EU’s pouvoir constituant mixte: Exploring the system-
atic potential of an innovative category’, Journal of Common Market Studies 55, 2, 165–222.
Patberg, Markus (2018). ‘After the Brexit vote. What’s left of “split” popular sovereignty?’, Journal of
European Integration 40, 7, 923–37.
Patberg, Markus (2020). Constituent Power in the European Union. Oxford: Oxford University Press.
Petersmann, Ernst-Ulrich (2006). ‘Multilevel trade governance in the WTO requires multilevel
constitutionalism’. In C. Joerges and E.-U. Petersmann (eds), Constitutionalism, Multilevel Trade
Governance, and Social Regulation. Oxford: Oxford University Press, pp. 47–102.
Poole, Thomas (2021). ‘The script of alliance: Locke on the federative’, History of Political Thought 42,
4, 683–704.
Preuss, Ulrich K. (2011). ‘Is there a constituent power in the European Union?’. In O. Cayla and P.
Pasquino (eds), Le Pouvoir Constituant et l’Europe. Paris: Dalloz, pp. 75–92.
Rittberger, Berthold and Frank Schimmelfennig (eds) (2007). The Constitutionalisation of the European
Union. London: Routledge.
Rubinelli, Lucia (2020). Constituent Power: A History. Cambridge: Cambridge University Press.
330 Handbook on global constitutionalism

Scheuerman, William E. (2019). ‘Constituent power and civil disobedience: Beyond the nation-state?’,
Journal of International Political Theory 15, 1, 49–66
Schmitt, Carl (2008[1928]). Constitutional Theory. Edited and translated by J. Seitzer. Durham, NC:
Duke University Press.
Sieyes, Emmanuel (1789[2003]). ‘What is the third estate?’ In E. Sieyes, Political Writings. Edited by
M. Sonenscher. Indianapolis: Hackett, pp. 92–162.
Teubner, Gunther (2014). ‘Transnationaler pouvoir constituant? [‘Transnational constituent power?’]’,
in G.-P. Calliess (ed.), Transnationales Recht. Stand und Perspektiven. Tübingen: Mohr, 77–94.
Thornhill, Chris (2012). ‘The formation of a European Constitution’, International Journal of Law in
Context 8, 3, 354–93.
Walker, Neil (2009). ‘Reframing EU constitutionalism’. In J.L. Dunoff and J.P. Trachtmann (eds),
Ruling the World? Constitutionalism, International Law, and Global Governance. Cambridge,
Cambridge University Press, pp. 149–76.
Weiler, Joseph (1999). The Constitution of Europe, Cambridge: Cambridge University Press.
Wiener, Antje (2014). A Theory of Contestation. Berlin: Springer.
23. Human rights as transnational constitutional
law
Samantha Besson1

INTRODUCTION

Human rights are often taken to epitomize the existence of global constitutional law2 or, at least,
of global constitutionalism (see Klabbers et al 2009; Wiener et al 2012). Since 1945, human
rights have been protected through both domestic (constitutional) human rights law (DHRL)
and international3 (universal and/or regional4) human rights law (IHRL), and monitored and
interpreted by their corresponding domestic and international human rights institutions.5
This has led to well-known and extensive discussions about the dual (see Neuman 2003;
Waldron 2011; Besson 2015a, 2017) constitutionalization (or positivization) of human rights
and/or about the duality of constitutional law itself (see Kumm 2009, 2012; Besson 2009a,
2014; Krisch 2010). Previous discussions have explored this constitutional duality by looking
at how international human rights law may be regarded as a (formal or material) constitu-
tional regime within international law (see Gardbaum 2008; Besson 2009a), on the one hand,
and at how it may endorse a constitutional function domestically and/or internationally (see
Gardbaum 2008; Besson 2015a), on the other. This chapter takes the debate one step further
and complements these dual approaches to human rights law with a more integrated concep-
tion or, in short, with a truly transnational or global6 one. It proposes to explore the extent to
which the domestic and international human rights law regimes are complementary and hence

1
This is an updated version of a chapter first published in 2017. Many thanks to Tony Lang and
Antje Wiener for their invitation to contribute; to Folke Tersman, Patricia Mindus and the participants in
the Higher Philosophy Seminar at the University of Uppsala on 26 February 2016 for their comments;
to José Luis Martí and Andreas Føllesdal and the participants in the Barcelona workshop on 6–7 May
2016 for their feedback; and to Allen Buchanan for our many exchanges on human rights epistemology.
I would also like to thank Gaelle Mieli for her research and editorial assistance.
2
‘Constitution’ or ‘constitutional law’ is used here in a thick sense to refer to a set of legal norms of
higher rank (entrenched; in a formal sense) and whose content is fundamental or constitutive (in a mate-
rial sense). ‘Constitutionalism’ amounts to any kind of theory pertaining to the existence or content of
constitutional law. See also Besson (2009a).
3
This chapter focuses on the European Convention on Human Rights (ECHR) and the European
Court of Human Rights’ (ECtHR’s) case-law. Some of the argument may then be generalized to other
regimes in IHRL, as I will explain.
4
Both ‘regional’ and ‘universal’ regimes of international human rights law are embraced under
the umbrella notion of ‘international human rights law’. Their relations should not, however, be
those between regimes of international law (see Brems 2018; Besson 2018a). See, more generally,
Burgorgue-Larsen 2020.
5
Unless specified otherwise in the course of the argument, domestic and international human rights
‘institutions’ include courts as much as other legislative or administrative bodies.
6
Of course, the term ‘global’ could also be used to refer to the universal scope of IHRL by contrast
to their regional scope. In this chapter, however, it will be used interchangeably with ‘transnational’, to

331
332 Handbook on global constitutionalism

best approached together as ‘transnational human rights law’ (see McCrudden 2000, p. 530;
Hessler 2005, p. 37; Waldron 2005, p. 423, 2011, 2012; Besson 2015a, 2017) or, as it is some-
times also referred to, as ‘transnational constitutional law’ (see McCrudden 2000, p. 530).
While scholars have mapped transnational aspects of the human rights practice, and espe-
cially transnational comparisons in domestic (constitutional) and international human rights
law (see, for example, McCrudden 2000, 2007, 2013, 2015, 2018; Halmai 2012; Hirschl 2014;
Jackson and Tushnet 2014; Jain and Versteeg 2023), this is not yet true of their theoretical or
philosophical underpinnings. Curiously, the exact nature, justifications, determination and
implications of the ‘transnationality’ of human rights law remain largely under-theorized (see
McCrudden 2000, pp. 522, 532; see, however, Waldron 2005, 2011, 2012; Besson 2015a,
2017, 2019a; McCrudden 2018).
This chapter aims to remedy this theoretical gap. Starting from what it describes as the
transnational practice of human rights law and developing the best interpretation thereof,
the chapter discusses what transnational human rights law both does and should amount to,
and especially from where it could draw its legitimate authority. The chapter’s argument is
three-pronged, accordingly. The first section differentiates the notion of transnational human
rights law from other conceptions of transnationality used in legal scholarship. In the second
section, the chapter develops a transnational interpretation of the domestic and international
regimes of human rights law that both fits and justifies their dual and complementary practice.
The third section accounts for some of the central methods for determining transnational
human rights law, and in particular human rights comparison and the transnational consensus
it identifies. The chapter concludes with a discussion of some implications for the future prac-
tice of domestic and international human rights law.

THE TRANSNATIONALITY OF HUMAN RIGHTS LAW DEFINED

The ‘transnationality’ of human rights law captures what is specific about its sources or
law-making processes, both domestic and international, and about each of them taken indi-
vidually or together with the others (see also Besson 2015a, 2017). More specifically, the
transnational nature of human rights law corresponds, as I argue in the next section, to the dual
and complementary processes or sources through which domestic and international human
rights laws are made, interpreted and enforced, and hence mutually validated and legitimated.
In connection with law generally, transnationality has, first, been used to refer to and
qualify, alternatively or in combination (see, for example, Scott 2009; Shaffer 2016), a variety
of legal dimensions. It has been used by reference to, for instance: a legal order/a set of legal
norms or standards distinct from domestic and international law (see, for example, Scott 2009,
pp. 873–4) or, on the contrary, combining both (see, for example, Halliday and Shaffer 2015;
Shaffer 2016); private legal subjects and/or law-makers that are distinct from those of public
domestic and international law (see, for example, Muir Watt 2011; Michaels 2014); a legal
context including cross-border issues or problems involving more than one state or jurisdiction
(see, for example, Jessup 1956, pp. 2–3, 136); a complex type of normativity beyond legality
that mixes social, religious, moral and legal norms; or, finally, a pluri-disciplinary (often,

encompass all the law-making processes or sources of human rights law whether domestic or interna-
tional and, in the latter case, whether regional or universal.
 Human rights as transnational constitutional law 333

socio-legal) and/or critical method in legal theory (see, for example, Teubner 1996; Twining
2009; Scott 2009; Zumbansen 2013, 2015) or even in legal education (see, for example,
Arjona et al 2015; Zumbansen 2015).
Human rights, secondly, are often mentioned as a paradigm example in discussions of trans-
national law. Their transnational dimensions may match some of the previous dimensions of
transnational law, albeit not necessarily all of them. The qualification ‘transnational’ has been
used to refer to and qualify, alternatively or in combination (see, for example, Vandenhole
2012; Gibney and Vandenhole 2014), specific dimensions of the human rights practice, and
for instance the following: the identity of human rights duty-bearers beyond the state, and
especially private (individual or collective) persons (see, for example, Vandenhole 2012) and/
or international institutions (see, for example, Besson 2015b; Vandenhole 2015); the making
of human rights standards, whether they are private law (see, for example, Vandenhole
2012) or even soft law standards (see, for example, Engle Merry 2015); domestic fora of
human rights litigation outside of or including the state of jurisdiction (see, for example,
Zumbansen 2005), of judicial dialogue on human rights (see, for example, Zoethout 2015)
or of cross-border human rights advocacy by non-state actors (see, for example, Keck and
Sikkink 1998); the scope of states’ human rights duties beyond their respective (territorial and
extraterritorial) jurisdiction (see, for example, Skogly and Gibney 2002; Besson 2015b, 2018b,
2023; Vandenhole 2015; Altwicker 2018; Skogly 2021), and what becomes their application’s
condition or trigger if it is no longer a matter of jurisdiction; the method of determination and
interpretation of human rights’ duties, whether it is by analogy, comparison, borrowing (see,
for example, Klug 2005); or, finally, a method of enquiry or field of socio-legal research (see,
for example, Klug 2005).
None of these conceptions of the transnationality of human rights law captures this chap-
ter’s understanding of human rights law as an integrated or common regime of law, however.
Importantly, moreover, the transnationality of human rights law, as it is understood in this
chapter, should not be conflated with legal plurality (often also referred to as ‘legal pluralism’;
Besson 2009b, 2012a, 2015c, 2019b) in human rights law, whether in the socio-legal sense of
the concept or the strictly legal one.
Starting with the former, first, that is to say legal plurality in the socio-legal or anthropo-
logical sense (see Engle Merry 1988; Zumbansen 2010), the proposed argument is compatible
with the plurality of sources of norms at play in a given legal situation, some stemming from
official or public law and others less so. However, this is not what the transnationality of
human rights law discussed here is about. The proposed argument focuses instead on human
rights as public or official legal rights and duties, and not on other types of norms applicable in
the legal context such as religious norms or private norms in particular. Its object is the human
rights’ duties established by and for states (see Besson 2013a, 2015b) and hence those that are
generated through the states’ domestic and international public law.
With respect to the latter, secondly, it is important to emphasize that the relationship pro-
pounded between domestic and international human rights law is one of complementarity, and
not of competition. The pluralistic qualification should be retained for the relations between
competing international legal norms and regimes, including within international human rights
law itself (for instance, between regional and universal international human rights law or
within any of them), that protect the same object in different ways and between which norma-
tive conflicts may arise. It is not the way domestic and international human rights law relate
in practice, however, and not the way I argue they should either (contra: Krisch 2010; Kumm
334 Handbook on global constitutionalism

2012). Both sets of legal norms protect the same rights, and there can be clashes between
domestic and international institutions’ interpretations of these same rights. However, these
interpretations do not compete, as we shall see, but apply only in a sequence and in order to
complement one another. This relationship of complementarity (or subsidiarity stricto sensu;
Besson 2016b) cannot be qualified as pluralistic, as a result (see Hessler 2005; Besson 2014,
2015a, 2019b).

THE TRANSNATIONALITY OF HUMAN RIGHTS LAW JUSTIFIED

What the complementarity or transnationality of human rights law captures is how both the
domestic and the international legal norms protecting human rights relate in a way that is
uncommon in international law (Besson 2015a; see also McCrudden 2015, pp. 536–8): they
are not only situated in a relationship of top-down transposition and/or enforcement of an
international standard in domestic law, but also in a relationship of bottom-up international
recognition and consolidation of the transnational or common law stemming from different
domestic legal orders into an international standard. More specifically, that relationship
is mutual, on the one hand, to the extent that the domestic and international human rights
law-making and law-ascertaining processes are comparative and hence transnational at both
the domestic and the international levels. It is also dynamic, on the other hand, to the extent
that it does not only start domestically and end internationally, but there is constant normative
toing and froing between the two levels of legal protection.
The minimal content of international human rights law evolves together with that of
their transnational domestic practice as a result (see also Brems 2009). This usually implies
a levelling-up of the international minimal human rights standard through the corresponding
domestic authorities’ duties to maximize human rights protection, but we cannot preclude
some degree of levelling down. The latter is made harder by the international entrenchment of
the transnational minimal human rights standard. Because that standard requires the same level
of transnational commonality to evolve one way or the other, levelling down is rare in practice
(on moral progress and human rights, see, for example, Buchanan 2013).
We may wonder about the justification for this transnational legality of human rights in
practice. Prima facie, indeed, international law has the kind of universal material scope that
matches that of universal moral rights (see also Waldron 2016). It would seem therefore to
provide the privileged order for the legal protection of human rights, knowing that interna-
tional human rights law claims to bind all states and hence to be universally justified. This
applies whether legal human rights are merely considered to recognize existing universal
moral rights, or (also) to contribute to these rights’ specification or even to their creation (on
the relationship between moral and legal human rights, see Besson 2012b, 2022).
The primary justification for the transnational legality of human rights lies in the egalitarian
and accordingly democratic dimension of human rights. As I have argued elsewhere, human
rights are constitutive of our equal basic moral status (see Buchanan 2010b; Besson 2012b,
2020a). It follows that human rights’ holders and duty-bearers should participate in the process
of recognizing and specifying their equal and mutual rights. Accordingly, the process through
which their recognition and specification take place ought to be egalitarian and public, and
include all those whose rights are affected and whose equality is at stake. What this means
is that human rights should be recognized and specified as equal rights through a procedure
 Human rights as transnational constitutional law 335

that guarantees their public equality, that is, a democratic procedure. As a result, given inter-
national law’s inherent democratic limitations, but also because international human rights’
duties bind states to people under their jurisdiction and not some international community of
states and/or individuals (see Besson 2015b, 2023), using international law as the sole order
where we should recognize fundamental and general human interests as sufficiently important
to generate duties of states at the domestic level would not be sufficiently egalitarian and
democratically legitimate (see Cohen 2008, pp. 599–600; Besson 2013b).
At the same time, of course, certain minimal egalitarian conditions have to be met for the
domestic recognition and specification of human rights to be democratic. These minimal
conditions of public equality should be guaranteed externally and constrain the domestic
polity. This is where international human rights law, and the minimal democratic guarantees
it constitutes and consolidates over time such as the right to political participation, freedom of
expression and association and non-discrimination rights, come into the picture. However, for
these minimal democratic and human rights constraints in international law to be democrat-
ically legitimate in the first place, they should draw from the transnational common ground
shared in the practice of states that regard each other as democratic. Importantly, they need
not have (yet) been protected as rights to be recognized as international human rights, but only
substantially realized so as to constitute a minimal common ground among democratic states.
International human rights law’s democratic legitimacy requires, therefore, that it originates
from the transnational consolidation of the domestic human rights law and practice of demo-
cratic states, albeit constraining these states minimally in return at the same time (see Besson
2011, 2013b, 2015a, 2019a). Later on, only the domestic human rights practices regarded as
minimally democratic according to the common standards entrenched in international human
rights law may and should be considered in the further transnational development of these
minimal international human rights standards and as potential candidates for entrenchment
into a new international minimal human rights standard (see Hessler 2005, p. 48ff).
This democratic argument for the legitimacy of the transnationality of human rights law,
and the mutual validation of domestic and international human rights law, corresponds to what
I have referred to elsewhere as the mutual democratic legitimation of domestic and interna-
tional human rights law (see Besson 2011, 2013b, 2015a, 2019a; see also Buchanan 2004,
pp. 187–9, 2011; Buchanan and Powell 2008, pp. 348–9). The interaction between (interna-
tional) human rights and (domestic) citizens’ rights is also reminiscent of Hannah Arendt’s
universal right to have particular rights and the complementarity between the universal and the
particular. Human rights are first specified as citizens’ rights, but citizens’ rights progressively
consolidate into human rights which constrain them in return while also developing further
through them (see Arendt 1951; Benhabib 2011, pp. 16, 126; Habermas 2011, pp. 31–2, 36–8).
Besides the democratic justification for the transnational legalization of human rights,
I should also mention a second justification: an epistemic justification. Given the concrete
nature of human rights duties, their existence and content is best identified in domestic cir-
cumstances. Human rights being equal rights, this is indeed the socio-comparative context in
which the general threats to the interest protected by a given human right can be assessed and
the potential corresponding duties identified (see Besson 2012b, 2013a).
Again, however, this specification requires some minimal epistemic conditions to be
respected. These conditions are best imposed from the outside through international human
rights law (for example, freedom of assembly, freedom of speech, religious freedom and
non-discrimination rights). However, this should be done in a way that starts from the epis-
336 Handbook on global constitutionalism

temic conditions experimented and tried out previously in domestic circumstances in the
context of the recognition of human rights and the determination of the corresponding duties.
As before, once these minimal epistemic conditions are entrenched internationally, only the
practice of the states embodying them shall be considered for the further interpretation and
development of international human rights law and with a view to considering their new
common interpretations as part of the international standard.
This approach to human rights epistemology, like Allen Buchanan’s, relies on a moral
epistemology that is ‘social’ (see Buchanan 2010a, 2019), and even socio-political given how
human rights are constitutive of our public status as equals. Because our social context may
also distort our beliefs about our rights, the epistemic conditions experimented and tried out
previously in domestic circumstances where human rights have developed should be those
where these rights are already substantively realized. This is what Buchanan has described as
the ‘reflexive’ dimension of the moral epistemology of human rights (see Buchanan 2019).
These minimal epistemic conditions for the determination of human rights come close, in
their role and content, to the minimal democratic conditions referred to earlier. It is actually
common in practice to see a combination of the democratic and the epistemic justifications
for the complementarity of domestic and international human rights law (see ECtHR, S.A.S. v
France, para. 129). From a democratic theory perspective, the combination is not surprising
since epistemic justifications are often put forward for democratic procedures themselves (see,
for example, Martí 2006). What this means for the epistemology of human rights, is that the
minimal epistemic conditions actually amount to some minimal form of substantive realization
of democracy.
A ready objection to the epistemic argument for transnational human rights law, and argu-
ably also to the democratic one, is the universality of human rights (‘universality objection’).
Someone could indeed consider that the transnational consolidation of domestic specifications
of human rights may lead to recognizing parochial conceptions of human rights as minimal
international human rights standards, thereby contradicting their claim to a universal justifica-
tion (see, for example, Brems 1996; Benvenisti 1999).
The best way to reply to the universality objection is by bringing in the more widespread
and exact reverse objection: the ‘parochialism-objection’ to the universality of international
human rights law itself. The latter objection is usually opposed to the claimed universality of
international human rights law and based on what it regards as the largely parochial or cultural
conceptions stemming from one dominant culture or set of cultures and imposed by inter-
national human rights law in the name of universality on others. The objection has different
grounds: international human rights law may be parochial because there is no universal moral
standard to start with or, in a more pluralist version of the objection, because there is more than
one universal moral standard, on the one hand, or, in a less sceptical version of the objection,
because of our epistemic limitations, on the other (for the other parochialism-objections to the
universality of human rights, see Buchanan 2008, 2017; Besson 2022). It is the latter form of
the objection that is antithetical to the universality objection opposed to the proposed account
of transnational human rights law and the one I focus on now.
In reply to the universality objection, we may argue that the transnational making of human
rights law actually amounts to a way to prevent parochial conceptions from being too quickly
entrenched into international human rights law, and hence to protect the claimed universality
of human rights from parochialism. As I argue in the next section, starting from many dis-
tinct domestic human rights’ interpretations and comparing them on a transnational scale in
 Human rights as transnational constitutional law 337

order to identify a common ground, contribute to questioning the future international human
rights standard and hence to making it less parochial. It prevents one domestic conception in
particular from becoming too quickly, and without transnational probing, the international
conception, and hence the alleged universal conception. In short, transnational human rights
law could be seen as exhibiting a form of ‘good parochialism’ that should not be too quickly
discarded if we are to protect the universality of human rights from the epistemic objection of
‘bad parochialism’.
Importantly, this epistemic argument for transnational human rights law does not mean that
human rights should be regarded as ‘self-certifying’ (see Buchanan 2019). It is not because
we regard a particular transnational practice as amounting to the realization of transnational
human rights law that should be entrenched as a minimal international standard that that
practice necessarily corresponds to the (however pluralistic) universal moral truth or, later
on, that it captures one of its (however multi-faceted) correct moral interpretations (see also
Waldron 2016; Besson 2020b). We may be entirely wrong about them and should be ready
to correct them ourselves. However, it is likely that we will be better able to ascertain what
human rights are in conditions where what we think, after having compared our respective
reasoning on a transnational scale, to be human rights are realized, than doing so alone either
on a merely domestic or on a purely international scale. This is not to say that there are no
epistemic qualities in existing international human rights institutions, such as, for example,
their inclusiveness, representativeness or deliberativeness (on these epistemic qualities, see
Buchanan 2011, 2017), but only that these are actually best understood as complementary and
transnational in their functioning rather than unilateral and top-down. That is, the epistemic
qualities usually granted to international human rights law and institutions are exactly those
captured by their transnationality.

THE TRANSNATIONALITY OF HUMAN RIGHTS LAW

DETERMINED

The transnationality of human rights law so justified has direct implications for how we should
understand its sources, both domestic and international, that is, for the way human rights law is
made and specified in practice (for a full argument, see Besson 2016a, 2017, 2019a).
One common methodological feature to sources of human rights law is that they all use
transnational human rights comparison to determine the existence of a transnational human
rights consensus.

Transnational Human Rights Comparison

Since 1945, human rights comparison has become the main and shared method of domestic
(see Waldron 2011, p. 423; Waldron 2016) and international human rights’ institutions alike
(see McCrudden 2014, 2015). It enables them to identify commonalities in the transnational
domestic practice of human rights and, accordingly, to consolidate them into minimal inter-
national human rights standards. Importantly, these domestic and international comparisons
pertain to both domestic and international human rights law and not only to one of them, and
this whether it is operated by an international human rights body or court or domestic ones.
338 Handbook on global constitutionalism

What differentiates transnational human rights comparisons from more traditional

nineteenth-century constitutional comparisons is not only their authors and their scope, but
also their function. If there is human rights comparison in the contemporary dual human rights
regime, it is because human rights law is transnational and shares a common ground, not
merely because it is interesting, or even strategic, to compare domestic practices and borrow
from some of them (Besson 2019a).
Because human rights’ comparison plays a distinct function in transnational human rights
law, its justifications are also distinct from those usually put forward for comparative consti-
tutional law in general, such as conceptual clarification in particular (see McCrudden 2000;
Waldron 2005; Waldron 2011, pp. 411, 418, 420 ff.).7 This has implications, in turn, for the
authority of comparative human rights law and the transnational common law identified. Its
authority is not only theoretical, for instance when a comparison is informative or persuasive,
as is the case in comparative constitutional law in general (see McCrudden 2000, p. 513), but
truly practical and hence binding (Waldron 2012, pp. 62, 76, 93; Besson 2019a). This applies
to international human rights’ courts and institutions, but also arguably to domestic ones.
The first justification for the authority of human rights comparison is democratic. Ironically,
however, one of the most serious critiques usually put forward against the legitimate authority
of comparative human rights law is the democratic critique. It is generally argued indeed that
using human rights’ interpretations stemming from other domestic jurisdictions amounts to
a clear violation of the democratic principle (see McCrudden 2000, p. 501ff, 529ff; Waldron
2011, p. 412ff). It follows from this chapter’s argument about the mutual validation and
legitimation of domestic and international human rights law, on the contrary, that comparative
constitutional law provides the best way to grasp what is common among democratic states’
human rights practice and hence what democracy amounts to minimally (see Buchanan 2004,
p. 189; Besson 2018a).
Independent from, or additional to the democratic justification, another justification for the
authority of human rights comparison is epistemic. It echoes the epistemic justification for the
transnationality of human rights law discussed previously in the chapter. Based on the pro-
posed reflexive social-moral epistemology of human rights (see Buchanan 2010a, 2017), one
may consider that human rights comparison is the best way to determine what human rights
are. Because our beliefs may be distorted by our parochial social practices, it is important that
a comparison takes place between different domestic and international human rights law and
institutions, and therefore has a transnational scope. Methodologically, human rights compar-
ison is grounded in the universality of human rights, but takes into account the need for local
socio-political contextualization in the specification and interpretation of their corresponding
duties and content (Besson 2019a). So doing, it enables the constant passage from the univer-
sal to the particular, and from the latter to the former.

Transnational Human Rights Consensus

Unlike that which may be the case in other comparative law contexts, the comparative outcome
that should be identified through human rights comparison is known in advance: this is the

7
To that extent, it may even be misleading to refer to it as ‘comparative international human rights
law’ as yet another branch of comparative international law (McCrudden 2015). Comparison is indeed
inherent to the implementation of international human rights law itself (see Besson 2018a).
 Human rights as transnational constitutional law 339

human rights’ ‘common law’, ‘common ground’ or ‘consensus’ across the various domestic
interpretations of human rights compared (Besson 2019a). The minimal common ground
so identified may then, if it is validated by international human rights law and institutions,
become entrenched as a minimal international human rights standard that can bind domestic
authorities in return and be submitted to their further interpretation and practice.
The terms used to capture the common ground in transnational human rights law vary
considerably. The most common term is international, global or transnational ‘consensus’. It
is the case of the ‘European consensus’ in the ECHR’s system (see Wildhaber et al 2013), but
we also find references to ‘regional consent’ in the American Convention on Human Rights’
(IACHR’s) system (see Neuman 2008; Besson 2018a).
The ‘European consensus’, or ‘converging approach’, corresponds to a form of interpreta-
tive custom of the ECHR developed among state parties (see Ziemele 2012). It is based on
European states’ general practice (the latter need not be unanimous, and is mostly based on
a ratio of six out of ten states, on average; see Wildhaber et al 2013), on the one hand, and their
opinio juris, on the other.
The two elements constitutive of the consensus are verified by reference to various legal
materials: some domestic (for example, domestic legislation or judicial decisions) and some
international (for example, other international human rights treaties or norms and their
interpretations by their respective international organs); some soft and some hard; some
internal to some or all the states parties to the ECHR and some external to that group of
states (see ECtHR, Demir and Baykara v Turkey, paras 85–6; ECtHR, Sitaropoulos and
Giakoumopoulos v Greece, para. 66; see also McCrudden 2013; Ziemele 2012; Wildhaber et
al 2013; Dzehtsiarou 2015; Besson 2017). The latter comparative reference to international
law external to European states parties, or, at least, to those at stake in a given case, and
hence to international law that does not bind them, has been contested (see Letsas 2010). The
court has since then confirmed its universalizing practice, however (see ECtHR, Case of the
National Union of Rail, Maritime and Transport Workers v the United Kingdom, paras 76, 98).
What matters, it has stressed, is that the relevant evidence ‘denote[s] a continuous evolution in
the norms and principles applied in international law or in the domestic law of the majority of
member States of the Council of Europe and show[s], in a precise area, that there is common
ground in modern societies’ (ECtHR, Demir and Baykara v Turkey, para. 86).
European states’ consensus constrains the court’s evolutive interpretation of the ECHR
and guides it. According to the ECtHR, the reference to consensus and the evolution of state
practice actually amounts to a duty, and not just a possibility (see ECtHR, Sitaropoulos and
Giakoumopoulos v Greece, para. 66; ECtHR, Demir and Baykara v Turkey, para. 85: ‘can
and must’). More specifically, the ‘European consensus’ so defined has been used to establish
the degree or intensity of the margin of appreciation of states when specifying and restricting
international human rights’ duties (see, for example, Spano 2014; Dzehtsiarou 2015; Besson
2016b).
Regrettably, the ‘European consensus’ is not the sole criterion or test at play in the ECtHR’s
reasoning pertaining to the margin of appreciation, however, and its application remains
largely unpredictable as a result (see, for example, Dzehtsiarou 2015). Nevertheless, there are
ways for the European consensus to be streamlined, and then generalized into other regional,
but also universal human rights regimes (Besson 2018a, 2019a; contra: Shany 2021).
Thus, the ‘transnational human rights consensus’ could work as the effectivity test for
human rights’ subsidiarity qua complementarity (see, for a full argument, Besson 2016b).
340 Handbook on global constitutionalism

Referring to the transnational consensus of democratic states as the minimal effective standard
of human rights protection is the way to secure the democratic legitimacy of international
human rights institutions’ or courts’ review without, however, turning international human
rights case-law into an incoherent and hence non-egalitarian patchwork of individual domestic
albeit democratic specifications (contra: Gerards 2014; Letsas 2018). Of course, the existence
or absence of a transnational human rights consensus should only protect states’ margin of
appreciation within the egalitarian limits of subsidiarity, that is, provided non-discrimination
rights and the fundamental core of human rights are not at stake. Conversely, and for the same
democratic reasons, setting aside the priority of domestic authorities, and especially reducing
their margin of appreciation, in cases that pertain to political rights that are therefore closely
related to democracy, requires a strong degree of transnational consensus or, depending on
the circumstances, may not even be justified in certain rare cases (see, for example, ECtHR,
Sitaropoulos and Giakoumopoulos v Greece, paras 63–5; see also Besson and Graf-Brugère
2014, pp. 953–4).
At this point, we may object that not all states are democratic, and that this jeopardizes the
democratic argument for a democratic transnational consensus in human rights law (for a full
discussion, see Besson 2019a). This is a false problem, first, because all states parties to inter-
national human rights treaties have to be democratic as much as they have to respect human
rights. Thus, their consensus has to be incrementally democratic, just as they incrementally
have to protect human rights. Secondly, more specifically, when states have not ensured suffi-
cient democratic deliberation in a given human rights case, their margin of appreciation should
be limited or non-existent because the condition for the latter, that is domestic reason-giving,
is not fulfilled (see Føllesdal 2018). As I explained before, in the absence of the latter, states
should not be allowed to contribute further to the transnational development of the interna-
tional human rights standard (Besson 2019a).

CONCLUSIONS

While constitutional law scholars have mapped much of the transnational practice of human
rights, including the practice of comparison that prevails in domestic (constitutional) and
international human rights law, this is not yet true of their theoretical underpinnings. Aiming at
filling this gap, and after some clarifications of the concept of transnationality in law in general
and in human rights law in particular, the chapter started by justifying the transnationality of
human rights law on democratic and epistemic grounds, before drawing implications for its
determination methods whose practice remains largely irregular and in need of justification,
that is, human rights comparison and the transnational human rights consensus it thereby
identifies.
From a political perspective, the proposed transnational reading of human rights law has
important implications for the way we should deal with the growing resistance against interna-
tional human rights law and courts in democratic and less states alike. Those courts cannot and
should not be identified with other international courts that enforce international law top-down
and claim ultimate interpretative authority over domestic courts. As a result, domestic judges,
and institutions more generally, should not fear to engage with international human rights law
and courts for it is the only way international human rights law can develop and be interpreted
transnationally and hence democratically. When they deliberate with one another over interna-
 Human rights as transnational constitutional law 341

tional human rights law, domestic institutions act neither as international law’s agents nor as
self-interested actors, contrary to what some scholars have argued, but as primary interpreters
of our transnational constitutional values of democracy and human rights.

REFERENCES

Cases

Case of the National Union of Rail, Maritime and Transport Workers v the United Kingdom, ECtHR
(Fourth section), 8 April 2014, 31045/1.
Demir and Baykara v Turkey, ECtHR (Grand Chamber), 12 November 2008, 34503/97.
S.A.S. v France, ECtHR (Grand Chamber), 1 July 2014, 43835/11.
Sitaropoulos and Giakoumopoulos v Greece, ECtHR (Grand Chamber), 15 March 2012, 42202/07.

Books and Articles

Altwicker, T. (2018), ‘Transnationalizing rights: International human rights law in cross-border con-
texts’, European Journal of International Law, 29 (2), 581–606.
Arendt, H. (1951), The Origins of Totalitarianism, London: Penguin, pp. 147–82.
Arjona, C., J. Anderson, F. Meier and S. Robart (2015), ‘What law for transnational legal education?
A cooperative view of an introductory course to transnational law and governance’, Transnational
Legal Theory, 6 (2), 253–86.
Benhabib, S. (2011), Dignity in Adversity – Human Rights in Troubled Times, Malden, MA: Polity Press.
Benvenisti, E. (1999), ‘Margin of appreciation, consensus, and universal standards’, NYU Journal of
International Law and Politics, 31 (4), 843–54.
Besson, S. (2009a), ‘Whose constitution(s)? International law, constitutionalism and democracy’, in J.L.
Dunoff and J.P. Trachtman (eds), Ruling the World? Constitutionalism, International Law and Global
Governance, Cambridge: Cambridge University Press, pp. 381–407.
Besson, S. (2009b), ‘European legal pluralism after Kadi’, European Constitutional Law Review, 5 (2),
237–64.
Besson, S. (2011), ‘Human rights and democracy in a global context – decoupling and recoupling’,
Ethics and Global Politics, 4 (1), 19–50.
Besson, S. (2012a), ‘“The truth about legal pluralism”, review of Nico Krisch’s Beyond Constitutionalism:
The Pluralist Structure of Postnational Law’, European Constitutional Law Review, 8 (2), 354–61.
Besson, S. (2012b), ‘The egalitarian dimension of human rights’, Archiv für Sozial- und Rechtsphilosophie
Beiheft, 136, 19–52.
Besson, S. (2013a), ‘The allocation of anti-poverty rights duties – our rights, but whose duties?’, in K.N.
Schefer (ed.), Poverty and the International Economic Legal System – Duties to the World’s Poor,
Cambridge: Cambridge University Press, pp. 408–31.
Besson, S. (2013b), ‘The legitimate authority of international human rights’, in A. Føllesdal, J.K.
Schaffer and G. Ulfstein (eds), The Legitimacy of International Human Rights Regimes: Legal,
Political and Philosophical Perspectives, Cambridge: Cambridge University Press, pp. 32–83.
Besson, S. (2014), ‘European human rights pluralism: Notion and justification’, in M. Maduro, K. Tuori
and S. Sankari (eds), Transnational Law – Rethinking European Law and Legal Thinking, Cambridge:
Cambridge University Press, pp. 170–205.
Besson, S. (2015a), ‘Human rights and constitutional law: Patterns of mutual validation and legiti-
mation’, in R. Cruft, S.M. Liao and M. Renzo (eds), Philosophical Foundations of Human Rights,
Oxford: Oxford University Press, 279–99.
Besson, S. (2015b), ‘The bearers of human rights duties and responsibilities for human rights – a quiet
(r)evolution’, Social Philosophy & Policy, 32 (1), 244–68.
Besson, S. (2015c), ‘“International law’s relative authority”, a review of Nicole Roughan’s Authorities:
Conflicts, Cooperation and Transnational Legal Theory’, Jurisprudence, 6 (1), 169–76.
342 Handbook on global constitutionalism

Besson, S. (2016a), ‘Legal human rights theory’, in K. Brownlee, K. Lippert-Ramussen and D. Coady
(eds), Blackwell Companion to Applied Philosophy, London: Blackwell Wiley, pp. 328–41.
Besson, S. (2016b), ‘Subsidiarity in international human rights law – what is subsidiary about human
rights?’, American Journal of Jurisprudence, 61 (1), 69–107.
Besson, S. (2017), ‘The sources of international human rights law: How general is general international
law?’, in S. Besson and J. d’Aspremont (eds), Oxford Handbook on the Sources of International Law,
Oxford: Oxford University Press, pp. 837–70.
Besson, S. (2018a), ‘The influence of the UN covenants on states parties across regions – Lessons for
the role of comparative law and regions in international human rights law’, in D. Moeckli, H. Keller
and C. Heri (eds), The UN Human Rights Covenants at 50: Their Past, Present and Future, Oxford:
Oxford University Press, pp. 243–76.
Besson, S. (2018b), ‘Shared responsibilities under the ECHR – concurrent jurisdictions, duties and
responsibilities’, in A. van Aaken and I. Motoc (eds), The ECHR and General International Law,
Oxford: Oxford University Press, pp. 155–77.
Besson, S. (2019a), ‘Comparative law and human rights’, in M. Reimann and R. Zimmermann (eds),
The Oxford Handbook of Comparative Law, 2nd edn, Oxford: Oxford University Press, pp. 1222–49.
Besson, S. (2019b), ‘Why and what (state) jurisdiction: Legal plurality, individual equality and territorial
legitimacy’, in I. Klabbers and L. Palombella (eds), The Challenge of Inter-Legality, Cambridge:
Cambridge University Press 2019, pp. 91–132.
Besson, S. (2020a), ‘The Human Right to democracy in international law – coming to moral terms with
an equivocal legal practice’, in A. von Arnauld, K. von der Decken and M. Susi (eds), The Cambridge
Handbook of New Human Rights. Recognition, Novelty, Rhetoric, Cambridge: Cambridge University
Press, pp. 481–9.
Besson, S. (2020b), ‘L’autorité légitime du droit international comparé: Quelques réflexions autour
du monde et du droit des gens de Vico’, in S. Besson and S. Jubé (eds), Concerter les civilisations:
Mélanges en l’honneur d’Alain Supiot, Paris: Seuil, pp. 49–60.
Besson, S. (2022), ‘Justifications’, in D. Moeckli, S. Shah and S. Sivakumaran (eds), International
Human Rights Law, 4th edn, Oxford: Oxford University Press, pp. 23–42.
Besson, S. (2023), ‘Extraterritoriality in international human rights law: Back to the jurisdictional
drawing board’, in A. Parrish and C. Ryngaert (eds), Research Handbook on Extraterritoriality in
International Law, Cheltenham, UK and Northampton, MA, USA: Elgar 2022, 2023.
Besson, S. and A.-L. Graf-Brugère (2014), ‘Le droit de vote des expatriés, le consensus européen et
la marge d’appréciation des Etats – Un commentaire de l’arrêt Sitaropoulos et Giakoumopoulos c.
Grèce’, Revue trimestrielle des droits de l’homme, 100, 937–58.
Brems, E. (1996), ‘The margin of appreciation doctrine in the case-law of the European Court of Human
Rights’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 56, 240–314.
Brems, E. (2009), ‘Human rights: minimum and maximum perspectives’, Human Rights Law Review, 9
(3), 349–72.
Brems, E. (2018), ‘Smart human rights integration’, in A. Brems and S. Ouald Chaib (eds), Fragmentation
and Integration in Human Rights Law: Users’ Perspectives, Cheltenham, UK and Northampton, MA,
USA: Edward Elgar Publishing, pp. 165–94.
Buchanan, A. (2004), Justice, Legitimacy, and Self-Determination: Moral Foundations for International
Law, Oxford: Oxford University Press.
Buchanan, A. (2008), ‘Human rights and the legitimacy of the international order’, Legal Theory, 14 (1),
39–70.
Buchanan, A. (2010a), ‘Social moral epistemology and the tasks of ethics’, in N.A. Davis, R. Keshen and
J. McMahan (eds), Ethics and Humanity – Themes from the Philosophy of Jonathan Glover, Oxford:
Oxford University Press, pp. 105–25.
Buchanan, A. (2010b), ‘The egalitarianism of human rights’, Ethics, 120 (4), 679–710.
Buchanan, A. (2011), ‘Reciprocal legitimation: Reframing the problem of international legitimacy’,
Politics, Philosophy & Economics, 10 (1), 5–19.
Buchanan, A. (2013), ‘Moral progress and human rights’, in C. Holder and D. Reidy (eds), Human Rights
– The Hard Questions, Cambridge: Cambridge University Press, pp. 399–417.
 Human rights as transnational constitutional law 343

Buchanan, A. (2019), ‘The reflexive social moral epistemology of human rights’, in M. Fricker, P.J.
Graham, D. Henderson and N.L.J.J. Pedersen (eds), The Oxford Handbook of Social Epistemology,
Oxford: Oxford University Press, pp. 284–92.
Buchanan, A. and R. Powell (2008), ‘Constitutional democracy and the rule of international law: Are
they compatible?’, Journal of Political Philosophy, 16 (3), 326–49.
Burgorgue-Larsen, L. (2020), Les 3 Cours régionales des droits de l’homme in context. La justice qui
n’allait pas de soi, Paris: Pedone.
Cohen, J.L. (2008), ‘Rethinking human rights, democracy and sovereignty in the age of globalization’,
Political Theory, 36 (4), 578–606.
Dzehtsiarou, K. (2015), European Consensus and the Legitimacy of the European Court of Human
Rights, Cambridge: Cambridge University Press.
Engle Merry, S. (1988), ‘Legal pluralism’, Law and Society Review, 22 (5), 869–96.
Engle Merry, S. (2015), ‘Firming up soft law: the impact of indicators on transnational human rights
legal orders’, in T.C. Halliday and G. Shaffer (eds), Transnational Legal Orders, Cambridge:
Cambridge University Press, pp. 374–99.
Føllesdal, A. (2018), ‘Appreciating the margin of appreciation’, in A. Etinson (ed.), Human Rights:
Moral or Political?, Oxford: Oxford University Press, pp. 269–94.
Gardbaum, S. (2008), ‘Human rights as international constitutional rights’, European Journal of
International Law, 19 (4), 749–68.
Gerards, J. (2014), ‘The European Court of Human Rights and the national courts: giving shape to
the notion of “shared responsibility”’, in J. Gerards and J. Fleuren (eds), Implementation of the
European Convention on Human Rights and of the Judgments of the ECtHR in National Case-Law –
A Comparative Analysis, Antwerp: Intersentia, pp. 13–94.
Gibney, M. and W. Vandenhole (eds) (2014), Litigating Transnational Human Rights Obligations –
Alternative Judgments, London: Routledge.
Habermas, J. (2011), Zur Verfassung Europas – Ein Essay, Berlin: Suhrkamp.
Halliday, T.C. and G. Shaffer (eds) (2015), Transnational Legal Orders, Cambridge: Cambridge
University Press.
Halmai, G. (2012), ‘The use of foreign law in constitutional interpretation’, in M. Rosenfeld and A. Sajo
(eds), The Oxford Handbook of Comparative Constitutional Law, Oxford: Oxford University Press,
pp. 1328–48.
Hessler, K. (2005), ‘Resolving interpretive conflicts in international human rights law’, Journal of
Political Philosophy, 13 (1), 29–52.
Hirschl, R. (2014), Comparative Matters: The Renaissance of Comparative Constitutional Law, Oxford:
Oxford University Press.
Jackson, V.C. and M. Tushnet (2014), Comparative Constitutional Law, 3rd edn, St Paul, MN:
Foundation Press.
Jain, N. and Versteeg, M. (eds) (2023), The Oxford Handbook of Comparative Human Rights Law,
Oxford: Oxford University Press, forthcoming.
Jessup, P.C. (1956), Transnational Law, New Haven, CT: Yale University Press.
Keck, M.E. and K. Sikkink (1998), Activists beyond Borders, Ithaca, NY: Cornell University Press.
Klabbers, J., A. Peters and G. Ulfstein (2009), The Constitutionalization of International Law, Oxford:
Oxford University Press.
Klug, H. (2005), ‘Transnational human rights: Exploring the persistence and globalization of human
rights’, Annual Review of Law and Science, 1, 85–103.
Krisch, N. (2010), Beyond Constitutionalism: The Pluralist Structure of Postnational Law, Oxford:
Oxford University Press.
Kumm, M. (2009), ‘The cosmopolitan turn in constitutionalism: On the relationship between consti-
tutionalism in and beyond the state’, in J.L. Dunoff and J.P. Trachtman (eds), Ruling the World?
Constitutionalism, International Law and Global Governance, Cambridge: Cambridge University
Press, pp. 258–325.
Kumm, M. (2012), ‘The moral point of constitutional pluralism: Defining the domain of legitimate
institutional civil disobedience and conscientious objection’, in J. Dickson and P. Eleftheriadis (eds),
Philosophical Foundations of European Union Law, Oxford: Oxford University Press, pp. 216–46.
344 Handbook on global constitutionalism

Letsas, G. (2010), ‘Strasbourg’s interpretative ethic: Lessons for the international lawyer’, European
Journal of International Law, 21 (3), 509–41.
Letsas, G. (2018), ‘The margin of appreciation revisited: A response to Føllesdal’, in A. Etinson (ed.),
Human Rights: Moral or Political?, Oxford: Oxford University Press, pp. 295–312.
Martí, J.L. (2006), ‘The epistemic conception of deliberative democracy defended: Reasons, rightness
and equal political autonomy’, in S. Besson and J.L. Martí (eds), Deliberative Democracy and Its
Discontents, Aldershot: Ashgate, pp. 27–56.
McCrudden, C. (2000), ‘Common law of human rights? Transnational judicial conversations on consti-
tutional rights’, Oxford Journal of Legal Studies, 20 (4), 499–532.
McCrudden, C. (2007), ‘Judicial comparativism and human rights’, in E. Orücü and D. Nelken (eds),
Comparative Law: A Handbook, Oxford: Hart, pp. 371–98.
McCrudden, C. (2013), ‘Using comparative reasoning in human rights adjudication: The Court of Justice
of the European Union and the European Court of Human Rights compared’, Cambridge Yearbook of
European Legal Studies, 15, 383–415.
McCrudden, C. (2014), ‘The pluralism of human rights adjudication’, in L. Lazarus, C. McCrudden and
N. Bowles (eds), Reasoning Rights: Comparative Judicial Engagement, Oxford: Hart, pp. 3–27.
McCrudden, C. (2015), ‘Why do national court judges refer to human rights treaties? A comparative
international law analysis of CEDAW’, American Journal of International Law, 17 (3), 534–50.
McCrudden, C. (2018), ‘Comparative international law and human rights: A value-added approach’,
in A. Roberts, P.B. Stephan, P.-H. Verdier and M. Versteeg (eds), Comparative International Law,
Oxford: Oxford University Press, pp. 439–58.
Michaels, R. (2014), ‘What is non-state law? A primer’, in M.A. Helfand (ed.), Negotiating State
and Non-State Law – the Challenge of Global and Local Legal Pluralism, Cambridge: Cambridge
University Press, pp. 41–58.
Muir Watt, H. (2011), ‘Private international law beyond the schism’, Transnational Legal Theory, 2 (3),
347–427.
Neuman, G.L. (2003), ‘Human rights and constitutional rights: Harmony and dissonance’, Stanford Law
Review, 55 (5), 1863–900.
Neuman, G.L. (2008), ‘Import, export, and regional consent in the Inter-American Court of Human
Rights’, European Journal of International Law, 19 (1), 101–23.
Scott, C. (2009), ‘Transnational law as proto-concept: Three conceptions’, German Law Journal, 10 (7),
859–76.
Shaffer, G. (2016), ‘Theorizing transnational legal ordering’, Annual Review of Law and Social Science,
12 (October), 231–53.
Shany, Y. (2021), ‘Can Strasbourg be replicated at a global level? A view from Geneva’, in H. P. Aust,
and E. Demir-Gürsel (eds), The European Court of Human Rights – Current Challenges in Historical
and Comparative Perspective, Cheltenham, UK and Northampton, MA, USA: Edward Elgar,
pp. 71–89.
Skogly, S. (2021), ‘Global human rights obligations’, in M. Gibney, G.E. Türkelli, M. Krajewski and W.
Vandenhole (eds), The Routledge Handbook on Extraterritorial Human Rights Obligations, London:
Routledge, pp. 25–38.
Skogly, S.I. and M. Gibney (2002), ‘Transnational human rights obligations’, Human Rights Quarterly,
24 (3), 781–98.
Spano, R. (2014), ‘Universality or diversity of human rights? Strasbourg in the age of subsidiarity’,
Human Rights Law Review, 14 (3), 487–502.
Teubner, G. (1996), ‘Global Bukowina: Legal pluralism in the world society’, in G. Teuber (ed.), Global
Law without a State, London: Dartmouth, pp. 3–28.
Twining, W. (2009), General Jurisprudence: Understanding Law from a Global Perspective, Cambridge:
Cambridge University Press.
Vandenhole, W. (2012), ‘Emerging normative frameworks on transnational human rights obligations’,
EUI Working Papers No. RSCAS 2012/17, European University Institute, Florence.
Vandenhole, W. (2015), ‘Obligations and responsibility in a plural and diverse duty-bearer human rights
regime’, in W. Vandenhole (ed.), Challenging Territoriality in Human Rights Law: Building Blocks
for a Plural and Diverse Duty-Bearer Regime, London: Routledge, pp. 115–35.
Waldron, J. (2005), ‘Foreign law and the modern ius gentium’, Harvard Law Review, 119 (1), 129–47.
 Human rights as transnational constitutional law 345

Waldron, J. (2011), ‘Rights and the citation of foreign law’, in T. Campbell, K.D. Ewing and A. Tomkins
(eds), The Legal Protection of Human Rights: Sceptical Essays, Oxford: Oxford University Press,
pp. 410–27.
Waldron, J. (2012), ‘Partly Laws Common to All Mankind’: Foreign Law in American Courts, New
Haven, CT and London: Yale University Press.
Waldron, J. (2016), ‘Human Rights: Universalism or the Integrity of a Common Enterprise?’, NYU
School of Law, Public Law Research Paper No. 16–48.
Wiener, A., A. Lang, J. Tully, M.P. Maduro and M. Kumm (2012), ‘Global constitutionalism: Human
rights, democracy and the rule of law’, Global Constitutionalism, 1 (1), 1–15.
Wildhaber, L., A. Hjartarson and S. Donnelly (2013), ‘No consensus on consensus’, Human Rights Law
Journal, 33 (7), 248–63.
Ziemele, I. (2012), ‘Customary international law in the case law of the European Court of Human
Rights’, in L. Lijnzaad and Council of Europe (eds), The Judge and International Custom, Strasbourg:
Editions du Conseil de l’Europe, pp. 75–83.
Zoethout, C.M. (2015), ‘The European Court of Human Rights and transnational judicial dialogue – ref-
erences to foreign law and the quest for justification’, Vienna Journal on International Constitutional
Law / ICL Journal, 9 (3), 398–416.
Zumbansen, P. (2005), ‘Beyond territoriality: The case of transnational human rights litigation’,
Research Paper No. 258, Osgoode Hall Law School, York University, accessed 2 May 2017 at http://​
digitalcommons​.osgoode​.yorku​.ca/​all​_papers/​258.
Zumbansen, P. (2010), ‘Transnational legal pluralism’, Transnational Legal Theory, 1 (2), 141–89.
Zumbansen, P. (2013), ‘Why global law is transnational’, Transnational Legal Theory, 4 (4), 463–75.
Zumbansen, P. (2015), ‘Theorizing as activity: Transnational legal theory in context’, in U. Baxi, C.
McCrudden and A. Paliwala (eds), Law’s Ethical, Global and Theoretical Contexts – Essays in
Honour of William Twining, Cambridge: Cambridge University Press, pp. 280–302.
24. Proportionality as a global constitutional
principle
Anne Peters1

INTRODUCTION

This chapter sets out to show that the principle of proportionality forms part of global consti-
tutional law (and thus pertains to the reservoir of global constitutionalism as an intellectual
framework). By global constitutional law, I understand the sum of especially important inter-
national and domestic legal norms that define ordering principles, institutions and procedures
in relation to fact patterns and problems that affect more than a single state. Global constitu-
tional law consists, ‘horizontally’, of similar legal norms in numerous domestic legal orders
and, ‘vertically’, of a combination or interplay of international legal norms with globalized
domestic constitutional legal norms (Peters 2007, pp. 251–308). Overall, global constitutional
law constitutes a multilevel legal structure or legal network with horizontal and vertical con-
necting norms and partially overarching or overlapping procedures, one of the purposes of
which is to provide mechanisms for interaction.
Usually, it is the ‘horizontal’ migration of the proportionality test as a method of review
from one state constitution to another which is regularly cited as the prime factor and man-
ifestation of the globalization (or transnationalization) of domestic constitutions. However,
this standard account perhaps underrates the persisting differences, and hybridization of
proportionality scrutiny, especially when adjudicating constitutional rights, in various states.2
Another and maybe more convincing reason for classifying proportionality as a global
constitutional principle is that it fulfils typical constitutional functions in international law
and in the interplay between international and domestic law. Before analysing these constitu-
tional functions, the evolution of the concept in domestic and international law will be briefly
recapitulated.

DEFINITION, GENESIS AND SPREAD OF THE PRINCIPLE OF

PROPORTIONALITY

Proportionality in the broadest sense defines an appropriate relationship between different

things in terms of size, number and type. Disproportionality is thus a ‘wrong’ relationship.
One might attempt to distinguish the legal concept of proportionality from balancing,3 from
necessity (for example, in Article 25 of the International Law Commission’s – ILC’s – Norms
on State Responsibility, in Article 51 of the UN Charter, and in international humanitarian

1
This chapter builds on my ‘Verhältnismäßigkeit als globales Verfassungsprinzip’ (Peters 2016).
2
See, for a comparative and empirical analysis, Kremnitzer et al, 2020.
3
Fundamentally and with a critical view of US constitutional law, see Aleinikoff (1986–87).

346
 Proportionality as a global constitutional principle 347

law) and, finally, from the principle of reasonableness.4 Such distinctions are not easy and also
not necessary for global constitutionalism, because the concepts overlap in international law.5
A more specific proportionality test has been developed in the human rights context. This test
contains several prongs: legitimate objective, suitability, necessity, and balancing. It is often
called ‘proportionality proper’, or ‘proportionality in a narrow sense’. This chapter seeks to
map and classify proportionality in a broader sense.
The ‘invention’ of proportionality as a legal idea is usually ascribed to the Prussian
jurist Carl Gottlieb Svarez, the spiritual father of the General State Laws for the Prussian
States of 1794.6 It has been operationalized by the Higher Administrative Court of Prussia
in its Kreuzberg-judgments of 1880 and 1882.7 A less well-known domestic strand of
proto-proportionality reasoning is the US-American Supreme Court’s nineteenth-century case
law on the dormant commerce clause8 which foreshadows the European Court of Justice’s
(ECJ’s) case law on the admissibility of restrictions to the free movement of goods in the
common market (Mathews and Stone Sweet 2011).
The principle of proportionality has meanwhile been enshrined in numerous constitutions
around the world.9 Not only can it be found in all Central and Eastern European constitutional
orders,10 but also in the constitution of Tunisia,11 the constitutions of South Africa and Israel, of
Latin American countries, Australia, New Zealand, and several Asian countries and territories
such as Hong Kong, South Korea and India. Where proportionality is not referred to in the text
of a constitution itself, it has been often elaborated as a judge-made principle.
The migration of the principle of proportionality from one constitution to another often
progressed through the vehicle of international law. For instance, the principle migrated
from German law to European Union law and to the European Convention on Human Rights

4
See, for example, the ICSID, Feldman Karpa (Marvin Roy) v United Mexican States (Feldman v
Mexico), ICSID Case No. ARB(AF)/99/1, Decision on the Merits, 16 December 2002, para. 129. For the
law of the sea, see the International Tribunal for the Law of the Sea (ITLOS), Saiga (n. 32 below).
5
For an equation of the principle of ‘equitable and reasonable share of natural resources’ (in this
context, water from the Danube) with proportionality (‘proportionality which is required by international
law’), see the ICJ, Gabčíkovo-Nagymaros Project (Hungary v Slovakia), Judgment, ICJ Reports 1997,
p. 7 et seq., para. 85.
6
General State Laws for the Prussian States (1 June 1794): ‘Chapter 17. On the rights and duties
of the State for the special protection of its subjects; Section 1: On jurisdiction; Subsection 2: Police
powers; s. 10: The police are the necessary institution for preserving the public peace, security, and
order, and for averting imminent danger to the public or individual members thereof’, s. 10 II 17 of the
General State Laws for the Prussian States, 1 June 1794 (translation mine), accessed 26 October 2022
at http://​opinioiuris​.de/​quelle/​1623​#Erster​_Abschnitt​.​_Von​_der​_Gerichtsbarkeit; printed in Hattenhauer
and Bernert (1996).
7
Kreuzberg-judgments of the Prussian Oberverwaltungsgericht (OVG), of 10 June 1880 and 14
June 1882 (reprinted 1985 in Deutsches Verwaltungsblatt, 100 (4), 216–26), on the unlawfulness of
a Berlin police ordinance.
8
Ranging from Anderson v Dunn, 19 U.S. (6 Wheat.) 204, 230–1 (1821) to Reid v Colorado, 187
U.S. 137, 151 (1902).
9
For a reception chart, see Barak (2012, p. 182). For comparative constitutional literature and
constitutional theory, see Möller (2012); Bomhoff (2013); Cohen-Eliya and Porat (2013); Jackson and
Tushnet (2018); Pou-Giménez et al (2022).
10
See the explicit provisions in Article 49 of the Constitution of Romania of 21 November 1991;
Article 54 of the Constitution of Moldova of 29 July 1994; Article 17 of the Constitution of the Republic
of Albania of 21 October 1998.
11
Article 49 of the Constitution of Tunisia of 26 January 2013.
348 Handbook on global constitutionalism

(ECHR), and from there backflow has occurred and continues to occur into other national legal
orders. Probably the best-known example is the transposition of the principle via the ECHR to
the United Kingdom,12 where it became part of British constitutional law through the Human
Rights Act 1998,13 displacing the old English reasonableness test (the Wednesbury principle).14

PROPORTIONALITY IN INTERNATIONAL LAW

The principle of proportionality is mentioned in the treaty language of many areas of interna-
tional law and has been spelled out in the case law of international courts and other bodies. In
approximate historical sequence, the principle emerged in the following areas of international
law: the law of countermeasures (sanctions), the law of international responsibility, the law of
self-defence, the law of natural resources, the law of armed conflict, international and regional
human rights protection, world trade law (World Trade Organization (WTO) and North
American Free Trade Agreement), and international investment protection law.
The law of countermeasures is now more or less standardized in the ILC Articles of 2001.15
According to ILC Article 51 on countermeasures, these ‘must be commensurate with the
injury suffered, taking into account the gravity of the internationally wrongful act and the
rights in question.’ In WTO law, the countermeasures are specially set out, and here again the
principle of proportionality applies, sometimes in a form that deviates from general interna-
tional customary law (Mitchell 2006, pp. 985–1008). According to Article 22(4) and (7) of the
WTO Dispute Settlement Understanding (1994), the level of the suspension of treaty obliga-
tions must ‘be equivalent’ to the level of the treaty violation.16 Article 4.10 of the Agreement
on Subsidies and Countervailing Measures refers to ‘appropriate countermeasures’ authorized
by the Dispute Settlement Body (DSB) of the WTO; and under Article 7.10, in the event of
arbitration, ‘the arbitrator shall determine whether the countermeasures are commensurate
with the degree and nature of the adverse effects determined to exist’.17
With respect to the content of state responsibility (that is, the consequences imposed on the
lawbreaker), both restitution (ILC Article 35(b)18) and satisfaction (ILC Article 3719) can be
demanded from the responsible state only if this is proportionate.

12
See ECtHR, Handyside v United Kingdom, 7 December 1976, No. 5493/72, paras 46–9 (esp. para.
49).
13
1998 c 42, Royal assent 9 November 1998, entry into force 2 October 2000.
14
See Associated Provincial Picture Houses Ltd v Wednesbury Corporation, [1947] EWCA Civ 1
(10 November 1947).
15
The old legal institution was reprisal, including armed reprisal.
16
See WTO, Decision by the arbitrators, EC − Regime for the importation, sale and distribution
of bananas, Recourse to arbitration by the EC under Article 22.6 of the DSU, WT/DS27/ARB, 9
April 1999, para. 6.16 with reference to ‘the general international law principle of proportionality of
countermeasures’.
17
The term ‘commensurate’ has been interpreted as a requirement of ‘proportionality’ (WTO,
Decision of the Arbitrator, US – Measures Affecting Trade in Large Civil Aircraft (Second Complaint),
Recourse to Article 22.6 DSU by the United States, 13 October 2020, WT/DS353/ARB, para. 6.68.
18
Article 35: ‘to the extent that restitution: … does not involve a burden out of all proportion to the
benefit deriving from restitution instead of compensation’.
19
Article 37(3): ‘Satisfaction shall not be out of proportion to the injury.’
 Proportionality as a global constitutional principle 349

Every limitation of the exercise of fundamental rights under the ECHR must be propor-
tionate.20 Regardless of the explicit provision of limits on fundamental rights (such as in the
respective paragraphs 2 of Articles 8 to 11 ECHR: ‘necessary in a democratic society’), the
case law has elaborated this requirement with respect to all the rights under the ECHR, for
example, for Article 6, and also for the prohibition of discrimination under Article 14. Any
derogation in time of emergency is, according to Article 15(1) ECHR, only permitted where
strictly proportionate: ‘to the extent strictly required by the exigencies of the situation’. Also
within the scope of application of the International Covenant on Civil and Political Rights
(ICCPR), the principle of proportionality must be observed when limiting the rights under the
covenant.21
In investment protection law, proportionality plays a constitutional role in three contexts
in particular (Kingsbury and Schill 2010, pp. 75–104).22 First, it is a factor for distinguishing
between a legitimate limitation of property rights and compensable expropriation. Secondly,
arbitral tribunals resort to the principle of proportionality when determining whether the
host state has respected the fair and equitable treatment standards, taking account of the
legitimate expectations of the investor.23 Thirdly, proportionality is relevant when evaluating
the non-precluded measures clauses in bilateral investment treaties (BITs).24 In some newer
investment protection treaties, the principle of proportionality is set out explicitly,25 and it has
been applied by tribunals as a general benchmark in various constellations.26

20
See for an elaborate argument against the use of the proportionality analysis in human rights law
Urbina (2017).
21
See the United Nations Human Rights Committee (UNHRC), General Comment 31: The Nature
of the General Legal Obligation Imposed on States Parties to the Covenant, 29 March 2004, CCPR/C/21/
Rev.1/Add. 13, para. 6.
22
But see for the argument that proportionality is not and should not become part and parcel of
international investment law Vadi (2018), esp. at pp. 270–1; normative concerns against proportionality
in investment law also by Ortino (2017); Schneiderman (2018).
23
Saluka Investments BV v Czech Republic (Saluka v Czech Republic), the United Nations
Commission on International Trade Law (UNCITRAL), Partial Award, 17 March 2006, para. 306; EDF
(Services) Limited v Romania, ICSID Case No. ARB/05/13, Award, 8 October 2009, para. 293; Glamis
Gold Ltd. v United States of America (Glamis Gold v US), UNCITRAL (NAFTA), Award, 8 June 2009,
para. 803; Suez, Sociedad General de Aguas de Barcelona S.A., and InterAgua Servicios Integrales del
Agua S.A. v Argentina (InterAgua v Argentina), ICSID Case No. ARB/03/17, Decision on Liability, 30
July 2010, para. 216; Suez, Sociedad General de Aguas de Barcelona S.A., and Vivendi Universal S.A.
and The Argentine Republic and AWG Group v The Argentine Republic, ICSID Case No. ARB/03/19,
Decision on Liability, 30 July 2010, paras 236–7; ICSID, Charanne and Construction Investments v
Spain, SCC Case No. V 062/2012, Final Award, 21 January 2016, paras 513–17; ICSID, Blusun S.A.,
Jean-Pierre Lecorcier and Michael Stein v Italian Republic, ICSID Case No. ARB/14/3, Award, 27
December 2016, para. 518; ICSID, Eskosol S.p.A. in liquidazione v Italian Republic, ICSID Case No.
ARB/15/50, Award, 4 September 2020, para. 410.
24
ICSID, Continental Casualty v Argentine Republic, ICSID Case No. ARB/03/09, Award, 5
September 2008, paras 189 et seq. on Article XI BIT United States–Argentina.
25
See, e.g., Articles IV and VI(2)(c) of the Agreement UK–Colombia, 17 March 2010; Annex 2
Sect. 3 c of the ASEAN, Hong Kong, China SAR Investment Agreement of 12 November 2017; Art. 35.1
of the Cameroon–UK Economic Partnership Agreement, 9 March 2021; numerous clauses in the EU–UK
Trade and Cooperation Agreement of 29 April 2021; Article 7.1 c of the Investment Agreement between
Hungary–UAE of 15 July 2021.
26
ICSID, Anglo-Adriatic Group Limited v Republic of Albania, ICSID Case No. ARB/17/6, 7
February 2019, paras 285–8; ICSID, Grenada Private Power Limited and WRB Enterprises, Inc. v
350 Handbook on global constitutionalism

Finally, the principle of proportionality is strongly developed in European Union (EU) law
(Emiliou 1999; Emmerich Fritsche 2000). First, the principle must be observed when deter-
mining the powers of the EU (vis-à-vis the member states) (Article 5(4) Treaty on European
Union (TEU) and the Protocol on Subsidiarity and Proportionality of 2007). Secondly, the
principle serves as a ‘limit-limit’ when restricting the exercise of EU fundamental rights and
freedoms.27
An example of the application of the principle of proportionality in the protection of
species and resources is the Whaling judgment of the International Court of Justice (ICJ) in
the case brought by Australia against Japan on so-called ‘scientific’ whaling conducted by
Japan.28 According to the International Convention for the Regulation of Whaling (ICRW) of
1946, states parties may grant their nationals a ‘special permit’ for whaling ‘for purposes of
scientific research’.29 None of the whaling moratoriums concluded under the ICRW regime
in recent years apply to scientific whaling, that is, it has remained permitted. Australia sued
Japan before the ICJ, arguing that the Japanese activities in reality were not scientific, but
rather commercial hunts and therefore not covered by the treaty provision in question. The
ICJ interpreted the clause ‘for purposes of scientific research’ in Article VIII and found that
the elements of the design and implementation of the Japanese research programme must be
‘reasonable in relation to’ the scientific purposes the state had set out itself.30 The ICJ con-
cluded that the Japanese programme JARPA II in reality did not exist for scientific purposes,
because it lacked a research objective, a method and especially any transparency with which
a third-party might have been able to evaluate its scientific nature. The ICJ thus found that
Japan was in breach of the ICRW.
In terms of the categories of the traditional theory of the sources of international law, the
requirement of proportionality has in part been set out as a treaty obligation. In that respect,
‘proportionality’ cannot offer a substantive standard of conduct, but rather it represents
a technique or method to determine such a measure of conduct in the light of the specific
circumstances (Cannizzaro 2000, p. 472). Already today, this technique possibly constitutes
a principle of customary international law across all areas of the law. It is also plausible to
classify proportionality as a general principle of law as referred to in Article 38(2)(c) of the
ICJ Statute. Even though proportionality of the first, horizontal, version (more on this below)
crystallized as a technique in international law governing countermeasures as well as for the
use of land and resources – independently of and even prior to the worldwide dissemination
of the liberal domestic administrative and constitutional principles (Cannizzaro 2000, p. 482)
– its diagonal version in particular did originate in domestic constitutional and administrative
law. The principle overall has, meanwhile, been disseminated globally in all of its versions;
in the old-fashioned words of the ICJ statute, it has been recognized by all ‘civilized nations’.

Grenada, ICSID Case No. ARB/17/13, 19 March 2020, para. 149; ICSID, Alejandro Diego Díaz Gaspar
v Costa Rica, ICSID Case No. ARB/19/13, 29 June 2022, para. 261.
27
See, fundamentally, ECJ, Internationale Handelsgesellschaft, Case 11/70, 1970, 1125 et seq.; now
Article 52(1) of the EU Charter of Fundamental Rights.
28
ICJ, Whaling in the Antarctic (Australia v Japan: New Zealand Intervening), 31 March 2014.
29
Article VIII(1) ICRW of 2 December 1946, UNTS 161, No. 72.
30
ICJ, Whaling (n. 28 above), paras 67, 88, 97, 127 et seq.
 Proportionality as a global constitutional principle 351

THREE VERSIONS OF THE PRINCIPLE OF PROPORTIONALITY

This cursory overview of the different areas of international law has shown that three different
versions of the principle of proportionality exist in international law. The first version – which
I refer to as the horizontal version between states – exists in areas of the law such as coun-
termeasures, including self-defence. The principle here concerns the relationship between
the action (breach of international law) of a state and the permitted reaction of another state,
that is, it applies only between states. The second version I refer to as the diagonal version,
pertaining to individuals. Here, the relationship is different, namely, between a national public
interest and the particular interests of individuals (in human rights protection as well as inter-
national humanitarian law) or investors. The third version refers to the relationship between
a global public interest, that is, in free trade, and particular interests of states (and the economic
interests behind them, for example, in WTO law). I call this the vertical version. In these three
versions, which refer to different relationships, the principle of proportionality plays a consti-
tutional role, but not necessarily the same role.

The Horizontal Version

The horizontal version of the principle of proportionality refers to the situation of conflicting
interests of states. Often, these interests relate to the exploitation and the use of resources, for
example, in the law of the sea, the law of land use, and the law of fisheries or water courses
(Cannizzaro 2000, pt 1, chs 2, 3). The ‘archaic’ nature of this version can be seen especially in
the area of countermeasures, and with regard to self-defence.
In this regard, already the Caroline case (1841/42) had established that self-defence must
be limited to cases in which the ‘necessity of that self-defense is instant, overwhelming, and
leaving no choice of means, and no moment for deliberation’ (Mr. Webster, US Secretary of
State, to Lord Ashburton, British plen., 6 August 1842, reprinted in Moore 1906, p. 412). Here,
as nowadays under Article 51 of the UN Charter, the requirement of proportionality applies
to the relationship between action and reaction: the preceding action consists of a breach of
international law, such as the breach of a treaty, or even an armed attack. The injured state is
entitled to react, with peaceful sanctions or – in the case of an armed attack – with military
self-defence. However, in all cases, the reaction must be proportionate (O’Meara, 2021).31
In the relationship between states, the preceding action may also consist of a (claimed)
violation of domestic law. For instance, the International Tribunal for the Law of the Sea
(ITLOS) applied the principle of proportionality to limit the use of armed force when
apprehending a foreign ship: ‘it must not go beyond what is reasonable and necessary in

31
On countermeasures, see ICJ, Gabčíkovo-Nagymaros Project (n. 5 above), para. 85. On the
requirement of ‘necessity and proportionality’ of self-defence under international law, see ICJ, Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits),
ICJ Reports 1986, p. 14 et seq., paras 176, 194, 237; ICJ, Advisory Opinion on the Legality of the Threat
or Use of Nuclear Weapons (8 July 1996), ICJ Reports 1996, p. 226 et seq., para. 41; ICJ, Oil Platforms
(Islamic Republic of Iran v United States of America), Judgment, ICJ Reports 2003, p. 161 et seq., paras
43, 51, 73–8; ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v
Uganda), ICJ Reports 2005, p. 168 et seq., para. 147.
352 Handbook on global constitutionalism

the circumstances’.32 On ‘considerations of humanity’, the principle was derived as a general

principle of international law, which the tribunal may apply in accordance with Article 293
United Nations Convention on the Law of the Sea (UNCLOS). The principle limited the use
of force against a foreign ship and its crew by the Republic of Guinea for the purpose of real-
izing Guinea’s state interest in the enforcement of its domestic laws against contraband, fraud
and tax evasion. The ITLOS held that the use of armed force was ‘excessive’ and therefore in
breach of international law.
The rationale of the principle of proportionality in this context is to prevent escalations. As
Thomas Franck writes, the central function of proportionality (I would add: in the horizontal,
‘archaic’ version) is ‘to keep countermeasures from spiraling out of control’ (Franck 2008,
p. 763). This function becomes understandable if we keep the overall structure of international
law in mind. In this paradigm, the principle of proportionality applies within a horizontal legal
order, that is, an order in which the actors or legal persons – especially states – face each other
as sovereign equals on a level playing field without a superordinate authority. The subjects
of international law (especially states) may and should react to the breaches of international
law on the part of others by helping themselves via countermeasures. The effectiveness of this
legal order relies on decentralized enforcement; there is no monopoly on the use of force, nor
is there a central authority and certainly not a global state. From this perspective, the states at
the international level are comparable to individuals or families before the emergence of the
modern state with a monopoly on the use of force. In a sphere without a monopoly on the use
of force – which (in simplified terms) was introduced in Europe only with the Perpetual Peace
of 1495 – feuds (in the sense of self-help) had to be tolerated. De-escalation in such a system
is a special constitutional function; it is constitutive (or constitutionally relevant) because it is
fundamental for the preservation of the entire order.

The Diagonal Version

The second version of the principle of proportionality in international law refers to the relation-
ship between the national public interest and the particular interests of individuals. In human
rights law, for instance, the national public interest of the state is realized through measures by
the state to ensure security and order (such as in counterterrorism). In the branch of investment
protection law, the national public interest is, for example, the interest of the investors’ host
state in strict environment regulation. In international humanitarian law, it is the interest of
a party to an armed conflict in attaining a military advantage. The individuals affected by state
measures may or may not be nationals of the acting state. Human rights protection applies
as soon as the individuals are subject to the jurisdiction of the state, also extraterritorially. In
international humanitarian law, persons belonging to the other party to the armed conflict are
the ones typically affected, that is, nationals of the opponent state or insurgents. In investment
protection law, the investors affected by the measures of the host state are precisely not nation-
als of the host state – this is even a precondition for application of the International Centre for
the Settlement of Investment Disputes (ICSID) mechanism.33

32
ITLOS, M/V Saiga (No. 2) (Saint Vincent and the Grenadines v Guinea), ITLOS Case No. 2,
Judgment of 1 July 1999, paras 155–9, quote at para. 155.
33
See Article 25 ICSID Convention.
 Proportionality as a global constitutional principle 353

This constellation – the tension between the national public interest and individual inter-
ests – is similar to that with which we are familiar from domestic constitutional law. There
is a slight difference, however: the individual interest is also protected by international law
(sometimes on top of a constitutional guarantee which might also safeguard that individual
interest), and there is an international legal regime – in some cases coupled with enforcement
institutions – to guarantee that the interests of the individuals (including investors) are safe-
guarded. This individual protective orientation has not always been inherent to the regimes
in question. For instance, the protection of individuals in international humanitarian law
was historically rooted in the states’ interest not to lose their own nationals; the same was
true of the law of aliens, which was the precursor to human rights protection and investment
protection law. The international guarantee shows, in any event, that respect for the particular
interests protected here – that is, interests of civilians and investors (irrespective of whether
the protection takes the form of legal duties incumbent on the states or whether the treaty
creates rights of the individuals themselves34) – is at the same time seen as being in the global
public interest (Peter 2012). Securing particular interests is also a public interest, namely that
of the international community. In that sense, what is at issue here is the tension between the
particular interests of the nation-state and the global public interest.

The Vertical Version

Finally, and more recently, a third international legal version of the principle of proportionality
has become prominent, which I would like to refer to as the vertical version. The main field of
application has been WTO law.35 Here, the principle of proportionality plays a role for tying
back and limiting the use of derogations from the General Agreement on Tariffs and Trade
(GATT) liberalization obligations, especially if a WTO member tries to justify this derogation
with reference to the general exceptions under Article XX GATT, and similarly under Article
2(1) and Article 5(6) of the Sanitary and Phytosanitary (SPS) Agreement as well as Article
2(2) of the Technical Barriers to Trade (TBT) Agreement. According to Article XX GATT,
for instance, subparagraph (a) allows members to protect public morals, and subparagraph
(b) allows them to protect human, animal, or plant life or health. Subparagraph (d) permits
measures to secure compliance with laws or regulations (protection of patents, customs
enforcement, and so on). These domestic (and potentially trade restrictive) measures to protect
the aforementioned legal interests must always be ‘necessary to …’. Under Article XX(g),
a state measure must ‘relate to’ an environmental policy pursued by that state.36 According to
WTO case law, the review of the application of these exceptions (including the requirements
set out in the chapeau of Article XX GATT37) includes a ‘process of “weighing and balancing”
a series of factors, including the importance of the objective, the contribution of the measure

34
In international humanitarian law, for instance, it is disputed whether the protected persons are
merely beneficiaries (objects of protection) of international humanitarian law.
35
See Desmedt (2001, pp. 441–80).
36
See Appellate Body, United States – Import Prohibition of Certain Shrimp and Shrimp Products,
12 October 1998, WT/DS58/AB/R, para. 136: ‘substantial relationship’, ‘close and genuine relationship
of ends and means’.
37
For a review of the proportionality of the national law complained of, including application of the
chapeau, see Appellate Body, Shrimp (n. 36 above) para. 141.
354 Handbook on global constitutionalism

to that objective, and the trade-restrictiveness of the measure’.38 In the Seal Products case
(on Article XX(a) GATT), the Panel and the Appellate Body undertook a careful review of
whether there were ‘reasonably available alternative means’ to the import ban on seal
products. In this connection they specifically examined the feasibility of the possible alter-
native means (labelling requirements and the like) and took account of the prohibitively high
costs, which ultimately rendered the alternatives unfeasible.39
The application of the principle of proportionality or the technique of balancing in turn
relies on the assumption that there is a global public interest at stake, with which particular
interests (here, of individual states) are in tension. In WTO law, the global public interest is
that of free trade, based on the assumption that global trade leads to a global increase in welfare
(in accordance with David Ricardo’s theory of comparative advantage). This is expressed in
the preamble of the WTO Agreement, which defines the goal of the WTO as the reduction of
tariffs and other barriers to trade for the ‘mutual advantage’ of the WTO members. The focus
of this regime on general welfare exists independently of the question whether the WTO treaty
obligations are interpreted as collective obligations (which are wholly and indivisibly owed
to all other members) or as a bundle of bilateral obligations (on the latter classification see
Pauwelyn 2003, pp. 907–51).
The global public interest in free trade (which in turn is ultimately meant to serve all
members and their populations) is in tension with the particular interests of the states and their
‘right to regulate’.40 The national interest may, however, also be based on international law.
Accordingly, when justifying derogations from WTO obligations or when legitimizing the
limitation of investor rights guaranteed under international law, states sometimes invoke not
only domestic, but also international legal provisions.41

38
WTO Appellate Body Reports, European Communities – Measures Prohibiting the Importation
and Marketing of Seal Products, WT/DS400/AB/R and WT/DS401/AB/R, 22 May 2014, para. 5.169.
See, fundamentally, WTO Appellate Body, Korea – Measures Affecting Imports of Fresh, Chilled and
Frozen Beef, WT/DS161/AB/R, WT/DS169/AB/R, 11 December 2000, paras 164–5 (on Article III(4)
GATT)). See also WTO Appellate Body, United States – Measures Affecting the Cross-Border Supply of
Gambling and Betting Services, WT/DS285/AB/R, 7 April 2005, para. 306 (on ‘necessity’ as referred to
in Article XIV GATS); WTO Appellate Body, Brazil – Measures Affecting Imports of Retreaded Tyres,
WT/DS332/AB/R, 3 December 2007, para. 182 (on Article XX(b) GATT).
39
See WTO Appellate Body, Seal Products (n. 38 above), paras 5.260–5.278.
40
Ibid. esp. paras 5.124–5.127.
41
See, for example, NAFTA Chapter 11 Arbitration, Glamis Gold v United States of America,
Counter-Memorial of Respondent United States of America of 19 September 2006, pp. 33–5: The
responding state justified its requirement that after mining activities near the sacred sites of Native
Americans are concluded, the sites must be refilled, with reference to the principles of the United Nations
Educational, Scientific and Cultural Organization (UNESCO) World Heritage Convention, which limit
the rights of investors under NAFTA. The responding state referred to ‘principles of cultural preserva-
tion … that reflect the “policy” of the international community’ (p. 35). In the Biotechnology case, the
European Union (then Community) justified its derogation especially from the SPS Agreement with
reference to the Cartagena Protocol on Biosafety. WTO, EC – Measures Affecting the Approval and
Marketing of Biotech Products (29 September 2006), Panel Reports, WT/DS 291–293/R, for example at
para. 4.358.
 Proportionality as a global constitutional principle 355

COMPARISON

Comparing the three versions of the principle of proportionality, it becomes apparent that the
question of what has to be balanced against what, or reconciled with what, must be answered in
very different ways: in the horizontal, archaic version (1), the relationship is between measure
and countermeasure; in the diagonal version (2), the relationship is between national interest
and individual interest; and in the vertical version (3), the relationship is between the global
public interest and the particular interest of the state. This division heavily simplifies the issue,
because – as some of the examples show – the particular interests in question are underlaid
with universal justifications. For that reason, their common structure can be emphasized: in all
three versions, the proportionality test is a technique to structure, reveal and thus rationalize
a reconciliation of the competing interests, positions, or rights to some extent, and in that way
to make the reconciliation process – which always requires a value judgement – subject to
verification and criticism.

A GLOBAL CONSTITUTIONAL PRINCIPLE

It is submitted that the principle of proportionality is something other than merely an ordinary
principle of international law.42 Rather, it belongs to the subset of global constitutional law as
defined at the outset.43 Four reasons, which mainly relate to the principle’s functions, speak in
favour of such a classification. The first reason is that the principle of proportionality is impor-
tant from a substantive perspective. The distinguishing mark of constitutional law in a sub-
stantive sense (that is, independently of possible formal characteristics such as higher rank,
special amendment procedures, and so on) is its importance in terms of content. Constitutional
law encompasses the important norms of a community. These norms must, as an English
constitutional textbook puts it, have ‘something fundamental’.44 This is true of the principle of
proportionality: in all three versions, it plays – as we have seen – fundamental, important roles
for the branches of law in question.
The second argument for the constitutional quality of the principle of proportionality is
that the application of the principle changes the character of the international legal order in
a deep way by allowing accommodations to new situations, as Enzo Cannizzaro has pointed
out (Cannizzaro 2014, pp. 332–3). In that way, international law can take account of varying
constellations of interests and changing valuations. This is a better match for a pluralistic and
dynamic world. The mechanism is fundamental, and it justifies classification of the principle
of proportionality as a constitutional principle. A follow-up question is who is entitled to

42
See for proportionality in the broader sense of weighing and balancing as a general principle of
law: Cottier et al (2017). But see for the argument that proportionality is no principle of international law
at all Stelzer (2018).
43
Cf. Crawford (2015, para. 26): Finding ‘the emergence and institutionalization of the principle
of proportionality demonstrative of an emergent global constitutionalism … an overarching principle,
diffused into a considerable number of international and domestic legal systems’.
44
Turpin and Tomkins (2011, p. 6). The British constitution is not ranked higher than legislation and
is not codified in a single document, so that constitutional law (similarly to international constitutional
law) can be defined only according to substantive features.
356 Handbook on global constitutionalism

realization of these adjustments and gradual changes of norms. I consider this at the end of
this chapter.
The third argument for classifying the principle of proportionality as a constitutional
principle derives from the fact that especially in regard to the WTO dispute settlement mech-
anism that has existed since 1994, and which is similar to an arbitral tribunal, the ‘balancing’
undertaken by the Appellate Body is a ‘constitutional technique’ that generally is seen as
a manifestation of the constitutionalization of that regime (Cass 2001, pp. 39–77). In the WTO
context, the balancing must often be undertaken, on the one hand, between legitimate regula-
tory interests of the members, which may have the effect of barriers to trade, and on the other
hand, the treaty obligation of free trade. Why should balancing be considered a constitutional
technique? It is a constitutional technique because the reconciliation of the tension between
particular interests and the public interest (or the general welfare, the bonum commune) is
typically a responsibility of the constitution and its institutions.45

THE CONSTITUTIONAL FUNCTION OF CREATING UNITY

Probably the most important characteristic and mode of action of the principle of propor-
tionality, on the basis of which it deserves the high-grade label of a constitutional principle,
is its quality as an overarching structural principle. It reduces fragmentation and thus plays
the constitutional role of creating unity (Rauber 2015). We have seen that the principle of
proportionality is established in nearly all branches of international law. It has migrated from
one branch of international law to another through the incorporation of case law from different
branches of the law by specialized international courts and bodies.
The investment arbitration tribunals, for instance, have relied on the principle of propor-
tionality as developed by the European Court of Human Rights (ECtHR) when distinguishing
between expropriation and legitimate regulation of property,46 on the case law of the ICJ when
assessing the proportionality of countermeasures,47 and on the WTO case law on ‘necessity’
within the meaning of Article XX GATT when interpreting the exception clause in a BIT.48
The law of countermeasures has also been developed in a manner that transcends individual
branches of the law. The proportionality of countermeasures is assessed by courts and other
bodies in general international law, in investment protection law,49 and in world trade law50

45
Granted, judges engage in balancing in a variety of other legal contexts, too. However, in consti-
tutional law, the prevalence of principles (as opposed to rules) leads judges more than anywhere else to
seek to ‘optimize’ those principles and to try to reconcile them in the event of a conflict.
46
See ICSID, Continental Casualty (n. 24), n. 407 on p. 124; Tecnicas Medioambientales Tecmed
SA v The United Mexican States (Tecmed v Mexico), ICSID Case No. ARB(AF)/00/2, Award, 29 May
2003, n. 143 on p. 47; Azurix Corporation v The Argentine Republic (Azurix v Argentina), ICSID Case
No. ARB/01/12, Award, 14 July 2006, para. 311.
47
See ICSID, Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc.
v United Mexican States (Archer Daniels v Mexico), ICSID Case No. ARB (AF)/04/5, Award, 21
November 2007, para. 126.
48
See ICSID, Continental Casualty (n. 24), paras 192–5.
49
See, for example, ICSID, Archer Daniels (n. 47 above), paras 152–60, applying the standard
developed in ICJ judgments, Nicaragua (n. 31 above) and Gabčíkovo-Nagymaros (n. 5 above).
50
See, for example, WTO Appellate Body, United States – Definitive safeguard measures on
imports of circular welded carbon quality line pipe from Korea, WTO DS 202/AB/R, 8 March 2002,
para. 259 with n. 256, citing the ICJ judgments in Nicaragua and Gabčíkovo-Nagymaros.
 Proportionality as a global constitutional principle 357

with reference to the same principles and in a dialogue among the (arbitral) tribunals and
courts. If it were applied consistently (but not necessarily uniformly), the principle of propor-
tionality could contribute to a concordance or harmonization of the individual branches of the
law.
A good example is the need and also the possibility of harmonizing the provisions of human
rights protection with those of international humanitarian law in situations of armed conflict.
Today, both types of norms are applied cumulatively in armed conflict.51 At issue is often the
right to life of civilians. According to Article 6 ICCPR, civilians may not be deprived ‘arbitrar-
ily’ of the right to life. In contrast, the ECHR requires a strict proportionality test: according
to the wording of the ECHR, a deprivation of life must be ‘absolutely necessary’ to achieve
(specific, specially enumerated) legitimate goals of the state.52
What does ‘arbitrary’ or ‘absolutely necessary’ mean in an armed conflict? If a human
rights court has to decide whether the right to life or freedom of movement has been violated
in armed conflict, as the ECtHR did with regard to war in Chechnya, Iraq, or Georgia,53 it
may examine the facts only against the yardstick of the ECHR. However, it can and must
interpret the ECHR in the light of international humanitarian law, following the principle of
systemic interpretation (Article 31(3)(c) of the Vienna Convention on the Law of Treaties).
When assessing whether the right to life of combatants has been violated, a court would then
conclude that the deprivation of life was not arbitrary, because killing combatants (as opposed
to civilians) is in principle permitted under international humanitarian law, and thus does not
violate the right to life.
The legal assessment of the killing of civilians is completely different. In this regard,
international humanitarian law sets out a series of principles, the normative contents of which
overlap: the principle of distinguishing between military and civilian objectives (Articles 48
and 51(4) AP I 1977), the prohibition of attacks directed at civilians (Article 51(2) AP I 1977),
and the principle of ‘military necessity’. Moreover, the methods and means of warfare may
not be chosen without limits (Article 35(1) AP I 1977). The causing of ‘unnecessary’ suffering
(Article 35(2) AP I 1977) and ‘excessive attacks’ are prohibited (Article 51(5)(b) and Article
57(2)(a)(iii) AP I 1977). These are all formulations that include elements of a proportionality
test.54
From the combination of all of these principles of the law of armed conflict, especially the
principle of distinction in conjunction with the principle of military necessity, it follows that
attacks may be directed only against military targets (combatants and objects). ‘Collateral
damage’ to the civilian population, civilian objects, or the environment is allowed only if it is
not ‘disproportionate’ to the anticipated concrete and direct military advantage.55 When per-
forming this balancing test, the scale is not calibrated to zero, so to speak. It is tilted slightly

51
See ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, ICJ Reports 2004, p. 136 et seq., para. 106. The reference to international humanitar-
ian law as ‘lex specialis’ does not mean exclusivity.
52
See, for example, ECtHR (Grand Chamber), Nachova v Bulgaria, No. 43577/98, 6 July 2005, para.
95.
53
Last ECtHR (Grand Chamber), Case of Georgia v Russia (II), 21 January 2021 (No. 38263/08),
paras 92–95.
54
See for the specific difficulty of applying proportionality in cyber war Boylan, 2017.
55
See, for example, International Criminal Tribunal for the former Yugoslavia (ICTY), Appeals
Chamber, Prosecutor v Galić, Judgment, IT-98-29-A, 30 November 2006, para. 190.
358 Handbook on global constitutionalism

from the outset, at the expense of the attacker: the legal interest of the protection of civilians
has a greater weight. To make up for interference with that interest, the military advantage
must be huge. According to the law on the books, only a massive military advantage justifies
(a certain level of) damage. In reality, however, the balancing is often to the disadvantage of
the civilian population, not least of all owing to the factors of scope and uncertainty when
answering questions of fact and when determining what should be considered an advantage
or damage, and how the advantages and disadvantages should be measured and compared. If,
after the fact, a court reviews the correctness of the balancing, that is, the ‘appropriateness’ of
this relationship, the fair yardstick to be applied is that of ex ante assessment by a ‘reasonable
military commander’. If a reasonable military commander could be expected to believe that
a massive military advantage would be attained by an attack on a military object, with only
isolated loss of civilian life, then the attack should be considered lawful. Conversely, dis-
proportionate collateral damage may be an indication that attacks were deliberately directed
against civilian objectives, thus violating the principle of distinction.56
This example shows how the principle of proportionality is applied as an overarching
principle in the context of armed conflict (Newton and May, 2014; Cohen and Zlotogorski,
2021; Kreß and Lawless, 2021; Agi, 2022). In this way, the different branches of the law
(here, international humanitarian law and human rights) are coordinated and harmonized,
thus working against the fragmentation of international law. However, there is also a danger
that the application of international humanitarian law might undermine the protection of
human rights, such as in territories under military occupation (Gross 2007, pp. 16–19). This
undermining of human rights protection might be countered by consistent application of the
principle of proportionality, which does not have to be uniform but rather can take account of
military necessity in a context-dependent way.

PROPORTIONALITY AND THE PROLIFERATION OF

INTERNATIONAL COURTS AND TRIBUNALS AS
CO-CONSTITUTIVE MARKERS OF CONSTITUTIONALIZATION
In constitutional states, the task of adjusting and further developing law with the help of
the principle of proportionality typically falls to the courts. The spread of the principle of
proportionality to nearly all domestic legal orders has, as Alec Stone Sweet and Jud Mathews
showed, substantially contributed to the ‘judicialization’ of these various legal systems, and
has fomented the expansion of judicial power globally (Stone Sweet and Mathews, 2019).
In contrast to national legal orders, the international legal system lacks a compulsory
jurisdiction. It has been argued that for this reason alone, proportionality can never become
a principle of international law (Krugmann 2004, pp. 124–5). The argument is that propor-
tionality reasoning depends on various prior decisions: first, it must be decided to which types
of questions it applies and to which not; second, the relevant factors entering the balance
must be chosen; and third, they must be weighted. On all these points, no agreements exist in
international law. Therefore, so the argument goes, proportionality can only become a princi-
ple of international law once states have agreed on the establishment of an institution which

56
See International Criminal Tribunal for the former Yugoslavia (ICTY), Appeals Chamber,
Prosecutor v Galić, Judgement, IT-98-29-A, 30 November 2006, para. 133.
 Proportionality as a global constitutional principle 359

enjoys the authority to issue ‘subjective’ balancing decisions which will be accepted by all
(Krugmann 2004, p. 125).
It is submitted that this argument both overstates the irrational character of the proportional-
ity analysis and underrates the degree of judicialization of the current international legal order.
In matters transcending the confines of the nation-states, important courts and arbitral systems
have been established or were re-invigorated especially in the 1990s: the WTO DSB, ICSID,
the International Criminal Court, and the ITLOS. The judicialization of conflict resolution
beyond the nation-state is generally seen as a core characteristic of the constitutionalization
of international law as a whole (Peters 2012, pp. 125–6), and it is welcomed by global con-
stitutionalism. Here, as in the national realm, it seems as though the instalment of judges and
arbiters has contributed to the rise of the judge-made proportionality analysis which then feeds
back into an ever-greater boosting of those judges who develop and apply the test. From the
perspective of global constitutionalism, this trend carries more opportunities than risks.
The opportunity is a strengthening of the rule of law, which includes a modification of the
uses of proportionality in international law. This modification stems from the fact that judicial
or arbitral conflict resolution sits ill with the ‘unconstitutionalized’ mode of conflict resolution
through self-help and countermeasures. Because both modes cannot function side by side, it is
normally assumed that countermeasures (regardless of how proportionate they might be) are
no longer permissible once a conflict resolution body (that is, a neutral third-party institution
that decides by applying the law, with binding or advisory force) becomes active in the case.57
That is, the compliance mechanism of (bilateral) self-help and the compliance mechanism of
juridical dispute resolution are mutually exclusive.
If, first, we regard judicialization as a core characteristic of the constitutionalization of
international law and, secondly, as a marginalization of the right to countermeasures, then it
appears that constitutionalization would consist in the displacement of the horizontal, archaic
principle of proportionality. This displacement is not tantamount to its complete replacement,
however. A combination of the horizontal and vertical principles of proportionality within
the same proceedings remains possible. For example, in WTO law, countermeasures are
permissible after a treaty violation by a WTO member. However, these countermeasures must
be approved by the WTO’s DSB (Article 22(2) DSU) or (in a different phase of the legal
dispute) by a WTO arbitration panel in accordance with Article 22(6) DSU. They must also be
monitored by the DSB.
The risks of the judicialization in international law and the concomitant spread of propor-
tionality balancing are legal insecurity (unpredictability of outcomes) and illegitimate judicial
law-making (gouvernement des juges). The legitimacy problem raised by judges (or arbitra-
tors) making law is more serious on the international level than in the realm of domestic law.
The reason is that international judge-made law is extremely difficult to undo or to correct.
Inside a state, parliament can change a judgment by enacting a law. Therefore, parliamentary

57
See ICTY, Trial Chamber, Prosecutor v Kupreškić et al, IT-95-16-T, 14 January 2000, para. 530:
‘While reprisals could have had a modicum of justification in the past, when they constituted practically
the only effective means of compelling the enemy to abandon unlawful acts of warfare and to comply
in future with international law, at present they can no longer be justified in this manner. A means of
inducing compliance with international law is at present more widely available and, more importantly, is
beginning to prove fairly efficacious: the prosecution and punishment of war crimes and crimes against
humanity by national or international courts.’
360 Handbook on global constitutionalism

passivity may be qualified as acquiescence to a domestic court’s decision. This is not the case
in the international sphere, where the creation of new law by adopting a new treaty is exceed-
ingly difficult. Hence, the inaction by states (and governments) cannot in itself be considered
tacit approval of international judicial activism. For that reason, superordinate balancers – that
is, international courts and similar bodies – should review domestic balancing decisions
only with considerable restraint. They should be cautious in overturning balancing outcomes
reached at the national level.
A third consequence of the judicialization of international law and the concomitant rise of
proportionality, especially in its diagonal version (balancing domestic public-interest oriented
measures against interests of the individual which are undergirded by international law), is
the increased demand for argument and justification – already addressed by the domestic
decision-makers. They seek the proper balance in the first instance. However, the prospect of
a review of that balancing by international (quasi-)courts, especially by human rights courts
and investment protection tribunals, imposes on any domestic authority or institution which
applies international law a burden of explaining and justifying its decisions, in accordance
with the principle of proportionality. Etienne Mureinik, a South African constitutional lawyer
who fought apartheid, described the consistent application of proportionality as having the
effect of contributing to a ‘culture of justification’ and of bidding farewell to a ‘culture of
authority’ (Mureinik 1994, p. 32). Along that line, it is submitted that balancing and propor-
tionality in international law, too, should be best understood as a requirement of legal reason-
ing while disclosing all relevant arguments (Vranes 2009, p. 24; Peters 2021). The creation of
such a culture of justification in inter-state, supranational and transnational relations is a core
contribution to global constitutionalism through the principle of proportionality.

REFERENCES
Agi, M. (2022), Zur Dogmatik des Verhältnismäßigkeitsgrundsatzes im Völkerrecht der bewaffneten
Konflikte und im Völkerstrafrecht, Baden-Baden: Nomos.
Aleinikoff, T.A. (1986–87), ‘Constitutional law in the age of balancing’, Yale Law Journal, 96 (5),
943–1005.
Barak, A. (2012), Proportionality: Constitutional Rights and their Limitations, Cambridge: Cambridge
University Press.
Bomhoff, J. (2013), Balancing Constitutional Rights, Cambridge: Cambridge University Press.
Boylan, E. (2017), ‘Applying the law of proportionality to cyber conflicts: Suggestions for practitioners’,
Vanderbilt Journal of Transnational Law, 50 (1), 217–45.
Cannizzaro, E. (2000), Il principio della proporzionalità nell’ordinamento internazionale (The Principle
of Proportionality in the International Order), Milan: Giuffrè.
Cannizzaro, E. (2014), ‘Proportionality in the law of armed conflict’, in A. Clapham and P. Gaeta (eds),
The Oxford Handbook of International Law in Armed Conflict, Oxford: Oxford University Press,
pp. 332–52.
Cass, D.Z. (2001), ‘The constitutionalization of international trade law: Judicial norm-generation as the
engine of constitutionalization’, European Journal of International Law, 12 (1), 39–77.
Cohen, A. and D. Zlotogorski (2021), Proportionality in International Humanitarian Law, New York:
Oxford University Press.
Cohen-Eliya, M. and I. Porat (2013), Proportionality and Constitutional Culture, Cambridge: Cambridge
University Press.
Cottier, T., R. Echandi, R. Liechti-McKee, T. Payosova and C. Sieber (2017), ‘The principle of propor-
tionality in international law: Foundations and variations’, Journal of World Investment & Trade, 18
(4), 628–72.
 Proportionality as a global constitutional principle 361

Crawford, E. (2015), ‘Proportionality’, in A. Peters and R. Wolfrum (eds), Max Planck Encyclopedia of
Public International Law, Oxford: Oxford University Press.
Desmedt, A. (2001), ‘Proportionality in WTO law’, Journal of International Economic Law, 4 (3),
441–80.
Emiliou, N. (1999), The Principle of Proportionality in EU Law: A Comparative Study, London: Kluwer.
Emmerich Fritsche, A. (2000), Der Grundsatz der Verhältnismäßigkeit als Direktive und Schranke der
EG-Rechtsetzung (The Principle of Proportionality as a Directive and Barrier to EC Legislation),
Baden-Baden: Nomos.
Franck, T. (2008), ‘On proportionality of countermeasures in international law’, American Journal of
International Law, 102 (4), 715–67.
Gross, A. (2007), ‘Human proportions: Are human rights the emperor’s new clothes of the international
law of occupation?’, European Journal of International Law, 18 (1), 1–35.
Hattenhauer, H. and G. Bernert (eds) (1996), Allgemeines Landrecht für die Preussischen Staaten
(General State Laws for the Prussian States), with an introduction by H. Hattenhauer and references
by G. Bernert, 3rd edn, Neuwied: Luchterhand.
Jackson, V.C. and M. Tushnet (eds) (2018), Proportionality: New Frontiers, New Challenges,
Cambridge: Cambridge University Press.
Kingsbury, B. and S. Schill (2010), ‘Public law concepts to balance investors’ rights with state regula-
tory actions in the public interest – the concept of proportionality’, in S. Schill (ed.), International
Investment Law and Comparative Public Law, Oxford: Oxford University Press, pp. 75–104.
Kremnitzer, M, T. Steiner and A. Lang (eds) (2020), Proportionality in Action: Comparative and
Empirical Perspectives on the Judicial Practice, Cambridge: Cambridge University Press.
Kreß, C. and R. Lawless (eds) (2021), Necessity and Proportionality in International Peace and Security
Law, Oxford: Oxford University Press.
Krugmann, M. (2004), Der Grundsatz der Verhältnismäßigkeit im Völkerrecht (The Principle of
Proportionality in International Law), Berlin: Duncker & Humblot.
Mathews, J. and A. Stone Sweet (2011), ‘All things in proportion? American rights review and the
problem of balancing’, Emory Law Journal, 60 (4), 797–875.
Mitchell, A.D. (2006), ‘Proportionality and remedies in WTO disputes’, European Journal of
International Law, 17 (5), 985–1008.
Möller, K. (2012), The Global Model of Constitutional Rights, Oxford: Oxford University Press.
Moore, J.B. (1906), A Digest of International Law, vol. 2, Washington, DC: Washington Government
Printing Office.
Mureinik, E. (1994), ‘A bridge to where? Introducing the Interim Bill of Rights’, South African Journal
on Human Rights, 10 (1), 31–48.
Newton, M. and L. May (2014), Proportionality in International Law, Oxford: Oxford University Press.
O’Meara, C., (2021), Necessity and Proportionality and the Right of Self-defence in International Law,
Oxford: Oxford University Press.
Ortino, F. (2017), ‘Investment treaties, sustainable development and reasonableness review: A case
against strict proportionality balancing’, Leiden Journal of International Law, 30 (1), 71–91.
Pauwelyn, J. (2003), ‘A typology of multilateral treaty obligations: Are WTO obligations bilateral or
collective in nature?’, European Journal of International Law, 14 (5), 907–51.
Peter, S. (2012), Public Interest and Common Good in International Law, Basle: Helbing Lichtenhahn.
Peters, A. (2007), ‘The globalization of state constitutions’, in J.E. Nijman and A. Nollkaemper (eds),
New Perspectives on the Divide between National and International Law, Oxford: Oxford University
Press, pp. 251–308.
Peters, A. (2012), ‘Are we moving towards constitutionalization of the world community?’, in A.
Cassese (ed.), Realizing Utopia: The Future of International Law, Oxford: Oxford University Press,
pp. 118–35.
Peters, A. (2016), ‘Verhältnismäßigkeit als globales Verfassungsprinzip’ (‘Proportionality as a global
constitutional principle’), in B. Baade, S. Ehricht, M. Fink, R. Frau, M. Möldner, I. Risini and T.
Stirner (eds), Verhältnismäßigkeit im Völkerrecht, Tübingen: Mohr Siebeck, pp. 1–18.
Peters, A. (2021), ‘A plea for proportionality: A Reply to Yun-chien Chang and Xin Dai’, International
Journal of Constitutional Law, 19 (3), 1134–45.
362 Handbook on global constitutionalism

Pou-Giménez, F., L. Clérico and E. Restrepo-Saldarriaga (eds) (2022), Proportionality and

Transformation: Theory and Practice from Latin America, Cambridge: Cambridge University Press.
Rauber, J. (2015), ‘Verhältnismäßigkeit und völkerrechtliche Systembildung: Überlegungen zur einheits-
bildenden Funktion des Verhältnismäßigkeitsgrundsatzes im Völkerrecht der Konstitutionalisierung’
(‘Proportionality and the emergence of a system of international law: reflections on the unifying func-
tion of the principle of proportionality in the international law of constitutionalization’), Zeitschrift für
ausländisches öffentliches Recht und Völkerrecht, 75 (1), 259−98.
Schneiderman, D. (2018), ‘Global constitutionalism and its legitimacy problems: Human rights, pro-
portionality, and international investment law’, The Law & Ethics of Human Rights, 12 (2), 251–80.
Stelzer, R.J. (2018), The Prospects for ‘Proportionality’ as a Generic and Universal Legal Principle in
Public International Law, Mannheim: Dissertation.
Stone Sweet, A. and J. Mathews (2019), Proportionality Balancing and Constitutional Governance,
Oxford: Oxford University Press 2019.
Urbina, F.J. (2017), A Critique of Proportionality and Balancing, Cambridge: Cambridge University
Press.
Turpin, C. and A. Tomkins (2011), Law in Context: British Government and the Constitution: Text and
Materials, 7th edn, Cambridge: Cambridge University Press.
Vadi, V. (2018) Proportionality, Reasonableness and Standards of Review in International Investment
Law and Arbitration, Cheltenham, UK, and Northampton, MA, USA: Edward Elgar Publishing.
Vranes, E. (2009), ‘Der Verhältnimäßigkeitsgrundsatz’ (‘The principle of proportionality’), Archiv des
Völkerrechts, 47 (1), 1–35.
25. Written versus unwritten: two views on the
form of an international constitution
Bardo Fassbender

A CASCADE OF QUESTIONS

The answer to the question of whether we recognize as existing, or aspire to having in the
future, either an unwritten (customary law based) or a written (codified or statutory) constitu-
tion of the international community1 depends on the type of rules of international law we call
constitutional. The problem of a written or an unwritten international constitution2 is therefore
tantamount to the question of the meaning and purpose of a constitutional law as a part of
international law.3 That question again is based on our understanding of international law, its
present role and its potential in the conduct of international relations. Views on those funda-
mental questions differ strongly and have found a synthesized expression in different schools
of thought and theories, as appears from the contributions to Parts II and III of this Handbook.
For instance, if we content ourselves with an international constitutional law limited to a few
meta-rules similar to H.L.A. Hart’s rule of recognition (Hart 2012, pp. 100–23), we may
well do without a written constitution, locating that law instead in the spheres of informal
consensus or custom. In contrast, if our expectations with respect to the reach and scope of an
international constitutional law are greater, so that they correspond to the regulatory needs of
the world of today, it is difficult to see how they could come to fulfilment in the absence of
written constitutional law.
Regarding the existence or non-existence of a written international constitutional law, we
may distinguish the following questions:

1. Is there, as a matter of positive law, a part of international law which can be addressed as
‘constitutional’?
2. If this question is answered in the affirmative, from which source or sources of interna-
tional law stem those ‘constitutional’ rules?
3. Are these rules written or unwritten, or both written and unwritten?
4. Is there a tendency towards a textualization of hitherto unwritten ‘constitutional’ rules?
5. If we approve of the existence of written rules, can they be associated with certain ‘consti-
tutional’ documents in international law?

1
For an earlier, more detailed treatment of the subject of this chapter, see Fassbender (2016).
2
If not indicated otherwise, the expressions ‘constitution of the international community’, ‘interna-
tional constitution’ and ‘international constitutional law’ are used synonymously in this contribution.
3
For a review of the older literature using constitutional language and arguments in international
law, see Fassbender (1998a, pp. 538–51). For overviews of the more recent literature, see Diggelmann
and Altwicker (2008); Kleinlein (2012). For a bibliography of respective works, see Fassbender and
Siehr (2012, pp. 313–22).

363
364 Handbook on global constitutionalism

6. If there are such ‘constitutional’ documents, can we identify one document with a certain
central character around which the other documents are grouped?
7. If there is such a central document, what are its necessary features compared to other legal
texts we call ‘constitutions’?
8. Is the affirmation of the existence of such a central document contrary to the idea of an
ongoing process of a ‘constitutionalization’ of international law?

Some authors answer the first question and the following in the affirmative, up to the one to
which their answer is no – for instance, the sixth because of a fragmentation of international
law that inhibits ‘a comprehensive order of the whole system’ (Paulus 2009, pp. 69, 70, 75,
108), or the eighth because written constitutions are said to have ‘a fairly static nature’ stand-
ing in the way of an ‘organic global constitutionalism as a promise for the future’ (Schwöbel
2011, pp. 125, 133, 161, 163–5).
However, if already the very first of those questions is answered in the negative, the cascade
of questions breaks down. If one denies the existence of an international constitutional law
as positive law (negating, for example, the possibility of a constitutional law ‘beyond the
state’, or only conceding a step-by-step development of certain elements of international
law resembling rules of national constitutional law), one can stop there and cease giving the
matter of a written or unwritten constitution of the international community further thought.
Alternatively, one can take the whole issue from the sphere of de lege lata to that of de lege
ferenda. That is, we may ask whether the creation of an international constitutional law is
desirable as a future development and, if so, how such a law should be brought forth, whether
it should be written or unwritten, whether it should be summarized in particular documents and
whether one of these documents should play a central role.
Within the limited scope of the present chapter, it is not possible to try to answer all the
questions identified above in a systematic and comprehensive manner. Instead, I want to shed
some light on the dichotomy of a ‘written’ and an ‘unwritten’ constitution as an integral part
of the international legal order by, first, discussing the importance of ‘writtenness’ in modern
constitutionalism. In the following section the ‘English exception’ is addressed, that is, the
absence, in the United Kingdom, of a single written document called ‘the constitution’. The
idea is to supply a background for a discussion of the question whether it is persuasive to
understand an international constitution as a ‘common law constitution’. In the final section,
I turn to the United Nations Charter, emphasizing its quality as a written constitutional instru-
ment of the international community.

CONSTITUTION AS A WRITTEN DOCUMENT

The history of the idea and the notion of ‘constitution’ is long and complex. It can be traced
back to antiquity, to the Greek Politeia and the Roman constitutio and status rei publicae (see
McIlwain 1947[2007], pp. 22–60; Mohnhaupt and Grimm 2002, pp. 5–14). In the usage of
different authors and in different contexts, the meaning of the notion, applied to a political
community, oscillated between descriptive and normative. In medieval and early modern
times, the notion bordered on and overlapped with others such as institutio, lex fundamentalis
(in English fundamental law, in German Grundgesetz), and Verfassung (Mohnhaupt and
Grimm 2002, pp. 14–22, 36–48, 62–6; see also Hofmann 1986, p. 261).
 Written versus unwritten: two views on the form of an international constitution 365

While all that fascinating history must remain undiscussed here, it can with reason be said
that from the seventeenth century onward writtenness became an ever more important charac-
teristic of what was addressed as the ‘constitution’ of a body politic. The process culminated
in the American and French revolutions, giving birth to written constitutions which became the
prototype of all following state constitutions up to the present day. Before the late eighteenth
century, a territory or a city could be said to have a constitution, in the sense of a well-ordered
and secure relationship between the ‘government’ and certain political entities existing in their
own right (such as the ‘estates of the realm’) (see Näf 1953, p. 111). However, now (in the
absence of such a relationship in British colonial America, or its abolition by royal absolutism
in France) a new demand arose to give a country a (‘normative’) constitution in the sense of
‘a written, systematic, comprehensive and generally applicable fundamental law, not made to
settle by way of statute or contract a certain matter, or to solve a particular conflict, but made
to determine the nature of the state and to organize its entire political life’ (Näf 1953, p. 108).
It was the existence of such a constitution that turned a state into a ‘constitutional state’
(Verfassungsstaat). To encapsulate the law of the constitution in a written document bestows
on that law a special dignity, publicity, popularity and durability (Isensee 2014, p. 43).
As Karl Loewenstein, a leading authority on the history of constitutionalism, explained:

It was in the seventeenth and, more insistently, the eighteenth centuries that, under the powerful
stimulation of the social-contract concept, the term ‘constitution’ assumed its modern connotation. It
came to signify a single document, containing the fundamental law of the state society and imbued
with its specific telos, designed to curb the arbitrariness of the single power holder … and to subject
him to restraints and controls …, a single document, enacted with specific solemnity, called the
‘fundamental law’, the ‘instrument of government’, or the ‘constitution’… . The written constitution
offered the frame within which, in the following generations, the complete democratization of the
process of political power could be accomplished … . It is safe to say that the written constitution has
become the most common and universally accepted phenomenon of the contemporary state organiza-
tion. (Loewenstein 1965, pp. 126, 133–6)

The important idea of a ‘supremacy’ of the constitution, that is, of the constitution taking
precedence over law of ‘lower rank’ – with the consequence of ‘unconstitutional’, and there-
fore void, legislative acts – was in political practice generally accepted only in the twentieth
century but already explained by Alexander Hamilton in 1788 in one of ‘The Federalist’
papers (Hamilton 1788[2003], pp. 466–7).

THE ENGLISH EXCEPTION

There is a notable exception to the rule of states having a written constitution, referred to also
in the discourse about international constitutional law, and that is England (and the United
Kingdom, respectively). England significantly contributed to the Western idea of a written
constitution, producing documents such as Magna Carta in 1215, the Habeas Corpus Act 1679,
the Bill of Rights 1689 and the Act of Settlement 1701, which influenced the constitutional
law of the United States of America and many states of the Commonwealth. Still, ‘the proud
tradition of constitutional government without a written constitution has persisted in England’
(Loewenstein 1965, p. 133) until the present day. In 1733, Lord Bolingbroke defined the
English constitution in that sense as follows: ‘By constitution we mean … that assemblage
of laws, institutions and customs, derived from certain fixed principles of reason, directed to
366 Handbook on global constitutionalism

certain fixed objects of publick good, that compose the general system, according to which
the community hath agreed to be governed’ (Bolingbroke 1733–34 [1809], p. 157, emphasis
added).
This constitution is not a ‘conscious formulation by a people of its fundamental law’ but
a collective term denoting ‘the substantive principles to be deduced from a nation’s actual
institutions and their development’ (McIlwain 1947[2007], p. 2).
However, it has often been remarked that today a significant part of the British constitu-
tional order is indeed written because it is articulated in statutory form (see, for example,
Loewenstein 1965, pp. 137–8; King 2007, pp. 5–6). It is therefore not so much the distinction
between a written and an unwritten, or a ‘codified’ and an ‘uncodified’, constitution as such
that matters but, rather, the consequence of the absence of a defined constitutional text,
elevated to a status above ‘ordinary’ law, for the issue of supremacy of the constitution and
the enforcement of that supremacy by means of law. Parliamentary sovereignty means that
‘there is no source of law higher than – that is, more authoritative than – an Act of Parliament’
(Turpin and Tomkins 2012, p. 59). That is, Acts of Parliament are not subject to constitutional
limitations. If that is the case and ‘every law can be legally changed with equal ease or with
equal difficulty, there arises no absolute need for reducing the constitution to a written form,
or even for looking upon a definite set of laws as specially making up the constitution’ (Dicey
1885[1959], p. 90). Because there is no clear boundary between ‘law’ and ‘constitution’,
‘legality’ and ‘constitutionality’, the British constitution is not a normative or legal standard
establishing ‘benchmarks against which the actions of governments and individuals can be
tested’ (King 2007, p. 9).
This situation has led academic observers to distinguish a ‘political constitution’ from a
‘legal constitution’, associating the former with England and Britain: ‘A political constitu-
tion is one in which those who exercise political power … are held to constitutional account
through political means, and through political institutions … A legal constitution, on the other
hand, is one which imagines that the principal means, and the principal institution, through
which the government is held to account is the law and the court-room’ (Tomkins 2003,
pp. 18–19, 21, with reference to Griffith 1979 and Tomkins 2002).

THE INTERNATIONAL CONSTITUTION AS A ‘COMMON LAW

CONSTITUTION’?

Some writers have explicitly likened the constitution of the international community to that
of England or the United Kingdom, respectively. For instance, in his book On Global Order
Andrew Hurrell wrote: ‘If we can talk at all of the constitution of international society, then
it is much more like a common law constitution, that is to say a pattern of institutional prac-
tices, laws, conventions, and political norms that together define how a society is constituted’
(Hurrell 2007, p. 53, emphasis added).4 In legal scholarship, that view was prominently
expressed by Christian Tomuschat: ‘It is obvious that the constitution of the international
community, if it was found to exist, would display features which are largely similar to that

4
In contrast, Hurrell sees writings ‘urging a form of international legal constitutionalism built
around the UN Charter’ (Hurrell 2007, p. 80) as belonging to a ‘liberal solidarist conception of interna-
tional society’ (Hurrell 2007, p. 57). He does not endorse either of these opposing views.
 Written versus unwritten: two views on the form of an international constitution 367

of the British system of government’ (Tomuschat 1993, p. 218). States, he explained, had
‘never come consciously together to establish a basic covenant regulating the international
public order and setting forth the guiding principles for the main functions of governance’
(Tomuschat 1993, pp. 218–19). Some years later, he added, again referring to the United
Kingdom, that ‘[f]ailing a pouvoir constituant at the international level, the constitution of
humankind can take shape only step by step, in accordance with the will of its main com-
ponent actors, i.e. States’ (Tomuschat 1999, p. 88). He acknowledged the importance of the
UN Charter as an expression of a ‘common law for all States’ but pointed to the Charter’s
‘distinction between members and non-members of the Organization, which in principle is
incompatible with a quest for comprehensive universality’ (Tomuschat 1993, p. 219).
To draw that kind of analogy between the British and an international constitution gives
rise to several questions. First, it would be astonishing if of all constitutions one so unique as
the British, a constitution of a type deliberately not adopted by virtually all other states of the
world, should be the model of an international constitution binding on all states. We may also
wonder whether a constitution of so venerable an age as the British constitution is suited for
setting a pattern for a constitution of the international community of the twenty-first century.
However, more importantly, the contemporary international community is lacking almost all
the features which make the British ‘political constitution’ work, namely, deeply entrenched
constitutional values which are accepted, upheld and defended by all political institutions
in a continuous process of public discussion and accountability. What would happen to the
international legal order if it was left entirely in the hands of international politics? Could such
a constitutional law foster the common good of all members of the international community?
Furthermore, if the international constitution corresponded to the British it would lack a deci-
sive feature characterizing, as mentioned above, the ‘modern’ constitution of the American
and French type, that is, its supremacy over ‘ordinary’ law and the enforceability of that
supremacy by means of law. That is, the notion of constitution so applied to international law
would be largely empty.
If, therefore, the analogy drawn between the British (or English) constitution and the con-
stitution of the international community is rather unpersuasive, the question ensues whether
we can imagine, apart from the British model, an unwritten international constitution, or
a constitution ‘as an ensemble of [written and unwritten] rules, procedures and mechanisms
designed to protect collective interests of humankind’ (Tomuschat 1999, p. 88). Of necessity,
the unwritten parts of such a constitution, to the extent that they have legal force, would have
to be rules of customary international law, whereas the written rules would have to be located
in the first place in international treaty law.
How could the specific quality of constitutional law be attributed to those rules of customary
and treaty law? To those negating the existence of a ‘formal’ constitution of the international
community in the sense of a written document the only possible way is the express recognition
of that constitutional quality by the members of the international community. In other words,
the opinio juris of states necessary to make a certain practice or behaviour a rule of customary
law would have to encompass a sense of constitutional entitlement or obligation – it would
have to be an opinio juris constitutionis (Lohmann 2019, pp. 91–3, 102). In the style of Article
53 of the Vienna Convention on the Law of Treaties about peremptory norms of general
international law (jus cogens), we could say that a constitutional norm of international law in
that sense is a norm accepted and recognized as such by the international community of states
which can be modified only by a subsequent norm of international law having the same char-
368 Handbook on global constitutionalism

acter. Unfortunately, there is no empirically recordable acknowledgement by states of such

customary constitutional rules of international law. Also, a quest for norms which could be
said to have been informally accepted as constitutional in that way (for instance, the principle
of sovereign equality of states, or the prohibition of the use of force in international relations)
leads straight away to the UN Charter – that is precisely the document the constitutional
quality of which is denied by the proponents of an unwritten international constitution. ‘By
constitution we mean’, Lord Bolingbroke wrote, that law ‘according to which the community
hath agreed to be governed’ (Bolingbroke 1733–34[1809], p. 157, emphasis added). I do not
see how the international community can be said to have agreed to an unwritten constitution.
To add a further thought, the development of international law since the nineteenth century,
and particularly since 1945, has been characterized by an increasingly intensified process
of codification, that is, ‘the more precise formulation and systematization’, in written form,
‘of rules of international law in fields where there already has been extensive state practice,
precedent and doctrine’,5 with the aim of ‘achieving an international lex scripta through the
international equivalent of a legislative process’ (Schachter 1983, p. 773). Given the enormous
work of codification performed by the International Law Commission (ILC) (for an overview
see Watts et al 2021, para. 17) and other bodies since the late 1940s, on the one hand, and the
outstanding importance of issues which can be addressed as those of an international constitu-
tional law, on the other, it would be astonishing if customary rules of such law, provided they
do exist, had been excluded from that codification. In fact, in a memorandum written for the
United Nations Secretary General in 1949, Professor Hersch Lauterpacht had proposed that
the ILC codify not only subjects like the jurisdiction of states, or the law of treaties, but also
what he called ‘the general part of international law’, that is ‘the bases and the principles of
the legal system as a whole’.6 However, with the exception of the (eventually unsuccessful)
‘Draft Declaration on Rights and Duties of States’ adopted by the ILC,7 this plan remained
unfulfilled. There are certainly many reasons accounting for that, but one reason appears to be
a lack of agreement among states as to the substance of ‘general articles of this nature’8 beyond
that which had been included in the UN Charter. There has not been any further codification
of constitutional issues of the international community because there is little if any unwritten
constitutional law accepted by way of custom.

THE UN CHARTER AS WRITTEN CONSTITUTION OF THE

INTERNATIONAL COMMUNITY

In my own work, as may briefly be recalled, I have tried to give the idea of an international
constitutional law a more consistent and also more concrete meaning by closely associating it

5
See Art. 15 of the Statute of the International Law Commission; Annex to UN General Assembly
Resolution 174 (II) of 21 November 1947; Yearbook of the United Nations 1947–48 (New York 1949),
p. 211.
6
See ‘Survey of international law in relation to the work of codification of the International Law
Commission: Preparatory work within the purview of article 18, paragraph 1, of the Statute of the
International Law Commission. Memorandum submitted by the Secretary-General’, UN Doc. A/CN.4/1/
Rev.1 of 10 February 1949, p. 19, para. 26.
7
Yearbook of the International Law Commission 1949 (United Nations 1956), pp. 287–90.
8
See ‘Survey’ (note 6 above).
 Written versus unwritten: two views on the form of an international constitution 369

with the UN Charter as a source of positive international law (see Fassbender 1998a, 2009a;
see further Fassbender 2009b, p. 133). To borrow language from Neil Walker, this has been
an effort to invoke the United Nations (Charter) ‘as a point of reference for the work of
reform and re-imagination of international constitutionalism’ and to create, on the global
level, ‘a suitably focused context of action’ (see Walker 2007, pp. 232–3). I have suggested
that the UN Charter, although formally created as a treaty, is characterized by a constitutional
quality which over the past 75 years has been confirmed and strengthened in such a way that
today the instrument can be referred to as the (both substantive and formal) constitution of the
international community.9 The UN Charter shows a number of strong constitutional features.
In particular, it includes (explicitly and implicitly) rules about how the basic functions of
governance are performed in the international community; that is, how and by whom the law
is made and applied, and how and by whom legal claims are adjudicated. It also establishes
a hierarchy of norms in international law. By understanding the UN Charter as a constitution,
we gain a standard that permits adequate (legal) solutions to issues such as the interpretation of
the UN Charter, the relationship between its law and ‘general international law’, the meaning
of state sovereignty in contemporary international law (see Fassbender 2003, p. 115), UN
reform (Fassbender 1998b, pp. 277–340), or the question of the extent to which the Security
Council is bound by international law (Fassbender 2000).
I also tried to explain that addressing the UN Charter as a constitution does not mean to
equate the Charter with a state constitution. In accordance with the principle of subsidiarity,
a constitution of the international community shall not and need not replicate a national
constitution. Instead, its content must correspond to the specific tasks and responsibilities of
the international community. In particular, the task of maintaining international peace, that
is peace between independent political communities, is a task peculiar to the international
community.
To see the UN Charter, in terms of international law, as the constitution of the international
community is not meant to idealize the instrument, the UN organization, or international law
in general. It does not imply that any of the three has reached a state of perfection. It also does
not mean to overestimate what a constitutional document can achieve, either in a national or in
an international context. Much more modestly, it is an effort to identify and describe, by means
of legal science and legal language, the profound structural changes of the international legal
order that have taken place in 1945 and thereafter – changes which, as Wolfgang Friedmann
put it, ‘demand a reconsideration of some of the theoretical foundations of international law’
(Friedmann 1964, p. 369). To quote Karl Zemanek, this constitutional reading of the UN
Charter ‘is a specific construction of what already exists and, unlike idealistic concepts, does
not propose to remodel the international legal order, but only to apply it differently in the
light of the fundamental values expressed in the Charter as supreme law of the international
community’ (Zemanek 2009, p. 653).
For the reasons set out above, the idea of an unwritten (or ‘common law’ type) constitution
of the international community is unpersuasive if we understand the notion of constitution in
a sense that today is the only meaningful one, that is, as a ‘legal constitution’ providing nor-
mative standards. The idea is also unpersuasive as a description of the existing international

9
For further scholarship in support of a constitutional quality of the UN Charter, see, in particular,
Macdonald (2005, pp. 853, 859–68); Franck (2003, pp. 95–9; 2009, pp. xi–xiv); Habermas (2006,
pp. 115, 160–1).
370 Handbook on global constitutionalism

legal order. If there is no written constitution, there is no international constitution at all. The
idea is likewise unpersuasive as an expression of a legal-political project to be realized in the
future because none of the aims associated with the constitutional idea on a global level can be
achieved with the toolbox of an unwritten constitution.
If there ever was a ‘constitutional moment’10 in the development of modern international
law, this was the moment of the creation of the United Nations. Admittedly, the practical
long-term effect of that moment was limited, and, contrary to the hopes and expectations of
many, after the end of the Cold War a similar moment did not appear again which would have
made it possible to adapt the Charter to a new global environment. The current international
situation is far from conducive to a constitutional order. It will be quite a challenge, and
require enormous effort, to keep the constitutional ideas and aspirations represented by the UN
Charter alive until a new general agreement on the foundations of a global legal order can be
reached. Perhaps then the arrangement of the Charter will pass into a constitutionally ‘more
perfect Union’.

REFERENCES
Ackerman, B. (1991), We the People: Foundations, Cambridge, MA: Harvard University Press.
Bolingbroke, H.St.J. (1733–34), ‘A dissertation upon parties’, in The Works of the Late Right Honourable
Henry St. John, Lord Viscount Bolingbroke … in Eight Volumes, vol. 3, reprinted 1809, London: J.
Johnson and others.
Dicey, A.V. (1885), Introduction to the Study of the Law of the Constitution, 10th edn (1959), E.C.S.
Wade (ed.), London: Macmillan and New York: St. Martin’s Press.
Diggelmann, O. and T. Altwicker (2008), ‘Is there something like a constitution of international law?
A critical analysis of the debate on world constitutionalism’, Zeitschrift für ausländisches öffentliches
Recht und Völkerrecht, 68, 623–50.
Fassbender, B. (1998a), ‘The United Nations Charter as constitution of the international community’,
Columbia Journal of Transnational Law, 36 (3), 529–619.
Fassbender, B. (1998b), UN Security Council Reform and the Right of Veto: A Constitutional Perspective,
The Hague, London and Boston, MA: Kluwer Law International.
Fassbender, B. (2000), ‘Quis judicabit? The Security Council, its powers and its legal control’, European
Journal of International Law, 11 (1), 219–32.
Fassbender, B. (2003), ‘Sovereignty and constitutionalism in international law’, in N. Walker (ed.),
Sovereignty in Transition, Oxford: Hart, pp. 115–43.
Fassbender, B. (2009a), The United Nations Charter as the Constitution of the International Community,
Leiden and Boston, MA: Martinus Nijhoff.
Fassbender, B. (2009b), ‘Rediscovering a forgotten constitution: Notes on the place of the UN Charter
in the international legal order’, in J.L. Dunoff and J.P. Trachtman (eds), Ruling the World?
Constitutionalism, International Law, and Global Governance, Cambridge: Cambridge University
Press, pp. 133–47.
Fassbender, B. (2016), ‘International constitutional law: Written or unwritten?’, Chinese Journal of
International Law, 15 (3), 489–515.
Fassbender, B. and A. Siehr (eds) (2012), Suprastaatliche Konstitutionalisierung: Perspektiven auf
die Legimität, Kohärenz und Effektivität des Völkerrechts (Supranational Constitutionalization:
Perspectives on the Legitimacy, Coherence and Effectiveness of International Law), Baden-Baden:
Nomos.

10
I first used this term, coined by Bruce Ackerman (1991), with reference to international law in my
article on the UN Charter (Fassbender 1998a, pp. 573–4).
 Written versus unwritten: two views on the form of an international constitution 371

Franck, T.M. (2003), ‘Is the U.N. Charter a constitution?’, in J.A. Frowein, K. Scharioth, I. Winkelmann
and R. Wolfrum (eds), Verhandeln für den Frieden – Negotiating for Peace: Liber Amicorum Tono
Eitel, Berlin: Springer, pp. 95–106.
Franck, T.M. (2009), ‘Preface: international institutions: why constitutionalize?’, in J.L. Dunoff and J.P.
Trachtman (eds), Ruling the World? Constitutionalism, International Law, and Global Governance,
Cambridge: Cambridge University Press, pp. xi–xiv.
Friedmann, W. (1964), The Changing Structure of International Law, London: Stevens & Sons.
Griffith, J.A.G. (1979), ‘The political constitution’, Modern Law Review, 42 (1), 1–21.
Habermas, J. (2006), The Divided West, trans. C. Cronin, Cambridge: Polity Press.
Hamilton, A. (1788), ‘The Judiciary Department’ (The Federalist No. 78), reprinted in C. Rossiter and
C.R. Kesler (eds) (2003), The Federalist Papers, New York: Penguin/Signet.
Hart, H.L.A. (2012), The Concept of Law, 3rd edn, P.A. Bulloch and J. Raz (eds), Oxford: Oxford
University Press.
Hofmann, H. (1986), ‘Zur Idee des Staatsgrundgesetzes’ (‘About the idea of the fundamental law
of state’), in H. Hofmann, Recht – Politik – Verfassung: Studien zur Geschichte der politischen
Philosophie, Frankfurt: Alfred Metzner, pp. 261–96.
Hurrell, A. (2007), On Global Order: Power, Values, and the Constitution of International Society,
Oxford: Oxford University Press.
Isensee, J. (2014), ‘Legitimation des Grundgesetzes’ (‘The legitimation of the German fundamental law’),
in J. Isensee and P. Kirchhof (eds), Handbuch des Staatsrechts der Bundesrepublik Deutschland, 3rd
edn, vol. 12, Heidelberg: C.F. Müller, pp. 3–52.
King, A. (2007), The British Constitution, Oxford: Oxford University Press.
Kleinlein, T. (2012), ‘Between myths and norms: Constructivist constitutionalism and the potential of
constitutional principles in international law’, Nordic Journal of International Law, 81 (2), 79–132.
Loewenstein, K. (1965), Political Power and the Governmental Process, 2nd edn, Chicago, IL:
University of Chicago Press.
Lohmann, O. (2019), Die Auslegung des Völkerverfassungsrechts (‘The Interpretation of International
Constitutional Law’), Ph.D. thesis, University of St. Gallen, accessed 31 January 2022 at https://​www​
.e​-helvetica​.nb​.admin​.ch/​.
Macdonald, R.St.J. (2005), ‘The international community as a legal community’, in R.St.J. Macdonald
and D.M. Johnston (eds), Towards World Constitutionalism: Issues in the Legal Ordering of the
World Community, Leiden: Martinus Nijhoff, pp. 853–910.
McIlwain, C. (1947), Constitutionalism: Ancient and Modern, reprinted 2007, Indianapolis, IN: Liberty
Fund Press.
Mohnhaupt, H. and D. Grimm (2002), Verfassung: Zur Geschichte des Begriffs von der Antike bis zur
Gegenwart (‘Constitution: The History of the Notion from Ancient Times to the Present’), 2nd edn,
Berlin: Duncker & Humblot.
Näf, W. (1953), ‘Der Durchbruch des Verfassungsgedankens im 18. Jahrhundert’ (‘The breakthrough
of the idea of constitution in the 18th century’), Schweizer Beiträge zur Allgemeinen Geschichte, 11,
108–20.
Paulus, A.L. (2009), ‘The international legal system as a constitution’, in J.L. Dunoff and J.P. Trachtman
(eds), Ruling the World? Constitutionalism, International Law, and Global Governance, Cambridge:
Cambridge University Press, pp. 69–109.
Schachter, O. (1983), ‘The nature and process of legal development in international society’, in R.St.J.
Macdonald and D.M. Johnston (eds), The Structure and Process of International Law: Essays in Legal
Philosophy, Doctrine and Theory, The Hague: Martinus Nijhoff, pp. 745–808.
Schwöbel, C.E.J. (2011), Global Constitutionalism in International Legal Perspective, Leiden: Martinus
Nijhoff.
Tomkins, A. (2002), ‘In defence of the political constitution’, Oxford Journal of Legal Studies, 22 (1),
157–75.
Tomkins, A. (2003), Public Law, Oxford: Oxford University Press.
Tomuschat, C. (1993), ‘Obligations arising for states without or against their will’, Collected Courses
of The Hague Academy of International Law, vol. 241, The Hague: Martinus Nijhoff, pp. 195–374.
372 Handbook on global constitutionalism

Tomuschat, C. (1999), ‘International law: ensuring the survival of mankind on the eve of a new century’,
Collected Courses of The Hague Academy of International Law, vol. 281, The Hague: Martinus
Nijhoff, pp. 9–438.
Turpin, C. and A. Tomkins (2012), British Government and the Constitution: Text and Materials, 7th
edn, Cambridge: Cambridge University Press.
United Nations (ed.) (1956), Yearbook of the International Law Commission 1949: Summary Records
and Documents of the First Session Including the Report of the Commission to the General Assembly,
UN Doc. A/CN.4/SER.A/1949 New York: United Nations.
Walker, N. (2007), ‘Making a world of difference? Habermas, cosmopolitanism and the constitutional-
ization of international law’, in O.P. Shabani (ed.), Multiculturalism and Law, Cardiff: University of
Wales Press, pp. 219–34.
Watts, A., M. Wood and O. Sender (2021), ‘Codification and progressive development of international
law’, in R. Wolfrum and A. Peters (eds.), Max Planck Encyclopedia of Public International Law,
accessed 31 January 2022 at https://​opil​.ouplaw​.com/​home/​mpil.
Zemanek, K. (2009), ‘Review of Bardo Fassbender, The United Nations Charter as the Constitution of
the International Community’, Austrian Review of International and European Law, 14, 651–62.
26. Transnational litigation networks: agents of
change in the global constitutional order
Jill Bähring

THE ROLE OF AGENTS OF CHANGE IN GLOBAL

CONSTITUTIONALISM

This chapter seeks to explore the role of constituent power in global constitutionalism by the
example of transnational litigation networks engaging in climate change litigation. Within
global constitutionalism, whose four main principles are rule of law, separation of powers,
constituent power, and rights (Lang and Wiener, Chapter 1 in this Handbook), this power is
exerted by several agents, such as judicial bodies (Sandholtz 2019), international law makers
and academics (Peters 2015: 2), or even actors that would not immediately come to mind
when thinking of constituent power, such as the European Central Bank (Colón-Ríos et al
2021: 945–50). Together, the sum of these actors can be seen as a ‘representative commu-
nity’ of constituent power as a whole (Lang and Wiener, Chapter 1 in this Handbook), which
are able to take a direct role in shaping and enhancing international law (Carrai 2016: 96).
As Colón-Ríos et al put it, ‘constituent power functions as a “bridge concept” between the
sphere of law and that of politics’ (Colón-Ríos et al 2021: 926). Exploring individual agents
of change exerting such constituent power enables an examination of the bottom-up dynamics
of global constitutionalism, such as the individual or group contributions of specific actors or
types of actors. However, as Wiener (2017: 11) notes, ‘entitlement to “agency” on behalf of
the governed is conditioned by politico-legal as well as socio-cultural context variables’. It is
therefore crucial not only to ask the questions of who participates and how, but also to examine
the surrounding conditions of said participation. Global constitutionalism enables asking the
question of whose participation matters (or has impact) by acknowledging the relevance of the
conditions of said participation as a fundamental concern relating to its accessibility. This is
especially important when examining the intertwined relationship between agents of change,
who create constituent power, and how they are able to use conditions such as the rule of law,
the separation of powers, and the existence of rights in order to shape global constitutionalism.
This chapter examines the role of transnational litigation networks as agents of change in
the global constitutional order as an example of exerted constituent power, and develops an
interdisciplinary methodological framework that enables an assessment of their methods of
validation of the contestation of legal norms.
In the first section, I examine the normative approach of transnational litigation networks
to litigation, in which success only plays a minor role for maximizing impact. Taking my
findings into account, I explain the challenge of creating an appropriate methodological
framework that allows for an assessment of their activities. In the second section, by exploring
the exemplary area of engagement of climate litigation, I trace the emergence of transnational
litigation networks from their origins until today. The third section assesses global resources
of normative change by taking the Urgenda Case in the Netherlands as a case study. In the

373
374 Handbook on global constitutionalism

fourth section, I develop a normative theoretical framework based on viewing transnational

litigation networks as actors being capable of creating normative institutions of networked
constitutionalism. With this methodology, I demonstrate that I can trace interconnected
practices of norm validation throughout the Urgenda Case, which creates normative validity
through networking.

TRANSNATIONAL LITIGATION NETWORKS AND THE LEAP

FROM THE ‘IS’ TO THE ‘OUGHT’ OF THE LAW

Transnational litigation networks have emerged in recent years as a phenomenon of strategic

litigation lawyers working together across jurisdictions, cultures and several topics of interest
(Lobel 2003; Osofsky 2010; Duffy 2018; Novak 2020; Graser and Helmrich 2019). Their
activities cover a wide range of topics: they shape climate policy with the Urgenda Case in
the Netherlands (McGrath 2019), abolish the mandatory death penalty in Kenya and Barbados
(Novak 2020), or seek to stop drone strikes conducted by the United States of America in
Pakistan and Yemen (ECCHR 2016; Purcell 2021). As such, TLNs are an example of exerted
(and expanding) constituent power within global constitutionalism. Especially in relation to
climate change and the climate justice movement, there has been an influx of litigation activ-
ities around the world, through which ‘lawyers and litigants are increasingly reaching beyond
the boundaries of the state, linking with those who have preceded them, and sharing scientific
research, legal arguments and expertise’ (Murcott and Webster 2020: 146).
In taking up a client’s case and bringing it into court, transnational litigation networks seek
to fight for fundamental norms such as justice,1 enforcing human rights,2 and bringing about
broader social change.3 The ECCHR, a strategic litigation law firm situated in Germany,
describes their approach as:

to use legal means to tackle injustices that have not been adequately addressed in law or politics. It
gives a platform for people affected by rights violations to be seen and heard, triggers discussion of
these violations, and highlights weaknesses and gaps in the law. Successful strategic litigation brings
about lasting political, economic or social changes and develops the existing law. Public outreach
materials accompanying the case can help to explain the context of the proceedings. This increases
the progressive and precedent-setting impact of the legal action.4

This definition, with small variations, is quite common among transnational litigation net-
works, with the notion of societal change as recurring motivation.5 Their goals therefore
exceed the traditional realm of law, and they use the case as an opportunity for broader engage-

1
TRIAL International (n.d.), Who We Are. Available at: https://​trialinternational​.org/​who​-we​-are/​.
2
ECCHR (n.d.), About Us. Available at: https://​www​.ecchr​.eu/​en/​about​-us/​
3
Child Rights International Network (CRIN) (n.d.), What is strategic litigation? Available at:
https://​archive​.crin​.org/​en/​guides/​legal/​guide​-strategic​-litigation/​what​-strategic​-litigation​.html.
4
ECCHR (n.d.) Strategic Litigation. Available at: https://​www​.ecchr​.eu/​en/​glossary/​strategic​
-litigation/​.
5
See also: Batros and Khan 2020; Open Society Justice Initiative (n.d.), Strategic Litigation.
Available at: https://​www​.justiceinitiative​.org/​tools/​strategic​-litigation; PILP (n.d.), Strategic Litigation.
Available at: https://​pilpnjcm​.nl/​en/​strategic​-litigation/​; CCR. (n.d.). What we do. Available at: https://​
ccrjustice​.org/​home/​what​-we​-do.
 Transnational litigation networks: agents of change in the global constitutional order 375

ment with the issue than a traditional litigation strategy would allow – an approach sometimes
called ‘strategic litigation’. It is a relatively new term in academic literature that is used to
describe a set of goals and methods of litigation networks (Graser and Helmrich 2019). Other
popular terms describing this practice are cause lawyering (Hilbink 2006), public interest
litigation,6 or impact litigation.7
However, a successful litigation case is, at least for many transnational litigation net-
works, not necessarily tied to a legal victory. As Jules Lobel, former director of the Center
for Constitutional Rights (CCR), explains, any lost case can still be successful if it leads
to long-term political success (Lobel 2003; Kaleck 2019: 23). With this, they deviate from
the generally accepted ‘amoral ethical role’ (Pepper 1986) of attorneys with a focus on
client-centred representation (Kruse 2011). Instead, their goal is to ‘make the law “better”’
(Fischer-Lescano 2021: 299). As Azmy writes about the CCR’s founder Michael Ratner,8
he used the ‘faith in the potentially redemptive power of law both as a means to critique
power and articulate principle’ (Azmy 2021: 39) in order to achieve social change beyond the
individual case. Transnational litigation network’s actions involving litigation are therefore
normative in nature. Due to the manifold normative implications of their activities and the
strong intersection of these activities with national, international and transnational law, trans-
national litigation networks are a contemporary, highly interesting research subject for global
constitutionalism.
Legal research, however, is often not concerned with normativity; it is rather motivated
by current debates in doctrinal research or legal practice, which in itself suffices as research
motivation (Taekema 2018: 3). As Westerman states, ‘[t]he legal system is not only the subject
of inquiry, but its categories and concepts form at the same time the conceptual framework
of legal doctrinal research’ (Westerman 2009: 1). This creates a divergence between the ‘Is’
and the ‘Ought’ of the law (van Klink and Lembcke 2016: 217). Uncovering the Ought of the
law and its resulting questions, e.g., asking where the validity of law is rooted (other than in
positive law), or inquiring about the emergence of a new norm that is not yet formalized into
positive law, means to address the law’s normativity.
In recent years, legal scholarship has therefore increasingly relied on interdisciplinary meth-
odology and methods to broaden the scope of research and to be able to inquire about these
kinds of questions (Cotterrell 2006; Taekema 2018). Constructivism in international relations
theory offers an opportunity to explore normative change (Puetter and Wiener 2009: 6) by
questioning the social relationships of its actors and their ‘normative baggage’ (Wiener 2009:
191), which is defined as the normative premises actors bring to the table when engaging with
a norm. This normative ‘baggage’ naturally also influences their actions. Constructivism has

6
ECCHR (n.d), Public Interest Litigation. Available at: https://​www​.ecchr​.eu/​glossar/​public​
-interest​-litigation/​.
7
Child Rights International Network (CRIN) (n.d.), What is strategic litigation? Available at:
https://​archive​.crin​.org/​en/​guides/​legal/​guide​-strategic​-litigation/​what​-strategic​-litigation​.html; Open
Society Justice Initiative (n.d.), Strategic Litigation. Available at: https://​www​.justiceinitiative​.org/​tools/​
strategic​-litigation.
8
Michael Ratner was a radical US lawyer, who is often cited as one of the most influential figures
in US human rights litigation. He founded the New York based non-profit law firm CCR, with which
he, among other cases, fought against indefinite detention in Guantánamo (Azmy 2021: 32–62; Ratner
and Smith 2021). During that time, Ratner inspired Wolfgang Kaleck, who later became the founder and
director of the ECCHR in Berlin, to work on human rights litigation in Europe (Kaleck 2019).
376 Handbook on global constitutionalism

greatly contributed to norms research by ‘considering the way in which world society forces
constitute the political fabric of international society, and by highlighting the politics of values
that attends this process of constitution’ (Reus-Smit 2005: 210).
As a normative social theory, a constructivist perspective can contribute to a better
understanding of the law as well as its social interpretation and effects (Cotterrell 2006: 5).
Normative change manifests when actors engage with a norm – such as transnational litiga-
tion networks engaging with a norm via legal and non-legal avenues. They demonstrate their
norm-generative agency in engaging with the norm in different contexts in order to create
‘social facts’ (Wiener 2018: 33).
Wiener describes strategic litigation networks as a new type of actor engaged in normative
contestation of fundamental norms who exhibit norm-generative practices in global society
(Wiener 2018). Contestation is defined as ‘a social practice of objecting to or critically engag-
ing with norms’ whose impact greatly depends on access to ‘practices of norm validation’
(Wiener 2018: 2). Similarly, climate litigation is seen as ‘a social process where societal agents
pursue political, legal, and overall societal objectives’ (Zengerling et al 2021: 93). Climate lit-
igation involves judicial, political and constitutional institutions at the micro, meso and macro
scales of the global order (Zengerling et al 2021: 91). This makes it a diverse field of research
with a ‘“multiscalar” character, composed of actors, norms and procedures from subnational,
national and supranational levels of governance’ (Paiement 2020: 126). Constructivism offers
a model that transcends the macro-, meso- and micro-levels of analysis and provides a model
for the emergence of normative values in which they can be traced back to distinct practices
of validation (Hofius, 2016: 15; Wiener, 2018: 51–2). Tracing the practices of norm validation
also brings the actors driving this normative change to the foreground (Wiener 2018) and
can contribute to a better understanding of the impact of transnational litigation networks as
a constituent power in global constitutionalism.
The assumption that networks are a powerful tool for global governance is not new (Hamann
and Ruiz Fabri 2008: 481; Perez 2020: 476; Slaughter and Zaring 2006). For example, Perez
and Stegman describe transnational legal authority as ‘an emergent network-based phenome-
non’ (Perez and Stegmann 2018: 1–2) in which private transnational authorities develop legal
authority independent from state-based public law – a process he calls ‘networked constitu-
tionalism’ (Perez 2020: 473).9 This networked constitutionalism arises (and can be empirically
measured) through cross-referencing of legal norms, indirect ties through affiliation and direct
institutional links (Perez 2020). As he argues, the density of these connections can be evalu-
ated and contribute to a ‘joint ethos’ (Perez 2020: 486).
Unlike private transnational legal regimes, which can develop independent from state-based
public law as closed legal or near-legal systems, climate litigation is characterized by ‘mutu-
ally incompatible understandings of the fundamental bases of both scientific knowledge
and legal norms’ in which all these areas of law ‘each present possible frameworks – for
creating agreements, establishing consequences of (in)action, and creating modes of respon-
sibility’ – and ‘no frame controls and contains everything’ (Paiement 2020: 129). Based on
as assessment of transnational litigation networks with the framework of contestation and
Perez’s observations on self-referencing and attribution, I develop the idea of ‘contestation

9
While Perez makes interesting observations on the network characteristics of transnational law,
his original scope is limited to assessing the validity of private transnational legal structures such as
self-certification regimes (Perez 2020: 473).
 Transnational litigation networks: agents of change in the global constitutional order 377

networks’ and assess the norm-validating practices in a social, formal and cultural context of
transnational litigation networks. As Wiener notes, the dual quality of norm lies in them being
‘both structuring and socially constructed’ (Wiener 2018: 28). As such, constructivism offers
a framework that allows accounting for social dynamics. These can be measured as network
topology and dynamics (Perez 2020: 480).
The following sections will illustrate the history of transnational litigation networks as
agents of change in the global constitutional order. I apply a constructivist approach to
assess three global resources of climate litigation with the example of the Urgenda Case,
and subsequently develop the argument that transnational litigation networks build a network
of contestation, through which they establish several forms of normative validation of their
contestation.

ORIGINS AND HISTORY OF (CLIMATE CHANGE) LITIGATION

The concept of strategic litigation originates from the Anglo-American legal realm, where there
is a strong rights-based tradition that allowed a variety of stakeholders, among them attorneys,
non-governmental organizations, and social movements, to work on issues of human rights
and justice for the past several decades (Kaleck 2019: 21). Among the first institutionalized lit-
igation firms were the National Association for the Advancement of Colored People (NAACP)
and the American Civil Liberties Union (ACLU). Their cases were often concerned with con-
stitutional rights claims of women, African Americans and businesses (Tushnet 2008: 377–8).
They have achieved considerable successes in establishing constitutional rights in the United
States through strategic litigation. Among them is the NAACP Legal Defense Fund’s strategic
coordination of five lawsuits that challenged segregation in elementary and secondary schools,
which resulted in one of the most important cases in US legal history: the US Supreme Court
holding school segregation unconstitutional in Brown v Board of Education (1954, 1955)10
(Tushnet 2008: 381). Later, the NAACP Legal Defense Fund’s strategic approach to litigation
proved itself by becoming the blue print for ‘impact litigation’ in a broader context (Tushnet
2008: 383). In the 1960s, the New York based human rights law firm CCR was formed by
civil rights lawyers from the US American South as a mean to gain legal funds to support the
civil rights movement (Ruben 2011: 25). They famously fought several litigation cases against
human rights violations in Guantánamo (Azmy 2021), including transnational litigation efforts
against a variety of related human rights issues (ECCHR 2022: 6). Tushnet describes these
efforts as a ‘rights revolution’ in which the ‘language of rights played a major part in political
and legal contestation’ (Tushnet 2008: 377).
The Sabin Center for Climate Change Law indicates as the earliest climate case in the
United States the year 1986,11 with 1,372 cases in the United States and 508 cases globally

10
Brown v. Board of Education, 347 U.S. 483 (1954); Brown v. Board of Education II, 349 U.S. 294
(1955).
11
The case City of Los Angeles v National Highway Traffic Safety Administration (1986) (City of Los
Angeles v. National Highway Traffic Safety Administration, 912 F.2d 478 (D.C. Cir. 1990) was a chal-
lenge to a decision not to prepare environmental impact statement for Corporate Average Fuel Economy
(CAFE) standards for the model years 1987–1989 (Sabin Center for Climate Change Law and Arnold
& Porter, February 2022. Available at: http://​blogs2​.law​.columbia​.edu/​climate​-change​-litigation/​search/​
?fwp​_per​_page​=​100​&​fwp​_sort​=​filing​_year​_asc (last accessed 6 February 2022)).
378 Handbook on global constitutionalism

as of February 2022.12 Climate change litigation as a specific area of litigation has seen an
increase over the past two decades (Setzer and Higham 2021), during which a large number
of lawsuits have been initiated against public and private actors alike, such as governments,
private companies or individuals. These lawsuits, which mostly take place in national courts,
seek to protect biodiversity, increase national emission reduction commitments, or hold firms
accountable for their environmental impact (Burns and Osofsky 2009; Setzer and Vanhala,
2019; Eskander et al 2021; Setzer and Higham 2021).
There is a growing body of research on national and international climate litigation. Beyond
interpreting individual cases in their respective jurisdictions (Verschuuren 2019; Hughes
2019), the research ranges from developing legal strategies and arguments of climate litigation
(Liran 2019; McCormick et al 2018; Walters, 2019); as well as analysing legal arguments
(Doelle and Seck 2019; Gaynor et al 2010; Minnerop 2019). The legal analysis of climate
litigation is complemented by a smaller body of research on climate litigation in Global
Governance and international relations. For example, Setzer and Vanhala (2019) conduct
a thorough analysis of climate litigation trends, arguments and actors.
It is generally understood that there are at least three typologies of climate litigation, which
are divided into litigation ‘waves’ (Setzer and Higham 2021: 23). These inevitably overlap as
there are no clear-cut shifts from one wave to the next. Nevertheless, these typologies help us
understand the strategic development and the transnational nature of climate litigation.
The first wave of climate litigation (before 2007) occurred mainly in the United States and
Australia and was coined by administrative cases against governmental bodies in order to raise
environmental standards. In the second wave (2007–2015), there was a considerable expan-
sion of climate litigation cases to European jurisdictions. During this time period, climate
litigation actors developed an increasing awareness about climate litigation ‘as a “gap-filler”
in the absence of ambitious international action’ (Setzer and Higham 2021: 23). In the current
third wave (2015 to present), there is a further expansion of climate litigation cases both
in terms of volume of cases as well as occurrence across the globe (see e.g. recent cases in
China, Norway or Guyana).13 The third wave also shows a diversification of types of claims
and defendants. Most remarkable, however, is a shift in the argumentation pattern in climate
litigation. As opposed to traditional human rights cases, climate litigation’s arguments have
long been science-based and sought to attach causality to climate damages (Gerrard 2013;
Marjanac and Patton 2018). In the third wave of climate litigation, climate litigation research
notes a strong turn to human rights in the legal arguments (Peel and Osofsky 2018; Batros and
Khan 2020; Burgers and Staal 2019). As Setzer and Higham (2021: 6) note, the three most
important grounds for climate cases in this third wave are constitutional law, administrative
law and human rights claims, with, as of July 2021, more than 100 human rights cases related
to climate change globally – of which more than one-third have been filed between 2020 and
May 2021. This shows that the legal argumentation of climate litigation experienced a trans-

12
The database, as the authors note, is not exhaustive and requires, among other things, that the
cases’ main argument be climate-related in order to be included (Sabin Center for Climate Change Law
and Arnold & Porter, February 2022. Available at http://​climatecasechart​.com/​climate​-change​-litigation/​
about/​(last accessed 6 February 2022)).
13
See Zhao et al 2019 for the prospects of climate litigation in China; Janki 2020 for a summary of
the events in Thomas v De Freitas v Guyana, 2021-HC-DEM-CIV-FDA-742 (Guyana Supreme Court,
ongoing); and Duffy and Maxwell 2020 for a review of the People v Arctic Oil case.
 Transnational litigation networks: agents of change in the global constitutional order 379

nationalization in which transnational legal arguments based on instruments of transnational

law play an increasingly important role (Peel and Lin 2019). Climate litigation is an inherently
transnational phenomenon (Aykut and Maertens 2021). Judgments like Urgenda can be identi-
fied as accelerating moments that create momentum by applying new laws and argumentation
strategies (McGrath 2019; Sharp 2019; Bodansky 2005; Jacometti 2019). However, they have
sometimes been described as ‘judicial overreach’ due to their political character (Kuh 2019;
Fahner 2018; Voigt 2019) or as problematic in terms of democratic separation of powers
(Wegener 2019).
The Cluster of Excellence CLICCS (Climate, Climatic Change, and Society) has identified
several enabling and constraining conditions for the dynamics of climate litigation (Aykut,
Wiener et al 2021: 45). As they argue, climate litigation is a driver of deep decarbonization
and climate justice that can generate global resources which then become available to other
societal actors or drivers. As such a driver, CLICCS has identified three core global resources
generated by climate litigation: ‘legal precedence (case law), network capacities (litigation
networks spanning micro, meso, and macro scales, which facilitates hybrid knowledge pro-
duction and circulation), and agenda-setting (facilitated by media coverage)’ (Aykut, Wiener
et al 2021: 45). Nonetheless, the body of research on climate litigation is still lacking a frame-
work for measuring the impact of climate litigation (Setzer and Vanhala 2019: 12–13).
Taking climate change litigation with the Urgenda Case as an example, this chapter
explores the constituent and, with that, the contestation powers of transnational litigation
networks in global constitutionalism, and how their practices of norm validation accumulate
to a networked contestation by means of shared normative values. In that, it aims to provide an
analytical framework to trace the dynamics of climate litigation.

ASSESSING GLOBAL RESOURCES OF NORMATIVE CHANGE –

THE EXAMPLE OF THE URGENDA CASE

The Urgenda Case is a recent example of successful transnational climate change litigation
that sparked several other climate cases around the globe (Eskander et al 2021: 54). It was
brought by the Urgenda Foundation’s Climate Litigation Network together with 900 Dutch
citizens, who sued the Dutch government to obligate it to increase its efforts to prevent climate
change. The case has recently inspired a wave of climate change litigation around the planet
as the first case to successfully argue for stricter emission reduction targets for a government
(Eskander et al 2021: 54). The following section explores the three global core resources of
climate litigation by the example of the Urgenda Case, on which a constructivist normative
contestation framework (Wiener 2009; 2018) is applied. As Wiener explains, contestation
means to critically engage with a norm by practices of norm validation, such as the climate lit-
igation actors who seek the reduction of greenhouse gas emissions to prevent climate change.
In order to have normative impact, they need to engage in ‘practices of norm validation’
(Wiener 2018: 2). The access to these practices constitutes an actors’ opportunity structure,
that is, enabling and constraining conditions applying to individual actors that determine how,
where, and to what extent, they are able to contest norms (Wiener 2020). Applying this, the
identified resources of climate litigation (agenda-setting, case law and networking capacities)
serve as a categorization of the opportunity structure of Transnational Climate Litigation
Networks as the apparent three distinct normative environments that have been identified to
380 Handbook on global constitutionalism

advance climate litigation. I argue that these resources are the forums where ‘norms are mean-
ingfully interpreted through interaction, and where meanings change through re-enacting the
normative structure of meaning-in-use’ (Wiener 2018: 28). Through their networking nature,
they are able to use contestation as a mean to proliferate their normative validation practices.

Agenda-setting

This section will describe cultural norm-validating practices around the Urgenda Case involv-
ing agenda-setting, media coverage and advocacy efforts.
Albeit the case was first decided in 2015, the Urgenda Foundation was founded in 2008
as a climate activist group representing the interests of almost 900 Dutch citizens. The two
prominent founders of the Urgenda Foundation are academics in the Netherlands, with one
being a professor for Transitions and Transition Management at the Erasmus University in
Rotterdam, who has published over 200 publications on climate change and climate change
management throughout his career,14 and the other one being the former campaigning
Director of Greenpeace Netherlands and former director of the DRIFT Research Institute for
Sustainability and Transitions at the Erasmus University Rotterdam.15 The Urgenda Foundation
has engaged in public outreach regarding climate change at least since 2012, when it wrote
a letter to the Dutch government asking it to reduce greenhouse gas emissions, and announcing
it would proceed to sue the government in the case of continuous inaction (Harvey 2012). In
its response, the Dutch government acknowledged that its actions were indeed insufficient, but
rejected the Foundation’s ask as too ambitious. Upon this reply, the Foundation concluded that
the state is involved in a wrongful act by failing to protect its citizens from climate change.16
In the same year, the attorney of the Foundation published a book outlining potential legal
recourse for climate change and arguing that human rights are violated by a state’s failure
to address climate change (Cox 2012a), as well as an essay in the British Newspaper The
Guardian, in which he states that inaction against climate change puts ‘Western countries at
serious risk of committing human right violations on a scale nobody had thought to ever see
again after world war two’ (Cox 2012b). In 2013, the Urgenda Foundation and its co-plaintiffs
submitted a subpoena to the District Court in The Hague.17 In 2014, an academic publication
on the liability of European states for climate change followed (Cox 2014). After the case was
first decided by the District Court of The Hague in 2015, another journal publication reflecting
on this success followed (Cox 2016). As Tessa Khan, co-director of the Urgenda Foundation’s
Climate Litigation Network (CLN) (which will be addressed more extensively in the next sec-
tions) stated, the goal is to drive ‘a clear narrative of responsibility’ (Khan 2019) attributing the
climate crisis to governments and the fossil fuel industry. When the judgment was confirmed
at the Dutch Supreme Court in 2019, the United Nations High Commissioner on Human
Rights, Michelle Bachelet, released an official statement endorsing the Court’s decision and

14
Erasmus University Rotterdam, n.d. Profile: Jan Rotmanns. Available at: https://​www​.eur​.nl/​en/​
people/​jan​-rotmans.
15
LinkedIn, n.d. Profile: Marjan Minnema. Available at: https://​www​.linkedin​.com/​in/​marjan​
-minnesma​-b127944/​?originalSubdomain​=​nl.
16
Urgenda Foundation, n.d. Climate Case explained. Available at: https://​www​.urgenda​.nl/​en/​
themas/​climate​-case/​climate​-case​-explained/​.
17
Urgenda Foundation, n.d. Climate Case explained. Available at: https://​www​.urgenda​.nl/​en/​
themas/​climate​-case/​climate​-case​-explained/​.
 Transnational litigation networks: agents of change in the global constitutional order 381

stating that ‘the decision confirms that the Government of the Netherlands and, by implication,
other governments have binding legal obligations, based on international human rights law,
to undertake strong reductions in emissions of greenhouse gases’.18 In 2020, Ben Batros and
Tessa Khan published a discussion paper on how to think strategically about climate litigation
(Batros and Khan 2020). Batros also served as Appeals Counsel at the International Criminal
Court, worked at the Open Society Justice Initiative as a litigator, and is Director of Legal
Strategy at the Center for Climate Crime Analysis since the beginning of 2020.19
By putting climate change and government responsibility on the public and legal agenda,
the Urgenda Foundation and its individual stakeholders engage in a cultural practice of norm
validation ‘which draws on and therefore reflects the effect of individual everyday experience
on normative change in global society’ (Wiener 2018: 45). Using advocacy methods, individ-
ual agenda-setters are able to influence the public narrative by politicizing the issue and use
the litigation as ‘leverage over actors and institutions capable of making the desired changes’
(Keck and Sikkink 1998: 173). Hence, the agenda-setting is validated by the actor’s normative
‘interpretation on the ground’ (Wiener 2018: 45) such as Rotmanns’s, Khan’s, or Cox’s, and
reflects the Urgenda Foundation’s access to the normative opportunity structure to place opin-
ions and topics onto both the public and the academic agenda. It also underlines their expertise
in both law and climate change science to support their validity claims. The timeline shows
that the way of contestation of climate change regulation by raising the topics of human rights
claims and state responsibility was not a mere legal strategy in the lawsuit, but a topic carefully
placed in advance that can be traces to these points of contestation.
As current research shows, climate litigation is able to build transnational narratives of
urgency and crisis across the globe. As Paiement describes it, climate litigation ‘involves the
building of narratives about time, the future, timelines for action and consequences, and the
urgency with which societies should responsibly mitigate global warming’ (Paiement 2020:
122). This section illustrates the claimant’s efforts in creating that narrative before, during, and
after the litigation proceedings in order to create long-lasting agenda-setting capabilities by the
means of individual contestation. In the case of Urgenda, these lead to a successful cultural
validation of the narrative of urgency, crisis and responsibility. Wonneberger and Vliegenthart
point out that while public attention for a case is independent from a successful litigation in
court, it is nevertheless a crucial requirement for impact outside the court because it can stim-
ulate the substantial issue the lawsuit seeks to address (Wonneberger and Vliegenthart 2021:
700). The cultural validation of the contestation of climate change regulation by Urgenda by
means of their agenda-setting capabilities then leads to an increase of the importance of these
topics in other domains (Wonneberger and Vliegenthart 2021: 701). This can be illustrated
by the increase of scientific publications on climate change litigation after the Urgenda
Case (Setzer and Vanhala, 2019), which points to not only an increased academic interest in
the particular case, but also to more general agenda-setting capabilities (Wonneberger and
Vliegenthart 2021: 700).
Today, the narrative of human rights violations by government inaction against climate
change is a common narrative present in many climate litigation cases. Among others,

18
OHCHR, Bachelet welcomes top court’s landmark decision to protect human rights from climate
change. Press release, 20 December 2019. Available at: https://​www​.ohchr​.org/​EN/​NewsEvents/​Pages/​
DisplayNews​.aspx​?NewsID​=​25450​&​LangID​=​E.
19
LinkedIn. n.d. Ben Batros. Available at: https://​www​.linkedin​.com/​in/​ben​-batros​-510b0a15/​.
382 Handbook on global constitutionalism

Neubauer v Germany and the People v Arctic Oil case20 also draw on the state’s responsibility
to protect its citizens from climate change and its effects. In addition, climate change is a con-
tinuous present topic in the media, accelerated by the increasing number of extreme weather
events (Schiermeier 2021). As Paiement notes, such increased media coverage also signals
a broader dynamic of societal support (Paiement 2020). In that, it becomes evident that strong
narratives can create agenda-setting capacities and, therewith, societal support.

Case Law

This section will describe formal norm-validating practices involving case law and other legal
references.
The Urgenda Foundation brought the case in 2013 by trying to mandate the Dutch govern-
ment to reduce national greenhouse gas emissions to up to 40 per cent below the 1990 level
by 2020.21 The argument was largely based on the goal of maintaining a 50 percent chance
that global warming can be limited to 2 degrees Celsius as agreed under the United Nations
Framework Convention on Climate Change (UNFCCC) in 2010, as well as the United Nation’s
Intergovernmental Panel on Climate Change (IPCC) models stating that maximally 450 parts
per million (ppm) CO2-equivalent would allow to maintain this goal. According to the IPCC
models, industrial economies would need to reduce their greenhouse gas emissions by 25 to
40 percent of the level of 1900 (Paiement 2020: 131). It also argued on several grounds of
transnational law, for example nuisance law based in national law, the Kyoto Protocol, as well
as Articles 2 and 8 of the European Convention on Human Rights (ECHR).
In 2015, the District Court of The Hague found the governments’ existing efforts an insuf-
ficient contribution to their global commitment to keep the global temperature increase within
2 degrees Celsius and concluded the Dutch state had a duty to mitigate climate change due to
the severity of climate change and its associated risks, and ordered the government to limit
greenhouse gas emission to 25 per cent below the levels of 1990 by 2020 (Sabin Center for
Climate Change Law 2022). The judgment established this duty under the tort of hazardous
negligence (Yoshida and Setzer 2020). The Dutch government appealed and the case was
brought in front of the District Court of Appeal. During that time, the Paris Agreement came
into effect and committed the Netherlands as one of its signatories to limit global warming
to a maximum increase of 2 degrees Celsius (Paiement 2020: 133). Here, Urgenda was able
to argue with the provisions of the recently instantiated Paris Agreement formalizing the 2
degrees Celsius goal. The foundation argued that the Dutch state was doing too little to prevent
the climate crisis, which will eventually lead to the world being uninhabitable for a large part
of its population. It also argued that the Netherlands, albeit only contributing a small portion

20
Neubauer et al v Germany, 1 BvR 2656/18, 1 BvR 288/20, 1 BvR 96/20, and 1 BvR 78/20, Order
of the First Senate, 24 March 2021 (German Federal Constitutional Court (BVerfG)); Greenpeace Nordic
Association v. Ministry of Petroleum and Energy (2020) Case no 20-051052SIV-HRET (Norwegian
Supreme Court) (People v Arctic Oil). Unofficial translation available at www​.klimasøksmål​.no/​wp​
-content/​uploads/​2021/​01/​judgement​_translated​.pdf, last accessed 28 February 2022.
21
The State of the Netherlands v Stichting Urgenda, Supreme Court of the Netherlands, 20 December
2019 (19/00135). Available at: https://​deeplink​.rechtspraak​.nl/​uitspraak​?id​=​ECLI:​NL:​RBDHA:​2015:​
7196.
 Transnational litigation networks: agents of change in the global constitutional order 383

of the global greenhouse gas emissions, had benefited from the use of fossil energy and that
therefore it has an obligation to take the lead in tackling climate change.22
The District Court of Appeal upheld the District Court’s judgment and followed Urgenda’s
arguments in basing its decision on Article 2 (‘Right to life’) and Article 8 (‘Right to family
life’) of the ECHR. It also made several other references to other bodies of transnational law,
such as constitutional rights, the sustainability principle embodied in the UNFCCC, EU emis-
sions reduction targets, or the principle of fairness. However, it did not consider non-Dutch
residents as applicants. It continues to follow Urgenda’s argument that there is a ‘serious risk
that the current generation of citizens will be confronted with loss of life and/or a disruption of
family life’,23 invoking Articles 2 and 8 ECHR. In its decision, the Court followed Urgenda’s
argumentation, which also relied on the European Court of Human Rights’ (ECtHR) case law.
Additionally, it argued that a country with only a small contribution to global emissions could
not evade its responsibility to contributing a fair share to global emission targets by arguing
its emissions only had a small impact on global warming (Backes and van der Veen 2020). In
2019, the District Court’s ruling was upheld by a ruling of the Dutch Supreme Court.
By engaging in the litigation process, the claimants engaged in normative contestation of
global norms as they seek to fight against climate change by means of a formal practice of norm
validation (Wiener 2018: 43). Case law is a practice of norm validation that entails validity
claims regarding formal documents. In the Urgenda Case, the claimants produced, and caused
the production of documents by other stakeholders, several of these documents: discovery,
judgments, legal analysis and development of legal argument. Thereby, they were effectively
able to validate their ‘normative baggage’ with the Court’s decision with their formal practice
of norm validation of litigation, which then is reproduced by different types of judicial publi-
cations. This entails not only the court documents themselves, but also related legal analysis
(Spier 2020; Nollkaemper and Burgers 2020; de Graaf and Jans 2015; Verschuuren 2019),
development of legal argument (Burgers and Staal 2019; Antonopoulos 2020), previous
judgments such as the invoked ECtHR cases such as Öneryildiz v Turkey, Budayeva et al v
Russia, and Kolyadenko et al v Russia,24 or legal commentary (Wegener 2019; Lambrecht and
Ituarte-Lima 2016; Setzer and van Berkel 2019). The knowledge production caused by this
contestation is visible: On 16 February 2021, the key word ‘Urgenda’ shows just shy of 5,000
(4,960) results in google scholar for this term. As Urgenda is an artificial term consisting of
the word ‘agenda’ and ‘urgent’ (Spier 2020), this word is very unlikely to have been used in
circumstances disconnected from the Urgenda Case.
While developing its own argumentation, the Court heavily relies on Urgenda’s submis-
sions and arguments. Without a strict legal mandate to do so, it relied on several principles
of transnational law and invoked case law of the ECtHR in order to develop legal arguments
for granting Urgenda’s request, meaning it was itself engaging in this practice of formal norm

22
The State of the Netherlands v Stichting Urgenda, Supreme Court of the Netherlands, 20 December
2019 (19/00135). Available at: https://​deeplink​.rechtspraak​.nl/​uitspraak​?id​=​ECLI:​NL:​RBDHA:​2015:​
7196.
23
The State of the Netherlands v Stichting Urgenda, Supreme Court of the Netherlands, 20 December
2019 (19/00135). Available at: https://​deeplink​.rechtspraak​.nl/​uitspraak​?id​=​ECLI:​NL:​RBDHA:​2015:​
7196.
24
Öneryildiz v. Turkey, Judgment of 30 November 2004, [2004] ECHR; Budayeva and Others v.
Russia, Judgment of 20 March 2008, [2008] ECHR; Kolyadenko and Others v. Russia, Judgment of 28
February 2012, [2012] ECHR.
384 Handbook on global constitutionalism

validation. With this, the court reaches beyond the usual grounds of decision-making limited
to statutory mandates (Sabin Center for Climate Change Law 2022). In the strict legal sense,
there is no obligation on precedence on the Dutch Supreme Court to rely on ECtHR case
law, or even to develop it further (Pedersen 2020: 233). As Pedersen notes, this reach beyond
legal mandates ‘is also at play in the case law from the ECtHR itself where the Court over the
years has relied extensively on legal developments in international environmental law and EU
environmental law in the attempt to define its own case law’ (Pedersen 2020: 233). The Court
hence engaged with the claimants in the formal practice of norm validation. Urgenda can be
viewed as a precedent-setting case because its main human rights argument can be applied to
all regions with a Human Rights Convention (Yoshida and Setzer 2020). This ‘rights-turn’ can
be observed in a number of recent important climate cases such as the (until now) unsuccessful
cases of Juliana et al v United States,25 in which the claimants relied on the United Nations
Convention on the Rights of the Child (Friedman 2019), and the recent The People vs Arctic
Oil in Norway, in which the Court acknowledged that the Norwegian constitution grants
citizens and organizations the right to sue the state if its policies damage the environment
(Duffy and Maxwell 2020; Gociu and Roy 2021). This results in interconnected webs of legal
arguments.
What these cases have in common is that the normative contestation of climate change
regulations in different jurisdictions is largely based on human rights claims while also relying
on climate science to validate their arguments (Kotzé 2021: 1432). One case that stands out
is Neubauer v Germany,26 in which the German Constitutional Court ruled in an innovative
judgment that Germany’s Climate Protection Act of December 2019 is not sufficient to meet
Germany’s obligations to fight climate change. The Court based its ruling on the principle
of sustainable development and developed the notion of intra- and inter-generational equity,
which require defined and equitable climate change countermeasures (Bäumler 2021; Kotzé
2021: 1432).
In the Urgenda judgment as well as in many other mentioned climate litigation cases, the
claimants and courts develop new arguments based on human rights and constitutional law
(Peel and Osofsky 2018; Sharp 2019). The contestation of climate change regulations hence
uses the ‘rights-turn’ as a facilitating element due to the normative opportunity structure
(Wiener 2018: 28) of human rights claims, which can be applied in many jurisdictions across
the world. In addition, judges are increasingly open to citing and applying international
law and case law from other jurisdictions (Novak 2020: 174), such as the District Court of
Appeals’ invocation of ECtHR case law in the Urgenda Case.

Networking capacities

This section will describe social norm-validating practices around the Urgenda Case involving
network capacities facilitating hybrid knowledge production and circulation.
The Urgenda Foundation itself is a climate activist group operating in the Netherlands. It
was founded by more than 800 Dutch citizens with the goal to work towards a more sustaina-

25
Juliana v. United States, 339 F. Supp. 3d 1062 (D. Or. 2018).
26
Bundesverfassungsgericht 2021. Constitutional complaints against the Federal Climate Change
Act partially successful. Press release, 29 April 2021. Available at: https://​www​.bund​esverfassu​
ngsgericht​.de/​SharedDocs/​Pressemitteilungen/​EN/​2021/​bvg21​-031​.html.
 Transnational litigation networks: agents of change in the global constitutional order 385

ble society – and to begin this work in the Netherlands (Spijkers 2020). After the initial success
of the Urgenda Case, it also has created its own ‘CLN, a project established in 2016 through
which the foundation aims to ‘support organisations, communities and individuals pursuing
litigation aimed at compelling national governments to ramp up their climate mitigation ambi-
tion’.27 Dennis van Berkel, who also co-authored a journal article on climate change litigation
with Setzer, is the director of the CLN.28 The Urgenda Foundation itself lists 22 jurisdictions all
around the world that have one or more ongoing climate litigation case inspired by Urgenda,
albeit the foundation does not detail how it supports these cases. In other publications, this
support is described as legal assistance and grassroots political campaign support (Paiement
2020). Tessa Kahn, the co-founder and former director of the CLN, states in an interview that
‘[l]awyers will have to work hard to earn legitimacy among communities on the frontlines of
climate change’ (Khan 2019), indicating this synergy with grassroots political organizations is
a relatively new approach in which the legitimacy of the presence of lawyers has not yet been
proven. As of 2021, Khan has founded another organization that aims for a fossil-free United
Kingdom and draws heavily from community support and grassroots climate justice organiza-
tions, for example the UK’s Student Climate Network.29 Such climate litigation networks play
an increasingly important role in circulating legal arguments, best practices, and in supporting
and coordinating plaintiffs (Ciplet 2014; Peel and Lin 2019).
This ‘networking effect’ of hybrid knowledge production and circulation through several
organizations ultimately working towards the same goal is also visible outside of established
environmental groups or climate litigation organizations. For example, James Hansen, a former
IPPC report contributor, climate researcher and NASA scientist, has been an expert witness in
climate cases since 2005. He started publicly supporting Urgenda in 2012 and then took the
mobilization of the climate movement into his own hands. He is currently both a plaintiff and
an expert witness in the Juliana Case in the United States (Schiermeier 2021; Harvey 2012).
According to Wiener’s practices of norm validation, social validation is ‘generated through
iterated social interaction in stable groups or communities’ (Wiener 2018: 46). The examples
from the Urgenda Case illustrate a large, but loosely organized climate justice community in
which a vast number of individuals engage in several related institutions and grass roots organ-
izations. By organizing in loose networks, they create recurring and widely available common
motives and narratives through which they are able to validate their contestation of climate
change regulation norms. This also serves as a social validation practice within the community
itself, as it makes climate change ‘real’ (Paiement 2020: 129).
From research on other strategic litigation areas, it can be concluded that this pattern of
globally operating, loose networks cooperating on the issues of their choice is defining for
transnational litigation networks (Graser 2019: 11–12). In climate litigation cases, they play
an important role ‘in fostering and supporting climate change litigation, as well as developing
political campaigns the mobilise alongside their litigation activities’ (Paiement 2020: 125).
With these practices of social norm validation, transnational litigation networks involve agents
of normative change operating at multiple sites working towards a common goal, even if the

27
Urgenda Foundation. n.d. Global Climate Litigation. Available at: https://​www​.urgenda​.nl/​en/​
themas/​climate​-case/​global​-climate​-litigation/​.
28
Urgenda Foundation. n.d. Global Climate Litigation. Available at: https://​www​.urgenda​.nl/​en/​
themas/​climate​-case/​global​-climate​-litigation/​
29
Uplift. 2022. Available at: https://​upliftuk​.org/​.
386 Handbook on global constitutionalism

individual interpretations and arguments may differ from another. They are able to exchange
best practices and legal know-how, and bundle their forces with environmental groups to
create financial and personal capacities for the litigation proceedings (Zengerling, Aykut et
al 2021: 91; Ciplet 2014; Peel and Lin 2019). As case studies suggest, there is a connection
between successful climate litigation and social movements (Keller and Bornemann 2021).
Other climate litigation organizations go beyond the networking capacities exhibited by
the Urgenda Foundation and its stakeholders. For example, ClientEarth, a group that has
supported and brought several law suits regarding the right to clean air, supports claimants
in Budua, Uganda in their lawsuits against the Ugandan government for failing to protect
its citizens against climate risks,30 and trains lawyers in China on legal strategies for air
pollution cases.31 Because they are able to operate on multiple scales of global governance,
they are able to transcend ‘different scales of global order’ (Zengerling, Aykut et al 2021: 91;
Berman 2009; Tully 2016). Another transnational litigation network, the Bertha Foundation,
has a programme with a network of strategic litigation law firms around the world to ‘host,
train and mentor early-career lawyers … to hold governments and corporations to account
alongside impacted communities’. Their mission statement is to build a ‘network of new and
experienced social justice and movement lawyers, empowered by collaboration, exchange and
solidarity’.32
As Wiener notes, social validation is usually a norm-validating practice that is dependent on
social exclusion or inclusion, and therefore not accessible for all stakeholders equally (Wiener
2018: 46). In this case, transnational litigation networks circumvent this pain point entirely
by their loose and, in principle, open-to-all organizational setup. Climate litigation may even
provide structural support for creating new alliances and enhance existing climate litigation
networks (Zengerling, Aykut et al 2021: 93; Wiener 2018; Paiement 2020).

NETWORKING NORMATIVE VALIDITY THROUGH

INTERCONNECTED PRACTICES OF NORM VALIDATION

Until now, research on climate litigation has rarely taken the litigants and litigators into
account. Instead, the analytical focus is often on the judges or on the case as a whole (Paiement
2020: 129; Vanhala 2020) as the norm-generative dynamic. Exploring transnational litiga-
tion networks as well as their impact has only recently become a topic of interest (Graser
and Helmrich 2019; Setzer and Vanhala 2019). A constructivist framework allows for an
assessment of individual actors of normative change and the opportunity structure they have
access to. The chapter has explored this opportunity structure with three key global resources
of climate litigation: agenda-setting, case law and networking capacities. Using the Urgenda
Case as a prominent example of climate change litigation, it was demonstrated that a frame-
work assessing different practices of contestation can be used to trace the norm-validating

30
ClientEarth 2020. Landslide victims take Ugandan Government to court. ClientEarth
Communications. Available at: https://​www​.clientearth​.org/​latest/​latest​-updates/​news/​landslide​-victims​
-take​-ugandan​-government​-to​-court/​.
31
ClientEarth n.d. What we do: Priorities. Air Pollution. Available at: https://​www​.clientearth​.org/​
what​-we​-do/​priorities/​air​-pollution/​.
32
Bertha Justice Foundation. n.d. Lawyers. Available at: https://​berthafoundation​.org/​lawyers/​.
 Transnational litigation networks: agents of change in the global constitutional order 387

practices of normative change of transnational litigation networks. I argue that employing this
constructivist approach to transnational litigation networks can contribute to a better under-
standing of the impact of transnational litigation networks because it allows to trace individual
practices of norm validation in a formal, social and cultural context and thereby allows to
comprehend the dynamics of normative change. By using the three distinct practices of norm
validation by Wiener as a mode of analysis, the research is able to transcend traditional bound-
aries of scale (Hofius 2016: 15; Wiener 2018: 51–2) and is able to focus on the emergence
of normative values within several layers of transnational law, which brings the agents of
normative change and their impact to the foreground. Contestation as a mode of analysis adds
a valuable layer to the analysis of transnational litigation networks in order to understand the
thrive for the ‘ought’ of the law as well as to trace their related validity claims. Applying a con-
structivist framework underlines the flow of normative ideas and narratives and the impor-
tance of norms validation in order to create normative authority without a regime. The defining
character of the practices of contestation in Urgenda is that they are predominantly proactive,
as opposed to reactive contestation. In proactive contestation, agents critically engage with
a norm ‘in order to clarify distinct meanings or agree on the means (instruments, mechanism,
policies) that are required to implement the norm’ (Wiener 2020: 1). Thereby, they create their
own frame of reference and hence, their own normative regime, which in turn could be used
as claim validation in a future argument. Agents at multiple sites are able to build their own
opportunity structures by networking contestation through building up ‘autonomous non-state
social structures’ (Teubner 2012: 52) of shared normative values.
Based on the applied model of contestation with normative validation practices in social,
cultural and formal contexts, I propose an analytical framework that frames transnational
litigation networks as normative communities (Osofsky and Koven 2008; Berman 2009: 226)
with access to normative validation practices that propagate networked contestation. Similar
to Perez theory on the establishment of private transnational authority, transnational litigation
networks are seen as ‘a common set of actors is connected through multiple types of socially
relevant ties’ (Perez 2020: 481). They engage in a ‘recursive process of external recognition’,
which entails a ‘creation of validity through cross-referencing’ (Perez and Stegmann 2018:
143) – not of legal norms, but of ideas how the law ‘ought to be’, i.e., what states should do
in order to prevent climate change. In that, they exert their constituent power within global
constitutionalism and contribute to creating the global constitutional order.
I argue that their networking capacities, in combination with agenda-setting and case law
as global resources created by the contestation practices of transnational litigation networks,
are a crucial part for the successful establishment of a valid normative claim. In that sense,
the socially relevant ties are foregrounded by analysing the practices of normative validation.
As Paiement describes it, litigation is ‘a form of shared narrative building’ (Paiement 2020:
141). The networked contestation exhibited by transnational litigation networks is focused on
a three-folded strategy of normative validation: Cultural validation comes to the foreground in
the form of agenda-setting: the sharing of opinions, establishment as scientific and academic
experts. Media presence, but also the reproduction of the discourse in a legal and academic
context are important factors. Social validation comes to the foreground as networking capac-
ities, which facilitate hybrid knowledge production and circulation and have mobilization
characteristics. Formal validation is rooted in references to positive law, which create net-
works of legal arguments (Pedersen 2020). The inclusion of formal validation as a contestation
practice also allows to apply an additional doctrinal lens on the practice of formal validation,
388 Handbook on global constitutionalism

i.e., an assessment of positive law. I argue that the networking nature of transnational litigation
networks, which enables a faster proliferation of their arguments, legal know-how, and best
practices (Ciplet 2014; Peel and Lin 2019), contributes a crucial building block of transna-
tional law by means of their opportunity structure in specific forums.
This networked contestation involving different practices of norm validation arises and can
be empirically measured by means of Perez’s identifiers: cross-referencing of legal norms,
indirect ties through affiliation, and direct institutional links (Perez 2020). As he argues, the
density of these connections can be evaluated and contribute to a ‘joint ethos’ (Perez 2020:
486) that exposes norm-generative dynamics. This approach can be used to deeply explore the
networked contestation of actors such as transnational litigation networks. As demonstrated
in the section above, it is possible to trace individual contributions to normative change by
means of different practices of contestation in a social, formal and cultural context. Doing so,
it should be possible to make an assessment of the strength of the contestation, e.g., expressed
in the cross-referencing, indirect ties through affiliation, and direct institutional links (Perez
2020). In addition, I argue that it is possible to trace the emergence and spread of normative
values with this approach, which can contribute to a better understanding of the impact of
strategic litigation. It could trace the emergence of a legal norm through the historical timeline
by analysing cross-references and mutual attributions within contestation practices. It can also
assess the general validity of the normative practices by assessing the number of references,
as ‘each reference indicates (implicitly) the validity of the referenced’ (Perez 2020: 479).
Importantly, positive law always stays an important focus of analysis.
Networked contestation not only reveals the ‘Ought’ of the law for networks of actors of
global normative change, but also makes it possible to trace single successful practices of
contestation that contribute to the global normative order. By revealing the actors, connecting
nodes in the network, and assessing the ‘thickness’ of the network, an empirical assessment
can be made.

CONCLUSION
Transnational litigation networks have developed distinct methods of validation for their
normative contestation in order to achieve success. I propose to apply a normative theoretical
framework based on viewing transnational litigation networks as actors being capable of cre-
ating normative institutions of networked constitutionalism through case law, network capaci-
ties and agenda-setting (Aykut, Wiener et al 2021: 45). With this toolbox, they are able to use
norms as both structuring and socially constructed entities (Wiener 2018: 28). Transnational
litigation networks are an increasingly relevant group of actors who manage to practice con-
testation in a proactive way by critically engaging with a norm and, as a result, sometimes
exceed the normative power of courts, international treaties, corporations or governments.
In this chapter, I have explored the motivation, history and body of research of transnational
litigation networks and then applied a constructivist framework to the Urgenda Case in order
to illustrate an assessment of climate litigation’s norm-generative resources.
Some doctrinal legal scholars argue that ‘the sheer acceptance of a norm, or a perceived reg-
ularity in behaviour, can never in itself render a norm legally valid, because that would involve
an impossible leap from Is to Ought’ (van Klink and Lembcke 2016, 217). I argue that transna-
tional litigation networks are able to establish practices of norm validation via a network-like
 Transnational litigation networks: agents of change in the global constitutional order 389

structure that entails cross-referencing and mutual attribution (Perez 2020). Their contestation
practices in a social, cultural and formal context eventually can lead a norm to becoming
legally valid, showing transnational litigation network’s abilities to make the leap from the
Is to Ought. Based on these observations, I develop the concept of networked contestation to
assess the norm-generative structure of these actors. In that, I apply Perez’s empirical focus
on cross-referencing of legal norms, indirect ties through affiliation and direct institutional
links (Perez 2020) to measure the network topology and dynamics of transnational litigation
networks. This approach fits into global constitutionalism’s notion that ‘constituent power
signals that constitutional orders are made, not found, and that their authorship of last resort
lies with the people’ (Niesen, Chapter 22 in this Handbook).
Climate litigation is an exceptionally well-researched area of transnational strategic litiga-
tion. Other litigation areas have received much less attention. There may be other practices of
validation, or even entirely different strategies in achieving norm validation. Academics and
litigation practitioners alike may benefit from the vast amount of analysis done in this area in
order to spread these best practices to other areas of strategic litigation. With the approach of
networked contestation, this chapter provides a solid framework of analysis that can contribute
to the understanding of transnational litigation networks as agents of change in the global
constitutional order.

REFERENCES
Antonopoulos, Irene. 2020. The future of climate policymaking in light of Urgenda Foundation v the
Netherlands. Environmental Law Review 22 (2): 119–24.
Aykut, Stefan C. and Lucile Maertens. 2021. The climatization of global politics: introduction to the
special issue. International Politics 58: 501–18.
Aykut, Stefan C., Antje Wiener, Anita Engels, Eduardo Gresse, Christopher Hedemann and Jan Petzold.
2021. The social plausibility assessment framework. In Stammer et al (eds), Hamburg Climate Futures
Outlook: Assessing the Plausibility of Deep Decarbonization by 2050, 9 June 2021, 29. Available at
https://www.cliccs.uni-hamburg.de/results/hamburg-climate-futures-outlook-2021/download.html.
Azmy, Baher. 2021. Crisis lawyering in a lawless space: Reflections on nearly two decades of repre-
senting Guantánamo detainees. In R. Brescia and E.K. Stern (eds), Crisis Lawyering. Effective Legal
Advocacy in Emergency Situations. New York: New York University Press, pp. 32–62.
Backes, Chris and Gerrit van der Veen. 2020. Urgenda: the Final Judgment of the Dutch Supreme Court.
Journal for European Environmental & Planning Law 17 (3): 307–21.
Batros, Ben and Tessa Khan. 2020. Thinking strategically about climate litigation (February 25, 2020).
Discussion paper. Available at: https://​ssrn​.com/​abstract​=​3564313.
Bäumler, Jelena. 2021. Sustainable development made justiciable: The German Constitutional Court’s
climate ruling on intra- and inter-generational equity. EJIL:Talk! 8 June 2021. Available at:
https://​www​.ejiltalk​.org/​sustainable​-development​-made​-justiciable​-the​-german​-constitutional​-courts​
-climate​-ruling​-on​-intra​-and​-inter​-generational​-equity/​.
Berman, Paul. 2009. New legal pluralism. Annual Review of Law and Social Science 5.
Bodansky, Daniel. 2005. The international climate change regime. Advances in the Economics of
Environmental Resources 5: 147–80.
Burgers, Laura and Tim Staal. 2019. Climate action as positive human rights obligation: The appeals
judgment in Urgenda v The Netherlands. In R.A. Wessel, W. Werner and B. Boutin (eds), Netherlands
Yearbook of International Law. The Hague: T.M.C. Asser Press.
Burns, William. C.G. and Hari M. Osofsky. 2009. Adjudicating Climate Change: State, National and
International Approaches. Cambridge: Cambridge University Press.
Carrai, Maria Adele. 2016. Global constitutionalism and the challenge of China’s exceptionalism. In
C. Corradetti and G. Sartor. EUI Working Papers. LAW 2016/21. Global Constitutionalism without
390 Handbook on global constitutionalism

Global Democracy (?). Available at: https://​cadmus​.eui​.eu/​bitstream/​handle/​1814/​44286/​LAW​_2016​

_21​.pdf.
Ciplet, David. 2014. Contesting climate injustice: Transnational advocacy network struggles for rights in
UN climate politics. 14 Global Environmental Politics 75: 75–96.
Colón-Ríos, Joel I., Eva Marlene Hausteiner, Hjalte Lokdam, Pasquale Pasquino, Lucia Rubinelli and
William Selinger. 2021. Constituent power and its institutions. Contemporary Political Theory 20:
926–56.
Cotterrell, Roger. 2006. Law, Culture and Society: Legal Ideas in the Mirror of Social Theory. London:
Routledge.
Cox, Roger H.J. 2012a. Revolution Justified: Why Only the Law Can Save Us Now. Planet Prosperity
Foundation.
Cox, Roger H.J. 2012b. It is time for the judiciary to step in and avert climate catastrophe. The Guardian
(online), 14 November 2012. Available at: https://​www​.theguardian​.com/​environment/​2012/​nov/​14/​
judiciary​-climate​-change.
Cox, Roger H.J. 2014. The liability of European states for climate change. Utrecht Journal of
International and European Law 30: 125–35.
Cox, Roger H.J. 2016. A climate change litigation precedent: Urgenda Foundation v the State of The
Netherlands. Journal of Energy & Natural Resources Law 34 (2): 143–63.
De Graaf, K.J. and J.H. Jans. 2015. The Urgenda decision: Netherlands liable for role in causing danger-
ous global climate change. Journal of Environmental Law 27 (3): 517–27.
Duffy, Helen. 2018. Strategic Human Rights Litigation – Understanding and Maximising Impact.
Oxford/New York: Hart Publishing.
Duffy, Helen and Lucy Maxwell. 2020. People v Arctic Oil before Supreme Court of Norway – What’s
at stake for human rights protection in the climate crisis? EJIL:Talk!, 13 November 2020. Available
at: https://​www​.ejiltalk​.org/​people​-v​-arctic​-oil​-before​-supreme​-court​-of​-norway​-whats​-at​-stake​-for​
-human​-rights​-protection​-in​-the​-climate​-crisis/​.
ECCHR. 2016. ‘Annual Report 2016: Enforcing Human Rights by New Means’. European Center
for Constitutional and Human Rights. Available at: https://​www​.ecchr​.eu/​fileadmin/​Jahresberichte/​
ECCHR​_Annual​_Report​_2016​_eng​.pdf (last accessed 28 February 2022).
ECCHR. 2022. Rupture and Reckoning: Guantánamo Turns 20. Reflecting on the Legacy of the
Notorious Detention Camp and US Counter-Terrorism Policy Two Decades After 9/11. Available at:
https://​www​.ecchr​.eu/​fileadmin/​Guantanamo/​01​_ECCHR​_GUANTANAMO​_FINAL​_DP​.PDF.
Doelle, Meinhard, and Sara Seck. 2020. Loss & damage from climate change: from concept to remedy?
Climate Policy 20 (6): 669–80.
Eskander, Shaikh, Samuel Fankhauser and Joana Setzer. 2021. Global lessons from climate change
legislation and litigation. Environmental and Energy Policy and the Economy 2: 44–82.
Fahner, Johannes. 2018. Climate change before the courts: Urgenda ruling redraws the boundary
between law and politics. EJIL:Talk!, 16 November 2018. Available at: https://​www​.ejiltalk​.org/​
climate​-change​-before​-the​-courts​-urgenda​-ruling​-redraws​-the​-boundary​-between​-law​-and​-politics/​
(last accessed 21 February 2021).
Fischer-Lescano, Andreas. 2021. From strategic litigation to juridical action. In M. Saage-Maaß, P.
Zumbansen, M. Bader and P. Shahab (eds), Transnational Legal Activism in Global Value Chains:
The Ali Enterprises Factory Fire and the Struggle for Justice. Cham: Springer, pp. 299–312.
Friedman, Nicole Brooke. 2019. Juliana and the Convention on the Rights of the Child: Can International
Children’s Rights Influence Domestic Climate Change Litigation? PhD Thesis, Bates College.
Standard Theses. 203. Available at: https://​scarab​.bates​.edu/​envr​_studies​_theses/​203.
Gaynor, Kevin A., Benjamin S. Lippard and Margaret E. Peloso. 2010. Challenges plaintiffs face in
litigating federal common-law climate change claims. Environmental Law Reporter 40 (9): 845–56.
Gerrard, Michael B. 2013. Court rulings accept climate science. New York Law Journal 250 (52).
Gociu, Alexandru and Suryapratim Roy. 2021. Extraterritoriality of oil constitutionalism in People v
Arctic Oil. EJIL:Talk!, 16 February 2021. Available at: https://​www​.ejiltalk​.org/​extraterritoriality​-of​
-oil​-constitutionalism​-in​-people​-v​-arctic​-oil/​.
Graser, Alexander. 2019. Was es über Strategic Litigation zu schreiben gälte. In: A. Graser and C.
Helmrich (eds), Strategic Litigation: Begriff und Praxis. Baden-Baden: Nomos, pp. 9–19.
 Transnational litigation networks: agents of change in the global constitutional order 391

Graser, Alexander and Christian Helmrich (eds). 2019. Strategic Litigation: Begriff und Praxis.
Baden-Baden: Nomos.
Hamann, Andrea and Hélène Ruiz Fabri. 2008. Transnational networks and constitutionalism.
International Journal of Constitutional Law 6 (3-4): 481–508.
Harvey, Fiona. 2012. Dutch government may face legal action over climate change. The Guardian
(online), 14 November 2012. Available at: https://​www​.theguardian​.com/​environment/​2012/​nov/​14/​
dutch​-legal​-action​-climate​-change.
Hilbink, Thomas. 2006. Constructing Cause Lawyering: Professionalism, Politics, & Social Change in
1960s America (31 January 2006). Available at: https://​papers​.ssrn​.com/​sol3/​papers​.cfm​?abstract​_id​
=​2417253.
Hofius, Maren. 2016. Community at the border or the boundaries of community? The case of EU field
diplomats. Review of International Studies 42 (5): 939–67.
Hughes, Lesley. 2019. The Rocky Hill decision: A watershed for climate change action? J. Energy Nat.
Resour. Law 37 (3): 341–51.
Jacometti, Valentina. 2019. Climate change litigation: Global trends and critical issues in the light of the
Urgenda 2018 Decision and the IPCC Special Report ‘Global Warming of 1.5 °C’. Global Jurist 20
(1).
Janki, Melinda. 2020. Guyana: A first step towards climate litigation. Climate Law Blog, Sabin
Center for Climate Change Law. 29 December 2020. Available at: http://​blogs​.law​.columbia​.edu/​
climatechange/​2020/​12/​29/​guyana​-a​-first​-step​-towards​-climate​-litigation/​.
Kaleck, Wolfgang. 2019. Mit Recht gegen die Macht. In: A. Graser and C. Helmrich (eds), Strategic
Litigation: Begriff und Praxis. Baden-Baden: Nomos, pp. 21–5.
Keck, Margaret E. and Kathryn Sikkink. 1998. Activists Beyond Borders: Advocacy Networks in
International Politics. Ithaca: Cornell University Press (pages indicated are pdf pages).
Keller, Seline, and Basil Bornemann. 2021. New climate activism between politics and law: analyzing
the strategy of the KlimaSeniorinnen Schweiz. Politics and Governance 9 (2): 124–34.
Khan, Tessa. 2019. Litigation is a powerful tool for holding those responsible for the climate crisis
to account. TIME, 25 September 2019. Available at: https://​time​.com/​5686087/​courtroom​-climate​
-change​-litigation/​.
Kotzé, Louis J. 2021. Neubauer et al. versus Germany: Planetary climate litigation for the anthropocene?
German Law Journal 22 (8): 1423–44.
Kruse, Katherine R. 2011. Engaged client-centered representation of the moral foundations of the
lawyer-client relationship. Hofstra Law Review 39 (3): 577–94.
Kuh, Katrina Fischer. 2019. The legitimacy of judicial climate engagement. Ecology Law Quarterly 46
(3): 731–64.
Lambrecht J, Ituarte-Lima C. 2016. Legal innovation in national courts for planetary challenges:
Urgenda v state of the Netherlands: District Court of The Hague, 24 June 2015, C/09/456689/ HA ZA
13-1396. Environmental Law Review 18 (1): 57–64.
Liran, Amit. 2019. Holding the animal agriculture industry accountable for climate change: Merits of
a public nuisance claim under California and Federal law. Villanova Environ. Law J. 30: 1–38.
Lobel, Jules. 2003. Success Without Victory; Lost Legal Battles and the Long Road to Justice in America.
New York: New York University Press.
Marjanac, Sophie and Lindene Patton. 2018. Extreme weather event attribution science and climate
change litigation: An essential step in the causal chain? Journal of Energy & Natural Resources Law
36 (3): 265–98.
McCormick, Sabrina, Robert L. Glicksman, Samuel J. Simmens, LeRoy Paddock, Daniel Kim and
Brittany Whited. 2018. Strategies in and outcomes of climate change litigation in the United States.
Nature Climate Change 8 (9): 829–33.
McGrath Chris. 2019. Urgenda appeal is groundbreaking for ambitious climate litigation globally.
Environ. Plan. Law J. 36 (1): 90–4.
Minnerop, Petra. 2019. Integrating the ‘duty of care’ under the European Convention on Human Rights
and the science and law of climate change: The decision of The Hague Court of Appeal in the Urgenda
case. Journal of Energy & Natural Resources Law 37: 1–31.
Murcott, Melanie, and Emily Webster. 2020. Litigation and regulatory governance in the age of the
Anthropocene: the case of fracking in the Karoo. Transnational Legal Theory 11 (1–2): 144–64.
392 Handbook on global constitutionalism

Nollkaemper, André and Laura Burgers. 2020. A new classic in climate change litigation: The Dutch
Supreme Court decision in the Urgenda Case. EJIL:Talk!, 6 January 2020. Available at: https://​
www​.ejiltalk​.org/​a​-new​-classic​-in​-climate​-change​-litigation​-the​-dutch​-supreme​-court​-decision​-in​
-the​-urgenda​-case/​.
Novak, Andrew. 2020. Transnational Human Rights Litigation: Challenging the Death Penalty and
Criminalization of Homosexuality in the Commonwealth. Cham: Springer.
Osofsky, Hari M. 2010. The continuing importance of climate change litigation. Climate Law 1(1): 3–29.
Osofsky, Hari M. and Janet Koven Levit. 2008. The scale of networks? Local climate change coalitions.
Chicago Journal of International Law 8 (2): Article 4.
Paiement, Phillip. 2020. Urgent agenda: How climate litigation builds transnational narratives.
Transnational Legal Theory 11 (1-2): 121–43.
Pedersen, Ole W. 2020. The networks of human rights and climate change: the state of the Netherlands v
Stichting Urgenda, Supreme Court of the Netherlands, 20 December 2019 (19/00135). Environmental
Law Review 22 (3): 227–34.
Peel, Jacqueline and Jolene Lin. 2019. Transnational climate litigation: The contribution of the Global
South. American Journal of International Law 113 (4): 679–726.
Peel, Jacqueline and Hari M. Osofsky. 2018. A rights turn in climate change litigation? Transnatl.
Environ. Law 7 (1): 37–67.
Pepper, Stephen L. 1986. The lawyer’s amoral ethical role: A defense, a problem, and some possibilities.
American Bar Foundation Research Journal 11 (4): 613–35.
Perez, Oren. 2020. Transnational networks and the construction of global law. In: P. Schiff Berman (ed.),
The Oxford Handbook of Global Legal Pluralism. Oxford: Oxford University Press.
Perez, Oren and Ofir Stegmann. 2018. Transnational networked constitutionalism. Journal of Law &
Society. Bar Ilan University Faculty of Law Research Paper No. 18-04, Available at: https://​ssrn​.com/​
abstract​=​3180540.
Peters, Anne. 2015. ‘Global constitutionalism’. In M.T. Gibbons (ed.), The Encyclopedia of Political
Thought, (Chichester, UK: Wiley-Blackwell) pp. 1484–7.
Puetter, Uwe and Antje Wiener. 2009. The quality of norms is what actors make of it: Critical construc-
tivist research on norms. Journal of International Law and International Relations 5 (1): 1–16.
Purcell, Andrew. 2021. Yemeni drone strike victims take their case to Germany’s highest court. 23
March 2021. Available at: https://​reprieve​.org/​uk/​2021/​03/​23/​yemeni​-drone​-strike​-victim​-take​-their​
-case​-to​-germanys​-highest​-court/​.
Ratner, Michael and Michael Smith. 2021. Moving the Bar: My Life as a Radical Lawyer. New York:
OR Books.
Reus-Smit, Christian. 2005. Constructivism. In S. Burchill et al (eds), Theories of International
Relations. Basingstoke: Palgrave.
Ruben, Albert. 2011. The People’s Lawyer: The Center for Constitutional Rights and the Fight for Social
Justice, from Civil Rights to Guantanamo. New York: New York University Press.
Sabin Center for Climate Change Law. 2022. Urgenda Foundation v. State of the Netherlands.
Available at: http://​climatecasechart​.com/​climate​-change​-litigation/​non​-us​-case/​urgenda​-foundation​
-v​-kingdom​-of​-the​-netherlands/​.
Sandholtz, Wayne. 2019. Human Rights Courts and Global Constitutionalism: Coordination through
Judicial Dialogue. KFG Working Paper Series, No. 35, Berlin Potsdam Research Group ‘The
International Rule of Law – Rise or Decline?’, Berlin, June 2019.
Schiermeier, Quirin. 2021. Climate science is supporting lawsuits that could help save the world. Nature
(online), 8 September 2021. Available at: https://​www​.nature​.com/​articles/​d41586​-021​-02424​-7.
Setzer, Joana and Catherine Higham. 2021. Global trends in climate change litigation: 2021 snapshot.
Policy Report. July 2021. Available at: https://​www​.lse​.ac​.uk/​granthaminstitute/​wp​-content/​uploads/​
2021/​07/​Global​-trends​-in​-climate​-change​-litigation​_2021​-snapshot​.pdf.
Setzer, Joana and Dennis van Berkel. 2019. Urgenda v State of the Netherlands: Lessons for interna-
tional law and climate change litigants. LSE, Grantham Research Institute on Climate Change and
the Environment. Online commentary, 10 December 2019. Available at: https://​ www​ .lse​
.ac​
.uk/​
granthaminstitute/​news/​urgenda​-v​-state​-of​-the​-netherlands​-lessons​-for​-international​-law​-and​-climate​
-change​-litigants/​.
 Transnational litigation networks: agents of change in the global constitutional order 393

Setzer, Joana and Lisa C. Vanhala 2019. Climate change litigation: A review of research on courts and
litigants in climate governance. WIREs Clim Change 10: 1–19.
Sharp, Benjamin. 2019. Stepping into the breach: State constitutions as a vehicle for advancing
rights-based climate litigation. Duke Journal of Constitutional Law & Public Policy 14: 39–74.
Slaughter, Anne-Marie, and David Zaring. 2006. Networking goes international: an update. Annual
Review of Law and Social Science 2 (1): 211–29.
Spier, Jaap. 2020. The ‘strongest’ climate ruling yet: The Dutch Supreme Court’s Urgenda Judgment.
Netherlands International Law Review 67: 319–91.
Spijkers, Otto. 2020. Pursuing climate justice through public interest litigation: The Urgenda case.
Völkerrechtsblog, 29 April 2020. Available at: https://​voelkerrechtsblog​.org/​pursuing​-climate​-justice​
-through​-public​-interest​-litigation​-the​-urgenda​-case/​.
Taekema, Sanne. 2018. Theoretical and normative frameworks for legal research: Putting theory into
practice. Law and Method. Available at: https://​ssrn​.com/​abstract​=​3123667.
Teubner, Gunther. 2012. Constitutional Fragments: Societal Constitutionalism and Globalization.
Oxford: Oxford University Press.
Tully, James. 2016. Deparochializing political theory and beyond: A dialogue approach to comparative
political thought. Journal of World Philosophies 1 (1): 51–74.
Tushnet, Mark. 2008. The rights revolution in the twentieth century. In M. Grossberg and C. Tomlins
(eds), The Cambridge History of Law in America, Volume 3. Cambridge: Cambridge University
Press, pp. 377–402.
van Klink, Bart and Oliver B. Lembcke. 2016. Chapter 9: Exploring the boundaries of law: On the
Is–Ought distinction in Jellinek and Kelsen. In S. Taekema, B. van Klink and W. de Been (eds),
Facts and Norms in Law, Interdisciplinary Reflections on Legal Method. Cheltenham, UK, and
Northampton, MA, USA: Edward Elgar.
Vanhala, Lisa. 2020. Co-producing the endangered polar bear: Science, climate change, and legal mobi-
lization. Law & Policy 42: 105–24.
Verschuuren, Jonathan. 2019. The State of the Netherlands v Urgenda Foundation: The Hague Court of
Appeal upholds judgment requiring the Netherlands to further reduce its greenhouse gas emissions.
Rev. Eur. Comp. Int. Environ. Law 28 (1): 94–8.
Voigt, Christina (ed.). 2019. International Judicial Practice on the Environment: Questions of
Legitimacy, Studies on International Courts and Tribunals. Cambridge: Cambridge University Press.
Walters, Daniel. 2019. Animal agriculture liability for climatic nuisance: A path forward for climate
change litigation. Columbia J. Environ. Law 44: 299–339.
Wegener, Bernhard W. 2019. Urgenda – World rescue by court order? The ‘climate justice’ movement
tests the limits of legal protection. J. Eur. Environ. Plan. Law 16 (2): 125–47.
Westerman, Pauline C. 2009. Open or autonomous: The Debate on legal methodology as a reflection of
the debate on law. Available at: https://​ssrn​.com/​abstract​=​1609575 (last accessed 18 March 2021).
Wiener, Antje. 2009. Enacting meaning-in-use: Qualitative research on norms and international rela-
tions. Review of International Studies 35 (1): 175–93.
Wiener, Antje. 2017. Agency of the governed in global international relations: Access to norm valida-
tion, Third World Thematics: A TWQ Journal.
Wiener, Antje. 2018. Contestation and Constitution of Norms in Global International Relations.
Cambridge: Cambridge University Press.
Wiener, Antje. 2020. The concept of contestation of norms – an interview (12 March 2020). Yearbook
on Practical Philosophy in a Global Perspective (YPPGP-JPPGP) 4. Available at: https://​ssrn​.com/​
abstract​=​3523639.
Wonneberger, Anke and Rens Vliegenthart. 2021. Agenda-setting effects of climate change litigation:
Interrelations across issue levels, media, and politics in the case of Urgenda Against the Dutch
Government. Environmental Communication 15 (5): 699–714.
Yoshida, Keina and Joana Setzer. 2020. The trends and challenges of climate change litigation and
human rights. European Human Rights Law Review 2: 161–73.
Zengerling, Cathrin, Stefan Aykut, Antje Wiener and Martin Wickel. 2021. Social Driver Assessment
8.5: Climate litigation. In Stammer et al (eds), Hamburg Climate Futures Outlook: Assessing the
Plausibility of Deep Decarbonization by 2050, 9 June 2021, 90. Available at: https://www.cliccs.
uni-hamburg.de/results/hamburg-climate-futures-outlook-2021/download.html.
394 Handbook on global constitutionalism

Zhao Yue, Shuang Lyu and Zhu Wang. 2019. Prospects for climate change litigation in China. Transnatl.
Environ. Law 8 (2): 349–77.
27. Human rights, sovereignty, and the use of force
Sassan Gholiagha

INTRODUCTION

International law strongly constrains the use of force as a means of global politics. The most
authoritative formulation of this prohibition is found in the United Nations (UN) Charter.
Article 2(4) explicitly prohibits the use of force, including the threat of the use of force, aiming
to ensure a peaceful world. Yet, the Charter also accepts two situations in which the use of
force is legal in global politics. First, states can exercise self-defence in situations of an armed
attack (Article 51 UN Charter). Second, states may act collectively and employ measures
including the use of force to maintain international peace and security if authorized by the UN
Security Council (see Gray 2008 for a general overview).
Wars and armed conflicts of various types are a constant feature of global politics. In the
last decades, inner-state wars and conflicts have been the dominant type, with the number
of inter-state wars being relatively low for some time (BICC et al 2019). But, when Russia
attacked Ukraine on 24 February 2022, questions of inter-state wars and thus ius ad bellum
have gained more attention again. At the time of writing, the war is ongoing, and its outcome is
unclear. However, it is clear that individual human beings suffer, either as soldiers or civilians.1
Regarding ius ad bellum, I focus on situations where the UN Charter enables the use of
force to protect individual human beings from mass atrocity crimes. As I will show, the idea
that human rights protection at times requires the use of force is most prominently formulated
in the Responsibility to Protect (R2P). More generally speaking, human rights protection
constitutes a core principle or fundamental norm that constrains what actors can do in a
‘constitutional political and legal order’ (Lang and Wiener, Chapter 1 in this Handbook: p. 3;
Besson, Chapter 23 in this Handbook). At the same time, the sovereignty of states and the
fundamental norm of non-interference is also a fundamental norm in the UN Charter. As I will
demonstrate in the following, these fundamental norms are constantly in tension. Building on
the core assumptions that all constitutions contain enabling and constraining elements (Doyle,
Chapter 32 in this Handbook, p. 461), I hold that the fundamental norms (see Wiener 2008 for
this term) regarding the use of force can be analysed through the lens of global constitution-
alism. The chapter employs the notion of global constitutionalism as a perspective that brings
together politics and law and enables scholars to study ‘empirical facts and normative ideals’
(Lang and Wiener, Chapter 1 in this Handbook: p. 3). It discusses the use of force against the
backdrop of the tension between sovereignty/non-interference and human rights protection.
In the discussion, I consider both empirical developments and normative ideals formulated
in the literature. In terms of empirical developments, I look at debates about humanitarian
interventions in the 1990s and the development and application of R2P since the early 2000s.

1
I will not discuss the Russian war against Ukraine in detail here. Whether R2P ought to play
a role has been discussed for example on the Fresh Perspectives Blog of the European Centre for the
Responsibility to Protect, available at https://​ecr2p​.leeds​.ac​.uk/​research​-2/​blog/​.

395
396 Handbook on global constitutionalism

In terms of normative ideals, I discuss whether R2P may be able to overcome the tension
between sovereignty and non-interference on the one hand and the protection of human rights
on the other. Furthermore, the Charter itself may provide a global constitution or a framework
for an emerging global constitutional order (Fassbender 2008, 2009; Doyle, Chapter 32 in
this Handbook). Thus, I ask whether R2P also contributes to this emerging constitutional
order by providing a (potential) right to be protected. Such a right is not an empirical fact but
certainly a normative ideal. As becomes evident from this description, the main focus of this
chapter is ius ad bellum. Yet, given that a right to be protected remains a normative ideal, I will
also briefly discuss ius in bello, looking at both International Humanitarian Law (IHL) and
International Human Rights Law (IHRL) to illustrate how both bodies of law can and should
play a role in protecting individuals in armed conflicts.
The chapter begins by providing a critical discussion of existing literature in both
International Relations and International Law on the question of this tension between sover-
eignty and non-interference on the one hand and human rights protection through the use of
force on the other hand. I then discuss the literature on R2P as a complex norm (Welsh 2013),
which can be understood as an attempt to reconcile the tensions between non-interference/
sovereignty and human rights protection. Following this section, I suggest that not only states
can draw on the R2P norm to protect humans from mass atrocities, but that R2P also entails
a strong individual dimension, i.e. it is part of an ongoing shift away from states as the primary
actors of an emerging global constitutionalist order towards the individual human being
(Gholiagha 2022: Chapter 6; Peters 2016: 236). In conclusion, I discuss whether R2P entails
a right to be protected and turn to ius in bello to discuss how IHRL and IHL also provide
protection.

SOVEREIGNTY VS HUMAN RIGHTS PROTECTION – AN

UNRESOLVED TENSION

After World War II, states signed the UN Charter with the aspiration that the horrors of two
world wars would not be repeated, as the Charter’s preamble makes clear. Accordingly,
states agreed on a set of fundamental norms enshrined in the Charter to achieve the goal of
a peaceful resolution of conflicts. These fundamental norms are: working towards ‘respecting
human rights’ (Article 1(3)); sovereign equality (Article 2(1)); the prohibition of the use of
force (Article 2(4)) and the principle of non-interference except for actions authorized under
Chapter VII (Article 2(7)).
Under Chapter VII, the UN Security Council (hereafter UNSC or the Council) is authorized
to use all necessary means, including force, to ensure international peace and security (Articles
39 and 43). In listing these fundamental norms of the UN Charter, it becomes apparent that
the Charter contains an inherent tension between sovereignty and non-interference in internal
affairs of the state on the one hand and ensuring respect for human rights on the other. Framed
as a question, the tension reads: How should the international community react in cases where
force was directed not against another member state but towards a state’s population or perhaps
a specific group within a state? The answer to this question seems to be that in those cases, the
international community faces a dilemma: Either violate the one set of norms protecting states
or the other set of norms directed towards peace, security, and human rights protection (Brock
1999; Wheeler 2006: 42; Brock 2013; Gholiagha 2014; Peltner 2017; Stimmer and Wisken
 Human rights, sovereignty, and the use of force 397

2019: 517). This tension was not a hypothetical issue, as events during the Cold War demon-
strated. For example, massive human rights violations, amounting at times to genocide, took
place within states such as Cambodia, East-Pakistan/Bangladesh and Uganda. In response,
often neighbouring states, under the pretence of self-defence, intervened to prevent human
rights violations (Wheeler 2002: 79, 89–100, 136; Smith 2010: 81–99; Rodley 2015: 781–3).
Yet, it was with the end of the Cold War, the changes toward new wars (Kaldor 1999; Daase
1999) and a growing number of inner-state wars, ethnic conflicts, and violence against state’s
populations or certain groups that it became clear that the biggest threat for human rights and
the biggest challenge to ensure a peaceful world had shifted from intra-states war to inner-state
wars and conflicts short of war (BICC et al 2019: 49).
So what should be done in situations that would pass the threshold of the use of force
prohibition (see ICJ 1984 for an authoritative decision on this threshold) but happened to
occur within a state? The underlying cause of the problem was that – primarily due to the
historical context of the Charter’s development – its central norms are state-centred and focus
on intra-state conflicts. However, when it came to inner-state disputes, including conflicts with
armed non-state actors, the rules could not easily be transferred as states shielded behind the
norms of non-interference and sovereignty. This was also the case when those actions caused
human rights violations.
While between 1945 and 1990 very little happened in terms of actions to protect populations
from mass atrocity crimes, the 1990s saw a fundamental change when it came to Chapter VII
operations and debates about the use of force. From the 1990s onwards, military interventions
with the explicit aim to protect human rights for situations within a state were authorized by
the UN Security Council; 1991 saw the first instance of a shifting policy with Resolution 688
demanding the protection of the Kurdish population in Iraq (UNSC 1991; Wheeler 2002:
139–71). And only a year later, UNSC members stated in Resolution 767 that the situation
‘constitutes a threat to international peace and security’ (UNSC 1992a). In using this phrase,
the UNSC clarified that situations within a state could also constitute a threat to international
peace and security, thereby extending its reach to inner-state conflicts (see also Tomuschat
2014: 17).
Operation Restore Hope in Somalia, authorised through Resolution 794 (UNSC 1992b),
illustrated that ‘humanitarian claims were being advanced and legitimated by members as
justification for the use of force’ (Wheeler 2002: 185). As it is well known, the operation in
Somalia ended in a disaster with the so-called Battle of Mogadishu, with hundreds of civil-
ians killed and the death of 18 US soldiers (Wheeler 2002: 188–200). The events in Somalia
directly affected the international communities reaction or, better, lack thereof, to the genocide
in Rwanda in 1994. It was primarily a lack of political will that was the underlying reason for
the international communities inaction (Smith 2010: 179). A quick and robust response might
have prevented the genocide (Wheeler 2002: 209–19). However, when outside help arrived –
in the form of a French operation and later a UN Mission this was ‘too little too late’ (Wheeler
2002: 227–35; Smith 2010: 173–6). But as Karen Smith has shown in her work, it was not
only the lack of political will but also the unwillingness of naming the situation a genocide out
of fear that such a statement would activate legal obligations under the Genocide Convention
(Smith 2010: 154–67). And a year later, the massacre of Srebrenica demonstrated again that
the international community’s willingness to rely on the use of force if necessary to protect
human rights remained limited (Smith 2010: 123–30).
398 Handbook on global constitutionalism

Along with these changes in terms of actions, scholars also observed a shift regarding the
legitimation of these operations. While, as mentioned above, pre-1990s’ justifications for the
use of force in cases of what were de facto military operations to protect human rights had
been primarily justified on the grounds of self-defence, this changed from the 1990s onwards.
The justification shifted to humanitarian arguments and scholars coined the term ‘humanitar-
ian intervention’ (Holzgrefe and Keohane 2003), with constructivist scholars identifying an
‘expansion of humanity’ (Finnemore 1996: 170). It seemed that sovereignty was no longer an
impenetrable shield (von Arnauld 2009: 16).
The 1990s had seen both success and failure in the face of severe human rights violations
and mass atrocity crimes. However, any operations and interventions always had been author-
ized by the UNSC. This fact changed when in 1999 NATO intervened in the Kosovo conflict
(NATO 1999b, 1999a), using force to protect the civilian population in Kosovo without the
Council’s authorization. Unfortunately, I do not have the space to outline the debates about
Kosovo in detail. However, in a nutshell, NATOs actions remained contested, were undoubt-
edly illegal but deemed legitimate by some (Habermas 1999; Wheeler 2000; Independent
International Commission on Kosovo 2000; Lang Jr. 2009; Brock 2013; Nuñez-Mietz 2018).
On a more abstract level, the events of the 1990s demonstrated how the international com-
munity struggled to reconcile fundamental norms: human rights protection and the prevention
of mass atrocity crimes on the one hand and norms of sovereignty and non-interference on the
other hand. And part of the struggle remained the question of the appropriate ways to use force
in such situations. Lothar Brock has described this inherent tension as a fractured dualism of
state and human rights law (Brock 1999: 323–4; see also Cohen 2008). Put differently, the
inherent tension between sovereignty and human rights protection and the question of how
and when the use of force was appropriate remained unsolved on the eve of the twenty-first
century. In 2001 the Canadian-sponsored International Commission on Intervention and State
Sovereignty (ICISS) published a report entitled ‘The Responsibility to Protect’ to provide
answers on how to overcome this tension and how to resolve the fragmented dualism between
human rights protection and sovereignty (ICISS 2001). The following section discusses R2P
from its inception in 2001 to current debates about its application, nature and status in global
politics and international law.

R2P: SOLVING THE TENSION?

There is no need to retell R2P’s development in detail. Others have done this skilfully
(Bellamy 2006, 2009, 2011a; Thakur 2016; Welsh 2016). To briefly recall, following the
ICISS report in 2001 (ICISS 2001) and some years of NGO advocacy work, the heads of states
and governments included R2P in a shortened, and some would say, watered-down (Weiss
2014: 15) version in the UN 2005 World Summit Outcome Document (United Nations 2005).
In two paragraphs, the central ideas of R2P were included: First, all states bear a responsibility
to protect their populations from war crimes, crimes against humanity, ethnic cleansing, and
genocide – or in short, mass atrocity crimes. Second, should a state ‘manifestly fail’, the inter-
national community should act through the UN Security Council. These acts could manifest in
the form of assistance or, if everything else fails, through the use of force under Chapter VII.
Decisions to act under Chapter VII were to be taken on a case-by-case basis (United Nations
2005: paras 138–9).
 Human rights, sovereignty, and the use of force 399

Since 2005, R2P has been established in global politics but remains heavily contested
regarding the meaning actors attach to it and when, how, and where it should be applied. There
is a plethora of literature on these questions (some examples of recent work include Welsh
2019a; Staunton and Ralph 2020; Hunt and Orchard 2020) to which the interested reader can
turn. In the remainder of this section, I want to focus on R2P’s nature as a norm and its place
in the context of global constitutionalism (Tacheva and Brown 2015). I argue that conceptual-
izing R2P as a norm, understood as both a process and a thing (Krook and True 2012), allows
thinking about R2P as a soft institution (Orchard and Wiener 2021: 6) of an emerging global
constitutional order.
Over the last 20 years, scholars attempted to grasp the nature of R2P, asking whether it
should be understood as a concept, an idea, a principle or a norm. I, like many scholars, see it
as a norm. Classically, norms have been understood as ‘collective expectations for the proper
behaviour of actors with a given identity’ (Katzenstein 1996: 5). While identity is a core
concept in constructivism (Wendt 1992; Onuf 2013: 75), more critical research has questioned
the ideas about a given identity (Zehfuß 2001; Vetterlein and Wiener 2013; Gholiagha et al
2020: 294), has pointed to the need to take values into account (Winston 2018), and most
importantly has established that norms are inherently contested (Wiener 2007, 2018) with
their meaning being subject to change depending on the context and the actors (Wiener 2009;
Gholiagha et al 2021).
Bringing together these more critical approaches to norms and the aforementioned under-
standing of norms as both processes and things (Krook and True 2012; Orchard and Wiener
2021) with constructivist research on R2P, I take up Jennifer Welsh’s suggestion to understand
R2P as a complex norm as it entails several interconnected normative prescriptions (Welsh
2013). As Jennifer Welsh notes:

R2P in its three-pillar form thus represents what I call a ‘complex’ norm, containing more than one
prescription. This complex structure also creates a situation in which the breach of one of the com-
ponents of R2P (failure on the part of a national government to protect its population) is meant to
act as a trigger for fulfilment of another component (the international community’s remedial role in
protecting) (Welsh 2013: 384).

As I have demonstrated elsewhere in detail, such a conceptualization paired with a critical

constructivist conception of norms allows us to understand better R2P’s application or
non-application in different settings (Gholiagha 2022, 2015). Here I want to focus on another
question – whether R2P has contributed to overcoming the tension between human rights law
and the right of states regarding sovereignty and non-intervention, especially focusing on the
use of force (Moe and Geis 2020: 395). This insight is important because the answer to this
question tells us something about R2P’s potential effect on an emerging global constitutional
order. Many scholars have assessed R2Ps’ effectiveness in preventing mass atrocity crimes,
and they have come to vastly different conclusions. While some have announced the death of
R2P (Chandler 2015) or see it as something hollowed out (Hehir 2018), others maintain that
it does have positive effects, although they readily admit that it is far from perfect (Bellamy
2015; Bellamy and McLoughlin 2018).
As a constructivist norms researcher, my answer lies in the middle. As Uwe Puetter and
Antje Wiener rightly argued over a decade ago, ‘norms are what actors make of them; and we
would add that they are as “good” (read: just, fair and legitimate) as what actors make them out
to be’ (Wiener and Puetter 2009: 4). In this sense, looking only at the norm itself says too little
400 Handbook on global constitutionalism

about success or failure. Instead, we need to study whether actors rely on it to solve existing
problems or refer to R2P when they establish and justify the appropriate behaviour in a specific
situation as a specific actor (March and Olsen 1989, p. 26). Agency matters. In this regard, the
debate surrounding the intervention in Libya in 2011 was a straightforward litmus test for R2P.
While there has been considerable debate about the effect of R2P on Libya and the UNSC
decision (Bellamy 2011b; Kurtz and Rotmann 2016; Pattison 2017), references to R2P can be
identified in the debates of the UNSC (Gholiagha and Loges 2020). Of course, the aftermath of
the intervention raised a lot of justified critiques, including the regime change that the NATO
support for the opposition forces against Ghaddafi led to (Bellamy 2014; Akbarzadeh and
Saba 2019; Malito 2019). In the penultimate section, I now return to conceptual ideas about
R2P and discuss the individual human beings’ position in the discourse on R2P.

THE INDIVIDUAL HUMAN BEING IN R2P

R2P can potentially change the relationship between sovereignty and human rights protection
as states can draw on it to balance these two fundamental norms in global politics and author-
ize the use of force to ensure protection from mass atrocity crimes. Thus, it is often understood
and used by states and international institutions with an exclusive state membership system,
such as the UN Security Council. By moving away from states and international institutions,
I want to shift towards the individual human being in the discourse on R2P.
To this end, it is worthwhile to return to the origins of R2P briefly. In 1999, on the eve of
a UN General Assembly meeting, then-Secretary General Kofi Annan published an op-ed in
the Economist entitled ‘Two Concepts of Sovereignty’ (Annan 1999). Annan criticized the
international community for both the inaction in Rwanda as the genocide could take place
unhindered and the actions in Kosovo, for he feared that it might jeopardize the international
security system in place (Annan 1999: 81). However, Annan also juxtaposed state sovereignty
with individual sovereignty, a shorthand for individual rights. And while Annan’s suggestion
to try to reconcile state sovereignty and individual sovereignty was a central motivation for
establishing the ICISS, the idea of individual sovereignty did not resurface in the ICISS report.
And while Annan himself later was not happy about the choice of the term (Evans 2008: 38,
2008: 38), it draws attention to what is at the core of R2P: the protection of the individual
human being.
Feminist scholars such as Christine Sylvester have rightly criticized International Relations
scholarship for studying violence and war only on the systematic or state level (Sylvester
2013b: 1–2), calling for scholars to consider the personal experience of war (Sylvester 2013a:
619–20). In the context of R2P, the call for the focus on individual experience raises essential
questions on the individual human being’s position in the discourse on R2P (Gholiagha 2022:
Chapter 6 offers a detailed discussion on this question).
Focusing on the individual human being in the context of the prohibition of the use of
force and R2P may strike readers as odd, given that these are norms that are aimed at states.
Yet, many scholars agree that R2P is about protecting individuals (Hehir 2012: 189; Marlier
and Crawford 2013: 410; Luck 2015: 501–2; Peters 2016: 236–7; Welsh 2019b: 14). And of
course, the victims of mass atrocity crimes are individuals (Rome Statute of the International
Criminal Court, 1998: Articles 7–8), even in the case of a crime such as genocide, which
targets groups (UNGA 1948; Lee 2010: 335–6, 341–2; Macleod 2012: 197). Furthermore,
 Human rights, sovereignty, and the use of force 401

Lauren Wilcox has rightly pointed out that R2P produced three ‘subjects’, ‘a subject to be
saved, a subject that can do the saving, and an inhuman subject that can be killed in order to
save others’ (Wilcox 2015: 174; see also Dunford and Neu 2019: 1087 on civilian casualties
and other negative effects of interventions). In this context of protecting human beings as
a core part of R2P, scholars have identified ‘human-centric justifications’ for interventions
(Teitel 2011: 35), reference to the ‘rights of vulnerable people’ (Weiss 2014: 9), and a focus
on the ‘defense of others, namely, the persons who are victims of unjustified violence by
their own governments’ (Téson 2014: 63, emphasis removed). Yet, what is less clear is what
follows from R2P for the individual human being to be protected in terms of rights. In the
concluding section, I now turn to this issue by asking whether R2P provides individuals with
a right to be protected? In addition, I offer a brief discussion of how protection in situations of
war can be provided through IHRL and IHL.

CONCLUSION – TOWARDS A RIGHT TO BE PROTECTED?

R2P has undoubtedly changed the landscape of global politics. It has changed how actors
discuss mass atrocity crimes, and it has opened up the possibility for action – although it
does not guarantee meaningful action. As I have tried to illustrate, R2P has become part of an
emerging global constitutional order and can be understood as part of the package of both soft
and hard institutions2 that have strengthened the rights of individual human beings, that are
part of the ‘humanisation of security’ (Bellamy 2016) and the ‘humanisation of global politics’
(Gholiagha 2022). The question that arises from this development and which I want to answer
by way of conclusion is whether R2P entails a right to be protected.
When protests erupted in Myanmar against the military junta in 2021, protesters painted
R2P in bold letters on the streets and held up signs saying ‘Welcome R2P in Myanmar’.3
R2P thus offers civilian populations the possibility to claim a right to be protected from mass
atrocities, given the responsibility of the state and the international community to do so. But
is there an actual right to be protected in the legal sense? I turn to Anne Peter’s work Beyond
Human Rights (Peters 2016) for this question. To begin with, she suggests differentiating
between ‘simple’ rights and human rights as two groups of individual rights (Peters 2016:
436). She notes, and I follow her in that assessment, that R2P signals a shift ‘towards the
needs, and possibly even the rights of the individual’ (Peters 2016: 236). For Peters, looking at
human rights, R2P does not create obligations to intervene but rather ‘a procedural obligation
to justify non-intervention, especially an obligation of the permanent members of the Security
Council to justify their veto in that body’ (Peters 2016: 240).
But what can R2P provide regarding the ‘possible rights of the individual’ Anne Peters
(2016: 236) speaks of? Here, returning to R2P’s complex structure identified by Jennifer
Welsh (Welsh 2013), which I discussed above, is helpful. Parts of R2P provide obligations to
the states and the international community; who is to be protected is also an integral part of the
norm. The fact that populations are to be protected from mass atrocity crimes (United Nations

2
The International Criminal Court, the Human Rights Council and the growing body of human
rights treaties with their instruments to allow individual petitions are all examples for hard institutions.
3
See https://​www​.​internatio​nalaffairs​.org​.au/​australianoutlook/​the​-responsibility​-to​-protect​-the​
-people​-of​-myanmar/​.
402 Handbook on global constitutionalism

2005: paras 138–9) indicates that R2P is not about the protection of a specific group such as
citizens or a legally defined group such as civilians, but simply refers to all individual human
beings who happen to live within a state’s territory. And if one reads closely Resolution 1973
on Libya and R2P, R2P also seems to extend to foreign nationals who are present at the time
(e.g. UNSC 2011: 2).
R2P thus provides grounds for a right to be protected from mass atrocity crimes independent
of the individual human beings’ nationality or status, simply by being present within a state’s
territory. As Peters rightly notes, no direct legal obligation for other states to intervene stems
from such a right, but she identifies a political and moral responsibility to do so (Erskine 2003,
2008; on responsibility in global politics see Hansen-Magnusson and Vetterlein 2020, 2021).
And it gives grounds for the protection of individual rights ex-post through the International
Criminal Court under whose (complimentary) jurisdiction mass atrocity crimes fall (Rome
Statute of the International Criminal Court 1998), although some scholars have noted that
the relationship between R2P and the International Criminal Court is not without problems
(Ainley 2015; Kersten 2018).
As mentioned at the outset, the chapter’s focus on the use of force, human rights protection,
and sovereignty relates primarily to ius ad bellum issues: When and under which conditions
is the use of force appropriate? The question of a right to be protected shifts the focus towards
ius in bello, the laws that apply in situations of war and armed conflict. Any situations in
which force is used leads to suffering. The laws of war codified, inter alia, in the Geneva
Conventions and are usually referred to as IHL, provide rules to limit suffering, make war
more humane (Wagner 2014: 1409), and protect individuals (Peters 2016: 194). IHL provides
norms about who can and who cannot be attacked and the limits of an attack. These norms are
formulated in the principles of distinction and proportionality:

The principle of distinction requires that parties to armed conflict distinguish between civilian pop-
ulations and objects, and military objectives. … The principle of proportionality prohibits an attack
if the incidental civilian harm is excessive in relation to the concrete and direct military advantage
anticipated by the attack (Grut 2013: 10).

Those principles and IHL more generally provide protection from excessive force or direct
attacks against civilians in situations of armed conflicts. Yet, debates have shifted to whether
and, if so, to what extent and how IHRL should also apply in situations of armed conflicts. One
area where this has been discussed widely is the use of drones, especially in the context of US
drone strikes outside of war (Dill 2015; Gregory 2015; Brookman-Byrne 2017). On a more
general level, in armed conflicts, both IHRL and IHL apply, although IHRL as lex specialis
prevails in situations of conflicts between both bodies of law (ICJ 1996; Schmitt 2013: 91).
The right to life provides a good illustration of this point. While enshrined in IHRL, as Kevin
J. Heller notes, it is not absolute: ‘All major IHRL conventions protect the right to life. That
right, however, is not absolute: individuals are only protected against being “arbitrarily” killed.
Killing an individual is not arbitrary as long as the use of lethal force was both proportionate
and necessary’ (Heller 2013: 113). In sum, both bodies of law provide a certain degree of
 Human rights, sovereignty, and the use of force 403

protection for individuals in war, depending on their role as civilians or combatants, but they
must be applied together.4
Where does this leave us regarding the emergence of a global constitutional order? On
the level of empirical facts, both IHRL and IHL protect individuals in situations of armed
conflicts. Here we find well-established and explicit norms, ensuring a minimum standard of
protection, at least in principle. Violations of these norms occur frequently, but they are rec-
ognized by others as such, thus upholding the validity of the norms. As Luke Glanville rightly
notes: ‘We can recognise the impact of a norm both in instances of compliance and violation’
(Glanville 2016: 189).
Furthermore, R2P provides the international community with a tool to assist states and,
if necessary, take over the responsibility to protect populations from mass atrocities. R2P
certainly has become an important norm in that emerging order as it enables states and
international institutions to mediate between the fundamental norms of sovereignty and
non-interference on the one hand and human rights protections on the other. In addition, R2P
guides actors in situations when actors debate the authorization of the use of force. Finally,
on the level of normative ideals, R2P opens up the possibility for individual rights protections
on the international level. Whether and when this normative ideal might be fulfilled lies in the
realm of speculation, although a glance at the news certainly leaves one with the desire and
hope that it ought to be fulfilled sooner than later.

REFERENCES
Ainley, Kirsten. 2015. ‘The Responsibility to Protect and the International Criminal Court: counteracting
the crisis.’ International Affairs, 91 (1): 37–54.
Akbarzadeh, Shahram and Arif Saba. 2019. ‘UN paralysis over Syria: The responsibility to protect or
regime change?’ International Politics, 56 (4): 536–50. DOI:10.1057/s41311-018-0149-x.
Annan, Kofi. 1999. ‘Two concepts of sovereignty.’ The Economist, 18.09.1999.
Bellamy, Alex J. 2006. ‘Whither the Responsibility to Protect? Humanitarian intervention and the 2005
World Summit.’ Ethics & International Affairs, 20 (2): 143–69. DOI:10.1111/j.1747-7093.2006.00012.x.
Bellamy, Alex J. 2009. Responsibility to Protect – The Global Effort to End Mass Atrocities. Cambridge:
Polity Press.
Bellamy, Alex J. 2011a. Global Politics and the Responsibility to Protect: From Words to Deeds.
Abingdon and New York: Routledge.
Bellamy, Alex J. 2011b. ‘Libya and the Responsibility to Protect: The exception and the norm.’ Ethics
& International Affairs, 25 (3): 263–9.
Bellamy, Alex J. 2014. ‘The Responsibility to Protect and the problem of regime change.’ In Don E.
Scheid (ed.), The Ethics of Armed Humanitarian Intervention, pp. 166–86. Cambridge: Cambridge
University Press.
Bellamy, Alex J. 2015. The Responsibility to Protect: A Defense, First edition. Oxford: Oxford
University Press.
Bellamy, Alex J. 2016. ‘The humanisation of security? Towards an International Human Protection
Regime.’ European Journal of International Security, 1 (1): 112–33.
Bellamy, Alex J. and Stephen McLoughlin. 2018. Rethinking Humanitarian Intervention. London:
Palgrave.

4
There is much to say about the combatant/civilian distinction, especially how it has been blurred
in more modern forms of conflict (Sanders 2014). An excellent analysis that also takes into account how
both gender and sex matter for the distinction is provided by Hellen Kinsella (2011).
404 Handbook on global constitutionalism

BICC, HSFK, IFSH, and INEF. 2019. ‘Vorwärts in die Vergangenheit? Frieden braucht Partner –
Friedensgutachten 2019.’ https://​www​.friedensgutachten​.de/​user/​pages/​04​.archiv/​2019/​02​.ausgabe/​
friedensgutachten​_2019​_web​.pdf.
Brock, Lothar. 1999. ‘Normative Integration und kollektive Handlungskompetenz auf internationaler
Ebene.’ Zeitschrift für Internationale Beziehungen, 6 (2): 323–47.
Brock, Lothar. 2013. ‘Dilemmata des internationalen Schutzes von Menschen vor innerstaatlicher
Gewalt. Ein Ausblick.’ In Christopher Daase and Julian Junk (eds), Normative Erwartungen und
Politische Praxis (‘Internationale Schutzverantwortung: Normative Erwartungen und Politische
Praxis’). Special issue, Die Friedenswarte: Journal of International Peace and Organization, 88
(1–2): 163–85.
Brookman-Byrne, Max. 2017. ‘Drone use “Outside Areas of Active Hostilities”: An examination of the
legal paradigms governing US covert remote strikes.’ Netherlands International Law Review, 64 (1):
3–41. DOI:10.1007/s40802-017-0078-1.
Chandler, David. 2015. ‘The R2P is dead, long live the R2P: The successful separation of military inter-
vention from the responsibility to protect.’ International Peacekeeping, 22 (1): 1–5.
Cohen, Jean L. 2008. ‘Rethinking human rights, democracy, and sovereignty in the age of globalization.’
Political Theory, 36 (4): 578–606.
Daase, Christopher. 1999. Kleine Kriege – Große Wirkung: Wie unkonventionelle Kriegführung die
internationale Politik verändert. Baden-Baden: Nomos.
Dill, Janina. 2015. ‘The informal regulation of drones and the formal legal regulation of war.’ Ethics &
International Affairs, 25 (1): 51–8.
Dunford, Robin and Michael Neu. 2019. ‘The Responsibility to Protect in a world of already
existing intervention.’ European Journal of International Relations, 25 (4): 1080–102.
DOI:10.1177/1354066119842208.
Erskine, Toni. 2003. ‘Making sense of “responsibility” in international relations.’ In Toni Erskine (ed.),
Can Institutions Have Responsibilities, pp. 1–16. Houndsmill: Palgrave Macmillan.
Erskine, Toni. 2008. ‘Locating responsibility: The problem of moral agency in international relations.’
In Christian Reus-Smit and Duncan Snidal (eds), The Oxford Handbook of International Relations,
pp. 699–707. Oxford: Oxford University Press.
Evans, Gareth J. 2008. The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All.
Washington, DC: Brookings.
Fassbender, Bardo. 2008. ‘“We the Peoples of the United Nations” – Constituent power and con-
stitutional form in international law.’ In Martin Loughlin and Neil Walker (eds), The Paradox
of Constitutionalism, Constituent Power and Constitutional Form, pp. 269–90. Oxford: Oxford
University Press.
Fassbender, Bardo. 2009. ‘Rediscovering a forgotten constitution: Notes on the place of the UN Charter
in the international legal order.’ In Jeffrey L. Dunoff and Joel P. Trachtman (eds), Ruling the World?
pp. 133–48. Cambridge: Cambridge University Press.
Finnemore, Martha. 1996. ‘Constructing norms of humanitarian intervention.’ In Peter J. Katzenstein
(ed.), The Culture of National Security. Norms and Identity in World Politics, pp. 153–185. New
York: Columbia University Press.
Gholiagha, Sassan. 2014. ‘Die Responsibility to Protect und Souveränität.’ In Christian Volk and
Friederike Kuntz (eds), Der Begriff der Souveränität in der transnationalen Konstellation,
pp. 198–214. Baden-Baden: Nomos.
Gholiagha, Sassan. 2015. ‘To prevent “future Kosovos and future Rwandas”: A critical constructivist
view on the Responsibility to Protect.’ International Journal of Human Rights, 19 (8): 1074–97.
Gholiagha, Sassan. 2022. The Humanisation of Global Politics: International Criminal Law, the
Responsibility to Protect, and Drones. Cambridge: Cambridge University Press.
Gholiagha, Sassan and Bastian Loges. 2020. ‘Telling the story of R2P: The emplotment of R2P in the
UN Security Council’s debates on Libya.’ In Charles T. Hunt and Phil Orchard (eds), Constructing the
Responsibility to Protect: Contestation and Consolidation, pp. 69–88. Abingdon, Oxon: Routledge.
Gholiagha, Sassan, Anna Holzscheiter and Andrea Liese. 2020. ‘Activating norm collisions: Interface
conflicts in international drug control.’ Global Constitutionalism – Human Rights, Democracy and the
Rule of Law, 9 (2): 290–317.
 Human rights, sovereignty, and the use of force 405

Gholiagha, Sassan, Hannes Hansen-Magnusson and Maren Hofius. 2021. ‘Meaning-in-use: Zum
Verhältnis von Normativität und Normalität in der Normenforschung.’ In Stephan Engelkamp,
Katharina Glaab, and Antonia Graf (eds), Kritische Normenforschung in Deutschland. Neue Wege in
den Internationalen Beziehungen, pp. 221–49. Baden-Baden: Nomos.
Glanville, Luke. 2016. ‘Does R2P matter? Interpreting the impact of a norm.’ Cooperation and Conflict,
51 (2): 184–99. DOI:10.1177/0010836715612850.
Gray, Christine. 2008. International Law and the Use of Force, 3rd edition. Oxford: Oxford University
Press.
Gregory, Thomas. 2015. ‘Drones, targeted killings, and the limitations of international law.’ International
Political Sociology, 9 (3): 197–212.
Grut, Chantal. 2013. ‘The challenge of autonomous lethal robotics to international humanitarian law.’
Journal of Conflict and Security Law, 18 (1): 5–23. DOI:10.1093/jcsl/krt002.
Habermas, Jürgen. 1999. ‘Bestialität und Humanität: Ein Krieg an der Grenze zwischen Recht und
Moral.’ Die ZEIT, 29.04.1999.
Hansen-Magnusson, Hannes and Antje Vetterlein (eds). 2020. The Rise of Responsibility in World
Politics. Cambridge: Cambridge University Press.
Hansen-Magnusson, Hannes and Antje Vetterlein (eds). 2021. The Routledge Handbook on Responsibility
in International Relations. Abingdon: Routledge.
Hehir, Aidan. 2012. The Responsibility to Protect: Rhetoric, Reality, and the Future of Humanitarian
Intervention. Houndsmill: Palgrave Macmillan.
Hehir, Aidan. 2018. Hollow Norms and the Responsibility to Protect. Cham, Switzerland: Palgrave
Macmillan.
Heller, Kevin J. 2013. ‘“One Hell of a Killing Machine”.’ Journal of International Criminal Justice, 11
(1): 89–119.
Holzgrefe, Jeff L. and Robert O. Keohane (eds). 2003. Humanitarian Intervention: Ethic, Legal and
Political Dilemmas. Cambridge: Cambridge University Press.
Hunt, Charles T. and Phil Orchard (eds). 2020. Constructing the Responsibility to Protect: Contestation
and Consolidation. Abingdon, Oxon: Routledge.
ICISS. 2001. The Responsibility to Protect: Report of the International Commission on Intervention and
State Sovereignty. Ottawa: International Development Research Centre.
Independent International Commission on Kosovo. 2000. The Kosovo report: Conflict, international
response, lessons learned: A report from the Independent International Commission on Kosovo.
Oxford: Oxford University Press.
Kaldor, Mary. 1999. New & Old Wars: Organized Violence in a Global Era. Stanford: Stanford
University Press.
Katzenstein, Peter J. 1996. ‘Introduction: Alternative perspectives on national security.’ In Peter J.
Katzenstein (ed.), The Culture of National Security. Norms and Identity in World Politics, pp. 1–32.
New York: Columbia University Press.
Kersten, Mark. 2018. ‘A fatal attraction? The UN Security Council and the relationship between R2P and
the International Criminal Court.’ In Jeff Handmaker and Karin Arts (eds), Mobilising International
Law for ‘Global Justice’, pp. 142–62. Cambridge: Cambridge University Press.
Kinsella, Helen M. 2011. The Image before the Weapon: A Critical History of the Distinction between
Combatant and Civilian. Ithaca: Cornell University Press.
Krook, Mona L. and Jacqui True. 2012. ‘Rethinking the life cycles of international norms: The United
Nations and the global promotion of gender equality.’ European Journal of International Relations,
18 (1): 103–27.
Kurtz, Gerrit and Philipp Rotmann. 2016. ‘The evolution of norms of protection: Major powers debate
the Responsibility to Protect.’ Global Society, 30 (1): 3–20. DOI:10.1080/13600826.2015.1092425.
Lang Jr., Anthony F. 2009. ‘Conflicting rules: Global constitutionalism and the Kosovo intervention.’
Journal of Intervention and State Building, 3 (2): 185–204.
Lee, Steven P. 2010. ‘The moral distinctiveness of genocide.’ Journal of Political Philosophy.
DOI:10.1111/j.1467-9760.2009.00347.x.
ICJ. 1996. Legality of the Threat or Use of Nuclear Weapons ICJ Reports 226. ICJ, 08.07.1996. Accessed
19 May. http://​www​.icj​-cij​.org/​docket/​files/​95/​7495​.pdf
406 Handbook on global constitutionalism

Luck, Edward C. 2015. ‘R2P at ten: A new mindset for a new era?’ Global Governance: A Review of
Multilateralism and International Organizations, 21 (4): 499–504.
Macleod, Christopher. 2012. ‘An alternative approach to the harm of genocide.’ POLITICS, 23 (3):
197–206.
Malito, Debora V. 2019. ‘Morality as a catalyst for violence: Responsibility to Protect and regime change
in Libya.’ Politikon, 46 (1): 104–21. DOI:10.1080/02589346.2019.1572296.
March, James G. and Johan P. Olsen. 1989. Rediscovering Institutions. New York: The Free Press.
Marlier, Grant and Neta C. Crawford. 2013. ‘Incomplete and imperfect institutionalisation of empathy
and altruism in the “Responsibility to Protect” doctrine.’ Global Responsibility to Protect, 5 (4):
397–422. DOI:10.1163/1875984X-00504003.
ICJ. 1984. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America) ICJ Reports. ICJ, 26.11.1984.
Moe, Louise W. and Anna Geis. 2020. ‘From liberal interventionism to stabilisation: A new consensus on
norm-downsizing in interventions in Africa.’ Global Constitutionalism – Human Rights, Democracy
and the Rule of Law, 9 (2): 387–412. DOI:10.1017/S204538171900039X.
NATO. 1999a. ‘NATO’s role in relation to the conflict in Kosovo.’ http://​www​.nato​.int/​kosovo/​history​
.htm.
NATO. 1999b. ‘Statement on Kosovo issued by the Heads of State and Government participating in the
meeting of the North Atlantic Council in Washington, D.C.’ https://​www​.nato​.int/​cps/​en/​natolive/​
official​_texts​_27441​.htm​?selectedLocale​=​en.
Nuñez-Mietz, Fernando G. 2018. ‘Legalization and the legitimation of the use of force: Revisiting
Kosovo.’ International Organization, 72 (3): 725–57. DOI:10.1017/S0020818318000152.
Onuf, Nicholas G. 2013. Making Sense, Making Worlds: Constructivism in Social Theory and
International Relations. Oxford and New York: Routledge.
Orchard, Phil and Antje Wiener. 2021. Contesting the World: Norm Research in Theory and Practice.
Pattison, James. 2017. ‘Perilous moninterventions? The counterfactual assessment of Libya
and the need to be a responsible power.’ Global Responsibility to Protect, 9 (2): 219–28.
DOI:10.1163/1875984X-00902007.
Peltner, Anne. 2017. ‘Competing norms and foreign policy change: Humanitarian intervention and
British foreign policy.’ International Politics, 54 (6): 745–59. DOI:10.1057/s41311-017-0062-8.
Peters, Anne. 2016. Beyond Human Rights: The Legal Status of the Individual in International Law.
Cambridge: Cambridge University Press.
Rodley, Nigel. 2015. ‘Humanitarian Intervention’. In Marc Weller (ed.), The Oxford Handbook of the
Use of Force in International Law, pp. 775–96. Oxford: Oxford University Press.
Rome Statute of the International Criminal Court 1998. Rome Statute. UN Diplomatic Conferences of
Plenipotentiaries on the Establishment of the International Criminal Court. Accessed 3 November.
https://​undocs​.org/​en/​A/​CONF​.183/​9.
Sanders, Rebecca. 2014. ‘Legal frontiers: Targeted killing at the borders of war.’ Journal of Human
Rights, 13 (4): 512–36.
Schmitt, Michael N. 2013. ‘Extraterritorial lethal targeting: Deconstructing the logic of international
law.’ Columbia Journal of Transnational Law, 52 (1): 77–112.
Smith, Karen E. 2010. Genocide and the Europeans. New York: Cambridge University Press.
Staunton, Eglantine and Jason Ralph. 2020. ‘The Responsibility to Protect norm cluster and the challenge
of atrocity prevention: An analysis of the European Union’s strategy in Myanmar.’ European Journal
of International Relations, 26 (3): 660–86. DOI:10.1177/1354066119883001.
Stimmer, Anette and Lea Wisken. 2019. ‘The dynamics of dissent: When actions are louder than words.’
International Affairs, 95 (3): 515–33. DOI:10.1093/ia/iiz019.
Sylvester, Christine. 2013a. ‘Experiencing the end and afterlives of International Relations/theory.’
European Journal of International Relations, 19 (3): 609–26.
Sylvester, Christine. 2013b. War as Experience: Contributions from International Relations and feminist
analysis. Abdingdon: Routledge.
Tacheva, Blagovesta and Garrett W. Brown. 2015. ‘Global constitutionalism and the Responsibility to
Protect.’ Global Constitutionalism – Human Rights, Democracy and the Rule of Law, 4 (3): 428–67.
DOI:10.1017/S2045381715000155.
Teitel, Ruti. 2011. Humanity’s Law. Oxford: Oxford University Press.
 Human rights, sovereignty, and the use of force 407

Téson, Fernando R. 2014. ‘The moral basis of armed humanitarian intervention revisited.’ In Don E.
Scheid (ed.), The Ethics of Armed Humanitarian Intervention, pp. 61–77. Cambridge: Cambridge
University Press.
Thakur, Ramesh. 2016. ‘The Responsibility to Protect at 15.’ International Affairs, 92 (2): 415–34.
Tomuschat, Christian. 2014. ‘Die Rechtmäßigkeit der Resolution 1973 (2011) des UN-Sicherheitsrates.’
In Gerhard Beestermöller (ed.), Libyen: Missbrauch der Responsibility to Protect? pp. 13–29.
Baden-Baden: Nomos.
UNGA. 1948. Convention on the Prevention and Punishment of the Crime of Genocide. https://​treaties​
.un​.org/​doc/​Publication/​UNTS/​Volume​%2078/​volume​-78​-I​-1021​-English​.pdf.
United Nations. 2005. ‘Outcome Document of the 2005 World Summit.’ https://​undocs​.org/​A/​RES/​60/​1.
UNSC. 1991. ‘Resolution 688.’ https://​undocs​.org/​S/​RES/​688(1991).
UNSC. 1992a. ‘Resolution 767.’ https://​undocs​.org/​S/​RES/​767(1992).
UNSC. 1992b. ‘Resolution 794.’ https://​undocs​.org/​S/​RES/​794(1992).
UNSC. 2011. ‘Resolution 1973.’ https://​undocs​.org/​S/​RES/​1973(2011).
Vetterlein, Antje and Antje Wiener. 2013. ‘Gemeinschaft Revisited: Die sozialen Grundlagen interna-
tionaler Ordnung.’ Leviathan, 41 (Sonderband 28/2013): 78–103.
von Arnauld, Andreas. 2009. ‘Souveränität und Responsibility to Protect.’ Die Friedenswarte: Journal
of International Peace and Organization, 84 (1): 11–52.
Wagner, Markus. 2014. ‘The dehumanization of international humanitarian law: Legal, ethical, and
political implications of autonomous weapon systems.’ Vanderbilt Journal of Transnational Law, 47
(5): 1371–424.
Weiss, Thomas G. 2014. ‘Military humanitarianism: Syria hasn’t killed it.’ The Washington Quarterly,
37 (1): 7–20.
Welsh, Jennifer M. 2013. ‘Norm contestation and the Responsibility to Protect.’ Global Responsibility
to Protect, 5 (4): 365–96.
Welsh, Jennifer M. 2016. ‘The Responsibility to Protect at ten: Glass half empty or half full?’ The
International Spectator, 51 (2): 1–8. DOI:10.1080/03932729.2016.1163943.
Welsh, Jennifer M. 2019a. ‘Norm robustness and the responsibility to protect.’ Journal of Global
Security Studies, 4 (1): 53–72.
Welsh, Jennifer M. 2019b. ‘The individualisation of war: Defining a research programme.’ Annals of the
Fondazione Luigi Einaudi, 53: 9–28.
Wendt, Alexander. 1992. ‘Anarchy is what states make of it: The social construction of power politics.’
International Organization, 46 (2): 391–426.
Wheeler, Nicholas J. 2000. ‘Reflections on the legality and legitimacy of NATO’s intervention in Kosovo.’
The International Journal of Human Rights, 4 (3-4): 144–63. DOI:10.1080/13642980008406897.
Wheeler, Nicholas J. 2002. Saving Strangers – Humanitarian Intervention in International Society.
Oxford and New York: Oxford University Press.
Wheeler, Nicholas J. 2006. ‘The humanitarian responsibility of sovereignty: Explaining the development
of a new norm of military intervention for humanitarian purposes in international society.’ In Jennifer
M. Welsh (ed.), Humanitarian Intervention and International Relations, Paperback edn, pp. 29–52.
Oxford and New York: Oxford University Press.
Wiener, Antje. 2007. ‘The dual quality of norms and governance beyond the state: Sociological and nor-
mative approaches to “interaction”.’ Critical Review of International Social and Political Philosophy,
10 (1): 47–69. DOI:10.1080/13698230601122412.
Wiener, Antje. 2008. The Invisible Constitution of Politics. Contested Norms and International
Encounters. Cambridge: Cambridge University Press.
Wiener, Antje. 2009. ‘Enacting meaning-in-use: Qualitative research on norms and international rela-
tions.’ Review of International Studies, 35 (1): 175–93.
Wiener, Antje. 2018. Contestation and Constitution of Norms in Global International Relations.
Cambridge: Cambridge University Press.
Wiener, Antje and Uwe Puetter. 2009. ‘The quality of norms is what actors make of it: Constructivist
research on norms.’ Journal of International Law and International Relations, 5 (1): 1–16.
Wilcox, Lauren B. 2015. Bodies of Violence. Oxford: Oxford University Press.
Winston, Carla. 2018. ‘Norm structure, diffusion, and evolution: A conceptual approach.’ European
Journal of International Relations, 24 (3): 638–61.
408 Handbook on global constitutionalism

Zehfuß, Maja. 2001. ‘Constructivism and identity: A dangerous liaison.’ European Journal of
International Relations, 7 (3): 315–48.
 PART V

INSTITUTIONS AND
FRAMEWORKS
28. International judicial review
Başak Çalı

INTRODUCTION

International judicial scrutiny of the actions and omissions of states has been a part of interna-
tional legal practice ever since the advent of the Permanent Court of Arbitration in 1899 and
Permanent Court of International Justice in 1922.1 The use of the term ‘judicial review’ in the
context of the judicial functions of international courts vis-à-vis states is, however, more con-
temporary. Its emergence can be linked to the proliferation of international courts and tribunals
and in particular to the rise of the regional human rights courts of Europe, the Americas and
Africa carrying out rights-based judicial review of state actions and omissions, including their
legislation. Judicial review powers of international courts vis-à-vis international organisations,
on the other hand, is largely absent in international law’s architecture. One notable exception
is the European Union, which has established a procedure for judicial review of ‘legislative
measures’ promulgated by the European Council and Commission (Arnull 2015).
To describe the function of international courts as one of judicial review requires us to make
a qualitative shift in how we understand the purpose and the role of international courts and
tribunals in the international legal order. International judicial review is a prominent feature of
global constitutionalism. Global constitutionalism holds that reviewing the actions and omis-
sions of states from a perspective of international public constitutionality, rather than from
a perspective of settlement of international disputes based on bilateral and private promises
between states (Simma 1994) is both legally possible and normatively desirable. Framing
the functions of international courts as international judicial review, however, requires the
empowerment of the international judiciary at the expense of state sovereignty, exercised by
domestic courts, legislatures and executives as well as at the expense of international organi-
sations that exercise public powers (von Bogdandy and Venzke 2012). As such, international
judicial review is at the heart of questions concerning the legal basis and scope of the consti-
tutional fabric of international law and the constitutional limits such fabric can impose on the
exercise of state sovereignty and sovereign-like acts of international organisations.
What are the implications of conceiving the function of international courts as international
judicial review? To answer this question, the chapter addresses the following sub-questions:
what are the central differences between judicial review in domestic and international con-
texts? What kinds of international courts exercise judicial review and in what ways? What
are the core objections to international judicial review by international courts? How has the
practice of international judicial review by human rights courts in particular contributed to the
theory and practice of global constitutionalism?

1
On the powers of the Permanent Court of Arbitration and the International Court of Justice, see,
respectively, https://​pca​-cpa​.org/​en/​home/​ and http://​www​.icj​-cij​.org/​court/​index​.php​?p1​=​1​&​p2​=​1.

410
 International judicial review 411

My central argument here is that international judicial review exists in different forms and
shades in international law. These range from human rights-based judicial review carried out
by regional human rights courts to judicial review based on the rule of law requirements of free
trade exercised by the World Trade Organization. Standards of judicial review too are diverse,
ranging from lenient to strict review, even among regional human rights courts. There is also
disagreement concerning the appropriateness of judicial review and appropriate standards of
judicial review at the international level, pointing to diverse, fragmented and contested visions
of global constitutionalism. Despite disagreement and diversity, there also now exist fruitful
research agendas that concern the purpose of international judicial review (Kumm 2009), the
appropriate standards for international judicial review across different judicial institutions
(Carozza 2003; Follesdal 2009; Gruszczynski and Werner 2014; Çalı 2016), the relationship
between international judicial review, sovereignty and democracy (von Staden 2012; Bellamy
2014; Follesdal 2021) and how international judicial review can foster global public values
(Cançado Trinidade 2012).

DEFINING INTERNATIONAL JUDICIAL REVIEW

The practice of domestic judicial review is characteristically understood as the domestic judi-
ciary’s review of executive actions, judicial actions and legislation of domestic states against
the background of a domestic constitution and bill of rights (Waldron 2006). In domestic
judicial review literature, the review of judicial decisions of lower courts and executive organs
by an authorised judicial organ, often a supreme court or a constitutional court against the
constitution of the domestic legal order, is understood as a non-controversial standard judicial
function. The controversy around domestic judicial review focuses on the judicial review of
legislation by domestic courts, in particular when such review leads to legislation being struck
down. In such instances, domestic judicial review comes into conflict with the constitutive
power of the legislature or the right to (democratic) self-rule of people through legislation.
Sceptics of domestic judicial review often ask why the rule of judges should be favoured
over the rule of the people as a matter of domestic constitutionalism (Waldron 2006; Bellamy
2007).
Much of this context is missing when we frame the activity of international courts and
tribunals as international judicial review. First, the international legal system lacks an explicit
constitution, although there have long been debates on an implicit constitution (Kumm
2004; Fassbender 2009). Second, even if there are implicit constitutionalist features in the
international legal system, such features are interpreted differently by different international
courts due to the non-hierarchical and pluralistic organisation of international law. There is no
supreme constitutional judicial authority to consolidate and specify such features, but a plural-
ity of constitutionalist or constitutionalising projects, alongside sceptics of such projects based
on the centrality of state sovereignty in international law. Third, no international court has the
power over domestic courts and executives to enforce its own decisions or to strike down leg-
islation. In other words, when international judicial review does take place, it can only take the
form of weak review (Tushnet 2003), meaning states retain the ultimate power to amend their
legislation, change their judicial practice or alter or annul their executive decisions. Finally,
international courts do not have powers to review international executive or legislative organs,
with the exception of the Court of Justice of the EU. Considering the fundamental differences
412 Handbook on global constitutionalism

between domestic and international contexts, particularly the lack of explicit constitutional
norms, the disagreements as to the constitutional features of international law and the lack of
enforcement powers of international courts, could any of the judicial activities of international
courts be framed as international judicial review?
We may meaningfully talk about international judicial review only if we first accentuate
the presence of a constitutional fabric in international law and the inherent limitations of the
powers of international courts. As such, framing the activities of international courts and
tribunals as international judicial review foremost requires an interpretive shift, actual or
desired, in the understanding of the normative fabric of international law from a constitution-
alist perspective. This shift must presume that there are constitutional principles at work that
can be employed by international judges that allow for the review of actions of states as well
as international organisations. (Peters 2006). This primarily requires conceiving all forms of
international law as a form of public law, rather than contractual law, composed of bilateral
promises between sovereign states. Such a shift in focus inevitably links in with a range of
debates in international law. Most notably, it engages with how limitations on state sover-
eignty can be imposed, the role of consent of states versus evolutionary interpretation of inter-
national law in defining the scope of judicial review functions, the legitimacy of international
judges exercising judicial review functions vis-à-vis sovereign states, the relationship between
international judiciaries and democratic legislators and domestic constitutional courts, and the
distribution of competences between international courts and international organs that exercise
delegated powers, such as the United Nations (UN) Security Council. Structurally, however,
international judicial review does not raise the same intensity of problems that are highlighted
in the context of strong domestic judicial review: in all of its manifestations, international
judicial review is a weak form of judicial review when compared to domestic judicial review.
This latter feature, however, can also impair the uptake of the decisions of international courts
by states, risking non-implementation of the judgments of international courts.

SETTING THE SCENE: INTERNATIONAL COURTS WITH

DIVERSE FUNCTIONS ON THE INTERNATIONAL STAGE
It may be useful to characterise international courts based on their explicitly assigned judi-
cial functions, the types of cases they receive and the types of access they offer to state and
non-state actors in order to assess whether they are more prone to exercise judicial review-type
functions relying on a constitutionalist interpretive frame rather than on a traditional dispute
resolution role.
First, there are those courts (or quasi-judicial mechanisms) that are tasked with traditionally
inter-state dispute resolution tasks. These include the International Court of Justice (ICJ)
and the World Trade Organization (WTO) Dispute Settlement Mechanism. Second, there
are international courts or quasi-judicial mechanisms providing access to individuals and
human rights-based review of state actions and omissions. Included in this group are human
rights courts, regional and sub-regional justice courts and UN Human Rights treaty bodies
that adjudicate based on human rights conventions or economic integration treaties. Third,
there are international criminal courts that have powers to try individuals, as in the case of the
International Criminal Court (ICC). Fourth, there are courts of regional integration organisa-
tions, in Europe, Americas and Africa. Finally, there are international investment arbitration
 International judicial review 413

tribunals settling disputes brought by investors against states under bilateral investment agree-
ments. These tribunals are not standing courts and the decisions of one tribunal are neither
binding on any other tribunal nor are they subject to any centralised form of further review.
None of these international courts or bodies have explicit judicial review functions openly
recognised in their constitutive documents, save for the Court of Justice of the European
Union. They carry out judicial review-type functions based on their interpretation of the scope
of their mandate, the types of cases they receive and types of claims they are asked to adjudi-
cate. In this diverse constellation of institutions, regional human rights courts come the closest
to performing domestic judicial review-type functions. This is for two reasons. First, they rely
on explicit regional bills of rights and assess whether a state has overstepped its permissible
domain of action in its dealings with individuals or legal persons. Second, they address all
types of state actions, ranging from executive action to legislative action2 and constitutional
provisions3 to referenda.4 For this reason, they have also been the natural host of legitimacy of
international judicial review debates in the literature (Follesdal 2009; Bellamy 2014).
The WTO Dispute Settlement Mechanisms are often characterised as exercising public
authority beyond inter-state dispute resolution functions (Cass 2005; von Bogdandy and
Venzke 2012). The WTO Dispute Settlement Mechanisms review domestic legislation in the
context of inter-state trade disputes. Unlike human rights courts, the judicial review of legisla-
tion by the WTO seeks to establish whether a state has infringed its free trade commitments to
other states through enacting domestic legislation (Becroft 2012). Human rights-based review
do not directly figure in the mandate of the WTO. Rather, the WTO reviews whether human
rights or public-values related justifications can stand up to scrutiny with regard to the right to
trade (Howse and Langille 2012).
The ICJ, handles inter-state cases and issues advisory opinions. It does not have any explicit
powers to review actions of UN organs, even though it is the judicial organ of the UN. Its
judicial function may extend to reviewing states’ executive, judicial or legislative practices in
order to establish whether a state has violated its international law obligations owed to other
states. The Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory Advisory Opinion of 2004 is a rare example of an indirect constitutional compatibil-
ity review of a practice sustained by domestic law (the wall) with international law.5 In a rare
number of inter-state cases that indirectly involved the rights of individuals, the ICJ has also
had the opportunity to review the compatibility of the actions of domestic courts with interna-
tional law.6 Unlike human rights courts and the WTO, the ICJ relies on a holistic interpretation
of all sources of international law to exercise any review functions. Commentators, however,

2
See for example, Hirst v UK, Judgment of 6 October 2005, 42 EHHR (2006) 41; Tekeli v Turkey,
Judgment of 16 November 2004 42 EHRR (2006) 55; Barrios Altos Case, Judgment of 14 May 2001,
Inter-Am Ct. HR (Ser. C) No. 75 Yatama v Nicaragua, Judgment of 23 June 2005, Inter-Am Ct. HR
Series C no. 127, IHRL 1511 (2005).
3
Seidic and Finci v Bosnia-Herzegovina, Judgment of 22 December 2009, (2009) ECtHR.
4
Juan Gelman et al v Uruguay, Case 43 8–06, Report No. 30/07, Inter-Am. CHR, OEA/Ser.L/V/
II.130 Doc. 22, rev. 1 (2007).
5
The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
Advisory Opinion of 9 July 2004, ICJ, The Hague.
6
See for example, Ahmadou Sadio Diallo (Republic of Guinea v DRC), Judgment of 30 November
2010; Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) [2012] ICJ Rep 99
(Jurisdictional Immunities).
414 Handbook on global constitutionalism

note that the ICJ does not consistently employ a global constitutionalist vision when discharg-
ing its functions (Hernandez 2013). Indeed, a long-standing disagreement amongst the judges
of the ICJ is whether the ICJ can and should address the cases before it from a constitutionalist
perspective (Watson 1993; Akande 1997).
The ICC also has indirect judicial review functions, over domestic judiciaries in particular.
Under Article 17 of its Statute, in order to declare a case admissible, the ICC must be satisfied
that a domestic court is unable or unwilling to try a person suspected of having committed an
international crime in an independent fashion. This brings the ICC closer to the domain of
review of both law and judicial practice (Bernhard 2014). Such review, aimed at determining
whether the ICC declares a case admissible or not, indirectly assesses the compatibility of
criminal law and procedure with both international criminal law and international human
rights law.
Finally, international arbitration tribunals review domestic executive and legislative actions
of states to determine whether states fail to uphold their obligations vis-à-vis foreign investors.
A key debate concerning the state-investor arbitration regime is the lack of a constitutionalist
outlook in the work of the ad hoc arbitrators. (White and von Staden 2010).
This brief survey of international courts shows that international courts have differentiated
and often incomplete legal resources to engage in international judicial review practices. With
the exception of human rights courts and the Court of Justice of the European Union, none of
the institutions carry out judicial review of domestic decisions and legislation in ways similar
to domestic constitutional courts, relying on a bill of rights. Indeed, for international courts
that are not able to rely on a bill of rights, the shift from an inter-state dispute resolution para-
digm towards public law judicial review-type functions remains contested. Sceptics argue that
the primary function of international courts is to resolve disputes and not to engage in con-
stitutionalist endeavours by proactively assuming judicial review powers (Pellet 2000). It is,
therefore, first helpful to consider objections to the ability to perform judicial review functions
in the context of international courts and bodies.

PRELIMINARY OBJECTIONS TO INTERNATIONAL JUDICIAL

REVIEW IN THE CONTEXT OF TRADITIONAL INTER-STATE
DISPUTES
International judicial review is a contested idea in the traditional inter-state relations setting
of international law. While international judicial review standards have indeed developed in
specific areas of international law, it is argued that these cannot be generalised as a standard
view of judicial function on the international plane. This is because they are merely frag-
mented sectorial developments flowing from the terms of specific treaties that often only allow
for weak judicial review functions in specific regions of the world. In other words, there is
a difference between, say, having human rights courts in some parts of the world and having
human rights as a standard for review for all international courts. Instead, it is argued, the core
case of international judicial function is that of a private law paradigm of inter-state dispute
resolution that seeks to uncover and establish whether consensual obligations between states
are violated. Accordingly, there are four core objections to adopting international judicial
review as a general paradigm of international judicial decision-making.
 International judicial review 415

The first is the empirical objection. This argues that there is an absence of robust positive
international constitutional norms that bind all states in the international legal system that can
offer a viable and generalised presumption for constitutionality review (Weil 1983). While
the concept of ius cogens was introduced to international law by the Vienna Convention on
the Law of Treaties of 1969, sceptics often highlight that the substantive content of jus cogens
norms is either too minimalistic or indeterminate to offer a constitutional background for
international judicial review (Paulus 2001). Multilateral international treaties, despite their rise
since the advent of the UN, are also viewed as falling short of offering a robust constitutional
fabric. The International Covenant on Civil and Political Rights (ICCPR) and the International
Covenant on Economic Social and Cultural Rights (ICESCR), despite their sizeable ratifica-
tions, are plagued by reservations and are imperfect, shackled to a world of bilateral treaty
obligations. The customary status of human rights or environmental law provisions is often too
unclear to act as standards of judicial review.
The second argument against international judicial review is the lack of delegation.
International law is not fit for international judicial review as long as states do not intend for
international courts to perform this function (Oeter 2006). Judicial review, by its very nature,
flows from political actors delegating power to judicial actors. In the domestic context, those
who have concerns about judicial review do not dispute delegating to judges; they dispute how
courts exercise judicial review powers. In the international law domain all inter-state courts are
designed to be dispute resolution mechanisms, rather than institutions fulfilling constitutional
guardianship functions. In the face of a lack of explicit delegation, general international courts
performing judicial review-type activities usurp power from states and international organi-
sations. In the Lockerbie case, the ICJ accepted this when it abstained from reviewing a UN
Security Council Resolution.7
The third objection is normative. In the well-known Lotus dicta, the Permanent Court of
International Justice (PCIJ) underlined that, in the absence of generally accepted norms in
international law, presumption must be a priori permissibility of state action.8 International
judicial review must depart from an opposite presumption: the publicness of international
law and the consideration of state action in the light of fundamental constitutional constraints
relevant to the international law domain (Kingsbury 2008). The shift of power away from sov-
ereign states to international courts and recognition that the latter can engage in some degree of
international law-making is inherent in the logic of judicial review. This, however, contradicts
the image of international courts carefully studying the consent of states to see whether they
have accepted a legal obligation, which they may have subsequently violated.
Fourth is the ideological objection. Authors hold that advocating international judicial
review cannot be divorced from advocating for substantive constitutional values underpin-
ning the international legal order. If international courts carry out judicial review functions,
what vision of a global constitution motivates such review? In the context of the WTO and
investor-state arbitration, critics hold that the international judicial review standards of these
institutions favour corporate interests at the expense of the rights of individuals by prioritising
the right to free trade or the rights of investors (Wallach and Sforza 1999; Burke-White and

7
Questions of Interpretation and Application of the 1971 Montreal Convention arising from the
Aerial Incident at Lockerbie (Libya v U.S.), 1992 ICJ 3 (April 14) (request for the indication of provi-
sional measures).
8
S.S. ‘Lotus’, France v Turkey, Judgment, (1927) PCIJ Series A no. 10, ICGJ 248.
416 Handbook on global constitutionalism

von Staden 2010; Petersmann 2019). Critics, therefore, caution against the mere advocacy of
a judicial review discourse as a good in itself in the absence of a uniform understanding of the
fabric of global constitutionalism. While international judicial review is often associated with
more rule of law and constraints on the power of states (Peters 2006), depending on the judicial
review standards employed, it may also undermine a states’ public functions and their ability
to protect individuals primarily from a neo-liberal vision of international judicial review
(Howse 2007). In summary, international judicial review practices may undermine domestic
constitutional review rather than complement it.
Despite these core objections, there are increasingly vocal voices in the international law
literature holding that the empirical objection is outdated (Klabbers et al 2009), that the lack of
delegation objection is overstated in the light of the dynamic interpretation of international law
by courts and tribunals (Çalı 2015), and that vesting power in international judiciaries may not
after all be a bad thing: it can ultimately cultivate rule of law in the international system and
buttress global constitutionalism (Peters 2006). International courts can exert crucial agency
in developing and harmonising standards of international judicial review. Global constitution-
alism, operating through the horizontal nature of international law is capable of developing
a diversity of judicial review standards carried out by different types of courts (Peters 2015).

THE CORE CASE OF INTERNATIONAL JUDICIAL REVIEW:

HUMAN RIGHTS COURTS

While the question of whether international judicial review is fit for the traditional venues
of inter-state dispute resolution is a matter of debate in the general international law context,
developments in judicial review carried out by human rights courts offer important inroads
into this general debate and, simultaneously, complicate it further. In the field of international
human rights law, the lack of a constitutional fabric argument and the lack of delegation argu-
ment are justifiably downplayed. Human rights courts are tasked with interpreting the com-
patibility of state action with those regional human rights conventions that states have ratified.
Regional human rights courts carry out a full range of judicial review powers. They review
domestic executive action, judicial decisions of high courts as well as domestic legislation in
a diverse range of issues spanning from amnesty laws, freedom of assembly laws to election
laws and even constitutions.
In the absence of strong preliminary objections to judicial review, the literature on the
judicial review of human rights courts is similar to debates in the domestic judicial review
literature. That is, do human rights courts get the standards of judicial review right? Are they
too expansive or are they unduly exercising judicial restraint?
In defining the scope of judicial review powers, regional human rights courts in Europe,
the Americas and Africa have developed a common overarching approach that holds that,
owing to their specific mandate to interpret and apply human rights law, they will review
state action in ways that render international human rights protections effective (Çalı 2020).
As such, regional human rights courts have become important forces for entrenching global
constitutionalism through specifying the content of international human rights as a basis for
autonomous standards of international judicial review.
In the jurisprudence of human rights courts, the effective interpretation paradigm has led to
three interrelated doctrines of judicial review. First, regional human rights courts presuppose
 International judicial review 417

that terms of the human rights conventions exist independently of the terms that are defined in
domestic laws. This is called the autonomous interpretation of human rights law (Letsas 2004).
This assigns a significant constitutionalist interpretive power to regional human rights courts
and marks a decided move away from individual state consent in interpreting human rights.
Second, human rights provisions must be interpreted in the light of the present conditions.
Third, human rights assign not only negative, but also positive obligations to protect rights,
including putting in place domestic legislative frameworks to respect rights, to investigate
human rights violations, and to protect individuals from third parties (Mowbray 2005). More
recently, the European Court of Human Rights (ECtHR), has further expanded its review func-
tions to include bad faith restrictions of human rights, thereby not only reviewing actions or
omissions of states, but also their political and economic motivations. (Çalı and Hatas 2021).
In summary, human rights courts have not only asserted that they have powers of judicial
review, they have also defined human rights judicial review in ways that may go beyond the
powers and practices of domestic judicial review carried out by constitutional courts.

STANDARDS OF INTERNATIONAL JUDICIAL REVIEW AND

HUMAN RIGHTS COURTS

Of the three human rights systems, the Inter-American Court of Human Rights has adopted
the broadest and the strictest conception of international judicial review, carrying out de novo
review of both the facts and the laws of domestic legal systems, including domestic consti-
tutional arrangements. Of particular importance in the Inter-American Court’s approach to
judicial review is the expansive and detailed remedies ordered by the Court, akin to strong
judicial review in domestic constitutional contexts (Antkowiak 2008). Furthermore, the ‘con-
ventionality control doctrine’ introduced by the Inter-American Court requires all domestic
courts to take Inter-American case law into account when reviewing domestic legislation,
even if such case law is not compatible with existing domestic laws (Dulitzky 2015).9 These
features assert both the universality of human rights and the supremacy of the interpretation
of these rights by the Inter-American Court over domestic judiciaries and parliaments. The
Inter-American Court, therefore, has opted for a judicially activist role that seeks to entrench
a human rights-based global constitutionalism.
In comparison, the ECtHR has articulated and applied more nuanced standards of interna-
tional judicial review. The ECtHR grants states a ‘margin of appreciation’ when reviewing
domestic legislation and action. It recognises that the margin can be ‘wider’ or ‘narrower’
depending on the rights engaged, and the existence of a Europe-wide or global consensus on
the scope of the rights (Spielmann 2012). In more recent years, the Court has also identified the
quality of the reasoning of domestic legislatures or courts as an influencing factor when deter-
mining the scope of margin of appreciation, indicating that human rights respecting domestic
courts and legislatures will be accorded a wider margin (Saul 2015; Çalı 2016). The ECtHR’s
standard vision of international judicial review, therefore, is that it takes place in tandem with
domestic judicial review, not at the expense of it. The Court has, however, also embraced
a variable geometry for judicial review, in particular holding that if a states’ pursuance of

9
See also, Inter-American Court of Human Rights, Almonacid Arellano v Chile, Preliminary
Objections, Merits, Reparations and Costs. Judgment of 26 September 2006, Series C No. 154, para. 124.
418 Handbook on global constitutionalism

ulterior purposes is a fundamental aspect to the restrictions of rights in a specific case, it will
employ stricter review standards.
The differences in the conceptualisation of the judicial review powers of the Inter-American
Court and the ECtHR point to a deeper and important contention in defining the purview of
judicial review powers of human rights courts: what should the appropriate standard of judicial
review be for human rights courts? The Inter-American model, on the one hand, is a clear
assertion of a principled commitment to strict review standards, emphasising the importance
of setting global human rights protections over allowing for domestic diversity in the appli-
cation of human rights standards. The European model, on the other hand, argues for a prin-
cipled accommodation of deference to domestic legislators and judiciaries save in the case of
manifest irregularities in domestic constitutional review. This is justified on the grounds of the
subsidiary nature of international judicial review when engaging with democratic legislators
and well-reasoned domestic court judgments concerning human rights.

NORMATIVE IMPLICATIONS OF INTERNATIONAL JUDICIAL

REVIEW

In the light of the discussion above, we can identify four types of normative implications
regarding the exercise of judicial review functions by international courts. First, regardless of
fora, switching from the logic of bilateral dispute resolution to international judicial review
empowers international judges at the expense of domestic parliaments, executives, courts,
as well as executive and legislative organs of international organisations. Searching for
international constitutional limits to state action, be these in the field of use of force, trade,
human rights or investment, necessarily entails some degree of judicial law-making. Is this
appropriate? Should international judges be endowed with these powers? In the human rights
context, this has led some to focus on processes of judicial appointments and to look at ways
of bestowing democratic legitimacy to the appointment of judges (Bellamy 2014). The rise of
the judicial review mode of reasoning in all fields of international law will necessitate more
attention to the processes of appointing judges to offset what Waldron coined as ‘judicial
sovereignty’ (Waldron 2021).
Second are the underpinning constitutionalist visions on which international judicial review
must rely. How can we square the relationship between international judicial review and
state sovereignty in the absence of an explicit global constitution? What is the acceptable
range of constitutional pluralism of judicial review standards in what is still predominantly
a horizontal and non-hierarchical international legal order? This, Kumm (2013) suggests,
requires rethinking the value of consent based on the regulative domain in which it operates
and more sophisticated theories of grounds for deference to states, while seeking to entrench
global constitutionalism based on human rights and rule of law. For Peters (2017) human
rights considerations should figure more prominently when interpreting, for example, trade
and investment law through the principle of systemic integration. Besson (Chapter 23 in this
Handbook), however, holds that the constitutional fabric of international law can only be
specified through the employment of comparative method, treating in particular human rights
standards as co-produced by domestic constitutional and international law.
Third is a variant of the second normative implication. What role should a democratically
informed standard of judicial review play in the context of international judicial review?
 International judicial review 419

International judicial review practices, in particular by human rights courts (Bellamy 2014)
and the WTO Dispute Settlement Mechanism (Wallach and Sforza 1999), raise particular
puzzles of legitimacy, especially when performed on democratically enacted legislation.
Should international judicial review standards be based on the democratic credentials of
a states’ actions with the presumption that there must be deference to domestic democratic
decision-making processes?
The latter invariably requires distinguishing judicial review standards based on the type of
state that is being judicially reviewed. If an international court is engaging with a democratic
state, this view demands that judicial review standards must be more lenient than judicial
review standards for a non-democratic state. This is because, in the case of non-democratic
states, reasoning for deference based on the democratic standard is misplaced. We have seen
that the case law of the ECtHR has tilted towards this doctrine of judicial review when engag-
ing with deliberative parliaments10 (Saul 2015) or constitutional court decisions of democratic
states. The WTO has also recognised that responsible governments may face more lenient
judicial review.11
Fourth is the normative implication of the co-existence of domestic judicial review and
international judicial review. Should international courts conceive their role as one of the
supremacy of international judicial review or one of mutual dialogue and accommodation
with their domestic judicial review counterparts? In the context of human rights courts, the
Inter-American Court and the ECtHR have offered different answers to this question. While
the Inter-American Court has argued for the supremacy of international judicial review
(Dulitzky 2015), the ECtHR, through the use of its margin of appreciation doctrine, holds that
the purpose of international human rights review is not to assert supremacy over domestic
courts, but to enable them to carry out judicial reviews themselves in the light of international
standards (Çalı 2016).
The co-existence of domestic and international review also gives rise to the inverse
problem. What kinds of review standards should domestic courts impose when on the receiv-
ing end of the decisions of international courts and bodies? Should domestic courts be less
lenient towards enforcing the decisions of international courts or bodies based on their own
constitutional identity or based on the constitutionalist credentials of the international body?
The latter is even more significant when international courts or bodies deliver decisions based
on the logics of private dispute settlement, as is often the case with investor-state arbitration
tribunals (Roberts and Trahanas 2014).
Finally, the fifth normative implication concerns the fragmentation of international law,
posing a unique set of questions on the scope of judicial review that may be justifiably carried
out by different international courts. Should, for example, human rights courts exert judicial
review powers over UN Security Council resolutions? Should international investment arbitra-
tion tribunals carry out lenient forms of judicial review when the interests of the private inves-
tors collide with public duties of states (Burke-White and von Staden 2010)? In the absence of
a world court with judicial review powers over all issue areas and states, the fragmentation of
judicial review standards is perhaps inevitable. However, the practical risks of such fragmen-

10
Animal Defenders v UK, Judgment of 22 April 2013; SAS v France, ECtHR, Judgment of 1 July
2014.
11
See, for example, Appellate Body Report, European Communities – Measures Concerning Meat
and Meat Products (Hormones), WT/DS26/AB/R (16 January 1998).
420 Handbook on global constitutionalism

tation raise deeper rule of law questions. The possibility of international judicial review based
on global constitutionalist principles varies significantly from court to court owing to the lack
of reference to human rights in their mandates or different interpretations of the rule of law.

CONCLUSION

This chapter has mapped the core debates concerning international judicial review. These
include the preliminary objections to judicial review by international courts as a form of
judicial activity and the normative implications of the burgeoning practices of international
judicial review, most notably carried out by human rights courts. It showed that discussions
on the desirability, scope and standards of international judicial review are ultimately tied
to deeper normative questions on whether a constraining framework of constitutional norms
exists in the international system and, if they do exist, what is the scope of such norms, how
much pluralism is acceptable in the articulation of such norms across international courts and
tribunals and how should such norms interact with their counterparts on the domestic plane?
In the traditional inter-state dispute resolution paradigm, the constitutional features of
international law are underplayed. International courts operate as dispute resolution mecha-
nisms through which the private interests of states are identified and adjudicated. International
judicial review, on the other hand, by its very nature, requires going beyond the private nature
of states’ interests and orients adjudication towards the permissibility of all forms of public
action against the backdrop of constitutional norms. This mode of reasoning, therefore, can
only flourish if some constitutional features are attributed to the international system beyond
the minimalist principle of upholding the private rights and obligations of states vis-à-vis other
states. International judicial review understood in this way has flourished, particularly within
the context of human rights courts. This flourishing, however, also brings with it associated
problems of the legitimacy of international judicial review and the normative justifiability of
the standards of judicial review against the backdrop of new forms of counter-majoritarian
challenges that judicial review triggers (Lustig and Weiler 2018).
This discussion shows that the relationship between global constitutionalism and inter-
national judicial review is co-constitutive. International judicial review relies on global
constitutionalist visions of international law and it is an important force to entrench global
constitutionalism in disparate legal contexts. It is precisely for this reason that shifting from
inter-state dispute resolution to international judicial review on the part of international judges
has deep normative and political consequences. Further research in international judicial
review must focus on the justifiability of standards of international judicial review employed
by different international courts, the fragmentation of judicial review standards and the jus-
tifiability of fragmentation, and the theories that focus on the conditions for the harmonious
existence of domestic judicial review and international judicial review.

REFERENCES
Akande, D. (1997), ‘The International Court of Justice and the Security Council: Is there room for
judicial control of decisions of the political organs of the United Nations?’, The International and
Comparative Law Quarterly, 46(2), 309–43.
 International judicial review 421

Antkowiak, T.M. (2008), ‘Remedial approaches to human rights violations: The Inter-American Court of
Human Rights and beyond’, Columbia Journal of Transnational Law, 46 (2), 351–419.
Arnull, A. (2015), ‘Judicial Review in the European Union’, in A. Arnull and D. Chalmers (eds), The
Oxford Handbook of European Union Law, Oxford: Oxford University Press, pp. 376–402.
Becroft, R. (2012), The Standard of Review in WTO Dispute Settlement: Critique and Development,
Cheltenham, UK, and Northampton, MA, USA: Edward Elgar.
Bellamy, R. (2007), Political Constitutionalism, Cambridge: Cambridge University Press.
Bellamy, R. (2014), ‘The democratic legitimacy of international human rights conventions: Political con-
stitutionalism and the European Convention on Human Rights’, European Journal of International
Law, 25 (4), 1019–42.
Bernhard, D. (2014), ‘Beyond hierarchy: The standard of review and the complementarity of the
International Criminal Court’, in L. Gruszczynski and W. Werner (eds), Deference in International
Courts and Tribunals: Standard of Review and Margin of Appreciation, Oxford: Oxford University
Press, pp. 371–86.
Burke-White, W. and A. von Staden (2010), ‘Private litigation in a public law sphere: The standard of
review in investor-state arbitrations’, Yale Journal of International Law, 35 (2), 283–346.
Çalı, B. (2015), The Authority of International Law: Obedience, Respect and Rebuttal, Oxford: Oxford
University Press.
Çalı, B. (2016), ‘Towards a responsible domestic courts doctrine? The European Court of Human Rights
and the variable standard of judicial review of domestic courts’, in M. Arnardóttir and A. Buyse (eds),
Shifting Centres of Gravity in Human Rights Protection, Abingdon: Routledge, pp. 144–61.
Çalı, B. (2020), ‘Specialized rules of treaty interpretation: Human rights’, in D. Hollis (ed.), The Oxford
Guide to Treaties, Oxford: Oxford University Press, pp. 525–50.
Çalı, B. and K. Hatas (2021), ‘History as an afterthought: The (re)discovery of Article 18 in the case law
of the European Court of Human Rights’, in H. Aust and E. Demir-Gürsel (eds), The European Court
of Human Rights: Current Challenges in Historical and Comparative Perspective, Cheltenham, UK,
and Northampton, MA, USA: Edward Elgar, pp. 158–76.
Cançado Trinidade, A.A. (2012), ‘Enforced disappearances of persons as a violation of Jus Cogens: The
contribution of the jurisprudence of the Inter-American Court of Human Rights’, Nordic Journal of
International Law, 81 (4), 507–36.
Carozza, P. (2003), ‘Subsidiarity as a structural principle of international human rights law’, American
Journal of International Law, 97 (1), 38–79.
Cass, D.Z. (2005), Constitutionalization of the World Trade Organization, Oxford: Oxford University
Press.
Dulitzky, A.E. (2015), ‘An inter-American constitutional court? The invention of the conventionality
control by the Inter-American Court of Human Rights’, Texas International Law Journal, 50 (1),
46–93.
Fassbender, B. (2009), The United Nations Charter as the Constitution of the International Community,
Amsterdam: Martinus Nijhoff.
Follesdal, A. (2009), ‘The legitimacy of international human rights review: The case of the European
Court of Human Rights’, Journal of Social Philosophy, 40 (4), 595–607.
Follesdal. A. (2021), ‘In defense of deference: International human rights as standards of review’ Journal
of Social Philosophy, online open access published on 8 November 2021, https://​doi​.org/​10​.1111/​josp​
.12449.
Gruszczynski, L. and W. Werner (eds) (2014), Deference in International Courts and Tribunals:
Standard of Review and Margin of Appreciation, Oxford: Oxford University Press.
Hernandez, G.I. (2013), ‘A reluctant guardian: The International Court of Justice and the concept of
international community’, British Yearbook of International Law, 83 (1), 13–60.
Howse, R. (2007), The WTO System: Law, Politics and Legitimacy, Cambridge: Cameron May.
Howse, R. and J. Langille (2012), ‘Permitting pluralism: The Seal Products dispute and why the
WTO should accept trade restrictions justified by noninstrumental moral values’, Yale Journal of
International Law, 37 (2), 367–432.
Kingsbury, B. (2008), ‘International law as inter-public law’, in H.R. Richardson and M.S. Williams
(eds), Moral Universalism and Pluralism, New York: New York University Press, pp. 167–204.
422 Handbook on global constitutionalism

Klabbers, J., A. Peters and G. Ulfstein (eds) (2009), The Constitutionalization of International Law,
Oxford: Oxford University Press.
Kumm, M. (2004), ‘The legitimacy of international law: A constitutionalist framework of analysis’,
European Journal of International Law, 15 (5), 907–31.
Kumm, M. (2009), ‘The cosmopolitan turn in constitutionalism: On the relationship between consti-
tutionalism in and beyond the state’, in J.L. Dunoff and J.P. Trachtman (eds), Ruling the World?
International Law, Global Governance, Constitutionalism, Cambridge: Cambridge University Press,
pp. 258–326.
Kumm, M. (2013), ‘The cosmopolitan turn in constitutionalism: An integrated conception of public law’,
Indiana Journal of Global Legal Studies, 20 (2), 605–28.
Letsas, G. (2004), ‘The truth in autonomous concepts: How to interpret the ECHR’, European Journal
of International Law, 15 (2), 279–305.
Lustig, D. and P. Weiler (2018), ‘Judicial review in the contemporary world – Retrospective and pro-
spective’, International Journal of Constitutional Law, 16, 315–72.
Mowbray, A. (2005), ‘The creativity of the European Court of Human Rights’, Human Rights Law
Review, 5 (1), 57–79.
Oeter, S. (2006), ‘The international legal order and its judicial function’, in P.-M. Dupuy, B. Fassbender,
M.N. Shaw and K.-P. Sommermann (eds), Common Values in International Law: Essays in Honour
of Christian Tomuschat, Kehl: N.P. Engel Verlag, pp. 583–600.
Paulus, A. (2001), ‘International law after post-modernism: Towards renewal or decline of international
law?’, Leiden Journal of International Law, 14 (4), 727–55.
Pellet, A. (2000), ‘Droits de l’hommisme et droit international’, Gilberto Amado lecture held on 18
July, United Nations, Geneva; English translation: ‘Human Rightism and international law’, Italian
Yearbook of International Law, 10, 3–16.
Peters, A. (2006), ‘Compensatory constitutionalism: The function and potential of fundamental interna-
tional norms and structures’, Leiden Journal of International Law, 19 (3), 579–610.
Peters, A. (2015), ‘Global constitutionalism’, in M.T. Gibbons (ed.), The Encyclopedia of Political
Thought, London: Wiley and Sons, pp. 1–4.
Peters, A. (2017), ‘The refinement of international law: From fragmentation to regime interaction and
politicization’, International Journal of Constitutional Law, 15 (3), 671–704.
Petersmann, E. (2019). ‘Human rights, constitutional justice and international economic adjudication:
Legal methodology problems’, in M. Scheinin (ed.), Human Rights Norms in ‘Other’ International
Courts (Studies on International Courts and Tribunals), Cambridge: Cambridge University Press,
pp. 312–52.
Roberts, A. and C. Trahanas (2014), ‘Judicial review of investment treaty awards: BG Group v.
Argentina’, American Journal of International Law, 108 (4), 750–63.
Saul, M. (2015), ‘The European Court of Human Rights’ margin of appreciation and the processes of
national parliaments’, Human Rights Law Review, 16 (2), 1–30.
Simma, B. (1994), ‘From bilateralism to community interest in international law’, Recueil des Cours de
l’Académie de Droit International, 250, 217–384.
Spielmann, D. (2012), ‘Allowing the right margin: The European Court of Human Rights and the
national margin of appreciation doctrine: Waiver or subsidiarity of European review?’, Cambridge
Yearbook of European Legal Studies, 14, 381–418.
Tushnet, M. (2003), ‘New forms of judicial review and the persistence of rights- and democracy-based
worries’, Wake Forest Law Review, 38 (2), 813–38.
Von Bogdandy, A. and I. Venzke (2012), ‘In whose name? An investigation of international courts public
authority and its democratic justification’, European Journal of International Law, 23 (1), 7–41.
Von Staden, A. (2012), ‘The democratic legitimacy of judicial review beyond the state’, International
Journal of Constitutional Law, 10 (4), 1023–49.
Waldron, J. (2006), ‘The core case against judicial review’, Yale Law Journal, 115 (6), 1346–406.
Waldron, J. (2021), ‘The rule of law and the role of courts’, Global Constitutionalism, 10 (1), 91–105.
Wallach, L. and M. Sforza (1999), Whose Trade Organisation? Corporate Globalization and the
Erosion of Democracy, Washington, DC: Public Citizen.
Watson, G.R. (1993), ‘Constitutionalism, judicial review, and the World Court’, Harvard International
Law Journal, 34 (1), 1-45.
 International judicial review 423

Weil, P. (1983), ‘Towards relative normativity in international law?’, American Journal of International
Law, 77 (3), 413–42.
29. Legislatures
M.J. Peterson

CONSTITUTIONALIST TRADITIONS

Any constitution – whether written in a single document or accreted over time in practice
(for example, Bagehot 1867) – is prescriptive because it specifies how political power will be
wielded, by whom and for what ends. Yet those prescriptions may or may not be guided by
a normative conception of the good political order. They may be purely descriptive of what
exists – recording and, through that act of recording, reinforcing the current set of rules about
who will hold and how they will wield political power. Those rules may ensure basic citizen
(or human) rights and specify limits on the scope and extent of government action, but they
may also allow for arbitrary rule recognizing no human rights and no limits on scope and
extent. Constitutionalist thinkers bring a normative element to bear, insisting that to be worthy
of the name a constitution must establish rules that advance certain values.
The core of the Western constitutionalist tradition can be traced back to late
seventeenth-century and early eighteenth-century Europe, in particular to arguments that
granting a monopoly on the legitimate use of force to some central entity capable of imposing
peace on all members of society (as advocated by, for example, Bodin 1576; Hobbes 1651) is
only the first step in creating a good political order. By itself, such a scheme would not prevent
ambitious rulers from gathering all power into their own hands and using it as they please,
creating at the national level a system of oppression hardly better than the localized oppression
by lords of the manor prevalent in medieval times. Early constitutionalist writers maintained
that a constitution must also impose limits on the exercise of political power, limits that they
believed were already inherent in divine or natural law. This higher law establishes humans as
holders of rights which earthly rulers were bound to respect and uphold (for example, Locke
1698; Montesquieu 1748). As James Madison stated in Federalist Paper Number 51 (1788):
‘You must first enable the government to control the governed; and in the next place, oblige
it to control itself.’
This normative constitutionalism has two strands that can pull in different directions.
‘Liberal’ constitutionalism focuses primarily on restraining the exercise of political power
through separation and balancing of legislative, executive, and judicial power while also
emphasizing the exercise of political power through law – creating a Rechtsstaat, ensuring
due process, promoting rule of law, and ensuring respect for human rights. ‘Republican’ or
‘democratic’ constitutionalism focuses primarily on grounding the legitimacy of political
rule in a mandate from the people, the citizenry at large. This tradition maintains that a stable
political order is possible only when the government enjoys social legitimacy through being
seen as emerging from, rather than imposed on, the people.
Both liberal and republican/democratic constitutionalism converge in vesting the law-making
power in an elected legislature; in actual political practice, the difference between the two are
often matters of detail, as is discussed in the introduction to this Handbook (Lang and Wiener,
Chapter 1).

424
 Legislatures 425

Even during the great power wars of the early to mid-twentieth century and the bipolar Cold
War competition of the late twentieth century, constitutional states maintained the principle
of legislative responsibility for adopting the laws and controlling public money by defining
taxes and allocating revenues to particular purposes in foreign policy as well as domestic
domains. Legislatures thus continued to advance both the liberal constitutionalist program of
constrained power operating through rule of law by providing the publicly known constitutive,
regulatory and consequential rules forming the society’s legal system, and the republican/dem-
ocratic constitutionalist function of deriving power from the people through elections. In the
mid-2000s, several European democracies re-examined and strengthened their statutes requir-
ing legislative approval of decisions to engage in military actions abroad (Damrosch 2015).
Twenty-first century definitions of democratic rule continue to emphasize the centrality
of both transparency and accountability. Transparency is provided through rules that all
statutes, resolutions and other decisions of the legislative body be published in an official
journal. The exact definition of ‘publish’ has kept up with technological possibilities: relying
on a government office printing press to disseminate paper copies until the wider reach of the
Internet allowed posting official journal material to publicly available government websites.
Accountability is provided through requirements for periodic and competitive elections in
which multiple candidates are allowed to contend for each legislative seat. Different countries
run their election process in different ways, but in each the goal is ensuring that legislators’
performance is subject to periodic review and individual legislators subject to the pressure of
possible removal. The development of political parties both simplifies and complicates the
lines of accountability. Parties complicate, particularly when the electoral system involves
proportional representation, because individual legislators are part of a party group and their
re-election may depend as much on citizens’ perception of the party as on citizens’ perception
of the individual legislator. Parties simplify by providing voters with labels that indicate dif-
ferences in broad policy orientation among the various candidates. While in some countries
elections have become ‘candidate-centered’, in most they remain ‘party-centered’. Yet under
either pattern there is more accountability than would exist if legislators were appointed for
life or inherited their position.
At the national level, the existence of a legislature implies considerable centralization.
Even in a federal state, where the constituent subnational units retain certain defined powers
and have legislative bodies of their own, the federal (national) legislature still has an inde-
pendent and overarching realm of legislative authority. The laws it adopts are administered
and enforced vis-à-vis the citizenry through national-level administrative agencies, policing
agencies, and court systems that exist simultaneously with and operate on a distinct plane from
the subnational units’ administrative agencies, police forces, and courts.
Except in Europe, centralization still stops at the national level. Though interconnections
between societies began growing exponentially with development of steam-powered transpor-
tation and telegraph systems in the mid-nineteenth century, the interconnections were not then
regarded as so great that global political centralization seemed necessary. Empire-building by
certain individual European states brought many lands together administratively and formed
them into territorial blocs, but without gathering the populations of the metropole and the col-
onies into a single political community. Within Europe, coordination of ‘administrative’ and
‘technical’ activities through the Public International Unions, the first generation of intergov-
ernmental organizations, seemed sufficient. While some reformist bureaucrats in the various
European capitals saw in them the kernel of what we would now call a functionalist drawing
426 Handbook on global constitutionalism

together of different countries (Murphy 1994, p. 88), notions of a world government with a
‘parliament of man’ (Tennyson 1842) remained items of poetic or philosophical imagination.
The same could be said in 1945 even after two world wars. Though the first words of the
Preamble to the United Nations (UN) Charter suggest that ‘We, the peoples of the United
Nations’ are joining together to create a new global order, the last words, specifying that ‘our
respective governments, through representatives assembled in the city of San Francisco’ agree
to the Charter and establish the organization (UN 1945, hereafter UN Charter), signals the
continued centrality of states. The UN Charter also includes provisions strongly discouraging
war between states, establishing possibilities of centrally organized collective action against
war-initiating states and encouraging third-party settlement of disputes, yet the UN organi-
zation remained a forum for discussion and organizing coordination in solution of particular
problems rather than a government structure. The international system’s political structure
remained a combination of Westphalian autonomous territorial states with multilateral coop-
eration among them channeled through various agreements and intergovernmental organiza-
tions, and the UN organization, like the predecessor League of Nations, an institution fitted to
that global-level structure.
Yet the immediate post-World War II years were marked by considerable discussion of con-
verting the UN into a world government. Such discussion was sufficiently widespread in the
USA to inspire the introduction of several resolutions to that effect in the US Congress (Dean
1950). Though such discussion receded as the Cold War deepened, it continued and soon took
on a federalist cast (Clark and Sohn 1966). With the ‘Iron Curtain’ splitting Europe, efforts
for change in the Western half focused regionally, with competing proposals for immediate
federation (for example, Spinelli and Rossi 1941) and an indirect approach of ultimate feder-
ation after economic integration (for example, Mitrany 1944) receiving widespread attention.
In the end, the Treaty of Rome (1958) created a European Economic Community based on the
latter approach.
Discussion of creating a world government had reached such a low ebb in the 1970s and
1980s that even the end of the Cold War – previously viewed as the main obstacle to such
a transformation – did not lead to any appreciable move towards recasting the UN as a world
government even as proposals for ‘reforming’ or ‘improving’ the UN proliferated (Yunker
2011a). The world remained characterized by what James Rosenau and Ernst-Otto Czempiel
(1992) called ‘governance plus government’ at the national level – where capacity to identify
problems, design solutions and mobilize cooperation among willing actors is strong and
backed up by centralized structures for making and enforcing laws – and ‘governance minus
government’ at the global level. The 2008 global financial crisis and rising environmental con-
cerns, particularly over climate change, sparked renewed interest in centralizing at the global
level among commentators, nongovernmental organizations and world federalist advocacy
groups (for example, Stipo 2007; Cabrera 2011; Yunker 2011b; Leinen and Brummel 2018).
Advocates of world government have never spoken with one voice. They have long debated
whether the global-level structure of political rule should be a ‘world government’, a ‘world
federation’ or a ‘league of peaceful states’. This disagreement appeared even within the late
eighteenth-century writings of Immanuel Kant, author of some of the best-known arguments
for extending political institutionalization beyond the limits of the territorial state. This
reflected Kant’s own sense of facing a dilemma. He was eager to replace the Westphalian
system of competing monarchical territorial states with something more peaceful and respon-
sive to the people, but his acceptance of Rousseau’s (1762) claims that political sovereignty
 Legislatures 427

is an indivisible expression of the general will of a society led him to regard a world state as
likely to be the product of a forced uniformity, an undesirable ‘soulless despotism’ (Habermas
2007, p. 128). Respect for and desire to preserve local particularities led Kant to advocate
creation of a league of commercial republics that would anchor global peace among already
peace-minded reformed states (Kant 1795). This was a bet that states with a commercial
economy and a constitutional political order would relate to one another peacefully and respect
each other’s rights and domestic arrangements. The possibility of world federalism did not
occur to him, partly because he accepted the notion that sovereignty is indivisible, and partly
because the large-scale experiment with federalism then unfolding in North America had been
in existence less than a decade when he wrote.
Today, however, the league of peaceful states conception is generally regarded as insuf-
ficient. Most advocates of international-level constitutionalism agree on three points: (1)
the need to replace power politics with a stable, orderly and centrally maintained system of
peaceful cooperation; (2) the importance of guaranteeing individual and group rights through
global-level institutions capable of enforcing them against rights-abusing national govern-
ments; and (3) establishment of a framework of international law capable of assuring sufficient
cooperation to effectively address global problems while leaving individual territorial states
with room for choice in organizing their internal life within the broad outlines of the global
constitutional order.
Writers advocating global constitutionalization point to several contrasts between the inter-
national law prevailing in today’s multilateralized Westphalian territorial states system and the
system of world law needed in a properly constitutional world order (adapted primarily from
Giegerich 2009, particularly pp. 44–59). (See Table 29.1.)

Table 29.1 A constitutional world government and the current UN compared

Features of a constitutionalist world government Current features of the UN

separation of government powers potential only – no clear executive and no provision for judicial
review
input, output, and social legitimacy of decision-making bodies Security Council very weak on all three because of the limited
number of states represented and the system of P5 and E10;
General Assembly also weak because it does not have true
legislative powers
effective guarantees of human rights not contained within the UN Charter; supplemental multilateral
human rights treaties lack strong enforcement systems
multilevel governance (federal-type structure) present in the design making territorial states the members
institutional homogeneity among units guaranteeing the basics absent because governments of states retain ability to choose
of democracy rule, rule of law, fundamental human rights their own domestic order and are not directly obligated to take
enforceable on units by the federal level on human rights obligations or follow rule by law precepts

The institutional features are very clear: there should be a world legislature organized and
limited in the same way that national constitutional orders limit the legislative power within
territorial states today. One key question for any project of creating a world government is
where the kernel of such a legislature can be found today, and quite often the answer is the UN
General Assembly since it is the main deliberative body of the world’s only general-purpose
intergovernmental organization.
428 Handbook on global constitutionalism

THE UN GENERAL ASSEMBLY

Yet the character, composition and authority of the UN General Assembly was constructed
in 1943–1945 according to the logic of the multilateralized Westphalian system and remains
little changed. Except in the just-emerging discussion of a ‘human rights and fundamental
freedoms’ (UN Charter, Art. 1, para. 3, Art. 55(c)) and ‘equal rights and self-determination
of peoples’ (UN Charter, Art. 1, para. 2), the territorial state remained the basic political unit.
The principles guiding the General Assembly’s composition were those of a world of states:
territorial states were the possessors of rights and duties under international law, ‘sovereign
equality’ remained one of the primary rights of states (UN Charter, Art. 2, para. 1), and each
national government, as legal agent for the state, selected who would represent the state in the
General Assembly (UN Charter, Art. 9). Thus the national representatives sent to the General
Assembly are a subset of the national diplomatic service, distinguishable from the others over
time only as particular governments decided that representing the state in multilateral forums
required specialized knowledge. So even though its legislature-like procedures encouraged
commentators such as Philip Jessup (1956) to write about the rise of ‘parliamentary diplo-
macy’, the lines of selection and accountability did not run between representative and popu-
lation, they ran from representative to executive branch of the national government.
The composition of the UN General Assembly also inhibits development of the clearly
identifiable parties that function in national legislatures. Though individual states could be
classified into groups by general political orientation, this never became the basis of the UN
General Assembly’s internal organization. The General Assembly’s Main Committees remain
committees of the whole, on which every UN member state has a seat. Seats on smaller coun-
cils, committees and other subsidiary bodies remain allocated among the regional groupings
of member states in rough proportion to their fraction of the total UN membership, and each
regional group typically chose which states’ delegates from among them would fill the allo-
cated seats. Other caucusing also developed more along geographical than along political or
ideological lines. That the geographical groupings acquired a degree of ideological coloring
was incidental to the Cold War and decolonization. The Cold War meant that the Western
European and Other group encompassed the core of the USA-led alliance system while the
Eastern European group encompassed the core of the USSR-led alliance system. As decolo-
nization proceeded, the African and Asian regions came to represent the newly independent
countries. While the Latin American and Caribbean countries seemed to be anchored more
closely to the West in the 1950s, they moved over time toward the African-Asian countries.
Thus by 1970 the UN General Assembly appeared to reflect the then-prevailing ‘three camp’
division of the world into East, West and Nonaligned. There were always some ambiguities
around the edges, with Soviet-aligned Cuba claiming to be a good member of the Nonaligned,
and Maoist China expressing more connection to the developing world than to the Soviet
bloc, but the main division seemed accurate enough. All this changed with the end of the Cold
War. The line between Western and Eastern Europe was erased, with much of Eastern Europe
joining the North Atlantic Treaty Organization (NATO) or the European Union (EU). The
USSR became Russia. China remained a single-party state led by a Communist Party, but one
very busy developing something other than a Leninist centrally planned economy at home and,
although still expressing identification with the developing world, widely perceived elsewhere
as an emerging great power likely to acquire great power habits.
 Legislatures 429

The General Assembly also lacks law-making authority outside of decisions regarding
the internal structuring and operation of the UN organization. Proposals to give the General
Assembly wider legislative authority were rejected at the San Francisco Conference (Russell
1955, pp. 754–76), and even international lawyers sympathetic to the idea of giving the
General Assembly wider authority have stopped short of claiming that it has already acquired
it (for example, Schachter 1963, pp. 184–6; Falk 1966, pp. 790–1; Elias 1972, pp. 71–6; Sohn
1973, pp. 50–3). Governments have generally avoided suggesting that the General Assembly
has significant legislative authority. Though some governments seeking to discourage others’
unilateral decisions about deep seabed mining in the late 1970s and early 1980s tried to base
arguments that such behavior is illegal on the General Assembly’s Declaration of Principles
governing the Seabed and the Ocean Floor, and the Subsoil Thereof (Resolution 2749 (XXV)),
they shifted to using the UN Convention on the Law of the Sea as soon as its text was finalized
in 1982 (Peterson 1986, pp. 142–3).
Some elements of the General Assembly’s limited authority have been eroded over time.
Article 17 of the UN Charter specifies that the General Assembly will determine the UN
budget and levy assessments on the member states, but governments have been careful to
limit its financial ambitions through de facto adoption of a consensus rule for budget and
assessment decisions that keeps the budget at the level set by the least willing members. More
willing members have found ways around this, but the systems of voluntary contributions thus
developed further weaken notions that the General Assembly determines the budget. Rather,
the result has remained much as British Prime Minister Harold Macmillan explained in 1961:
‘There is the compulsory subscription and the voluntary subscription. The only difference
between them is this. The compulsory is the one that you do not pay if you do not want to,
and the voluntary is the one you need not pay unless you wish to’ (UK Parliamentary Debates
1961).
More tellingly, the only efforts to subject resolutions of a UN body to judicial review were
inspired by the Security Council’s effort to have members impose criminal punishments on
individuals and organizations supporting terrorist activity by establishing a consolidated list
of such persons and organizations identified by its sanctions committees1 – most notably in
European Court of Justice (2008). The judgments did not rule directly on the legality of action
by the Security Council or its terrorism-monitoring 1267 Committee, but did hold regional or
national authorities responsible for respecting the human rights requirements prevailing within
their own jurisdictions.
Some international lawyers have sought to expand the substantive reach of the General
Assembly’s authority to make decisions that bind UN member states through generous inter-
pretations of ‘implied powers’ deriving from its mandate to determine the UN organization’s
internal functioning (for example, Seyersted 1963). However, these arguments are not gener-
ally accepted. Other international lawyers advance less expansive interpretations, anchored in
what constitutional lawyers might call ‘strict construction’ of the UN Charter, adhering more
closely to the 1945 vision of the General Assembly as a forum for debate and development
of recommendations that member states might then incorporate into international law through
a multilateral treaty or into their own national law through their domestic law-making process.

1
System explained at https://​www​.un​.org/​securitycouncil/​content/​un​-sc​-consolidated​-list (accessed
2 July 2023).
430 Handbook on global constitutionalism

The continuing gaps in the UN Charter as a constitution in the normative sense have also
been acknowledged (for example, Crawford 1997; Alvarez 2005). Protections of human rights
in the UN system remain weak and subject to the pushes and pulls of political pressures.
Efforts to reel in the governments most abusive of the populations under their rule under the
concept of Responsibility to Protect have been halting. The UN lacks any autonomous revenue
stream; proposals that a tax on cross-border financial flows proposed as a mechanism for
funding economic development have not been adopted in the UN or by the G20 (Wroughton
2011).

CREATING A GLOBAL CONSTITUTIONAL ORDER

Advocates of creating a global constitutional order recognize and propose remedying all
three shortcomings. They have offered proposals for restructuring the legislative part of the
UN organization to erase the ‘democratic deficit’ stemming from its character as a forum for
representatives sent by the executive branch of national governments. They have offered ideas
about bridging the gap between one-state-one-vote and one-person-one-vote as a basis for
legitimating legislative authority. They have pointed to areas where they believe international
tribunals are succeeding in ‘constitutionalizing’ certain areas of international relations through
compulsory and binding third-party settlement of disputes and urged that similar develop-
ments should occur in other areas of international relations.
The European Parliament suggests one way to restructure to connect the world legislature
to the world’s people: have the citizens of each member state elect a number of legislators
proportional to their share of the world’s total population. Many proponents of world govern-
ment suggest a bicameral solution for the UN, with the current General Assembly becoming an
‘Assembly of States’ operating alongside a new ‘Assembly of Peoples’ (for example, Heinrich
1993; Havel 2000; Stipo 2007). While the idea of electing in proportion to population is attrac-
tive in democratic theory, where equal individuals should all have equal voice, two consider-
ations inspire hesitation today. First, equal voice extended to the global level would yield an
assembly of peoples dominated by East and South Asians. Some might find this uncongenial
unless a global analog to the European Parliament system of transnational party groupings also
developed. Party groupings would create cross-cutting cleavages – at least to the extent that
political divisions did not parallel cultural divisions – a condition political sociologists regard
as better for a constitutional order than a society riven by a single major cleavage or some
set of reinforcing cleavages (for example, Lipset 1960). Second, the firm authoritarianism
of China, Russia and some other states plus the increasing authoritarianism of India, Brazil
and other states (V-Dem Institute 2023), where elections do not reflect an authentic popular
choice and which now include at least 72 percent of the world’s population, would provide
global-level reinforcement of authoritarian trends.
Others proposals seek to avoid these problems by suggesting the creation of bodies in which
civil society participants would be selected from ‘major groups’ (such as youth, women or
farmers) rather than by state of citizenship (for example, Commission on Global Governance
1995). However this suggests a functional basis for composing a legislature that has not been
adopted at the national level and is in tension with democratic theory by foregrounding one
particular aspect of any individual’s life.
 Legislatures 431

Efforts to convert the existing UN General Assembly into a unicameral global legislature
would necessitate revising its current form from the one-state-one-vote and simple majority
decision-making rules (UN Charter, Art. 18). As foundations for legislative legitimacy, these
rules suffer from two shortcomings. First, they diverge to the point of direct contradiction with
the democratic maxim of one-person-one-vote by giving the fewer than 100,000 citizens of
Dominica or Vanuatu the same representation as the more than 1.5 billion citizens of China or
India. Second, unless also changed, the voting rules would permit a large group of relatively
small states to oblige a small set of much larger states to undertake activity that the latter can
frustrate by inaction.
Developing voting rules that would provide a basis for binding global legislation has
inspired a considerable range of proposals. One proposal, for creation of new UN councils
to address sustainable development, environmental cooperation and management of areas
outside national jurisdiction (high seas, deep seabed, Antarctica and outer space) rather than
a comprehensive global legislature, suggested establishing a 50-member decision-making
group – one representing each of the G20 states ‘as the countries that are indispensable for any
solution to be implemented’, another 20 representing smaller countries selected on a regional
basis, and ten representing civil society groups (Biermann 2012). Others suggest going further
than the UN Charter requirement that ‘important questions’ be decided by a two-thirds major-
ity by proposing a system of concurrent majorities (for example, Hudson’s 1981 ‘binding
triad’ – a majority of member states having a majority of world population and paying for
a majority of the UN budget), a general weighted voting rule (for example, Schwartzenberg
2005) or a set of varying special majorities depending on the issue at hand (Biermann 2014).
However, most proposals discard the one-state-one-vote practice of the existing General
Assembly in other ways. Any of the bicameral proposals imply using concurrent majorities
of states and world population, establishing a decision-making rule similar to that prevailing
within most federal states – and even in the EU if we consider its Council as the chamber of
states and its Parliament as the chamber of peoples.
The prospects for extending effective systems of rule by law or Rechtsstaats to more coun-
tries looked quite bright between 1991 and 2008 (third wave of democratization) The global
human rights advocacy movement, which had begun to take hold in the 1970s, leapt to a notably
higher level of activity. Prospects for returning to the design of the Universal Declaration on
Human Rights (1948) by undoing the split between treaties incorporating civil and politi-
cal rights and treaties incorporating economic, social and cultural affairs seemed bright as
discussion of the indivisibility of rights gained ground (Burke 2010). There was a spate of
constitution-writing as democratic rule spread, not only in Eastern Europe and Central Asia,
but also in South Africa and other states emerging from long periods of undemocratic rule.
The excesses of the Cultural Revolution era inspired a strong desire in China for new norms
of ‘socialist legality’ that would provide more consistent and less arbitrary procedures among
Chinese lawyers and officials in the early 1980s, and these efforts continued as China pursued
its ‘Four Modernizations’. In the late 1980s and early 1990s lawyers in many countries con-
tributed time and resources to programs for helping judges, prosecutors and defense attorneys
in countries emerging from authoritarian rule learn new conceptions of their roles and apply
rule of law or Rechtstaat norms in their own countries (Tamanaha 2004; Heckman et al 2010).
Emergence of an entirely new branch of international law – international criminal law – led
to the establishment of the International Criminal Court to impose individual responsibility
on planners, organizers and perpetrators of mass murder and major violations of the laws of
432 Handbook on global constitutionalism

warfare (ICC Rome Statute 1998, Art. 1). The possibility of a new approach for international
response to severe domestic misrule was expressed in the notion that sovereignty includes
a Responsibility to Protect (Evans and Sahnoun 2002; UN General Assembly 2005).

CURRENT PROSPECTS

Today the prospects for creating a true world legislature and institutionalizing it according
to liberal and republican constitutionalist principles look less bright than they did in the mid
2000s. The governments of the world’s territorial states show no inclination to yield any power
to a global center, and they are not under any significant pressure from their populations to
do so. Academic and activist commentators are using the challenges posed by global atmos-
pheric warming and increased interconnection among societies to argue the need for world
government, but their words receive little attention. Even in Europe, the one continent where
a degree of political centralization spanning state borders seemed to be expanding, signs of
lower enthusiasm for the EU have multiplied – as revealed most vividly in debates preceding
the June 2016 British referendum on whether to remain a member and in the ongoing con-
tentions between the main EU bodies and the governments of Hungary and Poland over the
increasingly authoritarian measures adopted by the latter (recent developments in Greminger
2021). One expert on the EU’s politics has pointed out that the decision-making rules of
the Council and the Parliament require a level of agreement higher than prevails in any of
the member states or in other democratic states around the world (Moravcsik 2002, p. 609).
Continuing economic woes and rising immigration have revived right-wing nationalist parties
and inspired more ‘Euroskepticism’ than prevailed in the 1990s (Stokes 2016). While the
‘new sovereigntists’ (for example, Rabkin 2005; Bolton 2007; Ku and Yoo 2012) whose ideas
dominated the George W. Bush (‘Bush 2’) administration’s perceptions of international law
and cooperation through international organizations had less influence over US policy under
the Obama administration, their ideas continued to resonate with a considerable portion of the
population. The Trump administration rejected even the less ambitious multilateralization of
the territorial states system through a series of actions intended to block cooperation on climate
change or management of the Covid-19 pandemic and to weaken existing intergovernmental
organizations (Lake et al 2021, pp. 244–5). The Biden administration has reversed most of
these measures, but Trump’s support base remains large enough that the future course of US
policy is uncertain.
While domestic political systems in some states have evolved towards greater respect for
human rights and rule of law, evolution in other countries has been in the opposite direc-
tion (Monshipouri et al 2003; Bunce et al 2009; Stacher 2012). The idea that human rights
are ‘universal values’ has been challenged by governments and writers in East Asia (see
Subramaniam 2000) and the Middle East (Cairo Declaration 1990; also see Mayer 2012) on
grounds that current formulations of human rights – including those institutionalized in the UN
human rights system – reflect Western notions that do not conform to the core beliefs of their
own cultures. East Asian respect for rule of law and acceptance of judicial review does not
extend in all countries to reviewing government acts for compliance with human rights norms
(Ginsburg 2003). Even the idea of establishing a Responsibility to Protect has been weakened
by disagreements over when and how to implement it (Welsh 2019). Though most authoritar-
ian governments pay symbolic respect to republican or democratic constitutionalist norms by
 Legislatures 433

creating elected legislatures and holding periodic elections to choose their members, adher-
ence to liberal constitutionalist norms regarding legislative powers, respect for fundamental
rights and assurance of fair process is often much weaker. Decisions in the West, particularly
by the Bush 2 administration in the US, trimming rights in the name of dealing with threats
from terrorists facilitated government use of anti-terrorist rhetoric against domestic opposition
elsewhere. Complaints in Western countries after the global financial crisis that the ostensibly
democratic rule was merely a façade for an oligarchy of wealth (for example, Domhoff 2013),
can also be used to diminish the attractiveness of Western constitutionalism in other parts of
the world. The net result is a new climate in which the Chinese government is fully willing to
remind everyone of its self-description as a ‘people’s democratic dictatorship’ (Constitution
of the People’s Republic of China, Art. 1) in its international pronouncements as well as in
such domestic contexts as its current internal security law (People’s Republic of China 2015,
ch. 1, Art. 1).
The transition to constitutionalism within territorial states rested on two developments:
enough political centralization to create a national government capable of enforcing rules
throughout the territory and sufficient strength of the social actors pressing for both demo-
cratic and liberal elements of constitutionalism that a truly constitutionalist order emerged. Yet
it is sobering to consider that the move from centralization to constitutionalism was halting,
limited to some countries, frequently hedged by incomplete realization (as in continuation of
discrimination by race, religion or ethnicity), and often reversed.
A global constitutionalist order is not the only possible future. Some fear that the future
is instead one of ‘neoliberal’ rule by a global capitalist elite (for example, Rothkopf 2008).
Others suggest it will involve development of a networked empire without a clear political
center (Hardt and Negri 2000). A few have suggested the world will become a multipolar
system of cooperation among great powers acting as hegemons within their respective
regions, notions echoing some of Carl Schmitt’s ideas about regional subsystems each run
by a within-region leading state and immune from intervention by extra-regional powers
(1941[1991]). Arguments within current discussions of constitutionalism that the term ‘con-
stitutionalism’ should not be limited to the liberal and republican form that first emerged in
the eighteenth century, but should be extended to cover others as well, also suggest various
futures, organized by principles of populist (Belov 2021) social democratic (Guy 2012), pluri-
national (Tierney 2005), Islamic (Quraishi-Landes 2015), or Asian communitarian variants
(Pinelli 2017, p. 14). Yet unless the transnational coalition of constitutionalist individuals,
groups, and advocacy coalitions is sufficiently strong, moves toward greater global centrali-
zation could easily result in a world run by a small elite disconnected from, and therefore not
needing to be concerned with, most people even if it maintains a pseudo constitutionalism
continuing the outward expression but not the actual content of a constitutionalist approach
to political order. The politics of establishing a liberal and republican constitutional order at
the global level remains what Max Weber (1919[1946], p. 128) observed of politics within
territorial states: ‘the strong and slow drilling of hard boards’.

REFERENCES
Alvarez, J. (2005), International Organizations as Law-Makers, Oxford and New York: Oxford
University Press.
Bagehot, W. (1867), The English Constitution, London: C. Kegan Paul.
434 Handbook on global constitutionalism

Belov, M. (ed.) (2021), Populist Constitutionalism and Illiberal Democracies: Between Constitutional
Imagination, Normative Enchantment and Political Reality. Cambridge UK: Intersentia.
Biermann, F. (2012), ‘Greening the United Nations Charter: World politics in the Anthropocene’,
Environment, 54 (3): 6–17 (May–June), doi:10.1080/00139157.2012.673450.
Biermann, F. (2014), Earth System Governance: World Politics in the Anthropocene. Cambridge, MA:
MIT Press.
Bodin, J. (1576), Les Six Livres de la Republic, Paris: DuPays.
Bolton, J. (2007), Surrender is Not an Option: Defending America at the United Nations, New York:
Simon and Schuster.
Bunce, V., M. McFaul and K. Stoner-Weiss (eds) (2009), Democracy and Authoritarianism in the
Postcommunist World, Cambridge: Cambridge University Press.
Burke, R.D. (2010), Decolonization and the Revolution of International Human Rights, Philadelphia,
PA: University of Pennsylvania Press.
Cabrera, L. (ed.) (2011), Global Governance, Global Government: Institutional Visions for an Evolving
World System, Albany, NY: SUNY Press.
Cairo Declaration (1990), ‘Declaration on human rights in Islam’, adopted by the Organization of
Islamic States, English translation available from the University of Minnesota Human Rights Library.
Accessed 2 July 2023 at http://​hrlibrary​.umn​.edu/​instree/​cairodeclaration​.html.
Clark, G. and L.B. Sohn (1966), World Peace through World Law: Two Alternative Plans, Cambridge,
MA: Harvard University Press.
Constitution of the People’s Republic of China as amended through 2018, English translation. Accessed
2 July 2023 at http://​www​.npc​.gov​.cn/​zgrdw/​englishnpc/​Constitution/​node​_2825​.htm.
Crawford, J. (1997), ‘The Charter of the United Nations as a constitution’, in H. Fox (ed.), The Changing
Constitution of the United Nations, London: British Institute of International and Comparative Law,
pp. 3–16.
Damrosch, L.F. (2015), ‘Democratization of foreign policy and international law, 1914–2014’, American
Society of International Law Bulletin, 30 (4), 1–3.
Dean, W.T. Jr. (1950), ‘World government and the Constitution of the United States’, California Law
Review, 38 (3), 452–77.
Domhoff, G.W. (2013), Who Rules America: The Triumph of the Corporate Rich, 7th edn, New York:
McGraw-Hill.
Dror, Y. (1994), The Capacity to Govern: A Report to the Club of Rome, Portland, OR: Frank Cass.
Elias, T.O. (1972), Africa and the Development of International Law, Leiden: Sijthoff and Dobbs Ferry,
NY: Oceana.
European Court of Justice (2008), Judgment of the Court (Grand Chamber) 3 September 2008 in Joined
Cases C-402/05 P and C-415/05 P (Yassin Abdullah Kadi v Council of the European Union and Al
Barakaat International Foundation v Council of the European Union) ECLI:EU:C:2008:461.
Evans, G. and M. Sahnoun (2002), ‘The responsibility to protect’, Foreign Affairs, 81 (6), 99–110.
Falk, R.A. (1966), ‘On the quasi-legislative competence of the General Assembly’, American Journal of
International Law, 60 (4), 782–91.
Giegerich, T. (2009), ‘The is and the ought of international constitutionalism: How far have we come on
Habermas’s road to a “Well-Considered Constitutionalization of International Law”?’, German Law
Journal, 10 (1), 31–62.
Ginsburg, T. (2003), Judicial Review in New Democracies: Constitutional Courts in Asian States,
Cambridge: Cambridge University Press.
Greminger, B. (2021). ‘The New Rule of Law Conditionality Mechanism clears its first hurdle – Analysis
of AG Campos Sánchez-Bordona Opinions in Hungary v Parliament and Council (C-156/21) and
Poland v Parliament and Council (C-57/21).’ Accessed 30 December 2021 at https://​europeanlawblog​
.eu/​2021/​12/​14/​8043/​.
Guy, S. (2012) ‘Resisting neo-liberalism: developing a new social democratic conception of constitution-
alism’, Maquarie Law Journal, 10, 23–40.
Habermas, J. (2007), The Divided West, Cambridge: Polity Press.
Hardt, M. and A. Negri (2000), Empire, Cambridge, MA: Harvard University Press.
Havel, V. (2000), ‘Address of the President of the Czech Republic at the Millennium Summit of the
United Nations New York’, 8 September 2000.
 Legislatures 435

Heckman, J.J., R.L. Nelson and L. Cabatingan (eds) (2010), Global Perspectives on the Rule of Law,
Abingdon: Routledge.
Heinrich, D. (1993), The Case for a United Nations Parliamentary Assembly, New York: World
Federalist Movement.
Hobbes, T. (1651), Leviathan, London: Andrew Crooke.
Hudson, R. (1981), The World Needs a Way to Make Up Its Mind: The Case for the Binding Triad, New
York: Center for War/Peace Studies.
Jessup, P. (1956), ‘Parliamentary diplomacy’, Hague Academy Recueil des cours, 89, 181–320.
Kant, I. (1795), Zum Ewigen Frieden, Ein philosophischer Entwurf (On Perpetual Peace), Köningsberg:
Friedrich Ricolovind.
Ku, J. and J. Yoo (2012), Taming Globalization: International Law, the U.S. Constitution and the New
World Order, New York: Oxford University Press.
Lake, D., L. Martin and T Risse (2021). ‘Challenges to the liberal order: Reflections on international
organization’, International Organization, 75 (2): 225–57. doi:10.1017/S0020818320000636.
Leinen, J. and A. Brummel (2018), A World Parliament: Governance and Democracy in the 21st
Century, Berlin: Democracy without Borders.
Lipset, S.M. (1960), Political Man: The Social Basis of Politics, Garden City, NY: Doubleday.
Locke, J. (1698), Two Treatises on Government, London: Awnsham and John Churchill.
Madison, J. (1788), ‘The structure of the government must furnish the proper checks and balances
between the different departments’, Federalist Papers, No. 51, New York: J. and A. McLean.
Mayer, A. (2012), Islam and Human Rights: Tradition and Politics, 5th edn, Boulder, CO: Westview
Press.
Mitrany, D. (1944), A Working Peace System, Oxford: Oxford University Press.
Monshipouri, M., N. Englehart, A.J. Nathan, and K. Philip (2003), Constructing Human Rights in the
Age of Globalization, London: Routledge.
Montesquieu, C. de (1748), L’Esprit des lois (The Spirit of the Laws), Geneva: Barrillot et Fils.
Moravcsik, A. (2002), ‘In defence of the “Democratic Deficit”: reassessing legitimacy in the European
Union’, Journal of Common Market Studies, 40 (4), 603–24.
Murphy, C.N. (1994), International Organization and Industrial Change: Global Governance since
1850, New York: Oxford University Press.
People’s Republic of China (2015), ‘National Security Law’, English translation of final version adopted
in July 2015, accessed 2 July 2023 at http://​chinalawtranslate​.com/​2015nsl/​?lang​=​en.
Peterson, M.J. (1986), The General Assembly in World Politics, London: George Allen & Unwin.
Pinelli, C. (2017), ‘Illiberal regimes in the perspective of comparative constitutionalism’, Revista di
Diritti Comparati 2017 (1), accessed 30 December 2021 at https://​www​.diritticomparati​.it/​rivista/​test​
-articolo​-rivista/​.
Quraishi-Landes, A. (2015), ‘Islamic constitutionalism: Not secular. Not theocratic. Not impossible’,
Rutgers Journal of Law and Religion, 16, 553–79.
Rabkin, J.A. (2005), Law without Nations? Why Constitutional Government Requires Sovereign States,
Princeton, NJ: Princeton University Press.
Rome Statute (1998), ‘Statute of the International Criminal Court’, accessed 30 December 2021 at
https://​www​.icc​-cpi​.int/​resource​-library/​Documents/​RS​-Eng​.pdf.
Rosenau, J.N. and E.-O. Czempiel (1992), Governance without Government: Order and Change in
World Politics, Cambridge: Cambridge University Press.
Rothkopf, D. (2008), SuperClass: The Global Power Elite and the World They Are Making, New York:
Farrar, Straus, and Giroux.
Rousseau, J.-J. (1762), Le contrat social (The Social Contract), Amsterdam: Marc Michel Rey.
Russell, R.B. (1955), A History of the United Nations Charter, Washington, DC: Brookings Institution.
Schachter, O. (1963), ‘The relation of law, politics, and action in the United Nations’, Hague Academy
recueil des cours, 109, 171–256.
Schmitt, C. (1941), Völkerrechtliche Grossraumordnung mit Interventionsverbot for raumfremde
Macht (The Grossraum Order of International Law with a Ban on Intervention for Spatially Foreign
Powers), reprinted 1991, Berlin: Dt. Rechtsverl.
Schwartzenberg, J. (2005), Revitalizing the United Nations: Reform through Weighted Voting, New
York: Institute for Global Policy.
436 Handbook on global constitutionalism

Seyersted, F. (1963), Objective International Personality of Intergovernmental Organizations: Do Their

Capacities Really Depend upon the Conventions Establishing Them?, Copenhagen: NYT Nordisk.
Sohn, L.B. (1973), ‘The development of the Charter of the United Nations’, in M. Bos (ed.), The Present
State of International Law, Deventer: Kluwer, pp. 33–60.
Spinelli, A. and E. Rossi (1941), For a Free and United Europe: A Draft Manifesto, Ventotene Manifesto,
accessed 2 July 2023 at http://​www​.federalists​.eu/​uef/​library/​books/​the​-ventotene​-manifesto/​.
Stacher, J. (2012), Adaptable Autocrats: Regime Power in Egypt and Syria, Stanford, CA: Stanford
University Press.
Stipo, F. (2007), World Federalist Manifesto: Guide to Political Globalization, summary, accessed 2
July 2023 at http://​worl​dfederalis​tmanifesto​.com/​.
Stokes, B. (2016), ‘Euroskepticism beyond Brexit’, 7 June 2016, accessed 2 July 2023 at http://​www​
.pewglobal​.org/​2016/​06/​07/​euroskepticism​-beyond​-brexit/​.
Subramaniam S. (2000), ‘The Asian values debate: implications for the spread of liberal democracy’,
Asian Affairs, 27 (1), 19–35.
Tamanaha, B. (2004), On the Rule of Law: History, Politics, Theory, Cambridge: Cambridge University
Press.
Tennyson, A. (1842), ‘Locksley Hall’, in Poems, reprinted 2007 in Alfred Lord Tennyson Selected
Poems, London: Penguin Classics.
Tierney, S. (2005), Constitutional Law and National Pluralism, Oxford: Oxford University Press.
UK Parliamentary Debates (1961), Parliamentary Debates. House of Commons, 5th Ser., vol. 651, col.
755.
UN General Assembly (2005), Outcome Document of the 2005 World Summit. GA Resolution 60/1,
paras 138–40.
United Nations (UN) (1945), ‘Charter’ text. Accessed 2 July 2023 at https://​www​.un​.org/​en/​about​-us/​
un​-charter.
V-Dem Institute, University of Gothenberg (2023) Democracy Report 2023: Defiance in the Face of
Autocratization. Accessed 2 July 2023 at https://​www​.v​-dem​.net/​publications/​democracy​-reports/​.
Weber, M. (1919), ‘Politics as a vocation’, in H.H. Gerth and C. Wright Mills (trans. and eds) (1946),
From Max Weber: Essays in Sociology, New York: Oxford University Press, pp. 77–128.
Welsh, J. M. (2019), ‘Norm robustness and the Responsibility to Protect’, Journal of Global Security
Studies, 4 (1), 53–72.
Wroughton, L. (4 November 2011), ‘G20 fails to endorse financial transactions tax’, Reuters.
Yunker, J.A. (2011a), The Idea of World Government, Abingdon: Routledge.
Yunker, J.A. (2011b), ‘Recent consideration of world government in the IR literature: a critical
appraisal’, World Futures, 67 (6), 409–43.
30. Executive and exception
William E. Scheuerman

What we typically describe as the executive (head of government, state administration, mil-
itary and police) is both necessary to and potentially destructive of global constitutionalism.
As with nation-state constitutionalism, a viable global constitutional order requires effective
legal sanctions. Constitutionalism entails coercive order in the sense that those who violate the
law must potentially face measures by means of which certain possessions (for example, life,
health, freedom or property) can be taken ‘from the individuals in question against their will,
if necessary by the employment of physical force’ (Kelsen 1945[1961], p. 19). This certainly
‘does not mean that in carrying out the sanction physical force must be applied’ (Kelsen
1945[1961], p. 18, emphasis added). Nor does it perhaps require a world state envisaged as
a centralized agency in possession of a monopoly on legitimate force; we can disagree about
whether or not effective global-level legal sanctions demand such a state. Yet as that institu-
tion directly tasked with putting legal sanctions into effect, the executive unavoidably plays
an indispensable role, at both the national and global levels, in upholding constitutional norms
and procedures.
This raises complicated questions about how we should conceive the global executive,
where it can be located and whether it might function to support rather than undermine nascent
global constitutionalism. As the messy and sometimes ugly history of constitutionalism within
the modern territorial state suggests, the executive often works to undermine legal and consti-
tutional restraints. Because of its intimate ties to the state’s instruments of coercion, the exec-
utive possesses power resources which invite violations of the rule of law and separation of
powers. Particularly during moments of crisis the dangers are most pronounced. Throughout
history, executives have claimed special or exceptional legal powers, constitutionally based
or otherwise, when faced with (real or imaginary) emergencies. Their efforts have often taken
discretionary and even arbitrary forms inconsonant with the rule of law and separation of
powers. Not surprisingly, much of the history of modern constitutionalism has been preoccu-
pied with the task of taming and perhaps (partially) civilizing the executive by legal means.
Prior to the twentieth century, emergencies were typically associated with episodes of
extensive ongoing political violence (war, for example, or civil war). During the twentieth
century, however, both domestic and international law embraced an expansive definition of
the emergency to cover economic crises, health epidemics, environmental or natural disasters,
terrorism, and other events perceived as constituting major threats to public security (Gross
and Aolain 2006). This broadened conception of the emergency is crucial for making sense of
recent global legal developments.
Views about the executive and its relationship to the exception or emergency remain sharply
divided. Special problems are also posed by the transplantation of conventional notions of the
executive and exception, which first emerged in the context of the modern territorial state, to
the postnational or global setting. Nonetheless, we can be reasonably sure that any attempt to
establish global constitutionalism will have to grapple with the familiar task of taming exec-
utive and especially emergency executive action. Preliminary evidence suggests that much

437
438 Handbook on global constitutionalism

remains to be done: new forms of postnational emergency governance exercise substantial and
probably unacceptable discretionary authority.

COMPETING ACCOUNTS

There is no consensus among political and legal theorists about how best to define the ‘execu-
tive’ or ‘exception’, or about how properly to understand the nexus between them. Yet we can
still discern the basic outlines of two competing and sharply contrasting approaches.
The first approach can be loosely described as decisionist.1 Although its defenders conceive
the executive as responsible for enforcing or putting law into effect, they focus on the law’s
limitations in providing meaningful guidance. On this account, even seemingly uncontrover-
sial implementations of the law are characterized by substantial discretion. Portrayals of the
executive as mechanically applying general legal norms do a disservice to the creative, flexible
and open-ended character of its endeavors. Typically, this view is closely connected to a depic-
tion of political life more generally as plagued by potentially perilous accidents and contingen-
cies, including the looming specter of life-or-death crises or emergencies that strain the usual
legal and constitutional mechanisms. Those who embrace this account are also often skeptical
about the prospect of a far-reaching legalization or constitutionalization of global politics, an
arena they tend to see as regulated by irrepressible power struggles for which normal legal and
constitutional mechanisms are poorly suited. The decisionist account certainly need not ignore
the rule of law or separation of powers altogether. However, it worries that unrealistic over-
statements of their accomplishments underplay the challenges posed by the legal exception
and the corresponding need for far-reaching executive prerogative.
Theorists who embrace this model often look back nostalgically to early modern political
thought, and especially to political realists like Machiavelli, Hobbes and Alexander Hamilton,
in part because of their tendency to blur the conceptual boundary between ‘executive’ and dis-
cretionary ‘prerogative’ (Fatovic 2013; also, Mansfield 1993). On this view, the executive and
exception are inextricably interconnected. The latter’s pervasiveness demands that the former
garner a robust as well as institutionally suitable form.
This model highlights the virtues of what Hamilton famously described as the executive’s
capacity for ‘decision, activity, secrecy, and dispatch’ (Publius 1788[1961], p. 424). The deci-
sionist underscores the necessity of flexibility and expeditiousness, both of which are always at
a premium since the executive regularly faces new and sometimes unprecedented challenges.
The executive is depicted as ideally operating according to a specific temporality: in order to
tackle immediate or pressing challenges, it needs to be fast-moving or high-speed in contrast to
the lumbering pace of legislatures and courts (Scheuerman 2004). Since exceptional situations
are commonplace, and so many of them prove threatening, this view generally goes hand in
hand with a quest to outfit the executive with the requisite institutional ‘firmness’ or independ-
ence. Its defenders tend to favor a presidential over parliamentary executive, in part because

1
The terms ‘decisionist’ and ‘normativist’ were regularly used by Carl Schmitt. I do so here differ-
ently, however, in a number of ways, chiefly because my intentions are opposed to Schmitt’s: the func-
tion of the conceptual distinction is not to discredit constitutionalism or the rule of law by caricaturing
‘normativism’ and justifying an authoritarian version of ‘decisionist’ rule.
 Executive and exception 439

of power advantages allegedly accruing to the executive when possessing autonomous power
resources and an independent source of political legitimacy (Schmitt 1931).
The contrasting model can be described as normativist. According to this view, the execu-
tive works alongside the judiciary to apply and concretize general legal norms, whose creation
is chiefly though not exclusively left to the legislature. No principled difference between
executive and judicial action can be identified: both simply individualize general legal norms,
albeit in somewhat different ways and via alternative institutional channels. The executive and
judiciary represent ‘different stages’ in a complicated process by means of which the general
law is realized (Kelsen 1945[1961], p. 258). Executive action certainly can and often does
contain highly creative moments; normativists need not endorse a mechanistic view of legal
enforcement or implementation. Yet even when the executive exercises discretion its acts
possess an identifiably legal character. During ‘special circumstances’ such as ‘war, rebellion,
or economic crisis’, for example, constitutions often place special powers in the hands of the
executive (Kelsen 1945[1961], pp. 270–1). Emergency executive discretion simply shows that
the executive ‘can be capable of regulating matters that, as one says, have not before been
regulated either by statute or by customary law’ (Kelsen 1945[1961], p. 271). According to
Hans Kelsen, perhaps the most important theorist of executive power in the normativist camp,
‘if there is any legal order at all, consisting of statutory or customary law’, even seemingly
free-wheeling executive action can be plausibly interpreted not as troublesome evidence for
the existence of a legal ‘black hole’, but instead as a potentially constructive contribution to
law’s creation and application (Kelsen 1945[1961], p. 271).
Not surprisingly, the normativist tends to downplay those special and sometimes ‘person-
alistic’ traits the decisionist pictures as vital to executive power. He or she may still envision
the executive as possessing a distinctive temporal orientation: in contrast to the prospective
legislature and retrospective judiciary, the executive focuses on enforcing and implanting law
in the present (Möllers 2013, pp. 96–101). Yet nothing about the core of executive power calls
for an unusual or extraordinary capacity for ‘decision, activity, secrecy, and dispatch’. Since
the executive is depicted primarily as cooperating alongside the legislature and judiciary in
creating and applying law, there is also less preoccupation here with guaranteeing institutional
independence and an autonomous source of power and legitimacy. Many normativists prefer
parliamentary over presidential democracy. The normativist hardly denies the existence of
political accidents, contingencies or life-threatening emergencies. Yet she views them as
matters that can be effectively subject to legal regulation. Correspondingly, the normativist
tends to be more hopeful about the prospects of far-reaching legalization and constitutionali-
zation. On this account, there is no qualitative distinction between domestic and international
law (Kelsen 1942). Normativists also generally presuppose a more rationalistic (and less
dangerous) view of politics than his or her estranged decisionist cousin.
This is not the place to debate the pros and cons of these two admittedly stylized and
ideal-typical views of executive power. For many reasons, the normativist position meshes
well with the aspiration for global constitutionalism. Nonetheless, it would be hard to deny that
the competing decisionist perspective captures some unsettling attributes of real-life political
experience. Any account of global constitutionalization that simply ignores the dilemmas
posed by executive discretion – and emergency power – is certain to prove unsatisfactory.
Constitutionalism and effective emergency power can successfully coexist, notwithstanding
the extreme views of theorists like Carl Schmitt, who saw them as fundamentally incompatible
440 Handbook on global constitutionalism

(Scheuerman 2016). Yet making sure that global constitutionalism checks rather than simply
uncorks emergency executive discretion remains a formidable challenge.

GLOBALIZING THE EXECUTIVE AND THE EXCEPTION

Whether it makes sense to transplant familiar notions of the executive and exception to the
postnational or global setting remains controversial. At the very least, the attempt to do so
raises tough questions.
Conventional ideas about the executive emerged in the context of the modern territorial
(and, especially, nation) state, widely viewed as resting on a high degree of legal integration
and a common political identity. Such ideas also assumed that the executive was one insti-
tutional site within a broader tripartite separation of powers which, in turn, was commonly
envisaged as one of the modern state’s fundamental organizational principles. Another
implicit presupposition was that the executive would possess ready access to the territorial
state’s arsenal of power and coercive instruments (the military and police), seen ideal-typically
as being organized in a centralized and hierarchical fashion, and financed through taxation.
Even today, the executive is sometimes characterized as the institutional core of a modern state
defined primarily in terms of its monopoly over coercive power (Cameron 2013, pp. 34–9).
At the global political level, however, it is hard today to claim that we can readily identify
state or even well-developed state-like structures, let alone a transparent tripartite separation
of powers. The legitimate capacity to enforce the law and when necessary mobilize coercive
power rests in the hands of a variety of institutional players (for example, the United Nations
Security Council and powerful states). Political and legal integration remain less intensive
than at the level of many territorial states. Legal sanctions are not upheld as consistently or
predictably as transpires within national borders. Far too often, powerful states and other priv-
ileged global actors circumvent or even ignore the law. In the aftermath of the 9/11 terrorist
attacks, for example, the US engaged in egregious violations of fundamental rights (most
infamously, the prohibition on torture) classified as non-derogable under international human
rights treaties to which it was a party. Yet it has never faced any meaningful legal sanctions.
Even if the global order has been subject to far-reaching legalization, the ‘big boys and girls’
in the (global) ‘neighborhood’ still too often play according to a different set of rules.
Some proponents of a monistic conception of global constitutionalism interpret the United
Nations (UN) Charter as the basis for a unified worldwide constitutional order (Fassbender
2009). Sometimes they also picture the Security Council (SC) as the apex of a global-level
executive. However, the SC today does not operate like most national executives. Although
executives everywhere are institutionally complex and differentiated, within many territorial
states their activities tend to be more centralized and administratively coherent. The SC, of
course, grants a veto to each of its five permanent member states and, because it relies on their
voluntary support for UN peacekeeping operations, it lacks the direct access to coercive power
national executives enjoy. As even sympathetic observers have pointed out, the UN executive
and administrative machinery is plagued by extreme decentralization, messily overlapping
institutional jurisdictions, and an underdeveloped civil service (Weiss 2009). Even if similar
trends characterize national executives, they remain more pronounced at the level of global
political institutions such as the UN.
 Executive and exception 441

When we turn to the most developed postnational political and legal system, the European
Union (EU), ‘there is no single, comprehensive and unitary European executive institution or
body’ (Curtin 2014, p. 6). Executive power there takes a similarly complex, decentralized and
variegated character. ‘Executive actors and administrative constellations transgress levels of
governance and national borders’ in historically unprecedented ways (Curtin 2014, p. 5; also,
Slaughter 2004). The EU executive offers up an unwieldy institutional mix, with the European
Council, European Commission, and national executive and administrative bodies responsible
for enforcing and implementing EU-wide decisions composing some of its key components.
Yet the 2008 financial crisis also strengthened the European Central Bank and resulted in some
major political decisions being made outside formal political and legal channels (White 2019).
The EU’s response to the COVID-19 crisis has followed a similar path (White 2021).
In the UN and EU, as in many other areas of postnational decision-making and enforcement,
executive power seems chameleonic, dispersed and surprisingly fragmented. Even when
successfully implementing the law, executive power ‘beyond the nation state’ does so absent
a high degree of institutional centralization or formal hierarchy. We should be skeptical of
idealized models of the national executive that overstate its administrative coherence and
ability to implement law regularly as well as expeditiously. Nonetheless, executive authority
appears to take a different – and far messier – form globally than nationally. We need to break
with traditionalistic images of ‘the executive’ as a single, hierarchically structured ‘body’, able
to exert its will in a direct and expeditious manner. Problematically rooted in early modern
monarchist political theory, such images get in the way of constructive thinking about the
executive at the national level (Scheuerman 2005). They prove even more troublesome in the
postnational or global political context.
Analogous dilemmas are potentially generated by transferring standard ideas of a legal
exception or emergency to the global context. In domestic constitutionalism, the emergency is
associated with sudden, unpredictable and potentially existential crises, in sharp juxtaposition
to the ordinary or normal operations of political orders otherwise characterized by peace and
stability. Legal and constitutional codifications of emergency power are predicated on the
intuition not only that ‘normal’ or ‘ordinary’ law represents the general rule to which emer-
gency situations offer an unfortunate and perhaps tragic exception, but also that normal and
exceptional scenarios can be neatly delineated, both spatially and temporally. On this tradi-
tional view, foreign or international politics, where the need for executive crisis management
is relatively extensive, can be cleanly separated from domestic politics, where the rule of law
reigns supreme. In addition, emergencies represent fast-moving yet temporary challenges that
can be managed successfully to rapidly re-establish and return to legal normalcy.
These spatial and temporal assumptions seem increasingly unrealistic (Gross and Aolain
2006, pp. 171–244). In the context of intensified globalization, the myriad (economic, epi-
demic or health-related, natural and political) crises law is supposed to tackle are increasingly
postnational or transboundary in nature, meaning that they play ‘out at the transnational level,
affecting more than one member state at the same time’ (Boin et al 2013, pp. 9–10). Grappling
with them calls for ambitious and unprecedented coordination between and among nation
states and new types of postnational crisis action. One direct consequence is the recent prolif-
eration of claims to emergency authority among major international organizations (IOs). In the
face of what are widely perceived as dire crises outstripping national regulatory capacities, IOs
have developed political and legal mechanisms for ambitious emergency action; some have
442 Handbook on global constitutionalism

recently exercised highly contentious forms of discretionary power (Kreuder-Sonnen 2019;

Kreuder-Sonnen and Zangl 2015).
We find, in short, a great deal of evidence for what Craig Calhoun has astutely described
as an increasingly ubiquitous ‘emergency imaginary’ in global political thinking, according
to which pressing challenges are socially constructed as dire emergencies in need of effective
global management. Calhoun’s worries about this imaginary allow us to see why the temporal
presuppositions of the traditional model are now also suspect. He notes that some so-called
emergencies (for example, humanitarian or complex emergencies) in reality represent ‘grad-
ually developing, predictable, and enduring clusters of events’, many of which are recurrent
and structurally rooted in core components of the global status quo (Calhoun 2004, p. 376).
By no means do they constitute temporary exceptions to some fictional state of political and
legal normalcy. On a planet where political violence, social misery and horrific injustice and
exploitation remain commonplace, the ‘exceptional’ situation too often seems ‘normal’ or at
least more-or-less permanent, at least from the perspective of those forced to suffer its ills. The
tendency to describe structurally rooted political and social ills as ‘emergencies’ obfuscates
their underlying causes and downplays the need for arduous and time-consuming political and
social action. Too often, the emergency imaginary plays into the hands of powerful global
players who prefer quick top-down – and often highly militarized – managerial fixes.
Where legalization and constitutionalization remain underdeveloped, as arguably remains
the case in the global arena, any categorical distinction between the norm and the exception
will necessarily seem problematic. Nonetheless, there remains at least one reason for continu-
ing to rely, albeit self-critically and reflexively, on notions of a legal exception or emergency:
international law already does so. Most prominently perhaps, global and regional agreements
on human rights – including the International Covenant on Civil and Political Rights (ICCPR),
African Charter on Human Rights, American Convention on Human Rights (ACHR), Arab
Charter on Human Rights, and European Convention on Human Rights (ECHR) – regulate
possible emergency situations, first, by clearly delineating between human rights which can
never be suspended from those subject to possible derogations and, second, by codifying
procedures participating states are expected to follow when pursuing derogations. Although
the details vary, and despite some variations in terminology and practice, the general
pattern across the agreements seems clear enough. First, they typically specify some core
non-derogable rights (for example, the ECHR’s prohibitions on torture, servitude, and slavery,
retroactive criminal law, and its guarantee of a right to life), while announcing rights subject
to derogation (for example, free expression, movement, the right to assembly). Second, they
generally outline procedures member states are expected to follow in order to justify rights
derogations during an emergency (Swensson-McCarthy 1998). On a sympathetic reading,
such legal instruments implicitly infer the possibility of constructing a global legal order in
which the legal advantages of something akin to the ‘normalcy’ of the rule of law would accrue
not just to those residing in rich, powerful and secure states, but to people around the world
presently subject to arbitrary power.

POSTNATIONAL STATES OF EMERGENCY

Unfortunately, a substantial body of critical scholarship suggests that we remain some distance
from a global constitutional order where the rule of law and separation of powers are firmly
 Executive and exception 443

ensconced. As postnational emergency powers undergo far-reaching institutionalization, the

main result appears to be the proliferation of discretionary and arbitrary power, now placed
in the hands of a confusing panoply of international and supranational institutions. Critical
commentators understandably worry that the emerging global legal order includes too many
‘authoritarian sub-orders’ where increasingly intrusive legally unchecked emergency power
gains the upper hand (Kreuder-Sonnen and Zangl 2015; also, White 2019). The situation is
further complicated by the fact that global executives lack some conventional institutional
attributes and are insufficiently hemmed in by a well-functioning separation of powers. If we
envision global constitutionalization as checking the prospect of arbitrary executive power,
rather than simply providing it with a superficial legal veneer, there are legitimate reasons for
concern.
The UN SC, in apparent violation of the UN Charter and its usual operating procedures,
responded immediately to the 9/11 terrorist attacks by promulgating what were effectively
far-reaching legislative measures member states were uniformly required to heed. Not only
did the SC employ the cover of a terrorist ‘emergency’ to appropriate legislative authority,
but the measures in question carved out what amounted to a realm of unchecked prerogative
(Hood 2015). Crucial to the new legal regime was a blacklist where those placed on it faced
severe and sometimes devastating sanctions, yet were denied basic due process and a right
of appeal. (Only with the creation of an ombudsperson in 2009 did the UN finally provide
them with some minimal legal protections.) According to some commentators, the SC’s
counterterrorism measures entailed a basic constitutional reordering of the UN system (Cohen
2008; Kreuder-Sonnen 2012). They also had a profound impact on national executives, which
embraced the measures in part because they allowed executives to augment their institutional
position vis-à-vis national legislatures and courts (Scheppele 2006). On this view, the SC
effectively exploited the global ‘emergency imaginary’ to remix the fundamentals of the UN
system and the balance of power between political institutions within existing territorial states.
Evidence from the SC’s recent non-proliferation policies suggests that this disturbing pattern
is being reproduced elsewhere as well (Joyner 2012).
For its part, in recent years the EU has developed noteworthy institutional capacities for
crisis management (Boin et al 2013). Unfortunately, trends there as well pose challenges
for global constitutionalization. Political leaders responded to the 2008 financial meltdown
and subsequent ‘Euro crisis’ by announcing controversial emergency economic measures
that violated longstanding legal procedures and mechanisms (Menendez 2013; White 2019).
European-wide emergency economic government relied extensively on ad hoc and legally
dubious top-down executive measures while demoting ordinary deliberative and lawmaking
channels. Here as well, a complex and oftentimes messy system of postnational emergency
power strengthened the hand of some executive-level actors and helped shift the national-level
balance between the executive and legislature. In those member states receiving bail-outs and
other forms of financial support, parliaments were forced to fast-track contentious austerity
measures, with some legislation providing a carte blanche to government ministers to issue
decrees regulating a vast arena of social and economic matters. Favoring ‘unscripted modes of
rule’, and providing a panoply of powerful political players with ‘plenty of scope for working
around the norms of the core institutions’, the EU response to the COVID-19 has followed
a similar path. As in recent European economic and fiscal emergencies, the COVID health
crisis has entailed jettisoning general rules for broad discretion exercised in ‘flexible’ but not
always transparent ways (White 2021, p. 79).
444 Handbook on global constitutionalism

Finally, as already briefly noted, major IOs have garnered substantial exceptional or emer-
gency authority to combat transboundary crises. The World Bank has developed institutional
mechanisms for ‘rapid bank responses’ to a host of emergencies, financial or otherwise, while
the World Trade Organization (WTO) confronted the 2008 financial crisis with measures
its Director General and Secretariat pursued without a clear mandate from member states
(World Bank Operations Policy and Country Services 2007; Pauwelyn and Berman 2009,
pp. 511–12).The World Health Organization (WHO) also appeared to be undergoing an unde-
niable augmentation of its emergency authority in the aftermath of a series of major health
epidemics (HIV/AIDS, SARS) (Hanrieder and Kreuder-Sonnen 2014; Heath 2015, 2021).
However, in the wake of the COVID-19 pandemic, defensive Chinese authorities withheld
crucial health data from WHO scientists, while authoritarian populists such as US President
Donald Trump took formal steps to withdraw from the WHO and slashed US financial con-
tributions. Although Trump’s successor, President Joseph Biden, immediately reversed these
moves, they remain a vivid reminder of the continued dependence of effective IO emergency
action on powerful nation states.
Although the empirical details are complicated, the general pattern seems straightforward
enough. In the face of major transborder policy challenges, key global institutions and players
tap into the emergency imaginary to pave the way for an expansion of discretionary authority,
particularly when they see potential political or institutional advantages in doing so. Not
surprisingly, inconvenient yet arguably dire scenarios unlikely to work to their political or
institutional advantage, or where powerful global players are sure to block action, tend to get
neglected. Non-nuclear states, for example, would never succeed in declaring the refusal of the
major nuclear powers to disarm a security ‘emergency’ requiring forceful UN intervention. On
a planet plagued by stunning political and social inequalities, not all ‘emergencies’ are created
equal. In turn, institutional players, especially when they can plausibly claim some success
in countering the challenges at hand, then regularize and sometimes codify new emergency
mechanisms, which in turn provide institutional actors with a basis (and perhaps also an incen-
tive) for future emergency interventions (Hanrieder and Kreuder-Sonnen 2014).
The complex and variegated structure of present-day global executive authority simul-
taneously mitigates and aggrandizes the resulting dangers to global constitutionalization.
Postnational executives typically depend on nation states and national executives for enforce-
ment, which generally means that they cannot autonomously mobilize effective power or
efficiently implement decisions on their own. Global executives, in short, remain clumsier and
less organizationally adept than most of their national counterparts. Consequently, it seems
far-fetched to view them as akin to emergency ‘dictators’, as classically conceived, since they
lack some core attributes of executive power necessary for coherent, expeditious and decisive
action (White 2019). At least in principle, such lacunae may help limit the prospect of harmful
and legally dubious emergency action.
Yet it would be a mistake to celebrate the global executive’s fragmented contours prema-
turely: inefficient and inept administrative organizations also contribute to legal irregularity
and inconsistency. Its fragmentation can also hinder necessary and appropriate crisis action.
Many forms of emergency humanitarian intervention, in particular, seem badly coordinated
and embarrassingly chaotic; in such contexts, a more effective UN system for execution and
implementation might be desirable. Here again we find evidence of an implicit political or
social bias. UN emergency relief on behalf of refugees, for example, is notoriously inept and
poorly organized (Weiss 2009, pp. 75–87). In contrast, UN post 9/11 counterterrorism meas-
 Executive and exception 445

ures, aggressively backed by powerful nation states, have generated far-reaching political and
institutional consequences (Scheppele 2006). More recently, the lack of such support from
powerful nation states played a key role in impeding the WHO’s response to COVID-19. In
part because of China’s apparent underreporting of COVID-19’s dangers, the WHO hesitated
before belatedly declaring a health emergency in January 2020 (Heath 2021). With China
seeking to avoid international embarrassment, and nationalists and populists elsewhere eagerly
tapping xenophobia, the WHO’s response to COVID-19 was badly hobbled from the outset.
Postnational emergency actors still possess one trait widely associated with classical
conceptions of the executive: their deliberations often remain secret or at least opaque, in
part because they may not meet the transparency tests akin to those that national executives
face, in part simply because of the complex nature of global executive authority. The latter in
particular makes it extraordinarily difficult to identify who in fact is responsible for specific
emergency interventions. Unlike the unitary or at least hierarchical executive, the messy
and institutionally diversified contours of postnational emergency power tend to render
decision-making even less transparent than at the national level. Not surprisingly, their activ-
ities are arguably one source of the populist backlash against global ‘elites’. The EU’s rather
disjointed – and sometimes opaque – emergency response to COVID-19 quickly ignited, for
example, widespread populist ‘anti-lockdown’ protests (White 2021). In some contrast, clas-
sical theorists of executive power, such as Hamilton, favored a unitary executive because they
deemed it more ‘energetic’ or efficient than a plural executive; they also preferred it because
it allowed for heightened political accountability. The underlying dilemma is aggrandized by
the lack of a sufficiently developed global separation of powers. Which legislative or judicial
bodies are best suited to constraining postnational emergency power and hold its key players
accountable? The answer, at the very least, is complicated and often unclear. Who might
realistically be expected, for example, to check the SC when it engages in troublesome forms
of crisis government?
A related problem plaguing IO emergency action is that bodies such as the WHO primarily
designed for collecting and sharing expert scientific knowledge are now being called on to
play political roles for which they were poorly designed. The result appears to be a conflation
of politics and science where both end up getting disfigured (Heath 2015, 2021). To the extent
that IOs are increasingly taking on core tasks of emergency management, they will need to
confront some difficult matters of institutional design.
The globe’s existing mechanisms for postnational emergency governance demand reform.
Like its territorial or nation-state cousin, any global constitutional order will likely need to
allow for exceptional crisis or emergency responses to fundamental threats. Yet it will simul-
taneously have to make sure that emergency decision makers are subject to effective legal
and constitutional checks; otherwise, global constitutionalization might tragically morph into
global tyranny.

REFERENCES
Boin, A., M. Ekengren and M. Rhinard (2013), The European Union as Crisis Manager: Patterns and
Prospects, New York: Cambridge University Press.
Calhoun, C. (2004), ‘A world of emergencies: fear, intervention, and the limits of cosmopolitan order’,
Canadian Review of Sociology and Anthropology, 41 (4), 373–95.
446 Handbook on global constitutionalism

Cameron, M.A. (2013), Strong Constitutions: Social-Cognitive Origins of the Separation of Powers,
New York: Cambridge University Press.
Cohen, J.L. (2008), ‘A global state of emergency or the further constitutionalization of international law:
a pluralist approach’, Constellations, 15 (4), 456–84.
Curtin, D. (2014), ‘Challenging executive dominance in European democracy’, Modern Law Review, 77
(1), 1–32.
Fassbender, B. (2009), The United Nations Charter as the Constitution of the International Community,
Amsterdam: Martinus Nijhoff.
Fatovic, C. (2013), ‘Blurring the lines: The continuities between executive power and the prerogative’,
Maryland Law Review, 73 (1), 15–53.
Gross, R. and F.N. Aolain (2006), Law in Times of Crisis: Emergency Powers in Theory and Practice,
New York: Cambridge University Press.
Hanrieder, T. and C. Kreuder-Sonnen (2014), ‘WHO decides on the exception? Securitization and emer-
gency governance in global health’, Security Dialogue, 45 (3), 331–48.
Heath, J.B. (2015), ‘Global emergency power in the age of Ebola’, Harvard International Law Journal,
57 (1), 1–52.
Heath, J.B. (2021), ‘Pandemics and other health emergencies’, in R. Geiss and N. Melzer (eds), The
Oxford Handbook of the International Law of Global Security, Oxford: Oxford University Press.
Hood, A. (2015), ‘The United Nations Security Council’s legislative phase and the rise of emergency
international law-making’, in H. Nasu and K. Rubenstein (eds), Legal Perspectives on Security
Institutions, Cambridge: Cambridge University Press, pp. 141–66.
Joyner, D.H. (2012), ‘The Security Council as a legal hegemon’, Georgetown Journal of International
Law, 43 (2), 225–57.
Kelsen, H. (1942), Law and Peace in International Relations, Cambridge, MA: Harvard University
Press.
Kelsen, H. (1945), General Theory of Law and State, reprinted 1961, New York: Russell & Russell.
Kreuder-Sonnen, C. (2012), Der Globale Ausnahmezustand: Carl Schmitt und die Anti-Terror-Politik
des UN Sicherheitsrates (The Global State of Emergency: Carl Schmitt and Counterterrorism Policies
of the UN Security Council), Baden-Baden: Nomos.
Kreuder-Sonnen, C. (2019), Emergency Powers of International Organizations: Between Normalization
and Containment, Oxford: Oxford University Press.
Kreuder-Sonnen, C. and B. Zangl (2015), ‘Which post-Westphalia? International organizations between
constitutionalism and authoritarianism’, European Journal of International Relations, 21 (3), 568–94.
Mansfield, H.C. (1993), Taming the Prince: The Ambivalence of Executive Power, New York: Free
Press.
Menendez, A.J. (2013), ‘The existential crisis of the European Union’, German Law Journal, 14 (5),
453–527.
Möllers, C. (2013), The Three Branches: A Comparative Model of Separation of Powers, Oxford: Oxford
University Press.
Pauwelyn, J. and A. Berman (2009), ‘Emergency action by the WTO Director-General: Global
administrative law and the WTO’s initial response to the 2008–09 financial crisis’, International
Organizations Law Review, 6 (2), 499–512.
Publius (Alexander Hamilton) (1788), The Federalist Papers, no. 70, C. Rossiter (ed.) (1961), New
York: Mentor.
Scheppele, K. (2006), ‘The international state of emergency: Challenges to constitutionalism after
September 11’, paper presented at Yale Legal Theory Workshop, 21 September, Yale, Newhaven, CT.
Scheuerman, W.E. (2004), Liberal Democracy and the Social Acceleration of Time, Baltimore, MD:
Johns Hopkins University Press.
Scheuerman, W.E. (2005), ‘American kingship? Monarchical origins of modern presidentialism’, Polity,
37 (1), 24–53.
Scheuerman, W.E. (2016), ‘States of emergency’, in J. Meierhenreich and O. Simons (eds), Oxford
Handbook on Carl Schmitt, Oxford: Oxford University Press, pp. 547–69.
Schmitt, C. (1931), Der Hüter der Verfassung (The Guardian of the Constitution), Tübingen: Mohr.
Slaughter, A.-M. (2004), A New World Order, Princeton, NJ: Princeton University Press.
 Executive and exception 447

Swensson-McCarthy, A.L. (1998), The International Law of Human Rights and States of Exceptions,
Amsterdam: Martinus Nijhoff.
Weiss, T.G. (2009), What’s Wrong with the United Nations and How to Fix It, Cambridge: Polity Press.
White, J.P. (2019), Politics of the Last Resort: Governing by Emergency in the European Union, Oxford:
Oxford University Press.
White, J.P. (2021), ‘Emergency Europe after Covid-19’, in G. Delanty (ed.), Pandemics, Politics and
Society: Critical Perspectives on the Covid-19 Crisis, Berlin: de Gruyter Publishing.
World Bank Operations Policy and Country Services (2007), Toward a New Framework for Rapid Bank
Response to Crises and Emergencies, Washington, DC: World Bank.
31. Federalism: from constitutionalism to
constitutionalization?
Thomas O. Hueglin

Federalism conventionally denotes the idea of a composite political system in which smaller
communities, provinces or states retain autonomy over their own particular affairs in a larger
union or federation with general powers over matters considered common to all. Federalism
therefore is conventionally described as a combination of self-rule and shared rule (Elazar
1987, p. 5). In practice, federal systems rely on a division of powers between different orders
of government embedded in constitutional guarantees preventing unilateral power shifts
from one level to another. Constraints upon majority rule form the core of these guarantees.
As pre-formulated by the early seventeenth-century political theorist Johannes Althusius,
decisions may be made ‘according to the judgments of the more numerous or larger part in
the things that concerns all orders together, but not in those that concern them separately’
(Althusius 1613[1995], ch. VIII, para. 70).
It would seem, then, that federalism should be of considerable interest to those in search
of a global constitutional order that is peaceful, stable and just. However, this has not been
the case. In this chapter, I argue that this neglect stems mainly from an overly narrow con-
ceptualization of federalism in the form of a centralized federal state. Derived from the rich
reservoir of federal ideas and practices past and present, however, an extended understanding
of federalism as a procedural form of treaty federalism can be extracted that has a lot to offer
to the idea of global constitutionalization as a process.

FEDERALISM: CONCEPTUAL CRITIQUE

Federalism largely has been neglected as a reservoir of ideas and practices for a global order
on account of several reasons, none of which hold up to closer scrutiny. One of these reasons
is a commonly held view according to which federalism is synonymous with conservatism,
allowing it to sustain local tradition and privilege against forces of economic modernization
and social progress. Thus William Riker famously remarked that ‘if in the United States one
disapproves of racism, one should disapprove of federalism’ (Riker 1964, p. 155). This view
overlooks the fact that the key question in federal systems is, in Althusian terms, what exactly
does or should ‘concern all orders together’ (Althusius 1614[1995], ch. VIII, para. 70). This
is a question that transcends the constitutional fixity of formal power divisions and points to
a federal dynamic of negotiated agreement on adjustment and change (see Benz and Broschek
2013). That is, federalism is neither conservative nor progressive. Instead, its structured
approach to mutually constrained forms of plural governance can provide ‘necessary institu-
tional preconditions’ for an ongoing conversation about ‘shared normative concerns’ (Neyer
2003, pp. 688, 692).

448
 Federalism: from constitutionalism to constitutionalization? 449

A second reason has to do with the traditional distinction of national politics and interna-
tional relations. Federalism almost exclusively has been associated with the modern federal
state. In such a state, as Alexander Hamilton argued in The Federalist Papers, a ‘federal gov-
ernment capable of regulating the common concerns, and preserving the general tranquility ...
must carry its agency to the persons of the citizens’ (Madison et al 1787–88[2001], no. 16).
Direct agency became the hallmark of modern federal states as distinguished from the older
confederations in which the execution of common laws and regulations had depended on
voluntary compliance by the member states. Short of military intervention and war, voluntary
compliance rather than direct agency is also what has distinguished international relations
from national politics in federal states.
However, the conceptual boundaries between national politics and international relations
have become more fluid. Policy making in an established federal state such as Canada, for
instance, has long since been described as a regime of ‘federal-provincial diplomacy’ resulting
in power-sharing agreements depending on intergovernmental cooperation rather than the
force of direct agency (Simeon 1973[2006]). Also, the European Union can be appreciated as
a novel kind of transnational polity beyond federal state and confederation in which ‘a priority
of European law over the law of the member states has become firmly established, even though
the organs of the Union do not possess such an authority’ (Habermas 2012, p. 24).
The third and most important reason for the neglect of federalism in the conceptual search
for a global political order points to the conceptualization of federalism itself, which has
been narrowly focused on the classical model of American constitutional federalism. As K.C.
Wheare put it in his 1946 landmark study of federal government: ‘The modern idea of what
the federal government is has been determined by the United States of America’ (1946[1964],
p. 1). What emerges from that idea hardly amounts to a feasible – let alone desirable – recipe
for a global constitutional order: regulatory or even coercive supremacy of the federal govern-
ment over states’ rights sustained by an overarching sense of national purpose and enforced by
judicial interpretation (LaCroix 2010; Kincaid 2011).
Not surprisingly, then, federalism is rejected outright as a possible template for global
democracy when it is American federalism that is taken as the ‘central model’, and when
‘to transform the people into a people’ is identified as the ‘fundamental idea of federalism’
(Moore 2006, pp. 26–7, original emphasis). Yet what is referred to as the central model, here,
would in comparative perspective more likely appear as a case of federal exceptionalism. Next
to the federal dynamic of ‘coming together’ as a people characterizing the older federations,
there is a newer federal dynamic in the opposite direction, ‘holding together’ as peoples
(Stepan 1999, pp. 19–34). Moreover, the ‘constitutional rigidity’ attributed to ‘real federalism’
(Levy 2007, pp. 462–5) is a defining hallmark only of American-type constitutionalism. The
‘dominant tide of modern federalism’, the Supreme Court of Canada noted in a recent deci-
sion, while respecting the ‘constitutional boundaries that underlie the division of powers’, nev-
ertheless points ‘toward a more flexible view of federalism that accommodates overlapping
jurisdiction and encourages intergovernmental cooperation’ (Supreme Court of Canada 2011).
As is the case in Canada, such cooperation can overcome constitutional rigidity by means of
power-sharing agreements leading to ‘de facto constitutional changes’ (Simeon 1973[2006],
p. 41). In the case of the European Union, because the objectives of supranational governance
remain negotiable and open-ended under the treaties, and because the idea of constitutional
rigidity has given way to a ‘workable’ allocation of authority through procedures of ‘enhanced
450 Handbook on global constitutionalism

inter-institutional dialogue’ under the principle of subsidiarity (Horsley 2012, pp. 267–9), one
may speak of an ongoing process of constitutionalization.
On all three counts an extended understanding of federalism based on historical as well as
contemporary precedent may provide useful conceptual guidance for the gradual constitu-
tionalization of a global political order that is both feasible and desirable. This understanding
points to principles and variations of federalism that combine constitutional guarantees of
membership equality and autonomy in a system of divided and shared rule with flexible pro-
cedures of negotiating compromise and intergovernmental agreement. It is an understanding
that also appears to connect well with a new dynamic perspective on global constitutionalism
as ‘the emergence of constitutional qualities that coordinate law and governance in different
ways’ (Tully et al 2016, p. 15).

FEDERALISM: PRINCIPLES AND VARIATIONS

Federalism currently governs more than half of the world’s land space and nearly half of its
population. Included in this federal world are some of the largest countries such as the United
States, Canada, India and Brazil, and some of the smallest such as Switzerland and Micronesia.
Some are established democratic federations, others such as Russia or Malaysia are not. The
number of member units ranges from two in St Kitts and Nevis to 50 in the United States.
Owing to varying degrees of political, economic and cultural diversity, the political dynamic
in all federal systems is characterized by a built-in tension between centralization and decen-
tralization. At one end of the spectrum, Austria may have become centralized to the point of
‘federation without federalism’ (Erk 2004). At the other end, Canada has been called ‘about
as decentralized as it can get’ (Riker 1975, p. 133). Yet even the level of autonomy enjoyed
by Canada’s provinces may not be enough for Catalonians in Spain or Flemings and Walloons
in Belgium.
The enormous variety of federal arrangements and practices has stood in the way of con-
ceptualizing a definitive theory of federalism. However, it is possible to identify a number of
general principles that taken together form a minimum requirement for a political system to
qualify as federal (see Hueglin and Fenna 2015, pp. 25–41).
First, there is a recognition of subnational spatial identity. Modern democratic states are
universally constructed upon the principle of individual rights and liberties, which form the
basis of popular sovereignty and collective state identity. In federal democracies, some rights
and liberties are collectively extended to the constituent members of the federation as well.
The main reason for this has been late state formation. The classical federations were formed
at a time when their constituent members had already developed spatial identities of their own.
Federation then typically occurred as a compromise between modernizers seeking to build
a larger economic union and traditionalists adamant about retaining local culture and privilege.
The persistence of spatial identity is therefore most obviously discernible in federations where
subnational boundaries coincide with, and are reinforced by, cultural and/or socio-economic
diversity (Erk 2007). However, spatial identity can also be sustained by a political culture
grounded in the institutions and practices of federalism itself (Broschek 2012). Thus, relatively
homogeneous societies such as in Germany or Australia appear committed to being served
by different levels of government even in the absence of substantive differences in their
policy expectations. For a global constitutional order among existing and long-established
 Federalism: from constitutionalism to constitutionalization? 451

nation-states, the recognition of spatial identity both in terms of socio-economic diversity and
political culture, is pre-determined by the right of self-determination laid down in the United
Nations (UN) Charter.
Second, governance in federal systems is structured by a constitutionally enshrined divi-
sion of powers. Echoing the Althusian prescription of limiting majority decisions to matters
common to all, the principle of how to assign powers to different orders of government was
given classical expression by the nineteenth-century British doyen of constitutional law
studies, A.V. Dicey: ‘Whatever concerns the nation as a whole should be placed under the
control of the national government. All matters which are not primarily of common interest
should remain in the hands of the several states’ (Dicey 1885[1915], p. 139). The designers
of the first modern federal constitutions had not found it difficult to follow this principle,
which generally coincided with the intentions of modernizers and traditionalists. The federal
government would be given responsibilities for matters of economic union and foreign affairs
including military security, and the states would retain all other powers including in particular
social affairs and education. What may have worked reasonably well in the nineteenth century,
however, became increasingly problematic and contentious with economic modernization
and the rise of the welfare state in the twentieth century. The growth of modern government
has blurred all original intent of dividing powers with the result that today governments at all
levels are active in almost all policy fields.
There are also significant variations for the assignment of powers in principle. One distinc-
tion is between American-style legislative federalism, whereby each level of government is
responsible for legislation, implementation and administration within its respective sphere of
authority, and German-style administrative federalism, which assigns most legislative powers
to the national level of government but leaves implementation and administration to the sub-
national units. Another distinction pertains to the way in which issues of conflicting legislation
are addressed in the case of concurrent or shared powers. In most of the conventional federal
states, there is a constitutional grant of paramountcy in favour of the national government. In
sharp contrast to this top-down approach, the principle of subsidiarity stipulates a bottom-up
approach whereby decisions should be taken as closely to the citizen as possible. Under this
principle as practised in the European Union, a formal division of powers is bypassed alto-
gether by procedural mechanisms of negotiated agreement on task allocation within what is
essentially a regime of power sharing. One would assume that the process of constitutionaliza-
tion toward a global order almost inevitably will have to resort to considerations of subsidiarity
rather than rely on the much blunter instrument of paramountcy. And the already existing
‘infrastructural capacity’ (Ziblatt 2008) of member states in that order obviously suggests
some form of administrative federalism as there is no need for a separate global system of
administration.
Third, for two main reasons all federal systems depend on mechanisms and procedures
of negotiating compromise. One reason is the nature of legislation at the central or federal
level, which affects not only all citizens of the federation individually but also the constituent
member units as carriers of their particular citizens’ collective rights. For this reason, the
Americans pioneered bicameralism as the quintessential institutional hallmark of federalism.
Federal legislation would depend on compromise negotiated between two legislative cham-
bers in a system of compound majoritarianism. As James Madison explained to the readers
of The Federalist Papers, while the House of Representatives would be a ‘national’ chamber
deriving its powers from the American people, the Senate would be a ‘federal’ chamber
452 Handbook on global constitutionalism

deriving its powers from the states (Madison et al 1787–88[2001], no. 39). American senators
were originally chosen by state legislatures. The introduction of direct elections by the state
populations in 1913 ‘brought an end to any sense in which senators might have been viewed
as representing state interests’ (Dinan 2006, p. 321). American federalism therefore typifies
a form of dual federalism: both levels of government operate separately and without legislative
cooperation. Despite original intent, there are no formal channels for negotiating compromise.
A much more ‘federal’ type of second chamber is the German Federal Council (Bundesrat). Its
members are delegates of the subnational Länder governments who have to vote as instructed
by these governments. Compromises between federal and subnational government interests
can be worked out in a mediation committee (Vermittlungsausschuss) composed of an equal
number of members from each legislative chamber. The members of the Bundesrat in this
committee are not bound to vote as instructed by their governments. German federalism then
typifies a form of integrated federalism: both levels of government cooperate in national
legislation.
The other reason for the need of negotiating compromise in federal systems has to do with
conflict arising from the concurrent, overlapping, or complementary nature of separate legis-
lation at different levels of government, which the designers of federal constitutions entirely
overlooked. As Canada’s first Prime Minister, John A. Macdonald, confidently remarked on
the constitution he and his colleagues had drafted: ‘We have avoided all conflict of jurisdic-
tion and authority’ (Ajzenstat et al 1999, p. 283). Yet in Canada as elsewhere, constitutional
divisions of power were never as clear or ‘watertight’ as intended, and areas of concurrent or
shared jurisdiction existing from the outset would increase in tandem with the exponential
growth of modern government in the twentieth century. In order to address the need for
coordination and cooperation, intergovernmental relations (IGR) developed as an ongoing,
ubiquitous and mostly informal practice that eventually would define the nature and dynamic
of federal systems as much or even more than the constitutional division of powers and the
bicameral process of national legislation (see Poirier et al 2015).
In the hands of the executive branch of government, IGR aiming at policy coordination and
harmonization typically consist of hundreds if not thousands of annual meetings and contacts
among policy experts in the ministerial bureaucracies at both levels of government. The mostly
pragmatic and cooperative nature of IGR can quickly give way to political conflict, however,
when new policy initiatives are at stake, typically those introduced by the federal government
in the name of national interest, and seen by the subnational governments as trespassing
jurisdictional boundaries. Departmental ministers if not the government leaders themselves
will then engage in drawn-out processes of negotiating compromise with the usual result of
the federal government financing or co-financing policy programmes in return for subnational
government compliance with certain conditions or policy delivery standards. Parallel to this
practice of vertical IGR between different orders of government, horizontal IGR developed not
only for the sake of policy coordination and harmonization across subnational boundaries but
also as a concerted effort of negotiating common positions against intrusive federal govern-
ments. With the exception of the United States as an ‘outlier’, a ‘trend toward more formalized
IGR’ has been noted (Poirier and Saunders 2015, p. 488), leading not only to the establishment
of more durable mechanisms such as permanent intergovernmental commissions or councils
but also to an ongoing process of ‘intergovernmental contracting’ (Rodden 2006, p. 38). The
resulting agreements, not unlike those produced by international relations, are meant to be
binding without, however, being formally justiciable.
 Federalism: from constitutionalism to constitutionalization? 453

It is the question of justiciability that makes American federalism the outlier. All federal
systems rely on a high court as the ultimate arbiter in jurisdictional conflicts. As Alexander
Hamilton predicted in The Federalist Papers: ‘Controversies between the nation and
its members … can only be properly referred to the national tribunals’ (Madison et al
1787–88[2001], no. 80). Indeed, because of its retention of a legislative and dual form, which
precludes interjurisdictional legislative cooperation, American federalism almost exclusively
came to rely on a ‘judiciary-centred solution to the problem of authority’ (LaCroix 2010,
p. 172). By comparison, Canadian federalism over time moved from its legislative and dual
form towards interjurisdictional legislative cooperation. Intergovernmental agreements, which
may also include internal mechanisms for dispute resolution, can be seen in this way as ‘essen-
tially replacing the courts as the arbiter of conflict’ (Baier 2012, p. 87).
It is the European Union, however, which today practises the most intense form of IGR,
from executive summit meetings among political leaders all the way down to policy coordi-
nation among policy specialists. Treaty changes equivalent to constitutional amendment are
negotiated in the European Council of heads of government or state and preceded by formally
convened Intergovernmental Conferences (IGCs); legislative initiatives by the European
Commission are accompanied and scrutinized by a dense network of intergovernmental
expert committees known as ‘comitology’; legislative proposals coming before the Council
of Ministers, itself a true ‘federal’ chamber next to the European Parliament in the bicameral
process of European legislation, are prepared and fine-tuned by a committee of permanent
member state representatives (COREPER). The entire process leading to the adoption of
a European legislative act is embedded further in subsidiarity provisions requiring consultation
and negotiation with all major stakeholders including the member state parliaments. In a not
yet finalized European federal system, it has been noted, ‘IGR play a crucial – and evolu-
tionary – role’ (Levrat 2015, p. 198). They do so by providing institutional and procedural
mechanisms facilitating the kind of compromises necessary for agreement on the direction
this evolution might take. For a global order that can at best be thought of as at the very
beginning of a process of gradual constitutionalization, the European mix of consultative and
decision-making IGR may provide a suitable conceptual template.
Fourth, federal systems are distinguished from other forms of multilevel governance by
constitutional guarantees of membership equality and autonomy. Apart from constitutional
courts as guardians and neutral interpreters at least by intention, the most obvious political
expression of these guarantees can be found in rules of constitutional amendment. Federal
constitutions are original contracts of agreement among the constituent members of the union
to be formed. Changing them should therefore in principle require the same level of agreement
yet again. In sharp contrast to the older confederations as well as international agreements,
federal systems generally employ amendment rules requiring special majority and ratification
rules. Amending the original contract should at least be difficult. The American constitution
requires two-thirds majorities in both houses of Congress as well as ratification by four-fifths
of the states. The default formula in Canada since 1982 is the so-called 7/50 procedure:
a resolution by Parliament plus ratification by seven out of ten provincial legislatures repre-
senting at least 50 per cent of the population. The Australian constitution requires a passage
by Parliament and approval by voters in a referendum. By comparison to these two-step
procedures, amendment of the German constitution only requires two-thirds majorities in both
houses of the federal legislature in a single step, a simplification which is owed to the fact that
it is the subnational governments themselves which are voting in the second chamber. The
454 Handbook on global constitutionalism

European Union in turn has remained confederal in this respect as treaty changes have to be
ratified by all member states.
Considerations of membership equality and autonomy have also guided the construction of
second chambers in federal legislatures. As pioneered by the Americans again, while popular
representation in the House of Representatives came to be based on proportionality, the rep-
resentation of the states in the Senate was to be equal: two senators per state regardless of state
size or population. Imitated in other federal systems such as Switzerland, Australia and Brazil,
this equality requirement obviously can entail massive over-representation of less populous
member units (Stepan 2001). Many federal systems including Germany and India therefore
have adopted a system of weighted representation in second chambers: smaller member units
are given more seats and votes than they would command according to population size; larger
units receive more seats and votes than the smaller ones but again not as many as they would
according to proportionality. The formula aims at a balance that prevents marginalization of
smaller units, and larger units from dominating the decision-making process. Typically, the
range of seats and votes is adjusted on a narrow scale, for example from three to six according
to population in the German system.
Either way, equal or weighted second chamber representation, membership equality and
autonomy obviously are given recognition only as a matter of principle. Contrary to consent
requirements as practised in the older confederations or in international relations, individual
members may still be outvoted in matters vital to them. A case in point is the double majority
rule for Council of Ministers (Council of the European Union) adopted since 2017. Decisions
must be carried by at least 55 per cent of Council members representing at least 65 per cent of
the Union population. In particular after the exit of the United Kingdom from the Union, the
fairness of this formula has been called into question (Gábor 2020).
We can see in these provisions a dilemma inherent in all federal systems: how to balance
membership equality and autonomy, which would ideally require unanimity, with majority
decisions for the sake of governance efficiency in practice. The dilemma is compounded in
federal systems characterized by high levels of diversity or outright division where unanimity
may be impossible and majority decisions unacceptable. In the international arena, this is
exemplified by the UN Security Council, which requires unanimity for its resolutions and
therefore rarely functions effectively. For good reason, the European Union despite its formal
adherence to majority rule has retained a ‘highly ingrained culture of consensus’ whereby
majority decisions are avoided and negotiation in the Council continues until common
agreement is reached or dissent is no longer voiced (Lewis 2013, pp. 151–2). The dynamic of
decision-making, in other words, is characterized by a search for agreement ‘in the shadow of
majority rule’ (Krick 2013, p. 280).
Perhaps less obvious but equally if not more important for membership equality is con-
stitutional symmetry, which simply means that all constitutional provisions apply equally to
all member units. However, this is not as unproblematic as it sounds as a more qualitative
consideration of membership equality would also imply that substantive differences of interest
or need in one or some of the member units also ought to be treated distinctly. Canadian fed-
eralism provides two instructive examples of how to strike a balance here.
One of these is an opting-out provision under the 7/50 procedure for constitutional amend-
ment. An amendment under this procedure that affects the division of powers by either
reducing provincial powers or creating new federal powers will not apply to a province the
legislature of which declares its dissent. In areas of education and culture, that province will
 Federalism: from constitutionalism to constitutionalization? 455

moreover receive compensation (for example, in the form of tax abatement) from the federal
government for its own exercise of these powers. Given the high threshold for amendment
under the 7/50 formula, this procedure has never been used since its inception in 1982, but
similar provisions also have been part of intergovernmental tax- and cost-sharing agreements.
Available to all provinces in principle but routinely used only by the – mostly – francophone
province of Quebec, opting-out retains formal symmetry while granting a measure of de facto
or at least ‘symbolic’ asymmetry (Banting 2012, pp. 145–6).
The other example of balancing symmetry with flexible accommodation is the so-called
notwithstanding clause in the Charter of Rights and Freedoms, a bill of rights added to the
Canadian constitution alongside the new amending formula in 1982. Central portions of the
Charter pertaining to fundamental, legal and equality rights can be overridden for five years
by any legislature declaring that one of its acts ‘shall operate notwithstanding’. After five
years, the override either expires or must be renewed. The clause has been put to significant
political use only once when Quebec invoked it to uphold a French-only language law after
the Supreme Court of Canada had ruled it unconstitutional as violating individual freedom of
expression. The notwithstanding clause has been vilified by constitutional purists as a surren-
der to political decisionism. Yet the combination of charter rights and notwithstanding clause
can be appreciated as giving adequate expression to Canadian federalism as a balancing act
bridging the tension between individual liberty and spatial identity or community (Vipond
1991, pp. 191–3).
This would also be a central tension in a global democratic order no matter which form it
might take. The Canadian Charter itself begins in its opening section with the caveat that it
will guarantee rights and freedoms only within ‘reasonable limits’ as ‘justified in a free and
democratic society’. Quite appropriately for a federal democratic society, it thus avoids the
abstract wisdom of universal declarations with a more differentiated approach that takes into
account that the members of divided societies may not agree on one universal understanding
of fundamental rights. In this context, then, the notwithstanding clause provides an ‘innovative
constitutional device of last resort for the determination of the scope and dimension of value
plurality in federal systems’ (Hueglin 2008, pp. 146–8).
Fifth, the idea of federalism significantly includes a commitment to social solidarity. The
constitutional agreement on a common political order among the constituent members of
a federation includes a commitment to principles of mutual aid and respect. Without such
a commitment, federations would not exist in the first place. It is a commitment, however, that
is not usually written explicitly into constitutional documents but emerges as a constitutional
convention or as ‘unwritten constitutional law’ (Wolff 2000) from a common understanding
and interpretation of constitutional intent. As the German Federal Constitutional Court held in
a 1992 decision, the ‘federal principle’ obliges ‘all other members of the federal community’
to extend ‘aid’ to a particular member in need (Bundesverfassungsgericht 1992). That is, the
federal principle includes a commitment to federal comity, explicitly recognized only in the
Belgian constitution of 1993 as an obligation to loyauté fédérale. It is, at that, a procedural
obligation for all members to act in such a way as to make the maintenance of the federal order
meaningful to all in an existential as well as material sense.
Underlying the commitment to social solidarity is an acknowledgment that the benefits of
a federal economic union will be distributed unevenly owing to a variety of factors reinforcing
the spatially asymmetrical accumulation of wealth under conditions of market capitalism
such as locational advantage, population density and infrastructural capacity. Social solidarity
456 Handbook on global constitutionalism

therefore essentially means redistribution. With the notable exception of the United States,
all federal systems have a commitment to some form of redistribution enshrined in their con-
stitutions although not all go as far as the German constitution with its explicit obligation for
the provision of ‘equitable living conditions’ for all Germans in general, and even ‘uniformity
of living conditions’ with regard to the distribution of revenue across jurisdictions. The most
common form of redistribution is fiscal equalization which, however, only aims at equitability
in the provision of, in the exemplary formulation of the Canadian constitution, ‘reasonably
comparable levels of public services at reasonable comparable levels of taxation’ across sub-
national boundaries. Broader policies such as the German ‘joint tasks’ or the Structural Funds
in the European Union aim at regional development more generally.
Overall, the question of social solidarity would appear to be the most intractable for a dem-
ocratic and stable global order. Thus it has been shown quite convincingly not only that the
European financial and debt crisis has its root cause in the desolidarized market relationship
between the rich member states in the north and the poorer Mediterranean member states
in the south, but moreover that the amount of redistribution needed to establish anything
approaching equitability would have to go far beyond existing fiscal capacities (Streeck 2014,
esp. pp. 134–46). Without a significant measure of redistributive solidarity in a world much
more starkly divided between rich and poor, however, even the most ingenious institutions and
procedural mechanisms for a constitutionalizing global order would likely remain an empty
shell. ‘Market-preserving federalism’ in this sense is a contradiction in terms (see Rodden and
Rose-Ackerman 1997), and what has been pinpointed critically as the ‘new constitutionalism’
for a neoliberal world order (see Gill and Cutler 2014) amounts to the very antithesis of
a federal order grounded in normative principles of equitability and solidarity.
Sixth, all federal systems finally are characterized by a dynamic tension between autonomy
and interdependence (Benz 2021; Hueglin 2021). The dynamic is animated by two different
concepts of federalism. One is the classical concept as pioneered by the Americans according
to which each order of government should exercise its powers without interference from the
other order. Cooperative federalism is the other and more recent concept according to which
the complexities of modern governance create interdependencies no longer allowing for water-
tight separations of power. The key question of federalism then no longer is ‘who should do
what’ but instead ‘who should do how much of what’, one policy issue at a time. Federalism
therefore denotes an open-ended process for which there is no final constitutional fixity. In the
same vein and for the same reasons, it would appear that global constitutionalization likewise
can only be perceived as such an open-ended process.

TREATY FEDERALISM AS A ROADMAP FOR GLOBAL

CONSTITUTIONALIZATION?

The principles are always the same. Federal systems are distinct from unitary states by their
recognition of distinct spatial identity and a plural allocation of powers safeguarding these
identities. Federalism is also distinct from mere decentralization by constitutional guarantees
and rules preventing involuntary power transfers from one order of government to another.
Also, federal systems are finally distinct from other regimes of multilevel governance in
their recognition of membership equality as the foundation for cooperation and negotiated
compromise. These principles allow for an almost infinite variety in the way federal systems
 Federalism: from constitutionalism to constitutionalization? 457

are constituted and operate in practice. It is possible, however, to sort these variations into
two ideal-typical models of federalism (Hueglin 2013): a model of constitutional federalism
characterized by a rights-based and rigid allocation of powers with weak mechanisms of
intergovernmental cooperation in policy making; and a model of what might be called treaty
federalism characterized by a more flexible allocation of powers based on procedural mech-
anisms of negotiation embedded in strong mechanisms of intergovernmental policy making.
The reality of federalism will always be a combination of both ideal-type models on a contin-
uum with American federalism at one end and European Union federalism at the other. If the
trend towards cooperation and intergovernmental contracting in diverse and divided federal
systems such as Canada is an indication, the path ahead for a constitutionalizing global order
of a federal kind will most likely end up as an open-ended process on the treaty federalism side
of the continuum as well.
As outlined in the introduction to this Handbook (Lang and Wiener, Chapter 1), consti-
tutionalism is typically conceptualized as a commitment to the rule of law, constraints upon
political decision-making by means of a horizontal separation of powers, and the mandated
character of all power by the attribution of sovereignty to the people as pouvoir constituant.
Constitutional federalism following the American model adds to this conceptualization the
idea and practice of a vertical separation of powers between different orders of government.
The problem of applying this model to deeply divided societies or even an emerging global
political order is the fictitious assumption of a people as pouvoir constituant. As Lang and
Wiener put it, there is no global people, only ‘various groups, agencies and modes of activism
together’ that ‘can be understood as providing a kind of representative community for the
international community as a whole’ (Lang and Wiener, Chapter 1 in this Handbook).
This state of global affairs is precisely where existing practices of treaty federalism can at
least provide some heuristic guidance in search of a gradually constitutionalizing global order:
treaty agreements putting that order under common rules of law on the basis of membership
equality; subsidiarity considerations taking the place of a rigid separation of powers; and, as
pre-formulated by Althusius again, ‘the right of sovereignty’ belonging to a pouvoir constit-
uant consisting of ‘the entire associated body of the realm’ (1614[1995], ch. IX, para. 18).
The latter amounts to a procedural form of sovereignty or co-sovereignty. It can only manifest
itself as the will of the composite pouvoir constituant if and when the process works, and
the organized body of the people finds agreement. As the European Union demonstrates in
particular, there is no guarantee that the process always will work. I would submit, however,
that a procedural form of treaty federalism is the only realistic option for gradual constitution-
alization in a deeply divided world.

REFERENCES
Ajzenstat, J., P. Romney, I. Gentles and W.D. Gairdner (eds) (1999), Canada’s Founding Debates,
Toronto: Stoddart.
Althusius, J. (1613[1995]), Politica, abridged English translation, Indianapolis, IN: Liberty Fund.
Baier, G. (2012), ‘The Courts, the Constitution, and dispute resolution’, in H. Bakvis and G. Skogstad
(eds), Canadian Federalism, Don Mills, ON: Oxford University Press, pp. 79–95.
Banting, K.G. (2012), ‘The three federalisms revisited: Social policy and intergovernmental
decision-making’, in H. Bakvis and G. Skogstad (eds), Canadian Federalism, Don Mills, ON: Oxford
University Press, pp. 141–64.
458 Handbook on global constitutionalism

Benz, A. (2021), Föderale Demokratie: Regieren im Spannungsfeld von Interdependenz und Autonomie,
Baden-Baden: Nomos.
Benz, A. and J. Broschek (eds) (2013), Federal Dynamics: Continuity, Change, and the Varieties of
Federalism, Oxford: Oxford University Press.
Broschek, J. (2012), ‘Historical institutionalism and the varieties of federalism in Germany and Canada’,
Publius: The Journal of Federalism, 42 (4), 662–87.
Bundesverfassungsgericht (1992), BVerfG 86, 148 UPR (German Federal Constitutional Court decision).
Dicey, A.V. (1885), Introduction to the Study of the Law of the Constitution, reprinted 1915, London:
Macmillan.
Dinan, J. (2006), ‘United States of America’, in K. Le Roy and C. Saunders (eds), Legislative, Executive,
and Judicial Governance in Federal Countries, Montreal and Kingston: McGill-Queen’s University
Press, pp. 316–43.
Elazar, D.J. (1987), Exploring Federalism, Tuscaloosa, AL: University of Alabama Press.
Erk, J. (2004), ‘Austria: A federation without federalism’, Publius: The Journal of Federalism, 34 (1),
1–20.
Erk, J. (2007), Explaining Federalism: State, Society and Congruence in Austria, Belgium, Canada,
Germany, and Switzerland, London: Routledge.
Gábor, J. (2020), ‘Impact of Brexit on voting power in the Council of the European Union’, Open
Political Science, 3, 192–7.
Gill, S. and A.C. Cutler (eds) (2014), New Constitutionalism and World Order, Cambridge: Cambridge
University Press.
Habermas, J. (2012), The Crisis of the European Union: A Response, Cambridge: Polity Press.
Horsley, T. (2012), ‘Subsidiarity and the European Court of Justice: Missing pieces in the subsidiarity
jigsaw?’, Journal of Common Market Studies, 50 (2), 267–82.
Hueglin, T.O. (2008), ‘Working around the American model: Canadian federalism and the European
Union’, in L.A. White, R. Simeon, R. Vipond and J. Wallner (eds), The Comparative Turn in
Canadian Political Science, Vancouver: University of British Columbia Press, pp. 140–57.
Hueglin, T.O. (2013), ‘Comparing federalisms: variations or distinct models?’, in A. Benz and J.
Broschek (eds), Federal Dynamics: Continuity, Change, and the Varieties of Federalism, Oxford:
Oxford University Press, pp. 27–47.
Hueglin, T. O. (2021), Federalism in Canada: Contested Concepts and Uneasy Balances, Toronto:
University of Toronto Press.
Hueglin, T.O. and A. Fenna (2015), Comparative Federalism: A Systematic Inquiry, Toronto: University
of Toronto Press.
Kincaid, J. (2011), ‘Political coercion and administrative cooperation in U.S. intergovernmental rela-
tions’, in R. Saxena (ed.), Varieties of Federal Governance: Major Contemporary Models, New
Delhi: Cambridge University Press, pp. 37–53.
Krick, E. (2013), Verhandlungen im Konsensverfahren: Varianten Kollektiver Entscheidung in
Expertengremien (Negotiations by Consensus: Variations of Collective Decision Making in Expert
Committees), Wiesbaden: Springer.
LaCroix, A.L (2010), The Ideological Origins of American Federalism, Cambridge, MA: Harvard
University Press.
Levrat, N. (2015), ‘The European Union: from international relations to intergovernmental relations’,
in J. Poirier, C. Saunders and J. Kincaid (eds), Intergovernmental Relations in Federal Systems, Don
Mills, ON: Oxford University Press, pp. 174–205.
Levy, J.T. (2007), ‘Federalism, liberalism, and the separation of loyalties’, American Political Science
Review, 101 (3), 459–77.
Lewis, J. (2013), ‘The Council of the European Union and the European Council’, in M. Cini and
N. Pérez-Solórzano Borragán (eds), European Union Politics, Oxford: Oxford University Press,
pp. 142–58.
Madison, J., A. Hamilton and J. Jay (1787–88), The Federalist Papers, reprinted 2001, Indianapolis, IN:
Liberty Fund.
Moore, M. (2006), ‘Globalization and democratization: Institutional design for global institutions’,
Journal of Social Philosophy, 37 (1), 21–43.
 Federalism: from constitutionalism to constitutionalization? 459

Neyer, J. (2003), ‘Discourse and order in the EU: A deliberative approach to multi-level governance’,
Journal of Common Market Studies, 41 (4), 687–706.
Poirier J. and C. Saunders (2015), ‘Conclusion: Comparative experiences of intergovernmental relations
in federal systems’, in J. Poirier, C. Saunders and J. Kincaid (eds), Intergovernmental Relations in
Federal Systems, Don Mills, ON: Oxford University Press, pp. 440–98.
Poirier J., C. Saunders and J. Kincaid (eds) (2015), Intergovernmental Relations in Federal Systems, Don
Mills, ON: Oxford University Press.
Riker, W.H. (1964), Federalism: Origin, Operation, Significance, Boston, MA: Little, Brown.
Riker, W.H. (1975), ‘Federalism’, in F.I. Greenstein and N.W. Polsby (eds), Handbook of Political
Science, vol. 5: Governmental Institutions and Processes, Reading, MA: Addison-Wesley.
Rodden, J. (2006), Hamilton’s Paradox, Cambridge: Cambridge University Press.
Rodden, J. and S. Rose-Ackerman (1997), ‘Does federalism preserve markets?’, Virginia Law Review,
83 (7), 1521–72.
Simeon, R. (1973), Federal-Provincial Diplomacy, reprinted 2006, Toronto: University of Toronto
Press.
Stepan, A. (1999), ‘Federalism and democracy: Beyond the U.S. model’, Journal of Democracy, 10 (4),
19–34.
Stepan, A. (2001), ‘Toward a new comparative politics of federalism, (multi)nationalism, and democ-
racy: Beyond Rikerian federalism’, in A. Stepan (ed.), Arguing Comparative Politics, New York:
Oxford University Press, pp. 315–62.
Streeck, W. (2014), Buying Time: The Delayed Crisis of Democratic Capitalism, London: Verso.
Supreme Court of Canada (2011), Reference re Securities Act. SCC 66, Ottawa: Supreme Court of
Canada.
Tully, J., J.L. Dunoff, A.F.D. Lang, Jr., M. Kumm and A. Wiener (2016), ‘Editorial: introducing global
integral constitutionalism’, Global Constitutionalism, 5 (1), 1–15.
Vipond, R.C. (1991), Liberty and Community: Canadian Federalism and the Failure of the Constitution,
Albany, NY: State University of New York Press.
Wheare, K.C. (1946), Federal Government, reprinted 1964, Oxford: Oxford University Press.
Wolff, H.A. (2000), Ungeschriebenes Verfassungsrecht unter dem Grundgesetz (Unwritten Constitutional
Law under the German Constitution), Tübingen: Mohr Siebeck.
Ziblatt, D. (2008), Structuring the State: The Formation of Italy and Germany and the Puzzle of
Federalism, Princeton, NJ: Princeton University Press.
32. The UN Charter and global constitutionalism?
Michael W. Doyle1

How constitutional is the international order? The globe is increasingly interdependent but
does it have a coherent legal order, assigning authority to decide on questions of rights and
responsibilities? Few would choose the description ‘coherent’ if that connotes centralized.
Yet, even as a decentralized legal order, the international system arguably has no single con-
stitution, but the closest candidate to a constitution it does have is the United Nations (UN)
Charter (hereafter, the Charter). Just how constitutional is the Charter in theory and practice?
Over 60 years into its evolution we can see two dominant features.
First, the Charter is not like a national federal constitution (for example, the US Constitution)
but neither is it an ordinary contract-like treaty. Its key constitutional features are three: first,
supranationality; second, inequality; and, third, like all constitutions, an ‘invitation to struggle’
that leads to inevitable pushback from states when UN authority expands.
Second, unlike many domestic constitutions the pushback more than holds its own. The UN,
unlike either the European Union (EU) or the United States of America (US) in their various
ways, has neither integrated its parts nor centralized authority. Instead, to borrow the language
of 1970s international integration, UN integration has ‘spilled around’ more than ‘spilled over’
into deeper cooperation.
To illustrate those points, I start with a comparison of the UN Charter to both capital ‘C’
domestic constitutions and to ordinary treaties. I address with a broad brush the main features
of the UN’s supranationality and inequality. I then consider two examples of tension between
UN supranationality and sovereignty. I explore the planned and inadvertent transfers of
authority embodied in modern peacekeeping mandates. I then focus on the example of the
Millennium Development Goals (MDGs), the UN’s recent attempt to remake itself as a devel-
opment body. (Here I offer an insider’s reflections, drawing on my experience as Kofi Annan’s
special adviser from 2001 to 2003.) I conclude with a discussion of the wider constitutional
significance and prospects of the UN in the light of the contrasting success of the history of US
federalism and European integration.

GLOBAL CONSTITUTIONALISM

Answering whether the UN Charter is a constitution depends on what we mean by a constitu-

tion and to what alternative we are contrasting a constitution.
As Anthony Lang and Antje Wiener note in the fifth paragraph of their introduction to
this Handbook (Chapter 1), ‘a constitutional political and legal order enables and constrains
political decision-making’ through the operation of ‘the rule of law, a balance or separation of

1
This chapter draws on parts of a chapter, ‘The UN Charter – a global constitution?’, in Dunoff and
Trachtman (2009) and also draws on parts of ‘Dialectics of a global constitution: the struggle over the
UN Charter’ (Doyle 2012).

460
 The UN Charter and global constitutionalism? 461

powers, and constituent power’. This is similar to the key insight advanced by Jeffrey Dunoff
and Joel Trachtman (2009, p. 15) when they highlight in their functional theory of constitu-
tionalism the enabling and constraining functions of constitutions.
Both these conceptions usefully distinguish a constitution from either any set of rules (the
rules of a school chess club, for example) and from a specific political content, such as those
that require specific rights or forms of government, such as democracy. As an example of the
former, the ‘balance of power’ was deemed to seventeenth-century commentators to be the
‘constitution of Europe’ (Gross 1948). As examples of the latter specific content, the American
founder James Madison declared that the people had to have a direct role in electing the leg-
islature for there to be a genuine constitution at the federal level, but this was advocacy for
what he saw as an effective constitution. The French revolutionaries in the ‘Declaration of the
Rights of Man and of the Citizen’ (1789) Article 16, declared: ‘Any society in which the guar-
antee of rights is not assured, nor the separation of powers determined, has no Constitution.’
It is thus useful to distinguish the UN Charter from other constitutions, and from ordinary
treaties. If the relevant contrast is to the US Constitution – the constitution of a sovereign state
– the answer is clearly, ‘no’. The UN was not intended to create a world state. As the Charter’s
preamble announces, it was created for ambitious but specific purposes: ‘[T]o save succeeding
generations from the scourge of war’, ‘reaffirm faith in fundamental human rights’, ‘estab-
lish conditions under which justice and respect for the obligations arising from treaties and
other sources of international law can be maintained’ and to ‘promote social progress and
better standards of life in larger freedom.’ The UN, moreover, is an organization based on
(Charter, Art. 2.1) the ‘sovereign equality of all its members’, its membership being open to all
‘peace-loving states’ (Charter, Art. 4.1). This contrasts strikingly with the US Constitution’s
much more general, sovereign-creating purposes: ‘[T]o form a more perfect union, establish
justice, insure domestic tranquility, provide for the common defense, promote the general
welfare and secure the blessings of liberty to ourselves and our posterity’ (US Constitution,
Preamble) (Alvarez 2006, pp. 67–8).
The UN Charter lacks at least two of the three key attributes that the Constitutional Court of
South Africa identified as essential to a constitution. In Pharmaceutical, the court averred that
a constitution is a unified system of law: ‘There is only one system of law. It is shaped by the
Constitution which is the supreme law, and all law, including the common law, derives its force
from the Constitution and is subject to constitutional control.’2 The Charter lacks what Frank
Michelman, in commenting on the case, has called the attributes of, first, ‘pervasive law’ (that
is, ‘all law is subject’) and, second, ‘basic law’ (that is, ‘derives its force’) (Michelman 2006).
The UN Charter, instead, reflects what Laurence Helfer calls the ‘disaggregated and decentral-
ized’ character of the international order (Helfer 2003). Neither is all international law subject
to the UN nor is the Charter the legal source of all international law. Much international law
precedes the Charter and has been developed parallel to it, including fundamental elements of
international law such as the Genocide Convention which requires its signatories (and as jus
cogens, all states) to prevent, stop and punish genocide seemingly irrespective of whether gen-
ocide is an ‘essentially’ domestic matter under Article 2(7) and whether the Security Council
(hereafter Council) has authority to act in matters beyond ‘international peace and security’.
The Charter does, however, have a degree of the third attribute of a constitution: supremacy.

2
In re Pharmaceutical Mfrs. Ass’n of S.A. 2000 (3) BCLR 241 (CC) para. 44 (S. Afr.).
462 Handbook on global constitutionalism

If, on the other hand, we contrast the Charter to a standard contract-like treaty, the differ-
ences are also clear.3 The UN Charter is a treaty, but a special treaty. Like a constitution it has
supremacy (Art. 103) even over treaties that would normally supersede it by ‘the last in time’
rule (Vienna Convention, art. 30). This supremacy covers not all international law (it is not
pervasive or basic) but only the aspects of the Charter in which it imposes ‘obligations,’ most
particularly, peace and security. As with the US Constitution (US v. White), the Charter is
perpetual; it cannot be revoked by its constituents. Indeed, while states can be expelled there is
no provision for resignation. Moreover, the Charter binds all states, whether members or not,
in matters of peace and security (Art. 39). As with a constitution, it is ‘indelible’, in Thomas
Franck’s terminology (2003). Unlike most treaties, no reservations can limit its effects on
states that ratify it. Also, it is very hard to amend. Amendments require an international confer-
ence and a two-thirds affirmative vote of the entire membership, including all five permanent
members of the UN Council (the ‘Permanent Five’) (Art. 109).
Finally and most importantly, it has institutional, for lack of a better word, ‘supranation-
ality’4 in the sense that it permits authoritative decisions without continuous consent. Like
many constitutions, it does so by dividing powers between constituents and the constituted
institution.5 The Charter establishes a division of powers among the functional components of
governance – the Council, General Assembly (hereafter, Assembly), Secretariat, International
Court of Justice (ICJ), and so on – which have quasi-executive, legislative, administrative and
judicial functions. The UN Secretariat is pledged to international independence in the perfor-
mance of its duties (Art. 100). Crucially, the UN makes or is authorized to make decisions
without the continuous consent of its member states. Budgets can be adopted by a two-thirds
vote and the ICJ has held them as binding on all the members, including those who voted
against the substantive measures that the budget funds (ICJ Expenses Case). Security Council
decisions taken under chapter VII in matters of international peace and security – those with
at least nine out of 15 votes, including no vetoes by the Permanent Five – are binding on all
states (Arts 25 and 48). The Charter has also been interpreted flexibly to make ‘necessary and
proper’ functions viable. The requirement that Security Council votes on substantive matters
pass with affirmative votes of the Permanent Five, for example, has been flexibly interpreted
to mean no negative votes (vetoes), allowing permanent members to abstain without vetoing.6

3
For a discussion of these differences, see Franck (2003), and for an analysis of the various contract
like features of international law, see Scott and Stephan (2006). For a wide-ranging survey of the debate
on Charter constitutionalism, see Fassbender (1998). In response to Fassbender and highlighting, as
I do, some of the differences between the UN Charter and conventional constitutions, see Jan Klabbers
Chapter 33 in this Handbook.
4
I do not mean that the ‘UN’ is sovereign over the member states; the UN is an organization of the
member states. Thomas Franck (2003) calls this ‘institutional autochthony’, stressing the independence
(kompetenz) of the institution. That is part of what I want to convey, but even more I want to highlight
the ability of some members to bind all without explicit, case-by-case consent, from each member.
5
States have reserved ‘essential’ domestic jurisdiction to themselves, and granted the UN interna-
tional jurisdiction, in Article 2.6.
6
United Nations legal order (Schachter and Joyner 1995) (‘[S]ometimes some Member States may
start interpreting a particular provision in a certain way and after a while that interpretation becomes
accepted by other Member States and by the organization itself. For instance, in connection with a res-
olution in the Spanish case, the Soviet Union’s representative announced that in order not to veto an
Australian resolution, he would abstain from voting 1946 Security Council Official Records . . . 243
(39th mtg). Since then, despite occasional objections, it has been recognized in more than 100 cases
 The UN Charter and global constitutionalism? 463

This ‘supranationality’ might be seen as, first, simple agency on behalf of the member
states, second, a delegation of specific functions to be administered independently, or third,
a transfer of sovereign powers to a central and independent institution.7 In UN practice all
three can be found and they mix together. I now turn to how this operates in the UN system. In
each case I will be looking at the rationale for the supranationality and the struggle that ensues
between those authorized to act multilaterally and the efforts of states to restrict the authority
granted. The UN Charter, like so many constitutions before it, is an invitation to struggle.8

THE UN CHARTER: SUPRA OVER SOME AND LESS SO FOR

OTHERS

Supranationality in the Charter affects the responsibilities of all member states, but some much
more so than others and in all cases states pushback against attempts to assert international
authority. All states are affected by the UN possession of a legal ‘personality’ that permits it to
undertake responsibilities and act on behalf of the membership. It can sue a member without
the consent of the member and be sued by members without the consent of other members.
In the Reparations Case involving reparations for the assassination of a UN official, Count
Bernadotte, the ICJ declared that the UN:

is at present the supreme type of international organization and it could not carry out the intentions of
its founders if it was devoid of international personality. It must be acknowledged that its Members,
by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with
the competence to enable those functions to be effectively discharged.9

that, despite the requirement in Article 27(3) that decisions of the Security Council on non-procedural
matters be made ‘by an affirmative vote of seven members including the concurring votes of the per-
manent members’ (emphasis added), a voluntary abstention of permanent members is not considered to
be a veto. For a summary of the practice of the Security Council confirming this rule, see the Written
Statement by the Secretary-General of the United Nations, Dec. 4, 1970, ICJ, Legal Consequences for
States of the Continued Presence of South Africa in Namibia, Pleadings, Vol. I, at 203–6. For a statement
that this practice constituted a violation of the Charter, see the Written Statement of the Government of
the Republic of South Africa in the same case, at 377, 403–17. In its advisory opinion in that case, the
ICJ stated that ‘the proceedings of the Security Council extending over a long period supply abundant
evidence that presidential rulings and the positions taken by members of the Council, in particular its
permanent members, have consistently and uniformly interpreted the practice of voluntary abstention by
a permanent member as not constituting a bar to the adoption of resolutions. By abstaining, a member
does not signify its objection to the approval of what is being proposed: in order to prevent the adoption
of a resolution requiring unanimity of the permanent members, a permanent member has only to cast
a negative vote. This procedure followed by the Security Council, which has continued unchanged after
the amendment in 1965 of Article 27 of the Charter, has been generally accepted by Members of the
United Nations and evidences a general practice of that Organization’ (1971 I.C.J. Rep. 16, 22).
7
For a recent treatment of these issues see Sarooshi (2005) and Alvarez (2006).
8
There are a number of other ways to explore the constitutionality of the UN system, including,
for example, comparing the UN with other regional and international organizations, analyzing the sep-
aration of powers among its principal organs or exploring the role played by the ICJ as a constitutional
interpreter. Some of these examples are taken up by other authors in this volume (such as, for example
Chapter 18 by Jeff Dunoff and for contested norms, see Chapter 9 by Jan Wilkens).
9
Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949
I.C.J. 174, Summary (Apr. 11).
464 Handbook on global constitutionalism

The management of UN finances illustrates a more substantial facet of supranationality, and

again one that bears on all members, albeit differently. In Articles 17 and 18 the Assembly is
given the authority to ‘consider and approve’ the budget and the members undertake to bear
those expenses ‘as apportioned by the General Assembly’. The budget being an important
matter, a two-thirds vote thus binds – in effect, taxes – the members to support the expenses
of the organization. This differs notably from the League of Nations where unanimity ruled
(Goodrich and Hambro 1949). United Nations budget assessments, moreover, are enforced by
the provision in Article 19 whereby any member will lose its vote in the Assembly if it is two
years or more in arrears.
In December 1961, following the controversy over payment for the UN Expeditionary Force
in the Sinai and the UN Operation in the Congo, and in particular the vehement rejections of
financial responsibility by France and the USSR, the Assembly requested an advisory opinion
from the ICJ on whether the expenses the organization had ‘incurred’ were obligatory under
Article 17. In its Expenses Case opinion of July 1962, the Court’s majority ruled expansively.
Noting that even though some of the policy authorizations were made by the Assembly and
not by the Council (which had ‘primary’ responsibility for peace and security) the Court found
that the Council did not have exclusive responsibility for peace and security. Furthermore, the
obligatory character of the expenses, if properly approved by the Assembly, did not rest on the
legitimacy of the underlying substantive purpose of the resolution.10 This seemed to imply that
the Assembly could legally tax where the UN could not otherwise legally oblige (Hoffmann
1968).
However, as interesting as the legal judgments were, political forces determined the
outcome of the financing controversies. As early as 1946, money talked as the US set limits on
what it was prepared to pay (at 40 percent), whatever a pro rata estimate would indicate. When
the USSR fell two years in arrears in 1964–65, the US led a campaign to deprive the USSR
of its Assembly vote (Russell 1966). When this failed, the US announced (the ‘Goldberg
Reservation’) that it would also assume a right to regard the budget as nonbinding. The
Assembly then moved to a procedure that recognized functional consensus (will the taxpayers
pay?) as the basis for budgeting. In practice, this allowed the eight countries that on average
paid 75 percent of the budget to have a veto equivalent to the other 180-plus members. The US,
regarding the budget as advisory, then regularly withheld assessments as leverage to promote
institutional and other changes it sought to impose on the organization. Political pushback
thus effectively amended the Charter in a pragmatic – but far from organizationally effective –
direction as a wide range of states each adopted a bargaining veto vis-à-vis the biennial budget
negotiations.
The most striking supranational features of the Charter system are the provisions of chapter
VII with regard to international peace and security. Here the UN is both supranational and
discriminatory. In matters of international peace and security (Art. 39) Council decisions bind
all UN members (Arts 25 and 48) when they garner the requisite nine votes, including no
vetoes by the Permanent Five. Nine members can govern the whole. However, the Permanent
Five – the US, the UK, France, Russia and China – have the unequal right to remain unbound
unless they concur or abstain. The working interpretation that abstentions by the Permanent
Five do not count as vetoes reinforces their special status, allowing them the unique discretion

10
See Certain Expenses of the United Nations (Art. 17, para. 2 of the Charter), Advisory Opinion,
1962 ICJ 151 (July 20).
 The UN Charter and global constitutionalism? 465

not to veto without necessarily affirming and establishing informal precedents they might not
want to recognize.11
In the Lockerbie Case, the ICJ majority held that Security Council Resolution 748 trumped
the provisions of the Montreal Convention that allowed Libya at its discretion to either extra-
dite or try suspected criminals (aut dedere aut judicare). In doing so it affirmed the supremacy
of Council resolutions over conflicting international law.12 Statements by the ICJ judges left
open the possibility that Council resolutions might be held ultra vires by the ICJ if a relevant
case were put before the court, but the overall weight of the opinion strongly reinforced the
supranationality of the UN in peace and security vis-à-vis all member states, whether or not
they had approved the particular Council decision.
This led some to question just how legitimate and representative the Council was when
considered as a world governmental body (Reisman 1993; Bowett 1994). However, the more
usual sovereign pushback was the refusal to negotiate agreements under Articles 43–47 to
allocate forces under the direct command of the Council. The original Charter conception
involved division-sized forces of aircraft, naval and ground forces, all subject to the Council
and commanded by the postwar equivalent of the Second World War’s allied joint command,
a Military Staff Committee appointed by the Council. Absent such ‘special agreements’, states
retained the right to refuse to deploy forces at the call of the Council, which was reduced to
negotiating with potential troop contributors to form in Brian Urquhart’s phrase, the UN equiv-
alent of a ‘sheriff’s posse’. In this way discretionary sovereignty was reaffirmed in practice.

Transitional Peace Operations Authority

Supranationality to one degree or another is nearly inevitable in the complicated UN-managed

transitions from war to peace and often, simultaneously, from autocracy to democracy and
state to market.
A transitional peace operation usually needs two authorizations; one is international, the
other domestic. The two need not be always connected. An internationally authorized human-
itarian intervention could proceed without host state authorization (but it will not succeed
unless it wins the support of a significant majority of the local population). Also, a sovereign
government can invite foreign forces to assist it without recourse to the UN or a regional
organization for authorization. However, the two usually are connected. (It is worth noting
that even the forcible interventions in Somalia, Haiti and Kosovo each had prior domestic
authorizations, albeit each under duress and in the Somali case from factions rather than from
a functioning national government.)
From the international point of view, peace operations – which intrude upon the domestic
sovereignty of states – come to be established in two ways. First, under chapter VI of the UN
Charter, they are the negotiated consent of the parties and then through a series of Status of
Forces agreements that specify the legal terms for the presence of foreign forces. Or, second,

11
The late Oscar Schachter of Columbia Law School is widely credited for this creative, ‘constitu-
tional’ interpretation made when he was UN Deputy Legal Adviser. For discussion see Gross (1951) and
McDougal and Gardner (1951).
12
Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention
arising from the Aerial Incident at Lockerbie (Libya v. UK; Libya v. US), Provisional Measures, 1992
I.C.J. 114 (Apr. 14). See also Plachta (2001).
466 Handbook on global constitutionalism

they are established under chapter VII, which permits the overriding of domestic jurisdiction
(Article 2–7) without consent of the local parties. These enforcement operations draw upon the
authority of Article 42, which permits the Security Council to ‘take such action by air, sea, or
land forces as may be necessary to maintain or restore international peace and security’; Article
25 under which member states ‘agree to accept and carry out the decisions of the Security
Council’; and Article 43 in which they agree to ‘make available to the Security Council, on
its call, ... armed forces, assistance and facilities’. Troop contributing countries in these cases
negotiate in detail the terms of the participation of their forces either under UN command and
thus with the Secretary-General (as in El Salvador or Cambodia) with a regional organization
authorized as delegated in chapter VIII or with the leader of a multinational ‘coalition of the
willing’ authorized under chapter VII (as was the case of US leadership of the Unified Task
Force, UNITAF, in Somalia). Many operations draw on combinations of authorizations:
peace treaties among factions, backed up or supplemented by other measures authorized (such
as arms embargoes or no-fly zones) under chapter VII, as did the various United Nations
Protection Force, UNPROFOR, and Implementation Force, IFOR, operations.13 ‘Chinese
chapter VII’ – as employed to authorize the use of force for the United Nations Transitional
Administration for Eastern Slavonia, Baranja and Western Sirmium, UNTAES – has emerged
a new signal of firm intent to enforce a chapter VI operation, though in essence it reaffirms
the ‘Katanga Rule’ of the United Nations Operation in the Congo (ONUC) operation: the
traditional principle that force can be used both in self-defense of peacekeeping troops and of
the mission (mobility of the force) (Liu 1992).
From the domestic point of view, a local authority (or authorities) shares temporarily and,
usually, conditionally some of its (or their) own legitimacy with the international peace opera-
tion. Domestic authority can be examined in the light of the classic types of authorization and
‘imperative coordination’. Max Weber outlined three ideal types of imperative coordination:
traditional, charismatic and rational (Weber 1947). The first two types of authority may be
rare in civil war transitions. Traditional authority – an established belief in the sanctity of
immemorial traditions and of the status of those exercising authority under them – has often
broken down. Under the pressures of economic growth and social mobilization, tradition tends
to erode and traditional states collapse. Charismatic authority – resting on devotion to the sanc-
tity, heroism or exemplary character of the individual leader and the order ordained by him
or her – is often in excess supply, claimed by each of the faction leaders. Usually, therefore,
rational authority – the legality of patterns of normative rules and the right of those elevated
under such rules to exercise commands – has to do the work of reconstruction, and often in
competition with pre-existing, but weakened traditional and charismatic sources of authority.
Transitional authority must be constructed through painstaking negotiation, taking some
cognizance of widely recognized international human rights norms, and endorsed through
negotiated schemes of power-sharing or popular elections.
It is difficult, for example, to imagine the success, limited as it is, that Cambodia has
achieved without the leadership of Prince and later King Sihanouk. He repeatedly served as
a catalyst for difficult decisions and a bridge between competing factions that would only
contact each other under his auspices. The charismatic authority enjoyed by Nelson Mandela
was an equally vital part of the difficult transition underway in South Africa. Lacking these

13
For a valuable discussion of the international law on the use of force and its bearing on authority
for peace operations, see Guttieri (1997).
 The UN Charter and global constitutionalism? 467

forms of unifying authority in Somalia, El Salvador, Guatemala and Bosnia, peace operations
had to rely on enforceable or continually re-negotiated agreements, which made the quality of
international transitional authority a key component of success or failure.
Straightforward as these authorizations are, they each leave room for unanticipated but inev-
itable instances where delegated authority turns into what Ian Johnstone called ‘open-ended
consent’ (Johnstone 1995). In chapter VII enforcement operations authority derives from
a Security Council resolution, but no committee of 15 can anticipate or manage the ensuing
process of reconstructing domestic authority thousands of miles away. Even chapter VI
operations that rest on a painstakingly negotiated peace treaty cannot anticipate the myriad
of operational circumstances that will require decisions (Ratner 1995; Chopra 1999; Doyle
2002). Special representatives, exercising ‘command from the saddle’, then learn to treat their
SC mandates as either ‘ceilings’ that cannot be breached or ‘floors’ that support extended
action, depending on the local circumstances. Should, for example, the peace process continue
if one or more of the parties has breached the peace agreement by not disarming, as occurred
in the middle of the Cambodian peace? Special Representative Akashi with the support of the
Security Council and some of, but not all, the Cambodian parties decided to continue, con-
tained the spoilers and succeeded in organizing a (barely) free and fair election that legitimated
a new sovereign government of Cambodia. Reginald Austin, head of the Cambodian peace’s
electoral component, faced a similar choice and degree of discretion. He asked, what are the
‘true objectives of UNTAC (the UN Transitional Authority in Cambodia): Is it a political
operation seeking the immediate solution to an armed conflict by all means possible? Or does
it have a wider objective: to implant democracy, change values, and establish a new pattern
of governance based on multipartism and free and fair elections?’ (Austin 1993; Doyle 1995).
Extensive and open-ended as this delegated authority is, inevitably here, too, we find sig-
nificant pushback. Noted above is the insistence by China on constraining the independent
exercise of coercive force by peacekeeping operations (‘Chinese chapter VII’; Doyle and
Sambanis 2006, p. 17)). Even more significant in shaping contemporary peacekeeping is
pushback by two other key participants; the ‘peace-kept’ and the troop contributors.
Peace operations are political. ‘Spoilers’ resist the terms of peace treaties and agreements
tend to be fluid. In the new civil conflicts, leaders are reluctant to give up power and where
they are willing to share power they find that they often lack the capacity to maintain a difficult
process of reconciliation leading to a re-establishment of national sovereignty. The South West
African Peoples Organization (SWAPO) in Namibia, the Farabundo Martí National Liberation
Front (FMLN) in El Salvador and the Khmer Rouge in Cambodia all defected within months,
and in some cases days, from (or failed to implement) crucial elements of the peace (Stedman
2003; Fortna 2004; Doyle and Sambanis 2006). Nearly equal challenges arise in managing
peace operations by coordinating rivalrous international agencies or mobilizing government
contingents. Each participant in the combined effort wants a lead role and few are prepared to
be led or coordinated (Jones 2003; Roed-Laursen and Hooper 1999).

The MDGs: Roadmap to Confrontation

Supranationality also appears in ‘legislative’ delegation by the United Nations General

Assembly. In the UN, as in most institutions, principals delegate to agents (for example,
member states to the Secretariat) because implementation is too detailed an activity to be
managed by 193 states. The agents’ job becomes problematic, controversial and governmental
468 Handbook on global constitutionalism

when the program outlined by the principals is ambiguous or contested. Then the Secretariat
is inherently engaged in political government. This is what happened when the ‘Road map’ to
implement the Millennium Declaration was delegated to the Secretariat.
At the UN Millennium Summit in September 2000, the members formally and unanimously
dedicated themselves to a redefinition of goals and means. Since its inception the UN has been
an organization by, for and of states – and so it remained. However, in 2000, under the leader-
ship of Secretary-General Kofi Annan, it set out to acquire a parallel identity, a new model of
itself. It was redefining the meaning of global good citizenship for our time by putting people
rather than states at the center of its agenda. The Millennium Declaration set this agenda.14
At the Millennium Summit, world leaders agreed to a set of breathtakingly broad goals
that are global, public commitments on behalf of ‘we the peoples’ to promote seven agendas,
ranging from peace and security through development and poverty eradication, environmental
protection, protection of the vulnerable, the special needs of Africa and concluding with UN
institutional reform.
Promising an agenda for action – the international community’s marching orders for the
next 15 years – the member states blithely transferred responsibility for designing a ‘roadmap’
to implement these goals to the Secretary-General. ‘The Follow-up to the Outcome of the
Millennium Summit’ General Assembly resolution requested ‘the Secretary-General urgently
to prepare a long-term “road map” towards the implementation of the Millennium Declaration
within the UN system and to submit it to the General Assembly at its 56th session [nine months
later.]’15 This report was to incorporate annual monitoring focusing on ‘results and bench-
marks achieved’, reflect the capacities of member states and the entire UN system including
the World Trade Organization (WTO) and Bretton Woods institutions, and outline practical
measures to meet the ambitious targets.
A small coordinating team in the Executive Office of the Secretary-General, the Strategic
Planning Unit under the direction of Dr Abiodun Williams, set about collecting from all
the UN’s agencies and programs information on what the UN system was already doing to
promote these goals and what next steps seemed practicable to advance them. Once com-
pressed and simplified, this encyclopedic list became the Roadmap Report (A/56/326 of 6
September 2001). The striking part of the report was the treatment of the development goals,
which came to be called the MDGs – the Millennium Development Goals.
Drawn from the development and environment chapters of the Millennium Declaration, the
MDGs defined common aspirations in the worldwide effort to alleviate poverty and promote
sustainable economic and social development. They pledged to ‘spare no effort to free our
fellow men, women and children from the abject and dehumanizing condition of extreme
poverty’ and ‘to create an environment – at the national and global levels alike – which is con-

14
United Nations Millennium Declaration, G.A. Res. 55/2, U.N. Doc. A/RES/55/2 (8 Sept. 2000),
accessed at http://​www​.un​.org/​millennium/​declaration/​ares552e​.pdf.
15
G.A. Res. 55/162, 18, U.N. Doc. A/RES/55/162 (18 Dec. 2000). Secretary-General Kofi Annan
assigned me the task of putting together this report when I arrived at the UN as his special adviser in
March 2001, three months after the General Assembly authorization.
 The UN Charter and global constitutionalism? 469

ducive to development and the eradication of poverty.’ The eight MDGs that an interagency
UN team crystallized from the two chapters of the Millennium Declaration were:16
1. Eradicate extreme poverty and hunger
Target for 2015: Halve the proportion of people living on less than a dollar a day and those
who suffer from hunger.
2. Achieve universal primary education
Target for 2015: Ensure that all boys and girls complete primary school.
3. Promote gender equality and empower women
Targets for 2005 and 2015: Eliminate gender disparities in primary and secondary educa-
tion preferably by 2005, and at all levels by 2015.
4. Reduce child mortality
Target for 2015: Reduce by two-thirds the mortality rate among children under five.
5. Improve maternal health
Target for 2015: Reduce by three-quarters the ratio of women dying in childbirth.
6. Combat HIV/AIDS, malaria and other diseases
Target for 2015: Halt and begin to reverse the spread of HIV/AIDS and the incidence of
malaria and other major diseases.
7. Ensure environmental sustainability
Targets:
Integrate the principles of sustainable development into country policies and pro-
grams and reverse the loss of environmental resources.
By 2015, reduce by half the proportion of people without access to safe drinking
water.
By 2020 achieve significant improvement in the lives of at least 100 million slum
dwellers.

8. Develop a global partnership for development

Targets:
Develop further an open trading and financial system that includes a commitment to
good governance, development and poverty reduction – nationally and internationally.
Address the least developed countries’ special needs, and the special needs of land-
locked and small island developing states.
Deal comprehensively with developing countries’ debt problems.

16
The interagency team was remarkable for the quality of the cooperation it engendered. It included
representatives from the Organisation for Economic Co-operation and Development (OECD), the United
Nations Department of Economic and Social Affairs’s Statistical Office (UNDESA), the World Bank,
the International Monetary Fund (IMF), the United Nations Children’s Fund (UNICEF), the United
Nations Fund for Population Activities (UNFPA), other agencies and the United Nations Development
Programme (UNDP). Jan Vander Moortele, a development expert with UNDP, co-chaired meetings with
these development and statistical experts. Much of the consensus the group achieved was the product of
scientific experts, long frustrated by bureaucratic rivalry, persuading their principal agencies on the need
for rational policy cooperation.
470 Handbook on global constitutionalism

Develop decent and productive work for youth.

In cooperation with pharmaceutical companies, provide access to affordable essential
drugs in developing countries.
In cooperation with the private sector, make available the benefits of new technolo-
gies – especially information and communications technologies.

The MDGs soon became controversial and allegedly ultra vires bureaucratic impositions that
went beyond what the member states had authorized as goals in the Millennium Declaration.17
The US refused to acknowledge the MDGs as such, referring to them instead as the ‘inter-
nationally recognized development goals in the Millennium Declaration’, making the UN’s
effort to brand and promote the goals difficult. The crescendo of attack peaked with the
rhetoric of Ambassador John Bolton who used them as a leading reason to reject the outcome
consensus on UN reform in the summer of 2005. Bolton has portrayed the goals, targets and
indicators as a UNDP engineered coup, beyond what was agreed at the 2000 Summit (Bolton
2007). In fact, the Secretariat as a whole had been directed by a unanimous General Assembly
(GA) resolution to prepare a ‘roadmap’ on how to implement the goals. Ranging far beyond
UNDP, the World Bank, the IMF and the UN system endorsed the goals, targets and indicators
mandated by the GA resolution. Bolton was at last overridden by President Bush who accepted
the MDGs by word and title in his September 2005 speech.
The MDG goals, targets, and indicators in reality had three sources. The interagency team
from the entire UN system that met over the spring and summer of 2001 drew first and most
importantly on the Millennium Declaration. Contrary to the US critics, every goal had a textual
source that could be located in the Declaration’s text. Every significant commitment in the
Declaration’s development chapter found a place in the MDGs as goal, target or indicator.
But the MDGs were not a verbatim copy of the Declaration. The development chapter of
the Declaration, for example, had fourteen bulleted goals; the MDGs eight. The Declaration
was not monitor-able without further specification. Some Declaration goals were specific,
time-bound, and targeted; others vague and aspirational. All the MDGs were made operational
by being linked to best then available measurable indicators.
The second source was the pre-existing development goals of the international commu-
nity, most particularly the seven International Development Goals (IDGs). First developed
in 1996 by the OECD, they won the endorsement of the World Bank, OECD, IMF, and
UN Secretary-General Kofi Annan in a June 2000 report, ‘Better World for All: Progress
towards the International Development Goals’ (the BwfA Report). The IDGs included goals
and targets to reduce extreme poverty, promote education and maternal health – all of which
reappeared in the Millennium Declaration.

17
The actual source of US discontent seemed to me to be a policy disagreement. The Bush
Administration was launching the Millennium Challenge Account (MCA) which made governance
reform (marketization, private enterprise, fiscal balance, open current accounts for international finance
and democratization) the precondition for foreign aid. Once the political appointees in the Administration
had come into office in late 2001, they saw the MDGs as a reflection of the ‘old ideology’ of Northern
responsibility for Southern poverty and an ideological platform to make the shortfall in foreign aid
the excuse for development failures. My response was that the MDGs were a ‘thermometer’ designed
to measure progress, not a strategy. There was no reason not to portray the MCA as the best (US)
strategy for meeting the MDGs. This argument was welcomed in the US Treasury, but not in the State
Department.
 The UN Charter and global constitutionalism? 471

The BwfA Report soon became shrouded in controversy. Many developing states and
many in the development nongovernmental organization (NGO) world rejected the seemingly
one-sided program to monitor Third World progress without an equivalent measure of the con-
tribution the wealthy countries were making to global progress. The developing world critics
soon tagged the report with the title ‘Bretton Woods for all’. Some countries (Catholic and
Muslim and, after January 2001, the Bush Administration) objected to the ‘reproductive health
goal’ which seemed to endorse birth control and possibly abortion services. Nonetheless, key
development actors, including the Bretton Woods institutions and the influential UK devel-
opment ministry (Department for International Development, DFID, referred to in some UN
circles as ‘the indispensable department’), had a stake in the viability of the IDGs and the prin-
ciples of multidimensional, human-centered, output-oriented and measurable development
they embodied.
The UN system interagency team adopted the framework of the IDGs, replaced ‘reproduc-
tive health’ from the IDGs18 with ‘HIV/AIDS’ from the Millennium Declaration, and added
an ‘eighth goal’ – a ‘global partnership for development’ that assembled a variety of commit-
ments in trade, finance and development aid made by the wealthy countries and embodied in
the Millennium Declaration. The result was the new eight which in late June 2001 they decided
to call ‘The Millennium Development Goals’.19
The third source was a determination to overcome generations of dispute among the
Bretton Woods institutions, the UN Development Program, the UN Conference on Trade
and Development, and other UN agencies. Each had grown into the habit of criticizing the
others’ reports and strategies, producing a cacophony on what development meant, how it
should be measured, and whether progress was being made. The UN system interagency team
assembled to roadmap the development section of the Millennium Declaration was a team of
experts, particularly involving the heads of the statistical services within the respective organ-
izations. Acutely aware that agreed indicators would shape development policy coordination
and determine the high-priority statistics that national and international statistical agencies
would collect, they took great care in choosing – within the usual confines of agency stakes
and commitments – the best 48 indicators then available to measure 18 targets that defined the
eight goals.
In addition to rejecting the MDG framework in general, the Bush Administration later
objected that one of the 48 indicators to measure progress on the goals and targets mentions
the international goal of seven-tenths of 1 percent of wealthy nations’ gross domestic products
(GDPs) for development assistance, even though the Bush Administration itself affirmed this
internationally agreed target at the Monterrey Conference in 2001. However, the larger source
of US concern was that the goals reflected a hardening of soft law. Unlike the other Millennium
Goals in peace and security and humanitarian protection, the MDGs have moved from very
soft law – an Assembly Resolution – to hard international public policy endorsed officially by

18
Reproductive health was inserted into the MDGs – as a target in Goal 5 (maternal health) not a goal
in itself – at the 2005 Summit review conference for the MDGs. The US protested.
19
Much of my time in the spring and summer of 2001 was spent discussing drafts of the emerging
MDGs with various UN delegations including the G77 developing country caucus, the European Union
caucus and the US delegation in order to make sure that the necessary votes for approval would be forth-
coming when the Roadmap report was presented to the General Assembly in the coming September.
472 Handbook on global constitutionalism

operative institutions such as the World Bank, the IMF, the World Health Organization and
others – bypassing an inter-state treaty or agreement.
If we measure the hardness of law by how obligatory and either delegated or precise it
is (Abbott and Snidal 2000), then the MDGs have indeed significantly hardened the issues
they cover in the Millennium Declaration. The Millennium Declaration started out as a soft
Assembly resolution: vague, hortatory, and undelegated in substance. When the member states
delegated the formulation of a Roadmap report to the Secretariat they set in motion a hard-
ening process that resulted in the MDGs. While all eight MDGs have textual support in the
principles and authority provided by various parts of the Declaration, now they have become
precise targets and measurable indicators. More importantly, they have become the template
for development for the World Bank, the IMF and the UN. They shape the Poverty Reduction
Strategy Papers and the UN Development Frameworks that measure the progress of develop-
ing countries seeking development grants and loans from the World Bank, the IMF and the
UNDP. They increasingly ­influence bilateral donors. In effect, the MDGs are quasi-legislative
in the developing world, a long step from the rhetoric they appeared to be in September 2000.
If the pushback from sovereign states was most striking in the US campaign to undermine
the MDGs and in Ambassador Bolton’s perfervid rhetoric, the more subtle and important
pushback came from a much more important source. The goals were hortatory; the key
source of implementation was national, not the UN system. Whether the developing countries
would actually adopt them in practice and whether the developed world would respond with
a genuine partnership to create additional international opportunities for growth were the two
decisive factors in what has become their mixed record of success.20 This was soon reflected
in the natural development of country-level MDGs that mixed existing development planning
with the MDG framework. In some national development plans, the MDGs served as rhe-
torical window-dressing; in others they played an operational role and became the operative
framework for assessing the Bank’s Poverty Reduction Strategy Papers and the UNDP’s UN
Development Assistance Framework.21

CONCLUSIONS: CENTRALIZATION, INTEGRATION AND SPILL

AROUND
Supranationality is one key element of a legal order that separates a constitution from an
ordinary treaty. It opens the door to complex agency on behalf of the member states in which
authoritative decisions are taken without continuous sovereign consent.
It is worth recalling, however, that in the UN constitutional order these decisions are
inherently asymmetric, different for some than for other states. This is clearly the case in
Charter-based allocations of rights and responsibilities in peace and security, but it appears

20
See the annual MDG reports of the Secretary-General, the latest being The Millennium
Development Goals Report 2016, at http://​www​.un​.org/​millenniumgoals/​2015​_MDG​_Report/​pdf/​MDG​
%202015​%20rev​%20(July​%201)​.pdf.
21
See, for example, International Monetary Fund, PRSP fact sheet (Apr. 2008), at http://​www​
.imf​.org/​external/​np/​exr/​facts/​prsp (‘PRSPs aim to provide the crucial link between national public
actions, donor support, and the development outcomes needed to meet the United Nations’ Millennium
Development Goals (MDGs)’).
 The UN Charter and global constitutionalism? 473

whenever the underlying circumstances of state inequality cannot be rectified by the formal
equality of multilateral institutions.
In addition, supranationality appears in the manner in which seemingly pure administrative
agency becomes inherently political when it delegates executive powers. Secretary-General
Dag Hammarskjöld famously anticipated this, and the practice of secretaries-general in active
mediation in international disputes has confirmed it.
Supranationality also emerges in who interprets the implementation of international treaties
(the ICJ or the US Supreme Court) and in the assertion of Security Council authority to legis-
late counter-terrorist responsibilities to all states. It shows up again in delegation of duties to
the Secretariat when it leads to inadvertent transfers of authority within the wider UN system,
as illustrated by the evolution of the MDGs.
In the larger picture, we see that some constitutions centralize, integrate and acquire
authority. They start out with sovereign capacities like the US (a strong executive, a federal
legislature with direct effect over citizens in the component states) and grow dynamically by
formal amendment and informal interpretation, as McCulloch (necessary and proper), the Civil
War amendments and the activist interpretation of Commerce Clause federalized both national
authority and civil rights.22
Sometimes, in world politics, the constitutions of international organizations, starting out
weak, deepen supranationality. They start with very weak constitutions and yet grow dynami-
cally as did the EU, with leadership of the European Court of Justice (ECJ) and the support of
the pro-integrationist members. Spillover cooperation caused the need for more cooperation,
which was met. A dialogue of exit and voice spiraled toward more integration, as curtailing
selective exit was matched by increased voice, and curtaining veto-prone voice by majority
voting was met by selective safeguard exit. Each step ratcheted up central authority (Mattli
and Burley 1993; Garrett et al. 1998; Weiler 1999). Where the stakes are high; where a small
group of leading states is closely connected; there supranational and centralized solutions
to cooperation problems sometimes grow (Olson 1971; Snidal 1985). The evolution from
General Agreement on Tariffs and Trade (GATT) to the WTO (from a veto to implement to
a veto to prevent the enforcement of a trade ruling) is a classic instance.
The UN, on the other hand, changed but did not grow in centralized supranational powers;
instead of spilling over into deeper cooperation, it spilled around.23 Every growth in central
authority and independence met effective sovereign pushback. Integration did not spill over
into more demands for greater integration and central authority, but resulted instead in decen-
tralization and disaggregation. The political science principles of rational design suggest that
the UN – unlike the EU and US – may have too many members, too little interdependence
and too much diversity to sustain an effective centralized supranational authority.24 Its 193
members do not need to ‘hang together’ (they do not, in Benjamin Franklin’s immortal phrase,
otherwise ‘hang separately’). Doing so is especially difficult, given diversity. Diversity is

22
Other factors including the weakness of national parties also played a key role in determining
the federal-state balance in the US, as noted in Bednar et al. (2001). For the evolving balance between
centrifugal and centripetal tendencies, see Deudney (1995).
23
For the related literature on regional integration, see Nye (1977), Wallace (1994) and Schmitter
(1970).
24
For a valuable development on the rational design of institutions that discusses these attributes
among others to suggest how institutional designs can overcome coordination and cooperation chal-
lenges, see Koremenos et al. (2001).
474 Handbook on global constitutionalism

constitutionally guaranteed by the Charter in Article 2(4), guaranteeing territorial integrity

and political independence, and 2(7), unless international peace and security is threatened.
Contrarily, the US Constitution ‘Guarantee Clause’ (IV:4) guarantees that all US states are
similarly republican. Similarly, too, the EU guarantees that all candidate members are all
democracies that meet the acquis communautaire standards. The UN Charter only requires all
states be ‘peace-loving’ (Art. 4.1) – and who isn’t?
Where the constitution reflects a hegemonic constitutional moment, the constitutional order
can either build or erode. The US supported early European integration and the coalition of
Germany and France pushed it forward from that base. The UN Charter reflected in 1945 the
predominance of the US at the end of the Second World War. But the Cold War stymied insti-
tutional growth and US hegemonic decline pushed evolution in the opposite direction.25 When
hegemony declines, supranationality generates sovereign pushback. Weak as it was and is, the
UN ‘constitution’ of 1945 still authorizes more than the members are now prepared to cede.
Ironically the Charter is thus an especially precious institution, a reservoir of ‘political
capital’ for centralized legality and legitimacy granting purposes. It is precious partly because
it so difficult to reform today. Today neither the US nor EU would ever rationally design
a constitution as weak as the ones they were born with. While today, the world would not
design something as strong as the UN Charter of 1945, which cedes authority on international
security to a Security Council of 15, even with a Permanent Five veto, or budget authority – in
legal effect, global taxation – decisions to a two-thirds vote of a General Assembly of all states
without a veto.

REFERENCES
Abbott, K. and D. Snidal (2000), ‘Hard and soft law in international governance’, International
Organization, 54 (3), 421–56.
Alvarez, J. (2006), International Organizations as Law-Makers, New York: Oxford University Press.
Austin, R. (1993), ‘Chief Electoral Officer’s Electoral Evaluation: summary report’, United Nations
Transitional Authority in Cambodia (UNTAC).
Bednar, J., W. Eskridge and J. Ferejohn (2001), ‘A political theory of federalism’, in J. Ferejohn, J.
Rakove and J. Riley (eds), Constitutional Culture and Democratic Rule, Cambridge: Cambridge
University Press, pp. 223–67.
Bolton, J. (2007), Surrender Is Not an Option, New York: Simon and Schuster.
Bowett, D. (1994), ‘The impact of Security Council decisions on dispute settlement procedures’,
European Journal of International Law, 5 (1), 89–101.
Chopra, J. (1999), Peace Maintenance, London: Routledge.
Deudney, D. (1995), ‘Sovereignty, arms control and the balance of power in the American states union’,
International Organization, 49 (2), 191–228.
Doyle, M. (1995), The UN in Cambodia: UNTAC’s Civil Mandate, Boulder, CO: Lynne Rienner.
Doyle, M. (2002), ‘Strategy and transitional authority’, in S. Stedman, D. Rothchild and E. Cousens
(eds), Ending Civil Wars, Boulder, CO: Lynne Rienner, pp. 71–88.
Doyle, M. (2012), ‘Dialectics of a global constitution: the struggle over the UN Charter’, European
Journal of International Relations, 18 (4), 601–24.
Doyle, M. and N. Sambanis (2006), Making War and Building Peace, Princeton, NJ: Princeton
University Press.

25
For hegemonic cooperation see Keohane (1984), Ikenberry (2001) and Hirsch (1977).
 The UN Charter and global constitutionalism? 475

Dunoff, J. and J. Trachtman (eds) (2009), Ruling the World: Constitutionalism, International Law and
Global Governance, Cambridge: Cambridge University Press.
Fassbender, B. (1998), ‘The United Nations Charter as constitution of the international community’,
Columbia Journal of Transnational Law, 36 (3), 529–619.
Fortna, P. (2004), ‘Does peacekeeping keep the peace?’, International Studies Quarterly, 48 (2), 269–92.
Franck, T. (2003), ‘Is the UN Charter a constitution?’, in J. Frowein, K. Schardroth, I. Winkelmann and
R. Wolfrum (eds), Verhandeln fur den frieden, New York: Springer-Verlag, pp. 110–19.
Garrett, G., R.D. Kelemen and H. Schulz (1998), ‘The European Court of Justice, national governments
and legal integration in Europe’, International Organization, 52 (1), 149–76.
Goodrich, L. and E. Hambro (1949), Charter of the United Nations: Commentary and Documents,
Boston, MA: World Peace Foundation.
Gross, L. (1948), ‘The peace of Westphalia: 1648–1948’, American Journal of International Law, 42
(1), 20–41.
Gross, L. (1951), ‘Voting in the Security Council: abstention from voting and absence from meetings’,
Yale Law Journal, 60 (2), 209–57.
Guttieri, K. (1997), ‘Symptom of the moment: a juridical gap for US occupation forces’, International
Insights, 13 (special issue), 131–55.
Helfer, L. (2003), ‘Constitutional analogies in the international legal system’, Loyola of Los Angeles Law
Review, 37 (2), 207–8.
Hirsch, F. (1977), ‘Politicization in the world economy: necessary conditions for an international eco-
nomic order’, in F. Hirsch, M. Doyle and E. Morse (eds), Alternatives to Monetary Disorder, New
York: Council on Foreign Relations and McGraw Hill, pp. 9–64.
Hoffmann, S. (1968), ‘A world divided and a world court confused: the world court’s advisory opinion
on UN financing’, in L. Scheinman and D. Wilkinson (eds), International Law and Political Crisis,
Boston, MA: Little, Brown, pp. xi–xix.
Ikenberry, J. (2001), After Victory: Institutions, Strategic Restraint, and the Rebuilding of Order After
Major Wars, Princeton, NJ: Princeton University Press.
Johnstone, I. (1995), Rights and Reconciliation in El Salvador, Boulder, CO: Lynne Rienner.
Jones, B. (2003), ‘The challenges of strategic coordination’, in S. Stedman, D. Rothchild and E. Cousens
(eds), Ending Civil Wars, Boulder, CO: Lynne Rienner, pp. 89–115.
Keohane, R. (1984), After Hegemony: Cooperation and Discord in the World Political Economy,
Princeton, NJ: Princeton University Press.
Koremenos, B., C. Lipson and D. Snidal (2001), ‘The rational design of international institutions’,
International Organization, 55 (4), 761–99.
Liu, F.T. (1992), United Nations Peacekeeping and the Non-Use of Force, Boulder, CO: Lynne Rienner.
Mattli, W. and Burley, A.-M. (1993), ‘Europe before the court’, International Organization, 47 (1),
41–76.
McDougal, M. and R. Gardner (1951), ‘The veto and the Charter: an interpretation for survival’, Yale
Law Journal, 60 (2), 258–92.
Michelman, F. (2006), ‘What do constitutions do that statues don’t (legally speaking)?’, in R. Bauman
and T. Kahana (eds), The Least Examined Branch: The Role of Legislatures in the Constitutional
State, New York: Cambridge University Press.
Nye, J. (1977), Peace in Parts, Boston, MA: Little, Brown.
Olson Jr., M. (1971), The Logic of Collective Action, Cambridge, MA: Harvard University Press.
Plachta, M. (2001), ‘The Lockerbie case: the role of the Security Council in enforcing the principles of
aut dedere aut judicare’, European Journal of International Law, 12 (1), 125–40.
Ratner, S. (1995), The New UN Peacekeeping: Building Peace in Lands of Conflict, New York: St
Martins.
Reisman, M. (1993), ‘Constitutional crisis in the United Nations’, American Journal of International
Law, 87 (1), 83–100.
Roed-Laursen, T. and R. Hooper (1999), Command from the Saddle, Oslo: Peace Implementation
Network.
Russell, R. (1966), ‘United Nations financing and the law of the Charter’, Columbia Journal of
Transnational Law, 5 (1), 68–95.
476 Handbook on global constitutionalism

Sarooshi, D. (2005), International Organizations and their Exercise of Sovereign Powers, New York:
Oxford University Press.
Schachter, O. and C. Joyner (1995), United Nations Legal Order, New York: Cambridge University
Press and American Society of International Law.
Schmitter, P. (1970), ‘Central American integration: spill-over, spill-around or encapsulation’, Journal
of Common Market Studies, 9 (1), 1–48.
Scott, R. and P. Stephan (2006), The Limits of Leviathan, Cambridge: Cambridge University Press.
Snidal, D. (1985), ‘The limits of hegemonic stability theory’, International Organization, 39 (4),
579–614.
Stedman, S. (2003), ‘Policy implications’, in S. Stedman, D. Rothchild and E. Cousens (eds), Ending
Civil Wars, Boulder, CO: Lynne Rienner, pp. 663–71.
United Nations Millennium Declaration, G.A. Res. 55/2, U.N. Doc. A/RES/55/2 (8 Sept. 2000), at http://​
www​.un​.org/​millennium/​declaration/​ares5552e​.pdf.
Wallace, W. (1994), Regional integration: The Western European Perspective, Washington, DC:
Brookings.
Weber, M. (1947), The Theory of Social and Economic Organization, trans. A.M. Henderson and T.
Parsons, T. Parsons (ed.), London: Macmillan.
Weiler, J.H.H. (1999), ‘The transformation of Europe’, in J.H.H. Weiler (ed.), The Constitution of
Europe, Cambridge: Cambridge University Press, pp. 10–102.
33. Functionalism, constitutionalism and the
United Nations
Jan Klabbers

INTRODUCTION

Since the early twentieth century, international organizations and their legal dynamics have
typically and invariably been analyzed from a functionalist perspective (see, for example,
Amerasinghe 2005; Sands and Klein 2009; Schermers and Blokker 2011; for discussion, see
Klabbers 2014). This has applied to all entities generally recognized as international organiza-
tions, including the United Nations (UN). At the same time, many have intuitively realized that
the functionalist frame does not really fit multipurpose organizations of universal membership
such as the UN and, before it, the League of Nations – there is a strong urge to view these not
as functional organizations in the same way as the Universal Postal Union, but as, somehow,
special. Earlier functionalists would do so by describing the UN as a ‘general’, perhaps even
‘political’, organization as opposed to the functionally specialized agencies (see, for example,
Schermers 1972). In more recent decades, scholars have come to analyze the UN in constitu-
tionalist terms, a move spearheaded by Fassbender (1998) and followed by luminaries such as
Habermas (2006), although early forerunners can be found as well (Verdross 1973).
This chapter aims to look at the UN from the vantage point of the tension between func-
tionalism and constitutionalism, and will make the point that neither is a particularly suitable
framework for understanding the UN. Doing so involves a few preliminary moves that prob-
ably need to be spelled out. First, my interest resides with studying the UN as the possible
embodiment of global constitutionalism, as this is typically the way it has been approached
by international lawyers. This differs from other perspectives: I am, for example, for present
purposes less interested in the contribution the UN may or may not have made to global con-
stitutionalism (see Doyle, Chapter 32 in this Handbook).
Second, the functionalism I discuss is the functionalism that prevails in the law of inter-
national organizations, and as such is different from the functionalism that has informed
integration studies, as highlighted elsewhere in this volume (see Dunoff, Chapter 18 in this
Handbook).1 Integration functionalists ask themselves how cooperation along functional lines
can beget further cooperation. That is an important question, but is different from the question
that preoccupies international organizations lawyers; these, instead, wonder how organiza-
tions are legally structured, and have found by and large that international organizations are
structured along functional lines. Or rather, more accurately perhaps, they have proposed that

1
If the first version of functionalism Dunoff discusses relates to the contributions of international
organizations to global constitutionalism, the second version he discusses does not relate to the function
of organizations such as the UN at all, but relates to the functions of constitutionalism. He briefly touches
on yet a third version (Isiksel’s ‘functional constitutionalism’) but this, for all its surface appeal, strikes
mostly as a contradiction in terms posing as a clever trouvaille.

477
478 Handbook on global constitutionalism

organizations should be structured along functional lines; there is ground for the proposition
that functionalism in the law of international organizations has a strong ideological component
– that it is ideology rather than theory (see further, Klabbers 2018).
Finally, in order to make my point, I will often refer to my own earlier work. This is not
out of self-aggrandizement (my ego, sadly perhaps, is big enough without it), but is necessary
in order to make clear just how much the topic under discussion involves epistemological
assumptions and builds on arguments made more extensively elsewhere. The constitutional
nature of the UN (vel non) cannot meaningfully be discussed without critically discussing
the concept of international organization, for example; this, in turn, cannot be done properly
without discussing the early work of Reinsch and Sayre (in particular Sayre; see Sayre 1919)
and the reception thereof by later writers such as Schermers (Schermers 1972; Schermers
and Blokker 2011). There is little space properly to engage in such discussion here, but it so
happens that I have done so elsewhere. Hence, the need to refer to earlier work undertaking
precisely this investigation, and it is unfortunately also the case that few other authors on the
law of international organizations have been interested in doing this sort of work – so I end up
referring to myself quite a bit.
International organizations, including the UN, are often studied from a functionalist per-
spective (Virally 1974). The main variable has been the function assigned to the organization
by its member states; every concrete legal issue has been discussed in that particular light.
That light has been flattering: it made international organizations look good as harbingers
of peace and preparing for the ‘salvation of mankind’, in Nagendra Singh’s unforgettable
phrase (Singh 1958, p. vii).2 Whether it concerned the precise scope of what organizations can
do (their powers or competences); their relationship to the legal orders in which they would
operate (issues of personality, privileges and immunities); or whether they would be allowed
to admit or expel member states, it was invariably the functioning of the organization that was
given pride of place. It followed, almost naturally, that things were very broadly construed: if
an organization suggested it might need a power to engage in activity X in order to function
effectively, then functionalism demanded that the organization must be seen to possess such
a power (Bekker 1994). If an organization claimed it ought not to be sued before a local court
because such would impede its functioning, functionalism demanded that the organization be
held immune from suit (Reinisch 2000).
It was long thought that the same reasoning would cover all existing international organiza-
tions, and the very concept of organization tended – and tends – to be broadly defined (Klabbers
2013). It is commonplace to regard regional entities of general jurisdiction as the European
Union (EU) or the Organization of American States (OAS) as international organizations.
It is equally standard to regard as international organizations entities such as the financial
institutions (International Monetary Fund and World Bank, but also local institutions such as
the Nordic Investment Bank), as well as some educational actors (for example, the European
University Institute), military alliances such as the North Atlantic Treaty Organization
(NATO), or ‘member-driven’ actors such as the World Trade Organization (WTO). Even
commodity organizations are generally seen as fitting the description, with the cartel-like
Organization of Petroleum Exporting Countries (OPEC) the best-known example. Indeed, for
almost a century, the discipline has placed almost all forms of cooperation between states in

2
Singh was not just another international lawyer; he sat on the International Court of Justice for 15
years (1973–88), and was its president between 1985 and 1988.
 Functionalism, constitutionalism and the United Nations 479

the same cognitive basket.3 The only exception that is sometimes made is when those forms
of cooperation appear so loosely ‘institutionalized’ as to lack all or most institutional features:
this may or may not apply to entities such as the G20, the Paris Club (debt restructuring) or the
Wassenaar Arrangement (arms control), among others (Klabbers 2001a), or the Committees or
Meetings of the Parties (COPs or MOPs) set up under multilateral environmental agreements
(Churchill and Ulfstein 2000). Even with respect to those entities, despite question marks
surrounding their quality as international organizations, the theory of functionalism tends to
be applied.
That is, functionalism has for more than a century dominated the legal landscape in which
international organizations are built, and yet there have always been doubts with respect to
international organizations of general jurisdiction: the League of Nations, the United Nations,
and regional organizations of general jurisdiction such as the Council of Europe. Earlier text-
book writers, perhaps somewhat unwittingly, expressed these doubts in making a distinction
between what they would refer to as ‘functional organizations’ and ‘general’ or ‘political’
organizations (Schermers 1972, pp. 24–5). The UN would be an example of the latter,
whereas the former group would consist of most (or all, actually) others, whether International
Monetary Fund (IMF), European University Institute (EUI) or World Health Organization
(WHO). After all, with the functional group, it is usually possible to identify what their main
function is, or should be: the IMF is about securing financial stability; the EUI does education;
the WHO’s function is to secure global health.
By contrast, the function of a general organization such as the UN is much harder to iden-
tify, and too much has happened since the creation of the UN to consider it as a functional
agency in any meaningful way. Hence, some felt the need to discuss the UN in terms other than
those of functionalism, and it seemed that constitutionalism, whatever its precise contents, was
a natural choice, precisely because the many tasks of the UN, while defying a functionalist
analysis, can all be associated, on some deep intuitive level, with constitutional values. The
UN can meaningfully be seen as devoted to global peace: it has the collective security mech-
anism to back up this claim, and especially its executive arm, the Security Council, is actively
engaged in matters of peace. It is equally plausible to discuss the UN in terms of justice: it has
come, over the years, to engage in all sorts of activities that are perhaps mostly only tangen-
tially related to peace (think of human settlements, the protection of wildlife, or psychotropic
substances) but would fall within many people’s definition of justice. Again, one of its main
organs, the General Assembly, is supremely well equipped to discuss and debate questions
of global justice, even if it cannot do much else (Klabbers 2005). Then there are the various
references in the UN Charter to human rights, and the supremacy clause of article 103 of the
Charter, which all suggest that the UN is an international organization unlike all others, and
thus should be discussed in other than functionalist terms. In terms of global constitutionalism
then, the argument runs that as the UN is not best seen as a functional agency, it must be some-
thing else, and that ‘something else’ is that the UN is best seen as the embodiment of global
constitutionalism. Whether it contributes to global constitutionalism is a different matter, as is
the question what the function of global constitutionalism is. Interesting as these are, the focus
of this chapter has to rest elsewhere: on the question whether the UN can meaningfully be
portrayed as the personification or embodiment of global constitutionalism, for at least among

3
The decisive moment came with the publication of the influential study by Francis B. Sayre
(1919). For the argument explaining Sayre’s influence, see Klabbers (2015).
480 Handbook on global constitutionalism

international lawyers this is not an uncommon position to take, however implicitly often. The
remainder of this chapter agrees with the point of departure that there is little to gain from
applying a functionalist prism to the UN, and further explores two possible manifestations of
a constitutionalist perspective. The final section concludes.

FAILING FUNCTIONALISM

The functionalist perspective is not all that suitable for the UN, for the good reason that it is
next to impossible to identify what the UN’s function is in any meaningful way. This alone
should be sufficient to discourage all too enthusiastically functionalist approaches to the UN.
However, there is more: the UN has engaged in such a wide array of activities that its powers
bear little resemblance to any functionalist model. Its immunity from local jurisdiction has, in
practice, become absolute rather than functional; and its relationship with its member states
follows anything but functionalist lines.
Before illustrating these three points, it is perhaps useful to provide a nutshell overview of
functionalism in the law of international organizations.4 Functionalism is a principal–agent
theory whereby the principal (the member states) assigns a single function or related set of
functions to an agent, the international organization. Typically, the organization is set up for
this purpose (it is relatively rare for radically new functions to be assigned to existing agents5);
by definition, the principal is itself a collective actor (in that a single state cannot on its own
establish an international organization – this requires at least two states); and invariably, the
principal is represented with the agent in the form of the plenary organ of the organization,
and is therewith in a position to exercise some control over the organization. This control is,
however, limited to the relationship between the organization and its members: the member
states (indeed, functionalism itself as well) have little to say about relations with actors other
than those member states, and have likewise little to say over organizational matters that do not
implicate the member states in any direct manner, such as relations between the organization
and its civil service, or between the various organs of the organization (Klabbers 2016).
Legal relations, then, are structured around the function of the entity, and this presupposes
that a function can be identified. If so, subsequent legal questions can be answered under refer-
ence to this function, on the presumption that since states assign their agents with a function, it
follows that they intend their agents to actually perform this function.6 In theory, this poses few
problems: should the question arise whether an entity such as the WHO can conclude an agree-
ment with a private benefactor in order to acquire funds to fight malaria, a functionalist would

4
At the risk of being repetitive, this is not identical to functionalist integration theory. While the two
share some axioms, they ask different questions: integration theorists are interested in how cooperation
begets further cooperation, while the lawyers wonder how that cooperation is legally structured. See
more broadly Klabbers (2015).
5
Common as it may be to expand functions, there are few examples of organizations originally
devoted to function A now being assigned function B or C.
6
This accuracy of the presumption may sometimes be doubted; it has been suggested with respect
to various regional organizations, for example, that their existence was meant to solidify the sovereignty
of their member states (and the regimes in power within those states), rather than actually to successfully
execute a particular instrumental function. See several of the contributions in Acharya and Johnston
(2007).
 Functionalism, constitutionalism and the United Nations 481

answer affirmatively – fighting malaria clearly falls within the remit of the WHO. Should
the question arise whether the WHO can conclude an agreement with a private benefactor in
order to acquire missile systems, the functionalist answer would be negative: the acquisition
of missile systems is clearly not within the remit of the WHO.
Should the discussion end here, the theory could do its work, but it rarely does end here.
First, many activities fall into a large grey area as being not immediately related to the function
of the organization, but not completely isolated from it either. The most obvious example is the
purchase of office equipment: the WHO is not set up to buy paperclips (or so one hopes), and
yet, the purchase of office equipment is helpful if the organization is to function effectively.
We might even take the point further: while the purchase of missile systems is, at first sight,
difficult to reconcile with the WHO’s mission, what if the WHO itself thinks that it requires
such systems to keep its staff safe while working in conflict zones? If the WHO’s membership
unanimously or by large majority reaches this conclusion, then it becomes difficult to argue
that the WHO’s membership got it wrong – after all, the WHO members must be considered
best placed to identify what contributes to the WHO’s functioning, since the WHO is their
creation. Thus put, the doctrine that organizations shall not act outside their competences (the
ultra vires doctrine) is not very powerful, and can as a matter of principle always be overruled
by the member states acting collectively.7
If the example of the WHO purchasing missile systems may seem far-fetched, the under-
lying idea has nonetheless been widely accepted ever since the International Court of Justice
(ICJ) held, in 1949, that the UN had the competence to file a claim against a state deemed
responsible for causing the UN damage, despite the complete absence of any reference to such
a competence in the UN Charter. In casu, a UN-appointed mediator had lost his life in the
Middle East, and the ICJ found that the UN had the power to file a claim against Israel: the UN
could do anything necessary to give effect to its functions.8 This became known as the implied
powers doctrine, which has allowed many an organization to develop and expand far beyond
the confines of its initial tasks as written down explicitly in its constituent document. It is also
on this basis that the UN can justify being active on topics such as drugs and crime preven-
tion, human settlement, the protection of wildlife, the promotion of sustainable development,
human rights and gender issues, and much besides. Many of these are not mentioned at all
in the UN Charter (with the exception of some oblique references to human rights), but are
generally accepted as forming part of the tasks of the UN. The UN has grown into the global
equivalent of a Western welfare state, albeit on a far lower level of protection, and despite
Dag Hammarskjöld’s classic admonishment that the UN was not created to achieve heaven
on earth, but rather to prevent hell from materializing (quoted in Klabbers 2001b, p. 221).
The point is, that this state of affairs has only been achieved through an expansion of tasks
facilitated by functionalist theory, and while the expansion of tasks of the UN may be a good
thing, the same theory also opens the door for organizations to do bad things, or at least things
not everyone would accept as benevolent.9

7
For much the same reason the doctrine was discarded from US corporate law as early as the 1930s;
see Horwitz (1994).
8
Reparation for Injuries Suffered in the Service of the United Nations, advisory opinion, [1949] ICJ
Reports 174, especially at 182.
9
The UN too has had its fair share of critics, not least within US Congress; these have often been
able to mobilize the UN’s ‘mission creep’ as something to rail against and perhaps even to justify the
withholding of financing. Seminal is Alvarez (1991).
482 Handbook on global constitutionalism

Much the same applies to immunities. True to functionalist thought, immunities help protect
the UN against intrusion by overzealous litigants and prosecutors, and in line with functional-
ism, the relevant instruments typically provide that immunities are granted to ‘safeguard the
independent exercise of the organization’s functions’. Immunities and privileges are limited,
on paper, to words spoken and acts performed by officials, member state representatives and
experts on mission in their official capacity, and, again on paper, immunity should be waived
by the UN if doing so is in the interest of justice and can be done without prejudice to the
purpose for which the immunity was accorded. Reasonable and balanced as this may sound, in
practice the UN enjoys something very close to absolute immunity: suits against the UN or its
officials tend to go nowhere, even in those cases where it is clear that the UN should shoulder
some of the responsibility for either action or inaction, whether it concerns the massacre in
Srebrenica or, more recently, the outbreak of cholera through UN peacekeepers in Haiti. The
ICJ has held that it mostly depends on the assessment of the Secretary-General of the UN to
determine whether acts or words are done or spoken in an official capacity, leading to the
obvious temptation for the Secretary-General to allow the institutional interest to prevail.10
When the League of Nations decided in 1920 not to admit Liechtenstein as a new member
state, it followed functionalist thinking: Liechtenstein had (and still has) no army, and thus the
argument can be made that it was unable to contribute to the functioning of the League – it
would be difficult for Liechtenstein to participate in any collective security mechanism. In
1990, long after the League’s demise, Liechtenstein applied for admission to the UN, and
was accepted without a problem.11 The change highlights the transformation (some might
say degeneration) of functionalist thought on membership issues. While the League was still
thinking, for better or worse, in terms of having a serious collective security task and thus
accepting those members who could possibly contribute, the UN has grown into something
else.
Some have lamented that the UN has been far too quick to grant admission to aspiring states
and has not taken its own membership criteria too seriously. Instead of accepting all applicants
about whom it is possible to agree, the UN should have been guided in its admission policies
not by the overwhelming desire to be universal, but by more functionalist concerns, in casu
a concern about the liberal pedigree of applicant states, on the basis of the underlying, if
unspoken, theory that the UN should function as a league of liberal states (the leading study
is Grant 2009).

CONSTITUTIONALIST OVERTURES: BARDO FASSBENDER

The idea that, among international organizations, there is something special about the UN
would seem to be generally recognized. If nothing else, the UN is primus inter pares: the
combination of its general jurisdiction and universal membership guarantees that the UN is
often regarded as the most relevant – the archetypical – organization. As a corollary, it is not
uncommon to somehow think of the UN as central to international law. This can take place
in various forms: international law textbooks may be structured around the UN, as is the case

10
Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission
of Human Rights, advisory opinion, [1999] ICJ Reports 62.
11
See General Assembly Resolution A/RES/45/1.
 Functionalism, constitutionalism and the United Nations 483

with the classic Verdross and Simma textbook (1984); or international law may be regarded
as largely ‘institutionalized’, on the understanding that the institutionalization stems largely
from the UN (Ruffert and Walter 2009). The ICJ itself has contributed to this line of thought
by aspiring to conceive of the relationship between the UN and its specialized agencies as one
of government and specialized ministries – without the result being very compelling.12
The most explicit conceptualization of the central place of the UN can be found in the work
of Bardo Fassbender, appropriating the vocabulary of constitutionalism and endorsed in recent
years by none other than Jürgen Habermas.13 Fassbender first set out his thesis in a classic
article published in the late 1990s (Fassbender 1998),14 launching the proposition that the UN
Charter was to be seen as the constitution of the international community, therewith clearly
aiming to depart from any functionalist orientation.15
For Fassbender, the UN Charter displayed several characteristics which make it appropriate
to think of it as a constitutional document, rather than the ‘mere’ founding document of an
international organization (Fassbender 1998, pp. 573, 577–8). One of these is the supremacy
clause of Article 103, holding that in case of conflict between obligations under the Charter
and other international obligations, those under the Charter shall prevail (for useful discus-
sion, see Liivoja 2008). Another element was to be found in Article 2, paragraph 6, bringing
non-member states into the UN’s fold.16 Moreover, guaranteeing peace and security, and
claiming a monopoly on the use of force, is a key characteristic of all governments (Fassbender
1998, p. 574). Like all constitutions, dixit Fassbender, the Charter is concluded with a view to
eternity; it has no termination provision, and can only be amended by a kind of supermajority
(Fassbender 1998, p. 578). Even the very use of the term Charter is not without significance
for, so Fassbender suggests, in 1945 this term was akin to ‘written constitution’, and lest
it be forgotten, the Charter opens by aiming to represent the voice of ‘We the peoples ...’
(Fassbender 1998, p. 580).
Thinking in terms of the UN Charter as a constitution would have ramifications. Thus,
its constitutional nature would help explain application of the Charter to non-member states
(Fassbender 1998, p. 593).17 It would also help explain the addition of many new tasks – this
would bear testimony to the Charter’s nature as a ‘living instrument’ (Fassbender 1998,
pp. 594–5). The Charter’s constitutional nature warrants constitutional interpretation, that
is, when in doubt, err on the side of the UN (Fassbender 1998, pp. 595–8). Also, amendment

12
Legality of the Use by a State of Nuclear Weapons in Armed Conflict, advisory opinion, [1996] ICJ
Reports 66; for critical discussion, see Klabbers (2009a).
13
In an essay on the putative constitutionalization of international law, Habermas (2006) freely
borrows from Fassbender.
14
A decade later the article was, almost unchanged, published as a monograph: see Fassbender
(2009). All references will be to the article.
15
More recently, political theorists have posited a federalist – and still largely aspirational – under-
standing of the UN as embodiment of global constitutionalism. The most prominent of these is Cohen
(2012).
16
The ICJ aspired to do much the same in respect of a resolution concerning Namibia, holding
that some of the obligations contained in the resolution were ‘incumbent’ upon all states, regardless
of whether they were UN members. See Legal Consequences for States of the Continued Presence of
South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970),
advisory opinion, [1971] ICJ Reports 16.
17
There is possibly an element of bootstrapping here: the Charter can be applied to non-members,
which helps explain why it can be applied to non-members.
484 Handbook on global constitutionalism

should only take place according to the constitutionally prescribed procedure; that is, follow-
ing Articles 108 and 109: there is no role for the organic development of customary law in such
a constitutional system (Fassbender 1998, p. 600).
For all its ingenuity and despite the circumstance that some of his constitutional hallmarks
are eminently sensible, Fassbender’s approach is ultimately neither compelling nor generally
accepted (see also Walker 2015, pp. 92–3). For instance, there are a number of unresolved
tensions between claiming that amendment needs to follow constitutional procedure and
that the Charter can nonetheless be seen as a living instrument; or between suggesting that
non-member states may be bound by UN law, and the precise wording of Article 2, paragraph
6 of the Charter, which merely instructs the UN to ensure that non-members act in accordance
with the principles of the Charter on some topics. That is, it creates an obligation for the UN
itself,18 but is not directly creative of obligations for non-member states.
More to the point though, Fassbender’s constitutionalism is a rather mechanistic consti-
tutionalism, almost indistinguishable from functionalism or rather, perhaps, representing an
incomplete hyper-functionalism. It is incomplete because it says little about membership cri-
teria or privileges and immunities. It is hyper though in being more explicit about the inherent
good of the organization: expansion of its powers and activities are welcomed not just because
they help the UN to function, but because the UN is constitutional. Exercising authority over
non-members is to be welcomed not just because this inheres in the function of the UN, but
precisely because the UN is constitutional. That is, the functionalist would have no problem
accepting Fassbender’s constitutionalism, and would recognize it as a kindred approach: as
hyper-functionalism. If that is the case, then the main value of Fassbender’s pioneering work
resides in it being pioneering: he was among the first explicitly to resort to the vocabulary of
constitutionalism when discussing the UN, and therewith opened avenues which otherwise
would have remained closed off (but see Klabbers 2004).19 What remains curious, though, is
that his brand of constitutionalism does little to keep the exercise of public power in check,
yet it is here that constitutionalism would have most traction (see Cohen 2012): there is no
discussion on how the UN’s authority could be controlled, and this sets Fassbender’s con-
stitutionalism apart from most other attempts to capture the exercise of public power on the
international level in constitutional terms.20

LIBERAL CONSTITUTIONALISM?

In retrospect, it would seem obvious that the counterpart to functionalism cannot be

a hyper-functionalism à la Fassbender. Instead, if constitutionalism is to have any traction,
it must be as an alternative to functionalism, addressing some of functionalism’s blind spots
(Klabbers 2011). As noted above, one of those blind spots (very possibly the most relevant

18
In one of those paradoxes in which law is so rich, it should perhaps be noted that with respect to
the Charter, the UN itself is also in the position of a third party.
19
While Fassbender relies on Verdross, it has also been suggested that for the latter, institution-
alization was not a key prerequisite. Instead, Verdross’s argument hinged on jus cogens and a posited
international community. See O’Donoghue (2012).
20
Curiously, there is a brief discussion on whether the constitutional nature of the Charter places
limits on reforming the Security Council (Fassbender 1998, pp. 606–9), but no discussion on whether
there are any limits to what the Council can do.
 Functionalism, constitutionalism and the United Nations 485

one) is that functionalism is difficult to reconcile with control of the acts (or inaction) of
international organizations. As noted, the ultra vires doctrine is about the only legal doctrine
available to functionalism, and this doctrine can always be overruled by the common accord
of the member states. External control (by courts, stakeholders, victims, contract partners)
has thus far proved to be highly elusive, and this becomes especially problematic when it
concerns a multipurpose organization such as the UN, whose function is to function as a global
authority.
The more obvious version of constitutionalism then for the UN is a liberal constitutionalism,
and there are traces to be found in the literature to this effect – almost the entire literature on
global constitutionalism is liberal in tone and inspiration, and it could hardly be otherwise
(Peters 2006; Wet 2006; Dunoff and Trachtman 2009; Klabbers 2009b; but see Tsagourias
(2007), questioning some of the premises underlying the debate). Thus, many would agree
that the UN should respect basic human rights standards, even if it is not a party to any human
rights treaty. This would help secure that those on the receiving end of sanctions would not
find themselves penalized without fair trial, deprived of their property, and would have some
access to justice. In particular since the Kadi saga before the Court of Justice of the European
Union, such an approach is not terribly controversial.21
However, respect for human rights goes further – or could (or should) go further. It has been
noted that sometimes there is a discrepancy between what the political organs of the UN piously
wish to achieve, and what the administrative organ is capable of agreeing to in the messy world
of politics. The General Assembly may wish the UN to underline ­non-discrimination in its
dealings with states like Afghanistan, but if Afghanistan refuses to cooperate then such an
arrangement may be hard to come by (the example is derived from Verdirame 2011). Also,
sometimes the General Assembly itself oversteps the boundaries of propriety, never more so
than when it resolved that Zionism equaled racism.
While there is no necessary connection between liberal constitutionalism and review of the
legality of governmental acts, there is nonetheless a useful practical connection (see generally
Hirschl 2007). As it is, there is no forum where the legality of decisions taken by any UN organ
can be tested, with the exception of employment-related decisions. Domestic courts are closed
off owing to the UN’s general (and in practice absolute) immunity from suit. In Lockerbie,
moreover, the ICJ subtly managed to circumvent the question of judicial review essentially by
procrastination,22 and although on occasion the ICJ engages in such review, it does not claim
a particular power to do so, the result being that instead of being institutionalized, the faculty
of review remains subject to judicial whim.
Another element of liberal constitutionalism, many would agree, is democracy, notori-
ously difficult to achieve on the international level. Stuck with the idea of sovereign states
representing their citizens,23 possibly the best we can hope for is the creation of reasonably

21
More controversial is whether member states have a right to civil disobedience against UN author-
ity. The argument is made with some gusto in Tzanakopoulos (2011).
22
Libya had brought cases against the United States and the United Kingdom, respectively, over
Security Council sanctions imposed in the aftermath of the Lockerbie bombing. The cases were brought
in 1992 and removed from the roll in 2003: in the meantime, the ICJ had refused to indicate interim meas-
ures of protection (in 1992) and had found that it had the required jurisdiction to entertain the complaints
(in 1998).
23
Intriguingly, the leading attempt to re-think representation in international affairs came up with
a remarkably similar system: see Linklater (1998).
486 Handbook on global constitutionalism

representative institutions, in the sense of institutions in which different geographical areas,

different philosophies or civilizations, and different interests, are meaningfully represented
(Kuper 2004).
There seems to be little reason to declare the UN a ‘constitutional’ organization just yet.
Its organs cannot generally be considered representative in the sense just described, with the
composition of the Security Council the main eyesore.24 The absence of any kind of judicial
review of the actions or inactions of the UN is also difficult to reconcile with any liberal
conception of constitutionalism, and while the UN may pay lip service to human rights, its
actions often betray such concerns – or rather, to the extent that human rights play a role in
the decision-making processes, they tend to play a role when convenient, rather than as basic
standards below which no action should take place.
The above is certainly a criticism of the UN, but not only of the UN: the global public is also
implicated. The UN has developed into an entity that, quite possibly, has too much to do, and
too many incompatible demands to meet, so that it can always be criticized from one angle or
another. If it imposes collective sanctions on states, it is criticized for causing the suffering of
the innocent (for an illuminating study, see Veitch 2007). If it resorts to individual sanctions,
it meets with human-rights based critiques. If it were not to impose any sanctions, it would be
criticized for neglecting its security function. If the UN sponsors peace processes, it will be
accused of ignoring justice; if it focuses on justice, it is chided for endangering peace. This still
ignores that neither peace nor justice nor human rights are singular and uncontested ideas. In
a pluralist and divided world, all states, nongovernmental organizations, minorities and other
interest groups can project their own sentiments on the UN, and it is in the nature of things
that the UN cannot please everybody and from all possible angles. Criticizing the UN in these
circumstances is a bit too facile: the only way to come to control the UN is by first deciding
what kind of UN would be desirable – and that decision has never been taken.
This does not mean that the good should be rejected with the bad. As Cohen puts it, the ‘con-
stitutional reading’ of the UN Charter ‘has to be seen as aspirational’ (Cohen 2012, p. 290),
and perhaps should continue to be seen in aspirational terms – there is an argument to be made
that constitutionalism and related aspirations such as the Rule of Law are never accomplished,
but always recede on the horizon just when they seem to come within grasp (Palombella 2010).

CONCLUDING REMARKS

The sobering thought occurs that big and important as the UN is, it is literally beyond control.
Functionalism is the main operating system behind international organizations, but is struc-
turally unable to keep the UN in check. Constitutionalism fares little better, and in its most
explicit and detailed version runs the risk of turning into hyper-functionalism. The UN is dif-
ferent things to different people, and doomed to be damned if it does and if it does not. It is in
a class of its own, and the theory to understand it has yet to be invented, as has the theoretical
framework to help control it.

24
Incidentally, the Security Council cannot be considered unrepresentative as such: it represents
military power, and does so with reasonable accuracy. Whether this is useful or desirable is a different
matter though. For further reflection, see Klabbers (2010).
 Functionalism, constitutionalism and the United Nations 487

Given that the UN is uncontrollable, a lot comes to depend on whether the organization is
populated by decent people for, as Sir Ivor Jennings already posited during the Second World
War, the psychology of government can be just as relevant as the way government is organized
(Jennings 1943). Trite as this may sound, it represents an important insight: the way an organ-
ization such as the UN works is never merely a matter of institutional design, but is ultimately
also a matter of what kind of individuals are responsible for its day-to-day management, its
policies and the ways the organization implements its mandate.
In classical terms, the possible virtues of the UN’s leadership assume relevance, and with
this in mind, it is heartening that at least one Secretary-General emphasizes the relevance of
ethics (see also Fröhlich 2008). On taking the oath of office, in 2006, Ban Ki-moon underlined
that he would ‘seek to set the highest ethical standards’. Laudable as this is, it remains doubtful
whether his understanding of ethics worked as planned. He mentioned ‘efficiency’ in the same
breath, which already strikes as odd but, more importantly, he seemed to think that ethics is
predominantly a matter of the disclosure of financial interests.25 In the wake of the Oil for Food
scandal that plagued his predecessor such may be understandable, but surely, there is much
more to ethics than financial disclosure. One aspect the Secretary-General could think of is
taking responsibility for things happening on the UN’s watch, such as the outbreak of cholera.
Without necessarily sacrificing immunity from suit, surely common decency suggests that
a public apology might be in order. It is precisely this common decency that neither function-
alism nor constitutionalism can grasp.

REFERENCES
Acharya, A. and A.I. Johnston (eds) (2007), Crafting Cooperation: Regional International Institutions in
Comparative Perspective, Cambridge: Cambridge University Press.
Alvarez, J. (1991), ‘Legal remedies and the UN a la carte problem’, Michigan Journal of International
Law, 12 (2), 229–311.
Amerasinghe, C.F. (2005), Principles of the Institutional Law of International Organizations, 2nd edn,
Cambridge: Cambridge University Press.
Bekker, P.H.F. (1994), The Legal Position of Intergovernmental Organizations: A Functional Necessity
Analysis of Their Legal Status and Immunities, Dordrecht: Martinus Nijhoff.
Churchill, R.R. and G. Ulfstein (2000), ‘Autonomous institutional arrangements in multilateral envi-
ronmental agreements: a little-noticed phenomenon in international law’, American Journal of
International Law, 94 (4), 623–59.
Cohen, J.L. (2012), Globalization and Sovereignty: Rethinking Legality, Legitimacy, and
Constitutionalism, Cambridge: Cambridge University Press.
Dunoff, J.L. and J. Trachtman (eds) (2009), Ruling the World? Constitutionalism, International Law, and
Global Governance, Cambridge: Cambridge University Press.
Fassbender, B. (1998), ‘The United Nations Charter as constitution of the international community’,
Columbia Journal of Transnational Law, 36 (3), 529–619.
Fassbender, B. (2009), The United Nations Charter as the Constitution of the International Community,
Leiden: Martinus Nijhoff.
Frohlich, M. (2008), Political Ethics and the United Nations: Dag Hammarskjold as Secretary-General,
Abingdon: Routledge.
Grant, T.D. (2009), Admission to the United Nations: Charter Article 4 and the Rise of International
Organization, Leiden: Martinus Nijhoff.

25
See http://​www​.un​.org/​sg/​ethical​.shtml.
488 Handbook on global constitutionalism

Habermas, J. (2006), The Divided West, Cambridge: Polity Press.

Hirschl, R. (2007), Towards Juristocracy, Cambridge MA: Harvard University Press.
Horwitz, M. (1994), The Transformation of American Law 1870–1960: The Crisis of Legal Orthodoxy,
Oxford: Oxford University Press.
Jennings, I. (1943), The Law and the Constitution, 3rd edn, London: University of London Press.
Klabbers, J. (2001a), ‘Institutional ambivalence by design: soft organizations in international law’,
Nordic Journal of International Law, 70 (3), 403–21.
Klabbers, J. (2001b), ‘The changing image of international organizations’, in J.-M. Coicaud and V.
Heiskanen (eds), The Legitimacy of International Organizations, Tokyo: United Nations University
Press, pp. 221–55.
Klabbers, J. (2004), ‘Constitutionalism lite’, International Organizations Law Review, 1 (1), 31–58.
Klabbers, J. (2005), ‘Two concepts of international organization’, International Organizations Law
Review, 2 (2), 277–93.
Klabbers, J. (2009a), ‘Global governance at the ICJ: re-reading the WHA Opinion’, Max Planck
Yearbook of United Nations Law, 13 (1), 1–28.
Klabbers, J. (2009b), ‘Setting the scene’, in J. Klabbers, A. Peters and G. Ulfstein, The Constitutionalization
of International Law, Oxford: Oxford University Press, pp. 1–44.
Klabbers, J. (2010), ‘Reflections on the politics of institutional reform’, in P. Danchin and H. Fischer
(eds), United Nations Reform and the New Collective Security, Cambridge: Cambridge University
Press, pp. 76–93.
Klabbers, J. (2011), ‘Contending approaches to international organizations: between functionalism
and constitutionalism’, in J. Klabbers and A. Wallendahl (eds), Research Handbook on the Law of
International Organizations, Cheltenham, UK and Northampton, MA, USA: Edward Elgar, pp. 3–33.
Klabbers, J. (2013), ‘Unity, diversity, accountability: the ambivalent concept of international organisa-
tion’, Melbourne Journal of International Law, 14 (1), 149–70.
Klabbers, J. (2014), ‘The emergence of functionalism in international institutional law: colonial inspira-
tions’, European Journal of International Law, 25 (3), 645–75.
Klabbers, J. (2015), ‘The EJIL foreword: the transformation of international organizations law’,
European Journal of International Law, 26 (1), 9–82.
Klabbers, J. (2016), ‘Theorising international organisations’, in A. Orford and F. Hoffmann (eds), Oxford
Handbook of the Theory of International Law, Oxford: Oxford University Press, pp. 618–34.
Klabbers, J. (2018), ‘What role for international organizations in the promotion of community inter-
ests? Reflections on the ideology of functionalism’, in E. Benvenisti and G. Nolte (eds), Community
Obligations in Contemporary International Law, pp. 86–100.
Kuper, A. (2004), Democracy Beyond Borders: Justice and Representation in Global Institutions,
Oxford: Oxford University Press.
Liivoja, R. (2008), ‘The scope of the supremacy clause of the United Nations Charter’, International and
Comparative Law Quarterly, 57 (3), 583–612.
Linklater, A. (1998), The Transformation of Political Community: Ethical Foundations of the
Post-Westphalian Era, Cambridge: Polity Press.
O’Donoghue, A. (2012), ‘Alfred Verdross and the contemporary constitutionalization debate’, Oxford
Journal of Legal Studies, 32 (4), 799–822.
Palombella, G. (2010), ‘The rule of law as an institutional ideal’, in L. Morlino and G. Palombella (eds),
Rule of Law and Democracy: Inquiries into Internal and External Issues, Leiden: Brill, pp. 3–37.
Peters, A. (2006), ‘Compensatory constitutionalism: the function and potential of fundamental interna-
tional norms and structures’, Leiden Journal of International Law, 19 (4), 579–610.
Reinisch, A. (2000), International Organizations before National Courts, Cambridge: Cambridge
University Press.
Ruffert, M. and C. Walter (2009), Institutionalisiertes Völkerrecht (Institutionalized International Law),
Munich: Beck.
Sands, P. and P. Klein (2009), Bowett’s Law of International Institutions, 6th edn, London: Sweet and
Maxwell.
Sayre, F.B. (1919), Experiments in International Administration, New York: Harper.
Schermers, H.G. (1972), International Institutional Law, Leiden: Sijthoff.
 Functionalism, constitutionalism and the United Nations 489

Schermers, H.G. and N.M. Blokker (2011), International Institutional Law: Unity within Diversity, 5th
edn, Leiden: Martinus Nijhoff.
Singh, N. (1958), Termination of Membership of International Organisations, London: Stevens & Sons.
Tsagourias, N. (ed.) (2007), Transnational Constitutionalism: International and European Perspectives,
Cambridge: Cambridge University Press.
Tzanakopoulos, A. (2011), Disobeying the Security Council: Countermeasures against Wrongful
Sanctions, Oxford: Oxford University Press.
Veitch, S. (2007), Law and Irresponsibility: On the Legitimation of Human Suffering, Abingdon:
Routledge.
Verdirame, G. (2011), The UN and Human Rights: Who Guards the Guardians?, Cambridge: Cambridge
University Press.
Verdross, A. (1973), Die Quellen des universellen Völkerrechts: Eine Einführung (The Sources of
Universal International Law: An Introduction), Freiburg: Rombach Verlag.
Verdross, A. and B. Simma (1984), Universelles Völkerrecht (Universal International Law), 3rd edn,
Berlin: Duncker & Humblot.
Virally, M. (1974), ‘La notion de fonction dans la théorie de l’organisation internationale’, in S. Bastid
et al. (eds), Mélanges offerts à Charles Rousseau: La communauté internationale, Paris: A. Pedone,
pp. 277–300.
Walker, N. (2015), Intimations of Global Law, Cambridge: Cambridge University Press.
Wet, E. de (2006), ‘The international constitutional order’, International and Comparative Law
Quarterly, 55 (1), 51–76.
34. The European Union and global
constitutionalism
Jo Shaw

INTRODUCTION

This chapter examines narratives of constitutionalism and the ebb and flow of constitutional
ideas and practices within and across the European Union (EU) and its member states from
the inception of the treaties to the present day. The underlying question is this: to what extent
does the EU manifest a ‘constitutional’ legal and political order? Alongside that question is
the one that inevitably arises in the context of a dynamic regional integration project such as
the EU, which is the question of change. Is the EU changing in terms of its engagement with
constitutional ideas and practices, and if so, is it to be understood as becoming more, or less,
constitutional over time?
Methodologically this raises extremely difficult questions: How do we evaluate and
‘measure’ the ‘level’ of constitutionalism within a polity, especially one that is not a state?
This chapter adopts a normative approach, in the sense that it assesses above all the role of
legal rules in underpinning the content of a constitutional framework, and it gives priority to
the treaties and to the role of the Court of Justice of the European Union (CJEU). However,
it does not deny the social content of constitutionalism, especially issues of legitimacy.
Consequently, we also need to take into account the context of the ebbs and flows of legal
rules. What types of changes to the (economic, political and geopolitical) environment in
which the EU and the member states operate have made most difference to the constitutional
dimension of European integration?
To answer these questions, we need a definition of ‘constitutionalism’. This chapter adopts
the terms set by the introduction to this Handbook (Lang and Wiener, Chapter 1). We can assess
issues of constitutionalism across the dimensions of the rule of law, the balance or separation
of powers, and the concept of constituent power. As we shall see in the conclusion, the choice
of these elements of focus for global constitutionalism is highly consequent for the EU. For
the EU, as a legal and political order, has long reflected its constituent member states’ highly
ambivalent engagement with many aspects of popular sovereignty in the post-war period, as
a reaction to the totalitarian past. This had led, in the view of Müller (2016), to a preference
for the fragmentation of power and a suspicion of populist politics that has spilled over into
expectations about what the EU is, and what it should do. We return to this theme at the end of
this chapter. As we shall see, in many ways nothing has changed. Yet everything has.
A handbook on constitutionalism written 30 to 40 years ago would have been unlikely to
feature the EU (that is, what was then the ‘European Communities’) as one of its case studies. It
would have focused on national case studies, and perhaps the migration of constitutional ideas
across state borders. Only a narrow cadre of scholars of European Community law might have
pressed the argument that European integration was, from the beginning, to be understood as
more than ‘just’ an international pact about trade and that this ‘project’ was well on the way, by

490
 The European Union and global constitutionalism 491

the 1980s, to evincing distinctive constitutional features stemming from its supranational legal
order. More generally, the very idea of global constitutionalism was at best a marginal concept
in the 1980s, and even well into the 1990s. However, in the third decade of the twenty-first
century, the world looks – especially from an institutional perspective – very different, with
many global and regional international institutions that are based on legal frameworks with
quasi-constitutional characteristics and functions, and supported by the discourses of ‘rule of
law’, ‘human rights’ and ‘separation of powers’, even while the status and effectiveness of
such institutions, such as the International Criminal Court, continue to be contested.
In that context, the EU lies at the very heart of a radically changed institutional and norma-
tive landscape, which has sometimes been characterised, rather prematurely, as a ‘postnational’
world. This chapter examines the evolution of this landscape, traversing the landscape from
well-trodden ‘historical’ terrain towards more recent, and less well-understood developments.
In the conclusion, we return to the question of ‘what type of EU constitutionalism in what type
of world’, applying a brief critique of the utility of the idea of ‘postnationalism’ in the context
of rising tides of populist politics and politicians, in the EU, in the EU’s neighbourhood and
elsewhere in the world as well as other challenges to the norms of liberal democratic constitu-
tionalism (Eisler et al 2022). In that context, the open question remains the extent to which the
EU can remain a bulwark for global constitutionalism in an increasingly uneasy world, given
the ongoing challenges of parsing possible tensions between constitutionalism, on the one
hand, and integration on the other.

AN EVER-CHANGING UNION WITH SHIFTING NARRATIVES OF

CONSTITUTIONALISM

The Dominant Legal Narratives of Constitutionalism: the Guise of Legal Integration

Despite the relatively recent emergence of a formal narrative of constitutionalism into the
public discourse of the EU and its institutions, many of the ‘constitutional’ features of the EU
have been well established as legal doctrines since the 1960s and 1970s. This can be attributed
to decades of fairly consistent activism based on a teleological approach to the interpretation of
legal texts on the part of the CJEU when it came to the shaping of the core features of the EU’s
legal order in view of its often implicit and sometimes explicit understanding of the ‘project’
of European integration. This is what we should term the ‘constitutionalisation of the treaties’.
The CJEU handed down a series of formative judgments1 that put in place key legal con-
cepts such as the direct effect, direct applicability and the primacy of EU law (de Witte 2021).
Together these established what came to be seen, from the perspective of EU law, as a hierar-
chy between national law and EU law, with the latter taking precedence over the former and
being directly enforceable within domestic legal systems. Over time, this case law became
well known not just among lawyers, but also across a wider circle of specialists on European
integration, although it rarely if ever received much public attention. As a result prevailing
national myths about what the EU was or is, and what it was not or is not have tended to dom-
inate public discourse at the national level.

1
Case 26/62 Van Gend en Loos ECLI:EU:C:1963:1; Case 6/64 Costa v ENEL ECLI:EU:C:1964:66.
492 Handbook on global constitutionalism

One of the leitmotivs of this constitutionalisation process was the emphasis on the uniform
application of (what is now) EU law within and across the member states, and the role of
national courts and national institutions in enforcing the law in a multilevel constitutional
system (Tridimas 2015). The possibility and – in some circumstances – the requirement for
national courts to refer questions of EU law which arose in cases before them to the CJEU for
a ruling on interpretation (or where appropriate a ruling on the validity of EU law measures)
has been a crucial connection between the two systems. Originally to be found in Article 177
EEC, this reference procedure is now located in Article 267 of the Treaty on the Functioning of
the European Union (TFEU). The existence and emergent utility of the preliminary reference
procedure emphasised that from the very start an embryonic European Community consti-
tutional structure was bound to be dependent upon a central legal core based on a uniform
conception of supranational law enforceable by national courts as well as by the CJEU. This is
a phenomenon that political scientists have often termed ‘legal integration’ (e.g. Garrett 1995;
Alter 1996). In addition, the CJEU also worked through concepts of fundamental rights and
‘legal basis’ (that is, the scope of EU competences) in order to develop the autonomy of the
EU legal order, and to strengthen the claim that it is based on the rule of law and human rights.
The CJEU was not afraid of the idea of constitutionalism; in the 1986 case of Les Verts,2 it
described the treaties as the European Community’s ‘constitutional charter’.
Many have argued that the CJEU, in this case law, was channelling the spirit of ‘ever closer
union among the peoples of Europe’ as one of the original aims of the European integration
process, owing much to the intentions of the original functionalist framers of the treaties, such
as Jean Monnet, Robert Schumann and Walter Hallstein. This phrase was included in the
Treaty of Rome 1957. It has survived into the present-day Treaty on European Union (TEU)
which now underpins the EU. Some shocks or changes have called into question the durability
and cohesive spirit of the phrase, but not its inclusion in the treaties. An exception concerned
the so-called renegotiation by the UK of its terms of membership, prior to the referendum held
in June 2016 on whether the UK should remain in or leave the EU. A Decision of the Heads
of State and Government meeting within the framework of the European Council3 appeared
to envisage a reconsideration of the nature of ‘ever closer union’ in a way that could have
been compatible with the UK’s choice to refute the possibility of further political integration
and to seek an ongoing exceptionalism in relation to some of the disciplines of integration. In
the event, any question about the future effects of this commitment (and indeed whether they
could be incorporated within the existing treaty structure) were nugatory, because the UK
voted narrowly to choose the path of ‘Brexit’.
It is worth mentioning that in its case law up to the date of Brexit, the CJEU rarely men-
tioned this phrase, but tended to use instead formalist justifications based on the notion of
a community ‘under law’.4 In the case of Wightman, brought by UK parliamentarians in order
to ascertain the question whether the notification given by the UK under Article 50 TEU
regarding the intention on the part of the UK to withdraw from the EU could be unilaterally
withdrawn, the CJEU seemed to make a substantive step forward in elaborating to some

2
Case 294/83 Parti écologiste ‘Les Verts’ v European Parliament ECLI:EU:C:1986:166.
3
Decision of the Heads of State or Government, meeting within the European Council, concerning
a new settlement for the United Kingdom within the European Union [2016] OJ C691/1.
4
Opinion 1/91 Draft EEA Agreement ECLI:EU:C:1991:490.
 The European Union and global constitutionalism 493

degree upon the ‘ever closer union’ as instantiating the very purpose of the EU.5 In a case
which, as Niamh Nic Shuibhne (2021) notes, we are destined to understand in the future as
being more about the fundamentals of the EU legal order than it is about Brexit as such, the
CJEU used the opportunity to emphasise the voluntary nature of the ever closer union and of
European integration more generally in order to reach the conclusion that such a notification
could be unilaterally withdrawn.
Moreover, it is important to note the CJEU’s position has never been legally and constitu-
tionally unassailed, but has seen significant challenges coming from the constitutional courts
of (some of) the member states. Since the legal framework underpinning European integration
is a multilevel system incorporating both a ‘supranational’ and a ‘national’ level, the role of
the member states needs to be taken into account. The German Federal Constitutional Court
in particular has always been noticeable for adopting a position that accords only a condi-
tional ‘primacy’ to EU law, based on its understanding of the primary reference point for its
work being those parts of the German constitutional framework which sustain the nature of
Germany as a sovereign state. These claims are incompatible with the claims made by the
CJEU about the character and primacy of EU law, but for decades the two courts avoided
coming directly into conflict with each other (Pernice 2014). As the issues around the rule of
law and the relationship between judicial and political institutions within the member states
and the EU itself have become increasingly prominent, this uneasy equilibrium has become
every harder to sustain.

The Travails of Political Narratives of Constitutionalism in an EU Dominated by

Member States

In parallel with and in frequent contrast to these legal developments, the political dimension
of the European integration process in other spheres continually seemed to lurch from crisis to
crisis, with the member states and European institutions seemingly making little substantive
progress on core tasks such as the completion of the single market, let alone the creation of
a common commercial policy, the establishment of a common external border, the removal of
passport controls and identity checks at internal frontiers, or the creation of a single currency
and a monetary union. While to some extent the problems could be put down to exogenous
factors such as the oil crises of the 1970s and the widespread recession in the global economy
in the 1980s, in general the diagnosis given for the paralysis was that there were too many
intergovernmental blockages in the legislative process so that the European Community
was, for the most part, not working as intended. These blockages were only partially offset
by supranational judicial developments guaranteeing the effectiveness of the treaty-based
market freedoms. That is, negative integration (the application of those parts of the treaty
prohibiting certain types of national barriers or restrictions, for example, on goods or services)
did not fully compensate for the absence of positive integration, in the form of, say, common
standards for the goods and services to be traded across borders within the so-called ‘common
market’. It was sometimes said at the time that the European Communities seemed to be in the
‘last chance saloon’ by the middle of the 1980s.

5
Case C-621/18 Wightman ECLI;EU:C:2018:899.
494 Handbook on global constitutionalism

It was at this point that a group of heads of state and government predominantly from
centre-right parties joined forces with a Commission President from the centre left (Jacques
Delors) to agree upon the political necessity of completing what came to be known as the
‘single market’ (essentially the common market, with an additional political spin). The main
selling points concerned the benefits for citizens from enhanced economic integration; poli-
ticians rarely highlighted the possibility of offering enhanced guarantees of ‘social Europe’
(for example, more secure and effective employment protection) through measures taken at
the EU level.
To give effect to this political impulse, the member states negotiated the Single European
Act, as the first treaty substantially to amend the treaties of the 1950s. It was intended to kick
start the completion of the single market, the creation of a frontier-free Europe and the finalisa-
tion of the common external border for goods in particular. It led the member states, with tiny
steps initially, along the road towards greater cooperation across borders in the areas of justice
and home affairs and foreign and security policy. One significant change was the development
of a legislative procedure which required only a qualified majority in the Council of Ministers
and which gave greater powers to the European Parliament (EP). After some tweaking in sub-
sequent treaties, this procedure has emerged as the ‘ordinary legislative procedure’, installing
the EP as co-legislator alongside the Council for many fields of EU law. It now covers not
only core market matters including state aid, regulated markets and competition law, but also
many important flanking policies such as environmental policy and regional policy and has
been introduced to an ever greater extent even in more sensitive areas such as justice and home
affairs and social policy.
The Single European Act (SEA), which entered into force in 1986, was only the first in
a rash of new treaties, which have incrementally redesigned what we now call the EU in such
a way as to make it more closely resemble, in approach and activities, the federal or confederal
level in a federal state or a confederation rather than an international organisation. There was
a gradual accretion of competences at the EU level, alongside an increased willingness to
exercise those competences. This has meant a de facto alignment of the EU and many con-
stitutional ideas and a fair amount of litigation that has tested the scope of both internal and
external competences. In addition, from 1989 onwards it became apparent that the EU was
going to need to adjust rapidly to profoundly changed geopolitical circumstances in Europe
and Eurasia, with enlargement policies and a new neighbourhood policy (both policies still
incomplete) now on the agenda. However, as we shall see, the impulse to enhance European
integration through treaty change has not gone unchallenged at the national level.
First came the Treaty of Maastricht, which entered into force in 1993 after initial rejection
by the Danish electorate in a referendum followed by subsequent approval. Reassuring noises
on issues that concerned Denmark and its citizens were made by the other member states in
the form of a non-binding declaration, some elements of which were built into subsequent
treaties. The Maastricht Treaty introduced the notion of ‘European Union’, creating a ‘pillar
structure’ to draw out distinctions between ‘core matters’ managed according to the so-called
‘community method’ (involving the EP) and areas of intergovernmental cooperation in
the fields of justice and home affairs and foreign and security policy, and created the legal
framework for the introduction of the euro as a single currency. The concept of ‘subsidiarity’,
intended to ensure that decisions are taken as closely as possible to the citizen, was introduced
by this treaty, as well as the legal figure of the ‘citizen of the Union’. As a legal concept, EU
 The European Union and global constitutionalism 495

citizenship is based on the national citizenship laws of the member states, as only nationals of
the member states are EU citizens.
The Treaty of Maastricht presented a dilemma for the EU institutions and the member state
governments. On the one hand, it represented an important political step away from a primarily
utilitarian and economistic justification for European integration, based on trade and markets.
On the other hand, it was the first European treaty to be rejected in a popular referendum
(although an earlier ‘political’ treaty in the area of defence cooperation in the 1950s had failed
a parliamentary ratification hurdle in France). This raised the spectre and possibility that the
citizens of the member states might not actually want ‘more Europe’, even though steps such
as the removal of internal borders (Schengen) and the creation of the euro currency (at least
initially) were popular. This was a new equation for political elites to try to work out, and it
remains unsolved more than 20 years later. From that time onwards, Eurosceptic tropes arguing
that the EU has a ‘democratic deficit’, that there is a gulf between the EU and its institutions
and ordinary citizens, and that the EU has been illegitimately eroding the national sovereignty
of its member states have never been far below the surface of the ongoing debate about the
trajectory of the EU. However, the primary response of EU institutions and member states has
been to press on with treaty development intensively for most of the two following decades,
adding many features to the EU as a political and legal structure that could be viewed as more
‘constitutional’ in nature. The political rationale for doing so was that such changes also made
it easier for the EU to act in what was seen to be the best interests of citizens – in terms of pro-
moting their security, their prosperity and their capacity to live peacefully together. In terms
of the legitimacy of the EU and its rule-making, this raises many complexities. In the search
to do more and better at the EU level, member states have not always paid attention to how
arguments about democratic legitimation in a multilevel polity can mesh effectively. In many
respects the argument that the process of EU rule-making enjoys a double democratic legiti-
mation through the role of the (nationally elected and legitimated) Council of Ministers and
the (supranationally elected) EP gains little traction with ‘ordinary’ voters who find it opaque.
In addition, member states buttressed these formal developments with important extra-legal
changes, notably the introduction of the so-called ‘Copenhagen criteria’, which determine
whether or not a candidate member state qualifies for membership of the EU. For our pur-
poses, the most important of these criteria are the political criteria: respect for democracy,
human rights, rule of law and protection of and respect for national minorities. Eventually,
these criteria were incorporated in the treaties, and now appear as foundational values of the
EU in Article 2 of the TEU and are referenced in Article 49 TEU concerned with the accession
of new member states and in Article 7 TEU, which establishes a procedure for the suspension
of some or all of the rights of membership on the part of a member state found to be in ‘serious
and persistent breach’ of those values. It is useful to cite these in full. While they might some-
times be thought only to have rhetorical value, they have increasingly put in an appearance in
recent CJEU case law as the main buttresses of a ‘constitutional’ approach:

The Union is founded on the values of respect for human dignity, freedom, democracy, equality,
the rule of law and respect for human rights, including the rights of persons belonging to minorities.
These values are common to the Member States in a society in which pluralism, non-discrimination,
tolerance, justice, solidarity and equality between women and men prevail.

The second of the major revising treaties was the Treaty of Amsterdam, which entered
into force in 1999. This treaty, negotiated at a point in the political cycle when the EU had
496 Handbook on global constitutionalism

a majority of centre left governments, strengthened and mainstreamed cooperation in justice

and home affairs, and social policy, and enhanced the EU treaty provisions on fundamental
rights and the right to non-discrimination. Following very rapidly on the heels of the Treaty
of Amsterdam came the Treaty of Nice. Signed already in early 2001, the entry into force of
the Treaty of Nice was delayed until 2003 by the need to hold a second referendum in Ireland.
This treaty was intended to prepare the EU for a ‘big bang’ post-1989 enlargement, but it was
more of a tidying up exercise that recognised the increasing importance of flexibility within
the EU system and introduced a new provision that could allow the EU as a whole to sanction
a member state that stepped significantly out of line in relation to matters of democracy, the
rule of law, or fundamental rights.
Most recently, we have the Treaty of Lisbon, which entered into force in 2009. This treaty
was once more rejected and then later approved by Irish voters in two referendums. It revised
and reviewed the overall structure of the treaties so that the basis for primary EU law is now
the TEU and the Treaty on the Functioning of the European Union, removing the historic
‘community’ and ‘union’ ‘pillar’ distinction between the more supranational and more
intergovernmental aspects of the EU’s work. It introduced significant changes in the area of
external policy (both commercial policy and foreign and security policy) and completed the
process of mainstreaming most areas of justice and home affairs cooperation, under the ordi-
nary legislative procedure. The treaty also established that the EU’s Charter of Fundamental
Rights, originally adopted in a non-treaty and non-legally binding format in 2000 (‘solemnly
proclaimed’), had the same legal value as the treaties. This has resulted in the CJEU making
more substantial use of the rights contained in the Charter in its case law, notwithstanding the
efforts of member states to ring-fence the scope of the Charter by reference to the scope of
EU law.
In fact, the roots of the Lisbon Treaty can also be traced to the beginning of the 2000s when
the member states started preparing the ground for the negotiation for what became known as
the Constitutional Treaty. The Constitutional Treaty does not appear on the list of amending
treaties, as it never came into force. Like the Charter of Rights, it was originally negotiated
in a convention, which comprised representatives not only of member state governments,
but also of national parliaments, the EP, and the European Commission. Empowered by the
Laeken Declaration of the European Council, the convention worked via plenary deliberation,
the circulation of papers and drafts, along with working groups with focused tasks. Much of
the work of the convention was in public, eschewing in large part the ‘behind-closed-doors
negotiation-amongst-diplomats’ style of an intergovernmental conference (IGC). However, it
was widely regarded as working ‘under the shadow’ of the IGC – that is, it did not enjoy a free
hand, regardless of the likely wishes of the member states. That which was politically feasible
could be included in the Constitutional Treaty – or so the argument went.
The Constitutional Treaty finalised by the Convention in 2003 was largely adopted in
unchanged form by the governments of the member states and formally adopted and signed
in an IGC in 2004. Despite having been subjected to the political sense-test of an IGC, it did
not prove congenial to voters. It was decisively rejected in referendums held in France and the
Netherlands in 2005. As a result, ratification was never completed and the treaty was set aside.
The results in these referendums gave rise to a further crisis of confidence about the trajectory
and sustainability of the EU as an evolving polity, but this did not deter the member states
from picking up much of the material contained in the Constitutional Treaty and putting it
into the Treaty of Lisbon under a different form just two years later. However, although it had
 The European Union and global constitutionalism 497

much of the same content and achieved most of the same legal effects, the Treaty of Lisbon
as presented for national ratification was a text shorn of the symbols of proto-statehood to
which the Constitutional Treaty referred (flag, anthem and motto). The ‘constitution’ title was
dropped. While the discourse of constitutionalism had become well established in scholarship
about the EU, after the demise of the Constitutional Treaty, the term has largely disappeared
from official discourse. On the contrary, the only constitutional requirements and traditions to
which the Treaty of Lisbon refers are those of the member states.
We can summarise these ebbs and flows as follows: the post-Lisbon treaty basis for the
EU looks quite different to the post-SEA European Community, which contained only
a separate ‘leg’ of tentative intergovernmental European political cooperation in the foreign
policy sphere. Now foreign and security policy is substantially mainstreamed into the core of
Union activities, even if in practice it remains incomplete. Yet the basic institutional struc-
ture – although more complex than it was in the 1980s – is still recognisably the same one,
rooted in the idea of a European Commission (as an embryonic European executive), the EP
(directly elected since 1979), the Council of Ministers (with much of its work prepared by the
Committee of Permanent Representatives) and the CJEU. The regular meetings of the heads of
state or government, which have taken place since the early 1970s, have been institutionalised
as the European Council, which now has its own president elected by the leaders and account-
able to them for his or her performance. Meanwhile the President of the Commission remains
politically accountable to the EP, and in 2014 the Parliament unilaterally implemented the
so-called ‘leading candidates’ (Spitzenkandidaten) scheme, which the member states equally
unilaterally ignored in 2019, choosing their preferred candidate from the electorally dominant
European People’s Party (Ursula von der Leyen) not the Spitzenkandidat (Manfred Weber)
to be the European Commission President after the 2019 EP elections. Ultimately, the EP
acquiesced in this powerplay. There also remains a ‘national’ presidency circulating among
the member states on a six-monthly basis, but its importance in preparing the legislative work
of the EU or acting as a symbolic political reference point is much downgraded compared
with the capacity of the presidency between the 1980s and the 2000s to act as a catalyst for
change (or conversely a brake on new developments). Finally, to form a bridge between the
Commission and the European Council, the member states have created the position of High
Representative of the Union for Foreign Affairs and Security Policy.
The territorial scope of the EU has also changed dramatically since the 1980s. Much of this
change can be attributed to the effects of the fall of the Berlin wall in 1989, the reunification
of Germany in 1990 (which effected an internal enlargement to absorb East Germany) and
the breakup of the Soviet Union (in 1991) and Yugoslavia (from 1991 onwards). As with
Greece, Spain and Portugal, when they emerged into the arena of liberal democracy, so the
new democracies of central and Eastern Europe and – to a lesser extent – south-east Europe
have been brought into the fold of the EU. There are now 27 member states (with only Croatia
joining since the last treaty revision entered into force and the UK having left), and there
have been numerous referendums on membership since the 1970s, with only Norway, in
1972, opting not to join after signing an accession treaty. In the Western Balkans, there are
a large number of prospective new member states, with Serbia and Montenegro at the head
of the queue. Enlargement talks with Turkey have foundered. Although Iceland flirted briefly
with membership in the wake of the chaos wrought by the financial crisis and the failure of
its banks in the late 2000s, this has not been taken further. Nor have Switzerland’s periodic
flirtations with membership amounted to anything substantial. However, Norway, Iceland and
498 Handbook on global constitutionalism

Liechtenstein are firmly linked to the EU through the European Economic Area agreement,
which creates a framework for single market-like cooperation between those states (which are
members of the European Free Trade Association); Switzerland, meanwhile, maintains a close
bilateral relationship with the EU based on a complex and often contested network of treaties.
However, the issue of EU membership exploded dramatically into life again, after having been
politically frozen for nearly a decade, in the wake of the Russian invasion of Ukraine and the
applications by Ukraine, Georgia and Moldova (the latter two being also countries that feel
threatened by Russia) to join the EU.

Crisis and Constitutionalism in the Integration Process since 2016

Since 2016, the EU has been facing a series of serious challenges to the integration process,
and thus to its closely associated commitment to integration through law and the upholding of
classic liberal democratic constitutional principles. Perhaps its most serious existential crisis
came in the wake of the UK’s referendum vote on 23 June 2016. This vote mandated the
UK government, by a margin of 52 per cent to 48 per cent, to negotiate withdrawal from the
EU, and after a protracted process, which saw two changes of Prime Minister in the UK and
a General Election in December 2019 held explicitly on the mandate to ‘get Brexit done’, the
UK left the EU on 31 January 2020, with a transitional period that lasted until 31 December
2020. Since that date, the UK has been a third country vis-à-vis the EU, subject only to the
requirements of the Withdrawal Agreement, which protects, inter alia, the rights of UK cit-
izens in EU member states and nationals of the member states in the UK and the Trade and
Cooperation Agreement concluded in great haste to govern post-Brexit relations. Relations
between the UK and the EU have been tense, but they have not – to the surprise of some but
no means all commentators – posed a substantial threat to the EU (Laffan 2019) or resulted in
major changes to the nature of EU law (Nic Shuibhne 2021). Even so, the UK’s referendum
vote is seen by many as just one among a number of signals of a growing malaise among the
populations of the member states about the idea of the EU as a constitutional and continental
destiny for practices of cooperation between states in Europe. Euroscepticism, in various
guises, is present in every member state, and especially publicly visible among the substantial
numbers of Members of the EP, elected every five years, who represent Eurosceptic parties.
In policy terms, the EU is also much changed. It engages with a wider range of policy areas,
which are intended to foster closer integration between the member states; these extend into
the monetary, security, justice and home affairs areas, as well as the traditional trade domains.
Beyond the focus on trade in goods, which was the main emphasis of the Single European
Market, there have been increasing attempts to create better conditions for the cross-border
mobility of services. It has also stepped further into political domains closer to the core of
member state sovereignty with the Charter of Fundamental Rights, now enshrined in the trea-
ties, and the establishment of a concept of European citizenship, dating back to the Treaty of
Maastricht, but given additional substance by a number of key rulings of the CJEU during the
2010s. However, at the same time, the introduction and implementation of new competences
has gone hand in hand with greater differentiation (in particular for the Eurozone, as discussed
below) and systematic use of opt-outs (Leuffen et al 2021). This applies to the arrangements
for the removal of internal frontiers (Schengen), for the UK and Ireland, and to various other
aspects of justice and home affairs for the UK, Ireland and – in its own way – Denmark. In
 The European Union and global constitutionalism 499

addition, enlargement has led to enhanced differentiation, so that some states cannot yet, for
example, join Schengen, even though they may wish to do so (Bulgaria, Romania and Croatia).
Things have not always gone smoothly for the EU. The Eurozone was established on 1
January 1999, and now comprises 19 of the 27 member states. Yet it is widely accepted that
(1) the Eurozone was not established with an appropriate framework to enable it effectively
to withstand asymmetric shocks or serious sovereign debt crises facing one or more member
states, and (2) shortcuts were taken with the original entry criteria, as a result of which several
states, most notably but not only Greece, entered the Eurozone under conditions in which their
public finances were not in sufficiently robust order to resist the type of crisis that occurred
from 2008 onwards. These asymmetries could be said to represent the EU’s true ‘crisis’
(Kumm 2013). Consequently, there have been further treaty developments in this domain, to
cope with the problems that have arisen, but none of them have involved all of the member
states. These include the Treaty Establishing the European Stability Mechanism (ESM),
among the 19 Eurozone members, which has been set up as a permanent source of financial
assistance for those members which experience difficulties. Another separate intergovern-
mental mechanism, which includes some but not all of the non-Eurozone EU member states
(the UK, the Czech Republic and Croatia did not participate), is the European Fiscal Compact
Treaty, intended to operate as a more effective version of the stability and growth pact which
fosters fiscal self-discipline among the Eurozone members and those other EU member states
that have chosen to opt in. Such treaties, which bind only those states that participate, do not
amend the existing treaty structure, but they necessarily cast a shadow upon the wider treaty
framework in terms of their clear preference to defend the integrity of the euro as a currency in
a robust manner. Indeed, the choice of treaty (as opposed to legislative) mechanisms operates
as an important signal of the seriousness with which the contracting states regard such matters.
Further pressure on the EU’s policy processes, and thus its commitment to operating within
a legal framing, has also been evident during the course of the COVID-19 crisis, which posed
a huge challenge to the EU institutions to step up to the plate with recovery packages that
leveraged the EU’s scale and power on financial markets in a manner that would increase
solidarities across the member states in the wake of the financial hits to economies caused by
so-called ‘lockdowns’. However, such emergency politics always put institutional relations
and, potentially, constitutional principles at both the EU and the member state levels under
strain (Schmidt 2021; Goetz and Martinsen 2021).

SO WHERE DO WE NOW STAND WITH THE EU AND (GLOBAL)

CONSTITUTIONALISM?

It is clear that the early part of the 2000s saw an optimism that the EU was moving into a new
‘constitutional’ era, supported not only by the abundant scholarly writing exploring the appli-
cability of constitutional ideas and practices in the context of the EU, but also by the willing-
ness of political elites to invoke the ‘c’ word. This came during what we can call the ‘future
of the Union’ period. This is the rather brief interregnum between the Laeken Declaration of
2000 and the referendums in France and the Netherlands in 2005, which saw rejection of the
Constitutional Treaty. What underpinned this constitutional high water mark was a widely
held elite commitment to the principle that, notwithstanding the concerns raised by the Danish
referendum on the Treaty of Maastricht and the Irish electorate on the Treaty of Nice, and the
500 Handbook on global constitutionalism

wariness of national judicial actors including the German Federal Constitutional Court, the
progress towards a more highly institutionalised EU taking on an ever larger range of political,
societal and economic challenge was the correct path to follow. This phase seems to be marked
by a touching faith in the power of institutions to institute not just a formal but also a substan-
tive sense of the EU as a constitutional project. However, the 2005 referendums represented
an important turning point, signalling that citizens across more than one member state were no
longer heavily invested in the notion that the EU should adopt an expressly constitutional form
and raising some doubts about the very future of the European integration project, which have
been amplified since that time.
Since 2007, life has not become simpler for those seeking to argue that the European inte-
gration process – in its current form – represents an important ‘constitutionalised’ supplement
to the liberal democratic constitutional frameworks of the member states. The challenges
facing the EU have multiplied in scope and character. They stem from both internal and exter-
nal sources. We have seen a substantial retrenchment towards ‘the national’ and the rejection
of supranational solutions in many areas. This has occurred even though it continues to be
widely acknowledged in political spheres that these same challenges require at least in part
solutions extending beyond national borders. In almost all cases, the EU member states have
struggled to find common solutions and to place these within effective rule-bound frames
at the EU level. Thus we have seen the global financial crisis that spiralled into a sovereign
debt crisis, and the associated global economic slowdown. We have seen the rise of Russia
as a regional power, exercising destabilising power in the EU’s near neighbours, especially in
Ukraine, culminating in a full-scale invasion in February 2022. War in Ukraine has spillover
consequences for many EU member states because of the interface with North Atlantic Treaty
Organization (NATO) guarantees on territorial integrity. These events have generated addi-
tional demands in the area of defence upon the EU. The wars in Ukraine, Syria and Yemen,
along with the continuing fallout from US-led military actions in Iraq, Afghanistan and Libya,
have all contributed to exacerbating the long-standing global crisis of refugees and displaced
persons, most of the burden of which (with the exception of refugees from Ukraine) falls on
third countries such as Lebanon, Turkey and other countries in the EU’s near neighbourhood.
This crisis moved, in the last decade, across the external frontiers of the member states and
into the heart of the EU, with the resulting large-scale population movements appearing at
first sight to challenge the sustainability of frontier-free travel and mobility. Another security
challenge has emerged as a result of a larger number of terrorist attacks within the member
states, some of them involving people of migrant background, but often involving those who
are citizens of the country in which the attacks have taken place. This is one reason why those
who are dual citizens and those who are of Islamic faith have increasingly been seen as suspect
in many member states. Close to home, there are other types of internal challenge: the rise of
populist and often far right anti-immigrant politicians in a number of member states, able to
exercise considerable power through coalition agreements accommodating anti-immigrant
political preferences and the challenges posed to constitutional orders, democracy, the rule
of law and the authority of the EU by the anti-liberal governments in Poland and Hungary.
There remain, too, other long-standing challenges, such as the general lack of vitality in the
economies of many of the member states (often giving rise to high levels of (especially youth)
unemployment) and the problems of climate change and global warming that demand a global
response.
 The European Union and global constitutionalism 501

These challenges can and have demanded responses, which draw upon the institutional
capacities of the EU to imagine and deliver shared action. With the withdrawal of the UK,
a new impetus to shared action and even possible future treaty change emerged in the member
states, with new visions emerging from the European Commission (European Commission
2017) and a Conference on the Future of Europe launched in 2021 with significant citizens’
deliberation elements built into it (Alemanno 2020). While the overt ‘Big C’ constitutional
language has largely disappeared from the EU lexicon, the task for observers and interpreters
of what the EU now does, and how it does it, has been to readjust their lenses in order to make
sense of what might be termed a new phase of constitutional dissembling. Just because the
language of formal constitutionalism has been rejected at the EU level does not mean that it
does not make sense still to use lenses of constitutionalism – in relation to the rule of law, the
balance of competences and the notion of constituent power, as postulated in the introduction
to this volume. That is, is ‘Small c’ constitutionalism, as witnessed since the 1960s, still oper-
ating in the context of the EU? I would argue that this question is to be answered in the affirma-
tive, with some qualifications related to the new conditions in which the CJEU now finds itself
and also given the challenging geopolitical context in which the EU finds itself operating.
What has been noticeable about recent developments in many of the contested policy
arenas noted above is that so far as there has been EU action it has tended to be dominated
by executive branches of the member states, operating in concert in the Council of Ministers
and the European Council (Dawson and de Witte 2016). Parliaments at all levels (regional,
national and European) have often been bypassed during the urgent search for monetary sta-
bility in the wake of the financial crisis, in responses to the humanitarian crisis produced by
an influx of refugees and in COVID-19 responses that have strengthened executives across
the world. Especially in the context of actions taken in relation to challenges to the viability
of the Eurozone, the EU institutions have often acted in concert with other intergovernmental
actors such as the International Monetary Fund or the so-called Troika, that lack democratic
legitimacy. Some termed this a ‘turn’ towards a ‘new intergovernmentalism’, which has chal-
lenged many of the orthodoxies of scholarship on European integration, in particular that the
institutions are ‘hardwired’ to pursue an ‘ever closer union’ (Bickerton et al 2015a, 2015b). In
that context, as Cardwell and Hervey have argued, the use of law has often offered a formal
and sometimes problematic veneer of legitimacy to many of the steps taken at the international
level, which have challenged democratic choices made by electorates at the national level (for
example, through the replacement of democratically elected governments with governments
of technocrats, as in Italy) (Cardwell and Hervey 2015).
Yet despite this there has been relatively little change in the way that the CJEU goes about
its business. Its case law demonstrates that it remains concerned about protecting the systemic
coherence of EU law as a system. This is evident, for example, in the Opinion which it gave
on the draft international agreement providing for the accession of the EU to the European
Convention on Human Rights, which it argued – notwithstanding there being a specific com-
petence in the treaties to effect just this legal outcome – was not compatible with the scope
and competences conferred by the treaties in their present form. The point is made very clearly
in the judgment:6 ‘The fact that the EU has a new kind of legal order, the nature of which is
peculiar to the EU, its own constitutional framework and founding principles, a particularly

6
Opinion 2/13 Draft ECHR Agreement ECLI:EU:C:2014:2454, para. 158.
502 Handbook on global constitutionalism

sophisticated institutional structure and a full set of legal rules to ensure its operation, has
consequences as regards the procedure for and conditions of accession to the ECHR.’ These
systemic concerns are also visible in the Wightman case.
In similar terms, the CJEU struck down an EU regulation transposing a UN Security Council
sanctions resolution imposing an asset freeze on an individual suspected of connections with
the financing of terrorist activities, on the grounds that it was not compatible with the human
rights standards applicable within the EU.7 As in the Opinion on accession to the ECHR, the
CJEU resisted the importation of external elements into the EU legal order.
In the face of a much more extensive treaty framework than in the early years, it is harder
to find grounds to accuse the CJEU of the greedy accretion of new competences in the name
of ‘ever closer Union’. As noted previously, it rarely invokes that mantra, although it did so in
a case called Pupino, during the interregnum between the creation of the so-called third pillar
for justice and home affairs competences and the full-scale ‘mainstreaming’ of these compe-
tences into the core of the treaties through the Treaty of Amsterdam and the Treaty of Lisbon.8
Moreover, in Pupino, the CJEU tendentiously suggested that such ‘third pillar law’ had more
in common with classic ‘European Community law’ than perhaps the framers of the so-called
pillar structure had originally intended, but anticipating the political movement towards the
‘mainstreaming’ of these competences that came into force somewhat later.
The CJEU also had to consider what to make of measures taken by the Union, and specif-
ically by the European Central Bank (ECB), to deal with circumstances in the wake of the
international financial crisis that threatened the very stability and existence of the Eurozone.
It had to decide two controversial cases referred by the highest courts of two member states
under Article 267 TFEU. In the Pringle case,9 the CJEU confirmed the competence of the EU
to conclude the ESM Treaty, and in the Gauweiler case, the first ever reference made by the
German Federal Constitutional Court, the CJEU confirmed the legality of so-called ‘Outright
Monetary Transactions’ (OMTs), a form of defence for the euro devised by the ECB, but
never actually used.10 Notably, in Gauweiler, before making the reference the German Federal
Constitutional Court had expressed the view (by a majority) that the OMTs fell outside the
competences of the EU (Fabbrini 2015, 2016). Yet when the case returned to the national court
for a final ruling, it was able to avoid an outright conflict with the CJEU by repeating – in
abstract terms – its strictures about its competence to scrutinise ultra vires EU-level measures
which impinge upon German constitutional integrity, while holding off from taking any prac-
tical measures because the scope and character of the OMT instrument as interpreted by the
CJEU did not manifestly exceed the competences of the EU. The national court also stated that
any future hypothetical use of the OMT instrument would be under its supervision. None of
this is intended to suggest that the fundamental economic and political issues which are raised
by the crisis, which remain embedded within Europe’s monetary system, have been solved, but
at least the immediate prospect of constitutional conflict was then headed off.

7
Joined cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International
Foundation v Council of the European Union and Commission of the European Communities
ECLI:EU:C:2008:461.
8
Case C-105/03 Pupino ECLI:EU:C:2005:386.
9
Case C-370/12 Pringle ECLI:EU:C:2012:756.
10
Case C-62/14 Gauweiler ECLI:EU:C:2015:400.
 The European Union and global constitutionalism 503

The issue re-emerged in spectacular manner in 2020, with a judgment of the German Federal
Constitutional Court declaring that a judgment of the CJEU on the legality of decisions of the
ECB11 did not have legal effect in Germany because it lacked the ‘minimum of democratic
legitimation’ necessary under the Basic Law.12 The explicit challenge to the primacy of EU law
in Germany may well have been one of the factors that motivated the President of the CJEU
to put pen to paper and provide a ‘blogging’ response on the webpage of one of the leading
German open access blogs, in a symposium on ‘German legal hegemony’ (Lenaerts 2020). It
also provoked the European Commission to open an infringement procedure for breach of EU
law against Germany, cognisant doubtless of the similarities between the defensive nationalist
posture of the German Federal Constitutional Court and judicial approaches to EU law in
Poland and Hungary which have attracted widespread criticism as well as calls for those gov-
ernments to ensure that judicial independence is respected. This unprecedented infringement
procedure against a founding member state was, however, quietly closed six months later, after
the European Commission received political assurances from the German government that the
country remains committed to the primacy of EU law and that it, the government, would do
all in its power to avoid a recurrence of this type of ‘ultra vires’ finding by the highest court.13
The incongruent sight of one member state being asked to provide assurances about upholding
the rule of law by hinting at political interference in judicial independence (what is publicly
known is that the German Federal Constitutional Court acquired a new president, who is said
to be more in tune with the government’s preferences) while others are admonished for politi-
cal interference has not been lost on some commentators (Streeck 2022). Meanwhile, like the
national constitutional courts which have been increasingly invoking national constitutional
identity as a shield against unwanted intrusions, the CJEU itself has experienced an ‘identitar-
ian’ turn. It referred in two judgments14 rejecting annulment actions brought by Hungary and
Poland, which challenged the conditionality mechanism which makes the receipt of financing
from the Union budget subject to the respect by the member states for the principles of the rule
of law, to the values contained in Article 2 TEU. These constitute, it said, the ‘very identity of
the European Union as a common legal order’.
Finally, in this short review of the status quo of constitutionalism in the EU, we should turn
briefly to some new challenges in the arenas of citizenship and fundamental rights. We might
reasonably expect the concept of ‘citizenship’, as political membership, to have a core role to
play within any constitutional system. For example, one of the primary incidents of ‘European
citizenship’ is the right to vote in EP elections. Yet participation in these elections continued
to decline with each new election, until that decline was arrested (but not reversed) in 2014
in many member states and finally started to rise again in 2019. What sort of ‘citizenship’
is there if citizens do not really participate? In the judicial sphere, the CJEU was faced in
Delvigne with the question whether a French restriction on the right of prisoners to vote in EP
elections fell within the scope of EU law. Answering in the affirmative, it provided a rather
narrow interpretation of ‘citizenship’ for the purposes of EU law, invoking the universal

11
Case C-493/17 Weiss EU:C:2018:1000.
12
BVferG, Judgment of 5 May 2020, 2 BvR 859/15, 1651/15, 2006/15, 980/16.
13
European Commission, December infringements package: key decisions, 2 December 2021,
https://​ec​.europa​.eu/​commission/​presscorner/​detail/​en/​inf​_21​_6201.
14
Cases C-156/21 and C-157/21 Hungary and Poland v Parliament and Council ECLI:EU:C:2022:97
and ECLI:EU:C:2022:98 (see paras 127 and 145 of the two judgments).
504 Handbook on global constitutionalism

suffrage provisions of the treaties and of the Charter of Rights, but insisting that these have
a narrow application within, and only within the scope of EU competences, that is, in the case
of EP elections alone.15 Such a case does not open the gates to establishing a more ‘federal’
and autonomous type of European citizenship. Citizenship in the EU is dependent both on the
scope of EU competences and upon the underpinning role of national citizenship: only citizens
of the member states are EU citizens.
More generally, the CJEU has shown a fondness for burnishing the democratic credentials
of the EU. In a small number of recent cases, it has made reference to the ‘democracy’ part
of Article 2 TEU, which states the ‘values’ of the EU. In these cases, it has reached for the
following formula which links together the more general and more specific references to
democracy in the EU treaties:

it must be recalled that, as stated in Article 10(1) TEU, the functioning of the Union is to be based on
representative democracy, which gives concrete expression to democracy as a value. Democracy is,
under Article 2 TEU, one of the values on which the Union is founded.16

It has done this in various contexts: in relation to the extent of the immunity of European par-
liamentarians (representative democracy); in relation to the scope of the duties of the European
Commission in responding to European Citizens’ Initiatives (direct democracy); in relation to
appropriate means for implementing EU law within the member states (the balance between
representative democracy and technocracy). As with the rule of law/conditionality case dis-
cussed previously, it seems that the CJEU is gradually moving towards a ‘thicker’ concept of
EU constitutionalism. While this seems a reasonable response, it may not be a sufficient one.
All is not well in Europe’s legal landscape. Some threats are just too powerful to be faced
down with the power of liberal legalism.

CONCLUSION

The liberal ‘legalised’ form of constitutionalism, which has served the EU so well for more
than 40 years, has often seemed under threat in recent years and as we have seen in this chapter
it does not always sit easily with the political concept of European integration. It may not even
survive the backlash of populist politics, which rely on the gatekeeping power of a concept
of the ‘national people’, if these take hold electorally in the EU member states. It is no longer
about the ‘Big C’ or the ‘Small c’, but about survival altogether. For nearly a decade, EU
constitutionalism has been standing at a crossroads. While some existential challenges such
as Brexit have been seen off, and the autonomy of the EU legal order duly protected from
contamination, the challenges of enlargement remain and have become more complex with the
war in Ukraine. While the COVID-19 era has largely seen populist politicians repulsed at the
ballot box, 2022 has already seen the decisive re-election of Hungary’s populist and right-wing
Prime Minister Victor Orbán, who explicitly stands against the liberal legalism and cosmopol-

15
C-650/13 Delvigne v Commune de Lesparre Médoc and Préfet de la Gironde ECLI:EU:C:2015:648.
16
See Case C-502/19 Junqueras ECLI:EU:C:2019:1115 (para. 63), Case C-418/18 P Puppinck
ECLI:EU:C:2019:1113 (para. 64) and Case C-718/18 Commission v Germany ECLI:EU:C:2021:662
(para. 124).
 The European Union and global constitutionalism 505

itanism for which he says the EU stands. He turns constitutionalism on its head, using tropes
of liberal constitutionalism such as tolerance of difference into a demand that Hungary should
be allowed to pursue its distinctive non-liberal path (Eisler et al 2022). All of this suggests that
the era of ‘postnationalism’, if it ever began, is now over for the EU.
However, as long as these are risks not realities, it is worth observing that the old ‘order’
has largely survived the challenges posed by the financial crisis and austerity measures rela-
tively unscathed, as the previous paragraphs have shown. On the whole the EU has benefited
from what Grimm (2015) has called ‘overconstitutionalisation’ – namely, the rendering into
primary law (and thus the buttressing of a high level of unamendability) of many elements of
socio-economic choice that in most national systems are the subject of ordinary politics, not
constitutional politics. This has created a degree of stability, at the same time as opening the
EU to the charge that it is not capable of reacting effectively to changed external or internal
circumstances. One example of this phenomenon, in the view of some, is the rigidity of the
EU’s commitment to the free movement of persons as a central pillar of the single market. Yet
what other approach is feasible for a legal edifice constructed on a framework of economic
integration and a justiciable principle of non-discrimination? Even if the EU were to do what
some have counselled, which is to revert to the pre-Maastricht ‘state of innocence’, in practice
this would not change this particular dilemma, in which free movement of persons has come
to be seen as one of the problems that the EU causes, as well as being one of its most valued
contributions to the lives of its citizens.
Returning to the elements of constitutionalism identified in the introduction, it is clear
that internally the EU has been strongest in relation to the defence of the rule of law, and
less capable of articulating a sophisticated defence of a model of constitutionalism based on
the separation of powers or an effective notion of a constituent power. Yet that too is under
threat, with defiance of the EU rule of law now rife in a number of parts of the EU and the
EU’s sanctioning capacity is limited (Closa 2021; Closa and Kochenov 2016; Pech 2021).
We see a resurgence of nationalist authoritarianism threatening constitutionalism in various
parts of central and Eastern Europe. It is also worth pointing to the populist discourse in some
member states suggests that supranational courts are part of the problem. From the perspective
of national citizens, the rulings of such courts tend to undermine the legitimacy of European
integration, rather than simply offering an independent adjudicator of conflicts between states.
This was arguably the happy role that the CJEU was able to claim in the early years. The same
phenomenon can be seen also in the opposition – in Wallonia but also elsewhere in the EU
– to the inclusion of various forms of supranational judicial decision-making in the external
agreements that the EU is seeking to make with third countries, such as the Comprehensive
Economic and Trade Agreement between Canada and the EU, in order to protect the interests
of investors and traders. The legitimacy of such tribunals is in question. Yet at the same time,
events in the external sphere that threaten potentially the territorial integrity of the member
states have offered an occasion for a reset of many of these issues. The challenge posed by
the war in Ukraine, across parameters of security threat, accommodation of displaced persons
and refugees and economic upheaval because of the need to ‘sanction’ the Russian economy
and those who push its interests in the west, offered an opportunity for the EU to recover its
sense of purpose. Relations between Poland and Brussels, for example, seem much improved
and this may spill over also into the arena of the rule of law conflict ongoing between the two
capitals.
506 Handbook on global constitutionalism

The original objectives of the so-called ‘founding fathers’ of European integration con-
cerned the promotion of peace, prosperity and a form of non-nationalist supranationalism.
In many respects, the EU has been remarkably successful, given the history of the European
continent right through to the middle of the twentieth century. The ‘constitutionalised treaties’,
along with the judges, have been at the heart of that success, but in the era of national reactions
against neo-liberalism and globalisation, the role of the EU and specifically of the CJEU is
increasingly under question. It appears that the conviction that law represents an effective
mechanism for buttressing the external commitments of states is waning. It would seem fair to
suggest that if the EU is to feature in a future handbook on constitutionalism beyond the state
or global constitutionalism in 20 years’ time, then a degree of reinvention and reconsideration
will be required.

REFERENCES
Alemanno, A. (2020), ‘Unboxing the Conference on the Future of Europe and its democratic raison
d’être’, European Law Journal, 26 (5–6): 484–508.
Alter, K.J (1996), ‘The European Court’s political power’, West European Politics, 19 (3), 458–87.
Bickerton, C.J., D. Hodson and U. Puetter (eds) (2015a), The New Intergovernmentalism: States and
Supranational Actors in the Post-Maastricht Era, Oxford: Oxford University Press.
Bickerton, C.J., D. Hodson and U. Puetter (2015b), ‘The new intergovernmentalism: European integra-
tion in the post-Maastricht era’, Journal of Common Market Studies, 53 (4), 703–22.
Cardwell, P. and T. Hervey (2015), ‘The roles of law in a new intergovernmentalist European Union’,
in C.J. Bickerton, D. Hodson and U. Puetter (eds), The New Intergovernmentalism: States and
Supranational Actors in the Post-Maastricht Era, Oxford: Oxford University Press, pp. 73–89.
Closa, C. (2021), ‘Institutional logics and the EU’s limited sanctioning capacity under Article 7 TEU’,
International Political Science Review, 42 (4), 501–15.
Closa, C. and D. Kochenov (eds) (2016), Reinforcing Rule of Law Oversight in the European
Union, Cambridge: Cambridge University Press.
Dawson, M. and F. de Witte (2016), ‘From balance to conflict: A new constitution for the EU’, European
Law Journal, 22 (2), 204–24.
De Witte, B. (2021), ‘Direct effect, primacy and the nature of the legal order’, in P. Craig and G. de Burca
(eds), The Evolution of EU Law, Oxford: Oxford University Press, 3rd edition, pp. 187–227.
Eisler, J. et al (2022), ‘The pendulum swings back: New authoritarian threats to liberal democratic con-
stitutionalism’, Global Constitutionalism, 11 (1), 1–8.
European Commission (2017), Reflections and scenarios for the EU27 by 2025, White Paper on the
Future of Europe, COM(2017) 2025 final, 1 March 2017.
Fabbrini, F. (2015), ‘After the OMT case: The supremacy of EU law as the guarantee of the equality of
the member states’, German Law Journal, 16 (4), 1005–24.
Fabbrini, F. (2016), ‘The European Court of Justice, the European Central Bank, and the supremacy of
EU law’, Maastricht Journal of European and Comparative Law, 23 (1), 3–16.
Garrett, G. (1995) ‘The politics of legal integration in the European Union’, International Organization, 49
(1), 171–81.
Goetz, K. and D. Sindbjerg Martinsen (2021), ‘COVID-19: A dual challenge to European liberal democ-
racy’, West European Politics, 44 (5–6), 1003–24.
Grimm, D. (2015), ‘Types of constitutions’, in M. Rosenfeld and A. Sajo (eds), The Oxford Handbook on
Comparative Constitutional Law, Oxford: Oxford University Press, pp. 98–132.
Kumm, M. (2013), ‘What kind of a constitutional crisis is Europe in and what should be done about it?’,
WZB Rule of Law Centre Discussion Paper SP IV 2013–801, Social Science Research Centre, Berlin.
Laffan, B. (2019) ‘How the EU27 Came to Be’, Journal of Common Market Studies, 57 Annual Review
13–27.
 The European Union and global constitutionalism 507

Lenaerts, K (2020) ‘No Member State is More Equal than Others: The Primacy of EU law and the
Principle of the Equality of the Member States before the Treaties’, VerfBlog, 2020/10/08, https://​
verfassungsblog​.de/​no​-member​-state​-is​-more​-equal​-than​-others/​, DOI: 10.17176/20201008-113323-
0.
Leuffen, D., B. Rittberger and F. Schimmelfennig (2021), Integration and Differentiation in the
European Union: Theory and Policies. Cham: Springer International Publishing.
Müller, J.W. (2016), What is Populism?, Philadelphia, PA: University of Pennsylvania Press.
Nic Shuibhne, N. (2021), ‘Did Brexit Change EU Law?’, Current Legal Problems, 74 (1), 195–234
Pech, L. (2021), ‘The rule of law’, in P. Craig and G. de Burca (eds), The Evolution of EU Law, Oxford:
Oxford University Press, 3rd edition, pp. 307–38.
Pernice, I. (2014), ‘A difficult partnership between courts: The first preliminary reference by the German
Federal Constitutional Court to the CJEU’, Maastricht Journal of European and Comparative Law,
21 (1), 3–13.
Schmidt, V. (2021), ‘European emergency politics and the question of legitimacy’, Journal of European
Public Policy, DOI: 10.1080/13501763.2021.1916061.
Streeck, W. (2022), ‘Ultra Vires’, New Left Review Blog: Sidecar, 7 January, https://​newleftreview​.org/​
sidecar/​posts/​ultra​-vires.
Tridimas, T. (2015), ‘The ECJ and national courts: dialogue, cooperation and instability’, in A. Arnull
and D. Chalmers (eds), The Oxford Handbook on European Law, Oxford: Oxford University Press,
pp. 403–30.
35. The International Criminal Court and global
constitutionalism
Andrea Birdsall and Anthony F. Lang, Jr.1

INTRODUCTION

How does the International Criminal Court (ICC, hereafter the Court) embody the principles
of constitutionalism? We look to the internal structure and practice of the Court to explore
this question. We propose two types of constitutionalism in this chapter: international consti-
tutionalism which describes a legal and political order in which states are the primary agents
and global constitutionalism in which individual people are the primary agents. The Court
embodies both aspects of constitutionalism. In its focus on individuals and their rights (both
victims and accused) it reflects a global constitutional order, one in which the individual agent
is protected. Yet the fact that it is governed by the Assembly of State Parties (ASP) reflects
the idea of international constitutionalism. While this Handbook is focused primarily on the
former element of constitutionalism, we argue here that a combination of the two types of
constitutionalism better describes and helps us to evaluate the practices of the Court.
The chapter proceeds as follows. The next section briefly explains the two types of con-
stitutionalism that anchor our analysis of the Court. The third section uses the idea of global
constitutionalism to describe and evaluate the practice of the Court in its first case, which
established many of its procedures and practices and which relate to the rule of law and the
advancement of human rights. In prosecuting cases, the Court focuses on individual persons as
constituent members of the global order. The subsequent section uses the idea of international
constitutionalism to describe and evaluate the work of the ASP, which links the Court to states
as the constitutive members of international society.2

CONSTITUTIONALISM AND THE ICC

As described in the introduction to this Handbook (Chapter 1), constitutionalism sits at the
intersection of law, politics and ethics. It has two underlying principles: (1) political power
is used by people through law and institutions; and (2) institutions and political leaders are
limited by the law. Constitutionalism both enables the creation of institutions and laws and
limits those who lead those institutions and execute those laws. Constitutionalism in the
modern world implies the existence of a written constitution, though not all c­ onstitutional
states have such a text (the United Kingdom being one prominent example). Constitutionalism

1
A revised version of this chapter also appears in Mills and Labonte (2018).
2
Another aspect of the Court that links it to an international constitutional order is its relation­ship
with the United Nations Security Council. We explore this relationship in a different iteration of this
project.

508
 The International Criminal Court and global constitutionalism 509

achieves its enabling and limiting functions through four devices: the rule of law, separation
of powers, constituent powers and provision of rights.
The Court is constitutional precisely because it sits at this intersection of politics and law.
As Carsten Stahn notes:

[A] strict separation between legal and political space is partly misleading. Political choice and
engagement with politics are an inherent and legitimate part of situation- and case-related analysis,
such as selection strategy, assessment of context, arrest, charging policy, or security assessments.
Reliance on legal formalism is not always the best strategy to demonstrate judicial or prosecutorial
independence. (Stahn 2015, p. lxxxix)

Constitutionalism is a philosophical standard that can help to better describe this space
between the political and legal. As will become clear in the following descriptions of both the
internal and external functions of the Court, we find that describing its activities in constitu-
tional terms gives us a better understanding of what it is doing and what it can do in the future
to achieve justice.
We propose two forms of constitutionalism that exist beyond the nation-state context, the
international and the global. International constitutionalism rests upon the idea that states are
the primary agents in the political order, while global constitutionalism rests upon the idea that
persons are the primary agents in the international order. This distinction is not a hard and fast
one, and what is interesting is the ways in which arguments for international constitutionalism
often lead to a focus on how such structures are becoming more global in orientation. So, for
instance, Bardo Fassbender has been a leading proponent of the view that the global constitu-
tional order is to be found in the United Nations (UN) Charter (Fassbender 2009). The text is
ambiguous when it comes to differentiating international and global constitutionalism; as just
one example, the opening phrase of the preamble, ‘We the Peoples of the United Nations’,3
highlights individual persons and the states of which they are a part. Throughout the text, both
state interests and human rights are reflected.
In another example, some have looked to the increasing constitutionalisation of international
law (Klabbers et al. 2009). This approach to constitutionalism gives primacy to states, though
it suggests that there is a slow process by which states as the primary agents in the international
order may be losing influence in relation to institutions and peoples as active drivers of politi-
cal life. For instance, in institutions such as the World Trade Organization (WTO) and United
Nations Human Rights Council (UNHRC), states constitute the primary agents but the role
played by other agents (companies, non-governmental organisations, experts) moves power
and law-making outside the province of states alone. These developments do not imply that
there will suddenly be a fully-fledged global constitutional convention and a resulting written
global constitution; rather, they suggest that various developments at different levels of the
global order indicate important changes in that global political and legal order.
The ICC also has this dual constitutional nature. Seeing the Court as part of a global con-
stitutional order means evaluating it as a constitutional entity in terms of advancing the rule
of law and protecting the rights of individuals. Moreover, the interactions of the Prosecutor
with the Trial Chambers reflects a kind of separation of powers, which works towards fairness
and justice for victims as well as accused persons by ensuring no single entity has control

3
Preamble of the UN Charter, at http://​www​.un​.org/​en/​sections/​un​-charter/​preamble/​.
510 Handbook on global constitutionalism

over the process. These dimensions of the Court privilege the individual over the interests of
states. Indeed, the efforts to prosecute the heads of state of Sudan and Kenya demonstrate how
such individuals cannot be protected by state sovereignty but rather are considered individuals
before a global court system. However, the Court is also part of a wider international order.
It was created by states and is the result of a treaty, the primary instrument by which states
construct international law. Moreover, the ASP is the ultimate governing body of the Court
(O’Donahue 2015).
The Court can be located at the intersection of international and global constitutionalism.
In order to tease out how these two kinds of constitutionalism interact, we demonstrate that
the Court is an embodiment of constitutionalism, but that the admixture of the two kinds of
constitutionalism can sometimes limit the ability of the Court to bring justice to victims of
international crimes. Rather than propose that the Court should be severed from its interna-
tional constitutional framing, we propose that more clarity on how the global and international
interact can reveal spaces in which the Court can move towards greater protection of rights and
the advancement of justice in the global order.

GLOBAL CONSTITUTIONALISM AND THE ICC

The ICC came into being on 1 July 2002; it has 124 states parties (that is, members) and
commits itself to serve ‘the highest standards of fairness and due process’.4 The Office of the
Prosecutor (OTP) is charged with investigating and prosecuting possible crimes within the
ICC’s jurisdiction. It receives referrals and substantiated information, and has to decide on
questions of jurisdiction and admissibility and, ultimately, whether or not to open an inves-
tigation into a particular situation. In terms of the above-mentioned first element of constitu-
tionalism, the Prosecutor has powers to act independently and impartially to protect the rule
of law. The statute has clear criteria for establishing admissibility (such as Article 17 that sets
out the principle of complementarity) but even though decisions on judicial intervention, that
is, on whether or not to open investigations into particular situations, are always political this
political process is law-governed. It is constrained by legal principles (such as requirements of
gravity) that are clearly stipulated in the Rome Statute. Such guidelines and rules exist within
the statute to ensure a fair and representative process as much as possible. This focus on repre-
sentativeness and fairness can also be seen in the ICC’s institutional set-up, such as the com-
position of the Judicial Divisions that consist of 18 judges from diverse geographical regions
as well as different legal systems that have been selected according to competence, experience
and integrity. Ensuring such equitable representation enhances the ICC’s perceived legitimacy
as an international court that is not dominated by one particular way of administering justice.5
As argued above, the separation of powers is the second crucial aspect of global constitu-
tionalism. By both limiting the power of one particular actor within the system while at the
same time enabling power, that power is channelled towards productive and useful ends. This
separation is also reflected in the institutional set-up of the ICC: the Prosecutor needs to work

4
See the International Criminal Court website for more details on the institution: www​.icc​-cpi​.int/​.
5
Article 36(8): ‘The States Parties shall, in the selection of judges, take into account the need, within
the membership of the Court, for: (i) The representation of the principal legal systems of the world; (ii)
Equitable geographical representation; and (iii) A fair representation of female and male judges.’
 The International Criminal Court and global constitutionalism 511

with states parties in order to gather relevant information and evidence about possible ICC
crimes. Before formally opening an investigation, the OTP then needs to apply to the Pre-trial
Chamber to establish admissibility. This process ensures that information is evaluated by dif-
ferent actors; the Prosecutor cannot act completely independently but is part of a law-governed
structure that ensures procedural fairness.
The protection of rights is the third central constitutional element within the Rome Statute.
In line with Article 53, the Prosecutor can desist from opening an investigation if it is not ‘in
the interest of justice’.6 Finally, once proceedings have started, the Trial Chambers are tasked
with protecting the rights of the defence victims and witnesses in equal measure by following
due process. Some of these different roles and responsibilities that are institutionalised in the
Rome Statute conflict at times and the challenge lies in finding ways to ensure the ICC retains
its legitimacy.
In consideration of these criteria, the ICC’s first ever completed trial, that of Thomas
Lubanga Dyilo of the Democratic Republic of Congo (DRC), is an instructive case as
a number of its elements, such as respect for the rule of law, the strict separation of powers
and the protection of rights of the people directly affected by the trial (that is, the accused as
well as the victims) are all discernible in the disputes prior to the start of the proceedings. The
main disagreement lay in two, seemingly conflicting provisions within the statute that both
relate to the OTP’s responsibilities: Article 54(3)(e) that sets out that the Prosecutor may not
disclose information obtained on the condition of confidentiality and solely for the purpose of
generating new evidence; and Article 67(2) that states that the Prosecutor is obliged to disclose
evidence which might show the innocence of the accused or mitigate their guilt.
Lubanga’s was a relatively small case but a first for the ICC in many respects which made
it so important for the Court to demonstrate how it discharged its judicial functions and over-
came tensions within its own statute without compromising the overriding aim of justice. As
others have rightly argued:

[T]he creation and efficient functioning of a new institution must begin somewhere. A fair trial of
Thomas Lubanga is an essential step in attaining an effective and legitimate ICC. ... If victims of war
crimes do not feel as if the Tribunal is working in the interest of justice, the Tribunal cannot attain
legitimacy. (Anoushirvani 2010, 235–6; see also Ambos 2009)

On 23 June 2004, the OTP opened its first investigation by looking into grave crimes allegedly
committed in the territory of the DRC since 1 July 2002 (the date the Rome Statute entered into
force). The DRC became a state party of the ICC on 11 April 2002 and referred the situation
to the OTP in April 2004. On 17 March 2006 Thomas Lubanga Dyilo, founder and leader of
the Union des Patriotes Congolais (UPC) and the commander-in-chief of its military wing, the
Forces Patriotiques pour la Libération du Congo (FPLC) was arrested and surrendered to the
Court. He was accused of enlisting and conscripting children under the age of 15 and using
them to participate actively in hostilities in the DRC’s Ituri region from September 2002 to 13
August 2003. The crimes Lubanga was charged with are listed as war crimes under Article 8 of
the Rome Statute. The proceedings were halted twice before the actual trial started in January

6
The Rome Statute gives little guidance, however, on what criteria the OTP should apply to deter-
mine what those ‘interests’ might constitute beyond the obligation to consider the gravity of the crime,
the interests of victims and the role of the alleged perpetrator.
512 Handbook on global constitutionalism

2009. There was a clear tension between the OTP’s need to build a case and incentivise coop-
eration by ensuring confidentiality to its information providers on the one hand and the right
of the accused to receive a fair trial by having access to any potentially exculpatory evidence
on the other.
On 13 June 2008, Trial Chamber I imposed a stay on the proceedings against Lubanga,
arguing that the Prosecutor, Louis Moreno Ocampo, had misused the Rome Statute’s con-
fidentiality provisions (Trial Chamber I 2008, para. 72). The OTP had received information
from the UN and NGOs with agreement that the documents would not be disclosed. According
to Article 54(3)(e) the OTP can enter into such confidentiality agreements to receive lead evi-
dence, that is, information to generate new evidence that can then be used in trial. The OTP’s
information providers were keen to sign up to such agreements because they were concerned
about protecting their operations on the ground, shield their personnel from possible retaliation
and also protect the security of their sources. Understandably, requirements of a fair trial for
the accused were not of central importance to them (Kaoutzanis 2013, p. 277).
The Trial Chamber was concerned, however, that the Prosecutor had misused this provision
by not disclosing over 200 documents ‘which the prosecution accepts have potential exculpa-
tory effect or which are material to defence preparation’ (ICC Press Release 2008a). The Trial
Chamber argued that this would inhibit the accused from being able to prepare his defence and
it also violated a ‘fundamental aspect of the accused’s right to a fair trial’ (ICC Press Release
2008a).
The Trial Chamber was critical of the OTP’s approach and doubted that it would be able
to ensure a fair trial. It found that ‘The prosecution’s approach constitutes a wholesale and
serious abuse, and a violation of an important provision which was intended for the prosecu-
tion to receive evidence confidentially, and in very restricted circumstances’ (Trial Chamber
I 2008, para. 73). Others, for instance Stuart (2008), agree that the OTP’s actions were not
due to misperceptions related to provisions within the statute, but that ‘the habit of presenting
evidence for disclosure and redaction in large amounts and at a late stage in the proceedings,
. . . seems to point at prosecutorial mismanagement and disregard for fundamental rights of the
accused, while at the same time excluding the Chamber from verifying the materials’ (Stuart
2008, p. 413).
The Trial Chamber ordered the Prosecutor to disclose all potentially exculpatory informa-
tion to ensure the accused’s right to fair trial. The Trial Chamber held that this was ‘without
doubt a fundamental right’ (Trial Chamber I 2008, para. 77) that was already established in
case law (for instance at the International Criminal Tribunal for the former Yugoslavia – ICTY
– and the European Court of Human Rights). In its ruling, the Trial Chamber reinforced the
institutionalised separation of powers, emphasising that it was not up to the Prosecutor to
decide which materials should be made available to the accused. The Trial Chamber took the
decision to halt the proceedings because ‘the trial process has been ruptured to such a degree
that it is now impossible to piece together the constituent elements of a fair trial’ (Trial
Chamber I 2008, para. 93).
The Trial Chamber made clear that even though its decision to halt proceedings deprived
victims of their chance to get justice, it needed to balance the right to fair trial for the accused
with giving victims the possibility to hold those responsible for serious crimes accountable
for their actions. Both are constituents of the Court and arguably both have an interest in fair
and just proceedings to ensure that the outcome of the trial is not tarnished by accusations of
 The International Criminal Court and global constitutionalism 513

illegitimacy or irregularity. It is also important that the trial is perceived to be legitimate by the
affected groups in order for them to feel that ‘justice’ has been achieved.
On 23 June, the OTP appealed the Trial Chamber’s decision, refuting the claim that it had
used confidentiality agreements inappropriately (Office of the Prosecutor 2008). Ocampo
argued that especially the UN as one of the information providers had insisted on making
information subject to confidentiality and that it was therefore not a matter of choice for him
but one of legal obligation to not disclose information to the Trial Chamber. He claimed that he
would not have received the information in the first place had he not agreed to confidentiality.
On 21 October 2008, the ICC’s Appeals Chamber dismissed the OTP’s appeal to halt the
proceedings. (ICC Press Release 2008b) It confirmed that the Prosecutor could only rely on
confidentiality for the purpose of generating new evidence and must not lead to breaches of
obligations towards the accused. The Appeals Chamber held that decisions on whether any
particular evidence needed to be disclosed had to be made by the Judicial Divisions, not the
OTP. By withholding information from the Trial Chamber, the OTP prevented the former
from assessing whether a fair trial could be held. This also raised concerns that if the accused
were unable to prepare for the trial, any verdict or conviction would potentially be unsafe
because there would always be the question whether the undisclosed material would have
made a difference to the outcome.7 This issue was eventually resolved when the information
providers agreed to give complete access to all relevant undisclosed documents to both
Judicial Divisions and the trial could begin.
On 8 July 2010, however, Trial Chamber I ordered another stay of proceedings, arguing that
a fair trial of the accused was ‘no longer possible due to non-implementation of the Chamber’s
orders by the Prosecution . . . to confidentially disclose to the Defence the names and other
necessary identifying information’ (ICC Press Release 2010) of one particular intermediary.
The Trial Chamber again emphasised the necessity of the OTP to follow the right procedures
in order to ensure the accused received a fair trial (Trial Chamber I 2010, para. 28).
Even though the Trial Chamber argued that protective measures had been offered and
agreed with the intermediary in question, the Prosecution claimed that it was the Court
organ responsible for the protection of the witness and that it could therefore not disclose the
requested information. There was again a tension between the OTP that emphasised its legal
duties of having to protect a witness and the Trial Chamber that held that the Prosecution had
to follow orders given by the ICC’s Judicial Division to ensure the separation of powers, the
rule of law as well as the right to a fair trial.
The decision to halt proceedings for a second time raised what the Chamber called a ‘more
profound and enduring concern’, namely, that the Prosecutor, ‘by his refusal to implement
the orders of the Chamber and the filings …, has revealed that he does not consider that he is
bound to comply with judicial decisions that relate to a fundamental aspect of trial proceed-
ings’ (Trial Chamber I 2010, para. 21) The Trial Chamber was concerned that the Prosecutor
claimed to have autonomy with regard to whether or not to comply with Court orders depend-
ing on his interpretations of his responsibilities in accordance with the ICC Statute. The OTP
relied on Article 68 that enables the OTP to ‘take appropriate measures to protect the safety,

7
This ruling is also in line with an earlier argument of the Appeals Chamber when it had decided
that ‘a fair trial is the only means to do justice. If no fair trial can be held, the object of the judicial process
is frustrated and the process must be stopped’ (Appeals Chamber 2006, para. 37).
514 Handbook on global constitutionalism

physical and psychological well-being, dignity and privacy of victims and witnesses’ during
trial proceedings. The Trial Chamber argued, however, that:

the prosecution’s obligations are subject to the Chamber’s overarching responsibility to ensure the
accused receives a fair trial – ‘[t]hese measures shall not be prejudicial to or inconsistent with the
rights of the accused and a fair and impartial trial.’ The latter decision is solely for the Chamber, and
it is not for the prosecution to seek to determine for the purposes of this trial what constitutes fairness
for an accused. (Trial Chamber I 2010, para. 24)

The Chamber argued that the statute provided that the judiciary was the organ ultimately
responsible for protective measures once proceedings had started, and not the OTP. Such
action has to be carried out consistently because, as the Trial Chamber rightly held, ‘No
criminal court can operate on the basis that whenever it makes an order in a particular area, it
is for the Prosecutor to elect whether or not to implement it, depending on his interpretation
of his obligations’ (Trial Chamber I 2010, para. 27). The Trial Chamber reminded the OTP of
its place within the institutional structure of the ICC, arguing that Article 68 did not free the
Prosecutor from his obligations to comply with Court orders.
A clear focus on global constitutionalism’s rule of law, protection of rights and separation
of powers became evident in this instance. Moreover, these principles are applied in a way
that concerns individuals, both accused and victims, as the ultimate constituents of the Court.
The Prosecutor was criticised for undermining the ICC’s institutionalised separation of power
by claiming ‘a separate authority which can defeat the orders of the Court, and which thereby
involves a profound, unacceptable and unjustified intrusion into the role of the judiciary’ (Trial
Chamber I 2010, para. 27). The Trial Chamber decided to stay the proceedings because the
Prosecutor declined to have his powers ‘checked’ by the Trial Chamber which the latter saw as
an abuse of the process that ultimately impinged upon the accused’s right to a fair trial.
The stay of proceedings was eventually reversed and on 14 March 2012, after two years
of trial proceedings, and six years after his arrest, Lubanga was convicted of committing, as
co-perpetrator, war crimes related to the use of child soldiers. His sentence of 14 years’ impris-
onment was confirmed by the Appeals Chamber on 1 December 2014.
This review of the first case demonstrates that in terms of constitutional theory, the Court
can advance justice, specifically in global constitutionalism terms and its focus on individuals.
By ensuring that the accused was treated fairly and that the OTP could not ride roughshod
over the rights of the accused, the Court ensured the protection of his rights. At the same time,
the Court found him guilty following a measured court process that abided by rule-of-law
principles, and so provided justice to the individuals who were subject to the violence that
Lubanga undertook.

INTERNATIONAL CONSTITUTIONALISM AND THE ICC

In this section, we look at the ICC through the second lens of international constitutionalism.
More specifically, we explore here how the ICC is constituted by states and how states govern
it. What makes this state-based dimension of the ICC constitutional can be found in the way
power functions within and in relation to the ICC. The ASP is a constituent power which must
continually ensure that the ICC stays true to its mandate and does not overstep its role in the
pursuit of a narrow conception of justice or human rights.
 The International Criminal Court and global constitutionalism 515

The Court is a treaty-based organisation and thus has legitimacy and authority on the basis
of positive international law. Its origins in a negotiated treaty give it more legitimacy, perhaps,
than the international criminal tribunals that were created by the UN Security Council through
resolutions and thereby imposed on states. Its standing in the international legal order, in other
words, is formally very strong. This formal strength is weakened on a practical level by the
refusal of key great powers to join, including three of the P5 (Russia, China and the United
States).8 This basis on state consent and a treaty structure reflects the Court’s position in an
international constitutional order, which differs in important ways from the global constitu-
tionalism reflected in its orientation towards the rights of individual victims and accused.
So, in accordance with traditional international law and politics, the Court has a paradoxi-
cal status. It is, on the one hand, clearly established in the legal order but, on the other hand,
subject to a lack of political legitimacy because of the failure of the most powerful agents in
the system to fully accept its role. Rather than focusing on these formal legal and political
categories, however, we propose a different way to see the status of the Court through the
international constitutional model. Its formal legal legitimacy is manifest in the governance of
the Court by the ASP. The ASP provides management oversight of the Court and serves as its
only formal legislative body. It also passes the budget of the Court, elects the judges and the
prosecutor. All states that have signed the Rome Statute have one person representing them in
the ASP. It is run by a bureau composed of a President, two Vice Presidents and 18 members.
In 2011, the ASP created a Secretariat which manages its affairs.
This institution reflects the state-based and formal international legal structure of the Court,
which we interpret through the idea of international constitutionalism. We might object that
there is nothing constitutional about this arrangement; rather, this simply reflects a traditional
international organisation. In accordance with the framework of constitutionalism described
in the second section, this institution within the Court would need to advance the principles of
the rule of law, separation of powers, constituent power, and/or human rights. We see the ASP
as contributing to the first three of these dimensions of the Court, hence playing an important
role in making the Court more constitutional. At the same time, the ASP has perhaps hindered
the ability of the Court to advance human rights in some of its actions. So, using the standard
of constitutionalism, we argue that there is a mixed record here.
The first dimension to which the ASP contributes concerns the rule of law primarily through
its legislative function. The Rome Statute is the primary legal instrument of the Court. But the
ASP is tasked with continuing to develop the legal rules that govern the work of the Court.
For instance, when the Rome Statute was passed, one crime it did not formally define was
aggression, leaving this to the ASP to address. In June 2010, the ASP adopted a definition of

8
This political weakness has evolved to some extent, however, if one looks at the gradual accept-
ance of the Court by the United States. For instance, the government of George W. Bush, despite its
initial hostility to the Court, abstained from voting on issuing an indictment against the President of
Sudan in 2005 (that is, it did not veto the decision) and voted in favour of issuing indictments for the
Libyan leader, Muammar Gaddafi, along with his son Saif Al-Islam Gaddafi and the chief of intelligence
Abdullah Al-Senussi during the campaign against Libya in 2011. These actions provide tacit acknowl-
edgment of the role that the Court can play in international legal and political efforts to protect human
rights and advance international criminal law. (See Birdsall 2010 for a more detailed discussion of the
US stance towards the ICC.)
516 Handbook on global constitutionalism

aggression in its Thirteenth Plenary Session.9 No one has been accused or convicted of this
crime as of yet, but by defining it through a formal legislative process, the ASP embodied the
legislative function which a constitutional order demands (Waldron 1995). Moreover, the ASP
has created a series of working groups within the bureau which are designed to advance impor-
tant dimensions of the Court’s work, including the question of complementarity, cooperation
of the Court with other agents in the international order, and questions arising from compen-
sation to victims. These groups propose draft resolutions to the ASP which it can then take up
and turn into new rules concerning the governance of the Court. Certainly, this legislative role
is constrained by the fact that states are the members rather than elected individuals, but this
element of the Court reveals how what we call international constitutionalism can be seen in
the Court’s activities.
The second aspect of international constitutionalism that can be found in the ASP is the sep-
aration of powers. As the oversight body of the Court, the ASP provides the Court its budget
every year. As with a domestic legislature, this role gives the ASP the ability to counterbalance
the power of the other aspects of the Court. Since the Court has come into existence, the ASP
has approved 12 budgets, with the 2014 budget totalling €121.6 million. Demonstrating its
power, the ASP has sought to limit some of the demands of the Prosecutor and Trial Chambers
when it comes to requesting money for their work. For instance, the five highest contributing
states – Japan, the UK, France, Germany and Italy – have called for zero nominal growth in
the budget. As one commentator argued, ‘There is a real risk that some State Parties could seek
to influence the ICC’s activities through the budget’ (O’Donahue 2015, p. 115). While this
author is lamenting the ­influence that states might have on the Court’s activities, we might see
this influence as a counterbalance to efforts by either the Prosecutor or the Trial Chambers to
undertake investigations that have little merit. Moreover, as Bosco notes:

[T]here is no evidence that states have attempted to use the budget process to directly or indirectly
influence the investigative strategy of the court. Despite the concerns of the prosecutor, it also does
not appear that the ASP oversight of court personnel has been used in an effort to influence court
strategy or investigations. (Bosco 2014, p. 183)

The budget control exercised by the ASP might be a means to ensure that the Court undertakes
its activities in the most efficient manner, hence improving the Court’s performance in the
long run. This is not to deny that there is the potential that state parties acting through the ASP
might well hinder legitimate activities of the Court, but only to recognise that the ASP serves
an important counterbalancing role.
The third principle of constitutionalism by which the ASP can be evaluated is constituent
power. The ASP is the closest the Court has to any kind of constituent power, as it both repre-
sents the community that constituted the Court and has the ability to refashion it through leg-
islative and regulatory actions. Because the ASP is composed of states and not individuals, its
constituent power reflects international constitutionalism rather than global constitutionalism.
For some, this might be seen as a weakness of the Court, for without the ability of individuals
to play a role in how the Court operates, it does not embody a cosmopolitan purpose. However,

9
For details on the various documents which led to the passing of the definition and the definition
itself, see the ICC website, at https://​asp​.icc​-cpi​.int/​en​_menus/​asp/​reviewconference/​Pages/​crime​%20of​
%20aggression​.aspx.
 The International Criminal Court and global constitutionalism 517

we would argue that by having an international constituent power in the ASP, the Court does
embody a kind of constitutionalism which, combined with the global constitutionalist elements
described in the previous section does indeed make it more constitutional rather than less.
The final dimension of constitutionalism is rights, and it is here that the ASP is perhaps less
constitutional than other aspects of the Court. As noted in our introduction, some assume that
rights are the primary dimension of constitutionalism, and the fact that the Court is defined
as an institution designed to protect the rights of victims reinforces this perception. While we
have argued that rights are not the only aspect of constitutionalism by which we are evaluating
the Court, we also think it is an important part of constitutionalism. As such, we do see the
ASP as putting limits on the ability of the Court to advance rights in some short-term situa-
tions. For instance, the ASP refused to allow the Court to pay for families of poor prisoners to
visit them but that this should be paid for out of voluntary contributions (O’Donahue 2015). In
so doing, the ASP limits the rights of indigent prisoners to family visits, which is an important
human right across almost any criminal justice system. In addition, the ASP has sought to
limit the ability of the Court to prosecute heads of state, though this has not been successful
as demonstrated by the indictments of the Sudanese president (O’Donahue 2015, p. 108). This
again demonstrates that the ASP is perhaps more interested in protecting state leaders than in
defending the human rights of those who have been victimised by those states.
In summary, then, we would argue that the ASP, on the whole, makes the Court more consti-
tutional. Admittedly, this constitutionalism is international rather than global. However, when
combined with the global constitutionalism explored in the second section, we would argue
that overall, the Court is a constitutional body in the global and international system.

CONCLUSIONS

Our argument has sought to demonstrate that the ICC embodies the principles of constitu-
tionalism in the international order. To make this normative judgement we have identified
two forms of constitutionalism that can be applied to the Court: international and global. We
have looked to different elements of the Court’s internal functions to find evidence of its con-
stitutionalism, with the Prosecutor and Trial Chambers representing the global and the ASP
representing the international. More research needs to be undertaken as to how the Court’s
position in the global order and its relationship with different elements of that order, such as
the UN Security Council, does or does not reflect the global and international constitutional-
ism described here. In terms of its internal functions, however, we argue that it clearly reflects
the principles of constitutionalism and, as such, helps to make the international and global
order more constitutional as a result.

REFERENCES
Ambos, K. (2009), ‘Confidential Investigations (Article 54(3)(E) ICC Statute) vs. Disclosure obliga-
tions: the Lubanga case and national law’, New Criminal Law Review, 12 (4), 543–68.
Anoushirvani, S. (2010), ‘The future of the International Criminal Court: the long road to legitimacy
begins with the trial of Thomas Lubanga Dyilo’, Pace International Law Review, 22 (1), 213–40.
518 Handbook on global constitutionalism

Appeals Chamber (2006), ‘Judgement on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision
on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19(2)(a) of the Statute of
3 October 2006’, 14 December.
Birdsall, A. (2010), ‘The “Monster that We Need to Slay”? Global governance, the United States, and the
International Criminal Court’, Global Governance, 16 (4), 451–69.
Bosco, D. (2014), Rough Justice: The International Criminal Court in a World of Power Politics,
Oxford: Oxford University Press.
Cohen, J. (2012), Globalization and Sovereignty: Rethinking Legality, Legitimacy and Constitutionalism,
Cambridge: Cambridge University Press.
Fassbender, B. (2009), The United Nations as the Constitution of the International Community, Leiden:
Martinus Nijhoff.
Habermas, J. (2006), The Divided West, trans. C. Cronin, Cambridge: Polity Press.
International Criminal Court (ICC) Press Release (2008a), ‘Trial Chamber imposes a stay on the pro-
ceedings of the case against Thomas Lubanga Dyilo’, 16 June, ICC-CPI-20080616-PR324.
International Criminal Court (ICC) Press Release (2008b), ‘Stay of proceedings in the Lubanga case is
lifted – trial provisionally scheduled for 26 January 2009’, 18 November, ICC-CPI-20081118-PR372,
ICC, The Hague.
International Criminal Court (ICC) Press Release (2010), ‘Trial Chamber I orders the release of Thomas
Lubanga Dyilo – Implementation of the decision is pending’, 15 July, ICC-CPI-20100715-PR559,
ICC, The Hague.
Kaoutzanis, C. (2013), ‘A turbulent adolescence ahead: the ICC’s insistence on disclosure in the
Lubanga trial’, Washington University Global Studies Law Review, 12 (2), 263–311.
Klabbers, J., A. Peters, and G. Ulfstein (2009), The Constitutionalization of International Law, Oxford:
Oxford University Press.
Labunski, R. (2006), James Madison and the Struggle for the Bill of Rights, Oxford: Oxford University
Press.
Loughlin, M. and N. Walker (2007), The Paradox of Constitutionalism: Constituent Power and
Constitutional Form, Oxford: Oxford University Press.
Mill, K. and M. Labonte (eds) (2018), Accessing and Implementing Human Rights and Justice,
Abingdon, UK: Routledge.
Mollers, C. (2013), The Three Branches: A Comparative Model of the Separation of Powers, Oxford:
Oxford University Press.
O’Donahue, J. (2015), ‘The International Criminal Court and the Assembly of State Parties’, in C. Stahn
(ed.), The Law and Practice of the International Criminal Court, Oxford: Oxford University Press,
pp. 105–40.
Office of the Prosecutor (2008), ‘Prosecution’s Application for Leave to Appeal “Decision on the con-
sequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the
application to stay the prosecution of the accused, together with certain other issues raised at the Status
Conference on 10 June 2008”’, 23 June, International Criminal Court, The Hague.
Rawls, J. (1971), A Theory of Justice, Cambridge, MA: Harvard University Press.
Stahn, C. (2015), ‘Introduction’, in C. Stahn (ed.), The Law and Practice of the International Criminal
Court, Oxford: Oxford University Press, pp. lxxxiii–c.
Stuart, H.V. (2008), ‘The ICC in trouble’, Journal of International Criminal Justice, 6 (3), 409–18.
Trial Chamber I (2008), ‘Decision on the consequences of non-disclosure of exculpatory materials
covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused,
together with certain other issues raised at the Status Conference on 10 June 2008’, 13 June,
International Criminal Court, The Hague.
Trial Chamber I (2010), ‘Redacted decision on the Prosecutor’s Urgent Request for Variation of the
Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending
Further Consultations with the VWU’, 8 July, International Criminal Court, The Hague.
Waldron, J. (1995), The Dignity of Legislation, New Haven, CT: Yale University Press.
36. Global commercial constitutionalization: the
World Trade Organization
Joel P. Trachtman

The world does not have a consolidated constitution. Instead, it has an unwritten legislative
constitution allowing legislation through customary international law and through treaty, it has
specialized quasi-legislative capacity in the United Nations Security Council, it has episodic
capacity for judicial review, it has a strong ‘state’s rights’ bias allowing its sub-units great
autonomy, and it has a poorly enforced human rights function (see Lang and Wiener, Chapter
1 in this Handbook).
It also has a growing commercial constitution, analogous and in some way comparable to
the commercial constitutional aspects of the US Constitution, the Treaty on European Union,
and other federal constitutions. As a historical point, it is worth noting that the US Constitution
and the Treaty on European Union had, at their respective foundings, central goals of commer-
cial constitutionalization (see Streit and Mussler 1994; Barnett 2001).
The World Trade Organization’s (WTO’s) commercial constitution contains a detailed set
of rules limiting the ability of sub-units to restrict trade and even to promote trade. In addition,
this commercial constitution has special rules for decision-making, as well as extraordinary
capacity for inter-state adjudication. However, its capacity for inter-state adjudication has
important limits, including very limited capacity to apply non-WTO international law, such
as environmental, labor or human rights law. In addition, beginning in 2017, the WTO experi-
enced significant challenges to its dispute settlement capacity through the refusal by the US to
join the required consensus to appoint new members of the WTO Appellate Body.
This chapter describes the components of the global commercial constitution represented
by the WTO, and suggests the reasons why they exist. It will extrapolate from these reasons to
suggest how this global commercial constitution may change in the near future. The influence
of the original General Agreement on Tariffs and Trade (GATT), founded in 1947, and the
WTO, founded in 1995, has grown significantly. This influence has grown according to the
intent of member states, with growing technological and economic capacity for trade, and in
order to respond to growing institutional challenges to the mandate of the GATT/WTO to
liberalize trade. The constitutional aspects of the GATT and WTO have also grown over time,
largely in informal and semi-formal (non-treaty) ways. For example, the jewel in the constitu-
tional crown of the GATT/WTO – mandatory dispute settlement – was adapted over time, only
arriving at its present state at the formation of the WTO in 1995.
The original GATT was intergovernmental, as opposed to transnational. The GATT did
not even specify the creation of an international organization. While countries used it to make
important treaty commitments, the GATT itself had no binding legislative, adjudicative, or
executive power. The original GATT was simply an instrument to make legally binding com-
mitments to reduce tariffs on goods, and to constrain defection from those commitments: it
was ordinary international law. In that sense, it simply utilized the broader international legal
constitution that allows states to make binding treaty commitments, but was not itself consti-

519
520 Handbook on global constitutionalism

tutional. Of course, each member state retained power to veto any new binding commitments,
at least to the extent that those commitments would bind that member, and dispute settlement
only proceeded if the respondent agreed to allow it to do so.
The GATT and the WTO present a story of functional adaptation of transnational authority
over time: of adaptive constitutionalization. This adaptation was carried out by member states,
not by the organization itself. This adaptation is consistent with a social scientific type of
functionalism (for the development of this idea in international law generally, see Trachtman
2013). It responded to specific demands. The future growth of the global commercial constitu-
tion will also be dependent on specific demands.
When we speak of the WTO in constitutional terms, we must recognize that, as mentioned
above, this was not always an appropriate way to describe the WTO. It is also important to
recognize that the narrow doctrinal frame of WTO law is an incomplete way of examining the
constitutional aspects, and the constitutional future, of the WTO. This chapter describes four
dimensions of the constitutionalization of the international law and legal context of the WTO:
(1) the ways in which WTO law may increasingly be understood in terms of global economic
constitutionalization; (2) the ways in which it has become appropriate to speak of transnational
legislative, adjudicative, and executive capacity at the WTO (the ‘enabling constitution’ of the
WTO); (3) the ways in which the WTO project has prompted consideration of the appropriate
limits on the processes and substance of WTO transnational legislative, adjudicative, and
executive capacity (the ‘constraining constitution’ of the WTO); and (4) the ways in which
the growth of the enabling constitution of the WTO has diminished domestic constitutional
protections, making it increasingly useful to consider international constitutional efforts to
supplement those domestic constitutional protections (‘supplemental constitutionalization’ in
response to the WTO).1

THE ECONOMIC CONSTITUTION OF THE WTO

While this is not the place to go into too much detail, the economic constitution represented in
the WTO is comparable to the economic aspects of the US Constitution, many other national
constitutions and the Treaty on European Union. These national and European constitutions
include negative integration, striking down local regulation that is discriminatory or, in some
cases, that is disproportionate to the permitted non-protectionist ends. While the WTO’s
rules in this regard are comparable to other ordinary international law, such as human rights
law or environmental law, because they are not enabling or constraining constitutional rules
at the international level, they have a character that is often referred to as ‘constitutional’ in
discourse about constitutions. It is true that these types of rules can have a fundamental deter-
minative character with respect to the type of society ‘constituted’.
Importantly, the WTO itself generally lacks the authority to legislate in this area. So
there is an analog to the US dormant Commerce Clause, striking down local legislation that
impedes commerce within the national market; but there is no analog, within the WTO, to
the affirmative Commerce Clause of the Constitution, according the US Congress authority
to legislate to regulate inter-state commerce. However, instead, at least in the area of product

1
These categories of constitutionalization (other than economic constitutionalization) are drawn
from my work with Jeffrey Dunoff (Dunoff and Trachtman 2009).
 Global commercial constitutionalization: the World Trade Organization 521

regulation, which is central to the WTO, the WTO incorporates by reference rules established
by international standardization bodies, even where those rules are not agreed unanimously.
While states are not strictly required to comply with those rules, they have strong incentives
to do so. Therefore, in that sense, the WTO incorporates a degree of jury-rigged transnational
legislative power.
Importantly, as I discuss in the next section, the ability to adjudicate, and thereby to add
definition to the treaty rules, along with the ability to legislate in this intricate fashion, can be
understood as types of enabling constitutionalization.

ENABLING INTERNATIONAL CONSTITUTIONALIZATION AT

THE WTO

The WTO is both a result and a cause of increasing economic integration. Increasing eco-
nomic integration due to technological and economic change makes it more valuable to
reduce inefficient barriers. (It is worth noting that not all barriers are inefficient – there are,
for example, efficient regulatory differences that have the effect of impeding trade.) The
reduction of barriers, in turn, increases economic integration. Therefore, more international
economic law becomes desirable. Interestingly, more general international law also becomes
desirable. With more trade comes more spillovers. For example, without trade, there is no
reason to be concerned with the product regulation in foreign countries. Without trade, there
is no ‘leakage’ from domestic carbon taxes. So, increasing economic integration also causes
increasing demand for non-economic international law. Increasing demand for economic law
and for non-economic law provides incentives to create legislative mechanisms to facilitate
law-making.
Thus, as the ability to generate new international legal rules to discipline national regulation
or to fill lacunae becomes important, globalization gives rise to calls for greater capacity to
make law, which capacity Jeffrey Dunoff and I have called ‘enabling international constitu-
tionalization’ (Dunoff and Trachtman 2009, pp. 10–11) in order to facilitate legislation of
welfare-improving restrictions on protectionist or other inefficient domestic regulation, and
in order to respond to changing needs for international regulation. This legislation might or
might not occur within the WTO. Enabling international constitutionalization at the WTO –
structures that facilitate the production of WTO law – would mean the end of the WTO as a
‘member organization’ in which each member (in formal terms) retains veto power.
The demand for additional international law is the driving force behind enabling interna-
tional constitutionalization. This demand for additional international law can arise from the
demand for liberalization (which in turn is caused by other social forces, including changes in
technology, changes in the structure of production, and changes in economic understanding),
but the production of law to enhance liberalization has two types of knock-on effects: (1)
a resulting demand for other types of international law; and (2) where the initial liberaliza-
tion measures take the form of negative integration, as described below, a resulting demand
for positive integration. We see both of these types of knock-on effects in the history of the
European Union. Note that, as described below, the establishment of enabling international
constitutionalization creates a demand for nuanced controls in the form of constraining inter-
national constitutionalization.
522 Handbook on global constitutionalism

The most common type of negative integration standard is national treatment-type

non-discrimination. In a sense, these rules against protectionism are specialized rules of
dynamic subsidiarity. They contingently remove power from the state under a specified range
of circumstances. Interestingly, these rules may be understood as serving a ‘constraining
constitutionalization’ role at the domestic level: they constrain the production of ordinary law.
However, at the international level, they are ordinary international law, restricting state action.
On the other hand, to the extent that international judges are authorized, explicitly or implic-
itly, to interpret or craft these rules of negative integration – to engage in judicial legislation
– the authorization may be understood as a kind of enabling constitutionalization.
These types of adjudicative standards used in negative integration compete with legislative
solutions to the same problems. Legislative solutions – known in this context as ‘positive
integration’ – might develop regimes of harmonization or recognition, or blended regimes
of harmonization and recognition, as in the European Union (EU) ‘essential harmonization’
program. These legislative solutions could enjoy greater political support than judicial deci-
sions addressing the same issues.
It is in this regard that negative integration devices, such as those in the WTO, that may be
used to strike down domestic regulatory regimes, may create demand for positive integration
devices, such as those associated with majority voting. Deregulation through negative integra-
tion may create demand for re-regulation at the central level through majority voting-based
legislative capacity. This results in demand for enabling constitutionalization in terms of
legislative capacity. Majority voting among states might give rise to demands for greater
democratic accountability: a kind of countervailing constraining constitutionalization. Pascal
Lamy has called for a WTO parliamentary consultative assembly for just this reason (Lamy
2000; see also Shaffer 2004).
Thus, the power of adjudicative negative integration gives rise to a need for the check of
legislative capacity for positive integration. The possibility of centralized legislation gives rise
to the need for centralized democratic accountability. This diagram elides much nuance, but it
is intended to provide a suggestion of how the commencement of economic integration may
set off a cascade of governance demands along a predictable path.
Giovanni Maggi and Massimo Morelli show that a key parameter in determining whether to
choose majority voting in connection with an international organization like the WTO is the
governments’ discount factors, representing their patience (Maggi and Morelli 2006; see also
Norman and Trachtman 2005). As Maggi and Morelli explain, their model posits that:

the voting rule is chosen ex ante, under a veil of ignorance about future issues. Thus, the optimal
voting rule maximizes the ex ante expected utility of the representative member subject to
self-enforcement constraint: a government must have incentive to comply with the collective decision
even if it happens to disagree with it. (Maggi and Morelli 2006, p. 1138)

With high discount factors – greater valuation of future payoffs from cooperation – there are
smaller incentives for defection, and less need for what Maggi and Morelli determine are the
compliance benefits of a rule of unanimity. Greater likelihood of repeated play and greater
frequency of interaction – increasing the amount at stake over a shorter time – also promotes
compliance. However, note that the frequency of interaction parameter need not be limited to
interaction within a particular organization or issue area (see generally Norman and Trachtman
2005, explaining the role of multi-sector interaction).
 Global commercial constitutionalization: the World Trade Organization 523

Thus, their model ‘predicts that a non-unanimous rule is more likely to be adopted in organi-
zations where governments are more stable, and in “busier” organizations’ (Maggi and Morelli
2006, p. 1138). They also find that greater correlation in the preferences among member states
increases the likelihood of a non-unanimous voting rule. Furthermore, a non-unanimous rule
may be efficient where there is external enforcement.
Conversely, Maggi and Morelli also show that where an international agreement must be
self-enforcing (there is no external enforcement), an organizational rule of unanimity (or
consensus) may be efficient under certain circumstances. In order to do so, they find that
unanimity eliminates the possibility for defection, but there are at least two reasons why this
would often not be the case. First, states may vote cynically, never intending to comply with
the resulting rule, but perhaps hoping that others will do so.2 Second, even without cynicism,
unanimity can result from ‘package deals’ under circumstances in which a state agreeing to
the package would prefer not to comply with one or more components of the package (Maggi
and Morelli 2006, p. 1151, recognize this issue). In addition, circumstances may change such
that a domestic political equilibrium that supported entry into the relevant obligation no longer
exists to support compliance with the obligation.
Consent would tend to imply compliance in circumstances only (1) where consent is
known to be based on domestic political support for the behavior that constitutes compliance
(even then the domestic political equilibrium may change so as to undermine the tendency to
comply); and/or (2) where the giving of consent activates a lobby that believes that promises
should be kept. So, consent is not sufficient for compliance, but nor is it necessary for com-
pliance, because multi-sector contact may induce compliance in a way that makes the larger
relationship self-enforcing while the narrower rule is not. Indeed, Maggi and Morelli suggest
that the availability of transfers expands the range of discount factors for which a rule of
majority voting is sustainable.
Perhaps even more importantly, the assumption that most rules of international law or trea-
ties must be self-enforcing may be too strong as well. The common understanding of interna-
tional law in the economics literature assumes that for international law to be effective, it must
have the characteristics of a self-enforcing contract (see generally, Maggi 1999). The tools
of analysis used by economics for particular legal rules or regimes is thus non-cooperative
game theory, where it is assumed to be impossible to enter into exogenously binding contracts.
Rather, the internal dynamics of the rule or regime must be structured so that it is endoge-
nously binding – so that it has internal dynamics that will result in compliance.
Much of this analytical perspective is factually dependent on the definition of the scope
of the game being played. For example, if the game is isolated as the ‘reduction of tariffs on
bananas game’, or even as the broader ‘trade liberalization game’, then perhaps the require-
ment for self-enforcing contracts is appropriate. If instead, we understand the trade liberali-
zation game as part of a broader ‘general international law game’, then it is not true that the
trade liberalization component must itself be self-enforcing. Rather, the question is whether
the general international law game is self-enforcing. Similarly, in domestic society, we do not

2
Maggi and Morelli (2006, p. 1144) only examine truthful equilibria. Maggi and Morelli’s model
involves voting over just two options: against or in favor of a collective action that can only provide
benefits if all participants contribute. Given the binary nature of voting in this model, a voter can never
gain from voting cynically. However, in other policy circumstances, states may have incentives to vote
cynically.
524 Handbook on global constitutionalism

need to ask whether the domestic ‘environmental protection game’ is self-enforcing, because
it is embedded in a broader legal and constitutional system. The domestic system starts out
equally anarchic to the international system (see generally, Goldsmith and Levinson 2009).
It is true that in anarchy, we must search for self-enforcing agreements. However, similar to
the fundamental basis for domestic law, the self-enforcing character of international law must
be assessed looking at the totality of the international law relationships between states, rather
than by isolating individual relationships.
There is a much greater possibility for reciprocity, and for what we might call a self-enforcing
system, when we examine the entire set of relationships, and examine them across time, than
when we examine a single obligation. The economists’ perspective, expecting individual legal
rules or organizations to be self-enforcing when considered separately and in the short term,
is both ignorant of the networked power of law and impotent to address long-term, highly
asset-specific, and asymmetric, cooperation problems. As to both domestic law and interna-
tional law, we might say that each individual thread of obligation may be weak or strong – if it
is weak, it will be unable to sustain cooperation. However, once a variety of threads are woven
together in a ‘fabric’ of society, the fabric can be considerably stronger than any individual
thread.
One important finding of the Maggi and Morelli work is that if external enforcement is
available, the ex ante efficient rule is typically some type of majority voting (see generally,
Guttman 1998; Aghion and Bolton 2003). However, I have argued above that a rule of una-
nimity, as suggested by Maggi and Morelli, would not necessarily solve enforcement prob-
lems, because unanimity does not necessarily imply subsequent compliance. So there may be
fewer circumstances in which a rule of unanimity would be attractive.
Today, the WTO does not use majority voting, although the formal treaty terms permit it.
The main enabling constitutionalization, or transnational, aspect of the WTO is its dispute
settlement system. Under Article 3.2 of the WTO Dispute Settlement Understanding, dispute
settlement cannot add to or diminish rights under the WTO agreements. So, it may seem
strange to say that dispute settlement can nevertheless, as a practical matter, be understood
as a form of legislative action. There is an important quasi-legislative role for dispute settle-
ment to play at the international level. This role is often one of elaboration and application of
general ‘standards’ set by legislatures, as opposed to more specific ‘rules’. This feature has
been criticized by the US government in connection with its decision, beginning in 2016, to
block the appointment of new members to the WTO Appellate Body, thereby undermining the
effectiveness of WTO dispute settlement.
Often, in connection with EU legal affairs, supremacy and direct effect are noted as features
of constitutionalization. Indeed, these features, along with judicial review, are seen as the
central features of constitutionalization, or at least of judicial constitutionalization. However,
these features of EU law must be understood primarily as constitutionalization at the domestic
level: they enabled EU law to have constitution-like power at the domestic level in the EU
context. They act to restrict the scope of ordinary law at the domestic level, and thus play
a quasi-constitutional role at that level. The same would be true in the case of supremacy
and direct effect of WTO law. Interestingly, of course, WTO law, as international law, is
already supreme over municipal law within the international legal system (the same was true
of the Treaty of Rome). However, it is within the domestic legal system that this supremacy,
and effect, is contested. So, in connection with supremacy and direct effect, the interesting
international aspect is the source of the domestic constitutional rule: whether it is a matter of
 Global commercial constitutionalization: the World Trade Organization 525

domestic law or international law. However, the main point is that supremacy and direct effect
are generally only ‘constitutional’ in the domestic legal system, and not in the international
legal system.
Before we move on, concluding that the discussion of supremacy and direct effect as inter-
national constitutional issues is merely a category mistake, we must note that there is another,
more subtle, effect that can be understood in terms of international constitutionalization.
Under the prevailing horizontal structure of the international legal system, with only limited
mandatory adjudication, and where even such adjudication as exists cannot generally form the
basis for strong enforcement, international law often lacks the compliance force of municipal
law. However, direct effect allows the international legal system, and such international law
as is directly effective, to take advantage of the strong compliance force provided by the
municipal legal system. In this sense, direct effect is a component of enabling international
constitutionalization: it provides legislative capacity to the international system by lending the
relevant international law greater force than it would otherwise have. Supremacy within the
municipal setting plays a similar role.

THE DEMAND FOR CONSTRAINING INTERNATIONAL

CONSTITUTIONALIZATION AND SUPPLEMENTAL
INTERNATIONAL CONSTITUTIONALIZATION

While there are growing demands for international legal rules in the WTO and outside the
WTO, there are rising concerns regarding the accuracy and accountability of efforts to increase
disciplines on national regulatory autonomy, as well as concerns regarding the ability of these
efforts to encompass the full scope of public policy desiderata, giving rise to calls for ‘con-
straining international constitutionalization’.
Constraining international constitutionalization might take the form of restrictions on the
scope of law-making at the international level, either in terms of subject matter or in terms
of procedural limitations. Subject matter limitations might take the form of requirements for
super-majorities (relative to legislation on other subject matters), or might take the form of
carved-out national rights that are, in effect, inalienable, or at least unalienated (see Mueller
2005).3
Finally, the lacunae exposed by globalization give rise to calls for ‘supplemental constitu-
tionalization’, in some cases in the context of the WTO (Peters 2006). With greater economic
integration comes the possibility of greater regulatory arbitrage, and increasing pressure on
domestic regulatory preferences.
Yet, the WTO is but one component of a variegated and increasingly dense tapestry of
global governance. So, it would be wrong to examine the WTO separately from the broader
institutional context in which it exists. Furthermore, while it is possible that acts of enabling
constitutionalization, constraining constitutionalization, and supplemental constitutionaliza-
tion may best take place within the organizational confines of the WTO, it is equally plausible
that they would best take place in other parts of the international legal system. Here, there are

3
Mueller explains that the difference between a rule of unanimity and a ‘right’ is that a right cuts
off wasteful negotiation and lobbying to reach unanimous agreement, where it is possible to decide in
advance that such negotiation and lobbying will be fruitless.
526 Handbook on global constitutionalism

two critical questions. The first is a question of a type of horizontal and vertical constitutional
subsidiarity – where should the constitutional function best be addressed? The second is that
of coherence – how do the different constitutional functions fit together?
Enabling constitutionalization and constraining constitutionalization are two sides of the
same coin (see Lang and Wiener, Chapter 1 in this Handbook). As a sculptor adds clay with
one tool, and cuts it away with another, so enabling constitutionalization adds to the powers
of the international legal system, while constraining constitutionalization refines the grant of
powers, and artfully, and often conditionally, cuts back on it.
As suggested above, accountability is a subtle concept, as is the idea of a democratic deficit.
Democracy in the sense of majority rule is not necessarily enhanced by supermajority pro-
visions, or by other devices that constrain international governmental action, because these
devices prevent the majority from achieving its goal.
Under majority voting, concern for fundamental rights serves as a form of constraining
international constitutionalization, specifying areas into which international legislation may
not infringe. Thus, if majority voting were implemented at the WTO, it would seem appro-
priate also to implement a set of human rights constraints on the decisions taken by majority
vote. A similar process took place in the EU, where the Solange decisions gave rise to the
establishment of an EU human rights capacity.

THE FUTURE

There will be increasing demand for international law in a number of areas, on the basis of
existing and future conditions. The WTO may satisfy some of this demand, but there will be
other constitutional structures, preferential trade agreements that allow sub-multilateral groups
of countries to intensify their integration.
Globalization will increase demand for supplemental constitutionalization. More impor-
tantly, the functional demand for increasing international law will result in increasing demand
for enabling constitutionalization. Increasing demand for enabling constitutionalization will
bring with it demand for constraining constitutionalization. It is not a contradiction to say that
as the international legal system becomes more powerful, it will require greater constraint.
That is, as the international legal system looks more like a government, it will require greater
limitations.

REFERENCES
Aghion, P. and P. Bolton (2003), ‘Incomplete social contracts’, Journal of European Economic
Association, 1 (1), 38–67.
Barnett, R. (2001), ‘The original meaning of the Commerce Clause’, University of Chicago Law Review,
68 (1), 101–47.
Dunoff, J.L. and J.P. Trachtman (2009), ‘A functional approach to global constitutionalism’, in J.L.
Dunoff and J.P. Trachtman (eds), Ruling the World: Constitutionalism, International Law, and Global
Governance, Cambridge: Cambridge University Press, pp. 3–36.
Goldsmith, J. and D. Levinson (2009), ‘Law for states: international law, constitutional law, public law’,
Harvard Law Review, 122 (7), 1791–1868.
Guttman, J. (1998), ‘Unanimity and majority rule: the calculus of consent reconsidered’, European
Journal of Political Economy, 14 (2), 189–207.
 Global commercial constitutionalization: the World Trade Organization 527

Lamy, P. (2000), ‘What are the options after Seattle?’, speech to European Parliament, Brussels, 25
January 2000.
Maggi, G. (1999), ‘The role of multilateral institutions in international trade cooperation’, American
Economic Review, 89 (1), 190–214.
Maggi, G. and M. Morelli (2006), ‘Self-enforcing voting in international organizations’, American
Economic Review, 96 (4), 1137–58.
Mueller, Dennis (2005), ‘Rights and liberty in the European Union’, Supreme Court Economic Review,
13, 1–17.
Norman, G. and J.P. Trachtman (2005), ‘The customary international law game’, American Journal of
International Law, 99 (3), 541–80.
Peters, A. (2006), ‘Compensatory constitutionalism: the function and potential of international norms
and structures’, Leiden Journal of International Law, 19 (3), 579–610.
Shaffer, G. (2004), ‘Parliamentary oversight of international rule-making: the political and normative
context’, Journal of International Economic Law, 7 (3), 629–54.
Streit, M. and W. Mussler (1994), ‘The economic constitution of the European Community: from Rome
to Maastricht’, Constitutional Political Economy, 5 (3), 319–53.
Trachtman, J.P. (2013), The Future of International Law: Global Government, Cambridge: Cambridge
University Press.
 PART VI

NEW HORIZONS
37. Global constitutionalism and outer space
governance
Adam Bower

INTRODUCTION

Access to, and use of, outer space is rapidly expanding: over 70 states now possess space
programmes and they are joined by a diverse array of commercial and non-governmental
actors. There are now over 5,465 active satellites orbiting our planet providing vital data plat-
forms that enable every aspect of modern information-centric societies (Union of Concerned
Scientists 2022). This number is rapidly increasing, posing significant challenges for the allo-
cation of ultimately finite orbital locations and radiofrequency spectrum and the management
of space debris which threatens the sustainability of Earth orbit. Further afield, the extraction
of natural resources from celestial objects and human settlement on the Moon and (perhaps
later) Mars are no longer the stuff of science fiction but may soon become reality. The strategic
value of orbital and deep space has spurred competition and increased the prospect of military
conflict among the major space powers of China, Russia and the United States. The deepening
human reliance on outer space, and the space environment’s inherent fragility, has highlighted
the need for coordinated extra-global governance to enshrine foundational expectations and
distribute rights, responsibilities and benefits in this unique domain.
Outer space thus provides an interesting and under-explored setting in which to examine
the prospective constitutionalisation of global affairs. The 1967 Outer Space Treaty (OST)
is often characterised as the de facto constitution for outer space as it establishes the core
principles governing human and robotic space activities and provides a framework for further
institutional development (United Nations General Assembly 1966). Most importantly, the
OST reserves space as a peaceful domain free from appropriation and assertions of sover-
eign control, in which the exploration and uses of outer space are undertaken on the basis of
equality. And indeed, space has been a setting of remarkable cooperation alongside intense
competition among the leading space powers (Cross 2019). Yet there is widespread agreement
that space law has not kept pace with dramatic technological, economic and political develop-
ments that have radically expanded the scope and tempo of space activities (Masson-Zwaan
and Cassar 2019, p. 195). This, in turn, raises the question as to whether existing institutions
adequately address the needs of a (loosely defined) ‘global public interest in outer space’
(Jakhu and Pelton 2017, p. 15).
This chapter uses constitutionalism as a lens for exploring the nature and future prospects
of outer space law and governance. I first briefly introduce the main elements of this unique
legal regime. The subsequent analysis makes the case that outer space law, with the OST as
its centrepiece, is a distinctive but weakly institutionalised regime when evaluated from the
constitutional perspective of the rule of law, inclusion (and exclusion) of actors and associ-
ated allocation of rights and benefits, and sources and distribution of law-making powers.
Following Birdsall and Lang’s distinction (Chapter 35 in this Handbook), space law more

529
530 Handbook on global constitutionalism

closely resembles international constitutionalism with states as the primary initiators and
subjects. Importantly, the principal institutions were negotiated during the Cold War era dom-
inated by two preeminent spacefaring states, the Soviet Union and United States, and reflect
their predominant influence. The marginalisation of other actors and perspectives inevitably
informs both the substance and legitimacy of the institutions. Calls for more inclusive forms
of governance – akin to global constitutionalism – reflecting the diversity of space actors and
impact of space technologies on humanity as a whole have not been translated into institutional
forms.
As this Handbook makes clear, global constitutionalism is characterised by the complex
intersection of politics, law, and ethics. At core, outer space governance is animated by
a tension between visions that respectively emphasise individualistic freedom versus collec-
tive equality in the access to, use of, and benefit from space. I suggest that the outer space legal
order rooted in the OST is under increasing strain in the face of rapidly expanding scientific,
commercial and military space activities. From a constitutional perspective, the space law
regime possesses limited tools for managing these challenges and thereby mitigating conges-
tion, competition and conflict in the heavens. There is, however, no consensus as to whether
governance gaps stem from a lack of law (which necessitates further institutional develop-
ment) or the under-use of existing mechanisms. I illustrate these dynamics with reference to
examples involving military space operations, the allocation of satellite orbits and radiofre-
quency spectrum, exploitation of natural resources in celestial objects, and human exploration
and settlement beyond Earth.

THE STRUCTURE OF INTERNATIONAL SPACE LAW

Outer space law is conventionally understood to comprise, first and foremost, the five core
multilateral treaties1 and five sets of principles2 negotiated in the United Nations Committee
on the Peaceful Uses of Outer Space (UNCOPUOS) and adopted by the UN General Assembly
(UNGA) (Tronchetti 2013; Jakhu and Dempsey 2016). These instruments establish the
primary legal norms and rules in this domain. Intergovernmental organisations with a global
(e.g., International Telecommunications Union) or regional (e.g., European Space Agency)
focus contribute to the further elaboration of this legal regime. Finally, in response to rapidly
proliferating space activities, a growing number of states are adopting national laws and estab-
lishing regulatory bodies to implement international legal obligations and manage civilian and
commercial space operations under their jurisdiction.
Along with other specialised branches of public international law, space law is subject to
the fundamental rules of the international legal order found most especially in the United

1
The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer
Space, including the Moon and Other Celestial Bodies (Outer Space Treaty, 1967), Agreement on the
Rescue and Return of Astronauts and Objects Launched into Outer Space (Rescue Agreement, 1968),
Convention on International Liability for Damage Caused by Space Objects (Liability Convention,
1972), Convention on Registration of Objects Launched into Outer Space (Registration Convention,
1975) and Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon
Agreement, 1979).
2
The Declaration of Principles (1963), Broadcasting Principles (1982), Remote Sensing Principles
(1986), Nuclear Power Sources Principles (1992) and Benefits Declaration (1996).
 Global constitutionalism and outer space governance 531

Nations Charter (Hobe et al 2017, pp. 271–84). As such, outer space activities are conducted
in the shadow of the constitutive norms of pacta sunt servanda, sovereign equality, territorial
integrity, non-interference, the right of self-defence and the peaceful settlement of disputes.
At the same time, space law is connected to the much more intensely developed legal regimes
in other issue areas such as the law of armed conflict, human rights, trade, and environmental
protection (Aganaba-Jeanty 2016; Aoki 2016). This, in turn, offers opportunities for extending
existing space institutions though the application of adjacent legal norms and rules, rather than
via multilateral negotiation.

THE RULE OF LAW IN OUTER SPACE

A primary question for any legal order concerns its temporal, substantive and spatial bound-
aries. Outer space is widely recognised as a distinctive domain owing to its unique physical
properties: it is effectively infinite and an extremely inhospitable environment for robotic
systems and – especially – human beings. Moreover, the vast distances and substantial limi-
tations on travel imposed by physics mean that the vast majority of space activities take place
very close to Earth, in the orbits around our planet and on nearby celestial objects (our Moon
and asteroids). So, while outer space is ‘out there’, space missions begin on Earth and service
its communities; as such, our uses of outer space are inherently embedded within terrestrial
political, economic and normative systems.
But while outer space is understood as unique, there is less clarity regarding its precise
parameters. Outer space law emerged in parallel with early space exploration and as such was
informed – and limited – by the contemporary scientific understanding of the universe. Even
key terms like ‘outer space’ and ‘celestial bodies’ lack clear definitions in core legal texts.
Interestingly, there is no internationally agreed boundary between terrestrial air space and
outer space and thus a clear dividing line where space law begins and ends.3 These factors
raise important dilemmas concerning the ultimate scope of space law’s application, in light of
expanding activities and vastly greater scientific knowledge of the outer space environment.
Among the corpus of space law, the 1967 OST enjoys a degree of supremacy that is charac-
teristic of constitutions, due to its temporal primacy, substantive scope and widespread adop-
tion (United Nations General Assembly 1966).4 Prominent scholars have thus characterised the
OST as ‘the Magna Carta for outer space’ (Hobe et al 2017, p. 137; Masson-Zwaan and Cassar
2019, p. 181) owing to the manner in which the treaty establishes the foundational normative
framework governing human and robotic space activities provides the animating impetus for
the subsequent development of space law. It has thus been argued that the core provisions of
the OST in Articles I-VII now constitute customary international law (Larsen 2018, p. 138, fn.
3). Subsequent, more specialised, treaties and principles can be considered the lex specialis of
space law established by the OST (Masson-Zwaan and Cassar 2019, p. 192).

3
It is generally accepted that outer space begins at roughly 80–100 kilometres above the Earth’s
surface, where the atmosphere becomes too thin to sustain flight by aircraft and other aeronautical vehi-
cles. Yet an object cannot sustain itself in orbit below approximately 160 km, which marks the lower
boundary for artificial satellites.
4
As of August 2022, 112 states are parties to the OST, while a further 23 are signatories. See https://​
www​.unoosa​.org/​oosa/​en/​ourwork/​spacelaw/​treaties/​status/​index​.html.
532 Handbook on global constitutionalism

The OST’s emergence in the midst of the Cold War Space Race provides the critical context
in establishing the core commitments of the space regime. The launch of the first artificial
Earth-orbiting satellite, Sputnik 1, by the Soviet Union in October 1957 generated both
wonder and widespread concern as the ability for an object to freely transit above the Earth
and across national borders (as required by orbital physics) ‘creat[ed] a new spatial reality’
that challenged the UN Charter’s newly established geopolitical order rooted in territorially
defined sovereign states (Blount 2021, p. 111). The UNGA soon took up the issue and a dedi-
cated institution – UNCOPUOS – was established in 1959 as the focal point for scientific and
legal deliberations concerning space activities, which prominently included the negotiation of
the OST. Of course, the initial spacefaring states, the Soviet Union and United States, were
also the nuclear-armed superpowers engaged in a global ideological competition in which the
potential utility of satellites for military and intelligence applications was quickly appreciated.
Early diplomatic initiatives were thus explicitly motivated by a desire to prevent the spread of
Cold War superpower conflict to outer space.
In this light, the OST sought to address the emerging technological possibilities for human
and robotic spaceflight, but more fundamentally to establish a normative framework for inter-
national peace and security above Earth by enshrining basic principles that distinguished outer
space as an exceptional domain. Yet in so doing, diplomats had to navigate between competing
ideological (capitalist and socialist) and geopolitical (Global North and Global South) perspec-
tives, leading to necessary compromises and ambiguities. In keeping with the constitutional
form, therefore, the OST expresses its core objectives in broad language. This decision to
eschew detailed elaboration of substantive issues enabled a rapid negotiating process but
introduced significant interpretative challenges especially given the technical nature of space
activities (Hobe et al 2017, pp. 178–9).
The OST articulates three fundamental principles, each of which contains internal tensions
that persist to the present day. First, OST Article I asserts that outer space ‘shall be the prov-
ince of all mankind’ and establishes four freedoms – for exploration, use, access and scientific
investigation – that render celestial objects and the voids between them available to all and for
the benefit of all, ‘on a basis of equality and in accordance with international law’. Questions
of constituent power are addressed below, but for now it is important to highlight that the OST
applies to states as the chief spacefaring actors and representatives of human communities.
This conception of freedom is a double-edged sword: spacefaring actors may engage in space
activities without approval from other states, but these freedoms are conditioned by an expec-
tation that ‘such activities are undertaken for the common benefit of all [s]tates’. (Hobe et al
2017, pp. 194 and 204). Moreover, Article I maintains that states should enjoy these benefits
‘irrespective of their degree of economic or scientific development’, and hence their current
space capabilities (or lack thereof).
Relatedly, Article II prohibits the appropriation of celestial objects and rejects assertions of
sovereignty beyond Earth via forms of ownership, occupation, annexation or conquest. This
provision needs to be read in the context of the decolonisation movement that was radically
reshaping the global order in the same period. These experiences were fresh in the minds of
newly created states who wanted to avoid the extension of extra-territorial jurisdiction and
resource exploitation as replacement for direct colonial control. As such, Article II reflects an
attempt to pre-emptively prevent forms of coercive acquisition that were central to the devel-
opment of the modern international system, both as a means of ensuring greater equity and
foreclosing a historically prominent source of conflict among states. In these respects, Article II
 Global constitutionalism and outer space governance 533

serves as a counter-balance to Article I’s permissive approach. Its normative centrality is such
that Article II is now widely regarded as a jus cogens norm that shapes the orderly conduct of
space exploration and use (Hobe et al 2017, pp. 248–69).5 The refusal to grant sovereign rights
in space holds further implications for governance on Earth: while conventional aircraft must
respect national borders, domestic jurisdiction over airspace does not extend to outer space;
hence, a spacecraft traversing high above does not constitute a violation of territorial integrity.
This is vital concession to physics since, with limited exceptions, an object orbiting Earth must
continually circumnavigate the globe.6
Yet the relative brevity of Articles I and II leaves some critical questions unanswered.
In terms of substantive scope, the text does not specify whether the articulated freedoms
are unlimited or whether some forms of exploration, use, access and investigation might be
excluded or circumscribed due to their anticipated or observed effects. Presumably, activities
are permitted unless explicitly prohibited elsewhere in the OST (Hobe et al 2017, pp. 194–8).
More fundamentally, these articles reflect an uneasy compromise between two opposing con-
ceptions of freedom that respectively emphasise the individualistic exploitation of resources
versus collective stewardship and equity in the interests of all humanity (Aganaba-Jeanty
2016). Cris van Eijk perceptively characterises this as ‘a site of hegemonic contestation fought
with normative weaponry’ (van Eijk 2021, p. 6). Notably, outer space is frequently described
as a global commons – like Antarctica or the high seas – beyond national jurisdiction and
protected from all forms of collective or individual ownership. However, international law
does not formally designate space as a commons and major space powers (especially the US)
reject this legal interpretation.
Finally, OST Article IV insists that human and robotic space activites shall be ‘exclusively
for peaceful purposes’.7 Blount has argued that this commitment amounts to the ‘underpin-
ning norm of space exploration’ and ‘the normative threshold for the legality of any space
activity’ (Blount 2021, p. 114). Yet Article IV is notably under-inclusive and ambiguous in
key respects: it bans the placement of nuclear weapons and other weapons of mass destruction
in space but does not address so-called conventional weapons, and prohibits military instal-
lations and weapons on the Moon or other celestial objects but not in the voids between these
objects. This outcome reflects the desires of the then-dominant Soviet and US superpowers
to institutionalise the notion of space as a peaceful domain within the UN system but retain
negotiations over limitations on military space technologies as a bilateral prerogative (Hobe
et al 2017, p. 112).
At a more basic level, the OST does not define ‘peaceful purposes’ and this foundational
principle has subsequently come to be interpreted in accordance with the interests of the
most militarily advanced spacefaring states. The international community has adopted the
view, initially promoted by the US, that the use of satellites and ground stations to support

5
Interestingly, the US and USSR did not assert ownership claims in relation to their respective
Moon missions.
6
Satellites positioned in geosynchronous or geostationary orbit (35,786 km above the Earth’s
equator) have an orbital period that matches the Earth’s rotation, and so remain over the same area when
viewed from the ground.
7
This normative commitment is reinforced by Article III’s insistence that all activities be
undertaken ‘in accordance with international law, including the Charter of the United Nations, in the
interest of maintaining international peace and security and promoting international co-operation and
understanding’.
534 Handbook on global constitutionalism

national security operations on Earth – including for intelligence collection and reconnais-
sance, missile early warning, communications, command and control of forces, and directing
precision-guided munitions – is permitted. Peaceful purposes therefore specifically prohibit
hostile acts against another actor’s space assets or the use of space-based weapons to target
Earth if not undertaken in self-defence (Azcárate Ortega 2021). Consequently, Article IV’s
substantive limitations provide the basis for enduring contestation concerning the precise
threshold for determining a use of force in outer space and the permissible targets and forms
of attack. This is a pressing concern in light of expanding military space programmes and
the increasing integration of commercial space systems into core national security missions
(Weeden and Samson 2022).

CONSTITUENT POWER: RECOGNITION, RIGHTS AND

RESPONSIBILITIES IN SPACE GOVERNANCE

The above considerations raise the even more fundamental question of who sets the rules
and to whom those rules apply. As the Handbook editors note, by associating conceptions of
constituent power and contestation, constitutionalism offers a more inclusive normative and
analytical account of agency which can encompass agents of differing local-to-global scales,
objectives and relationships to existing institutions. In a constitutional order, inclusivity stems
from formal recognition. Seen from this perspective, the OST defines legitimate actors and by
implication allocates rights and responsibilities, as well as benefits, on that basis. It is therefore
important to ask: for whom does space law claim to speak and who (or what) should it repre-
sent? While couched in legal language, these choices are inherently political (van Eijk 2021).
In one sense, the OST offers the broadest possible conception of space law’s constituency
by framing outer space as ‘the province of all mankind’ and, in Article V, classifying astro-
nauts as ‘envoys of mankind’ (more on this last word shortly). Yet only around 600 people
have ever been to space and the vast majority of human beings will never have this opportunity
(Roulette 2021). Nevertheless, space technologies are increasingly central to the operation of
modern societies and entwined in our daily lives. And we are all biologically reliant on energy
from our Sun and vulnerable to solar radiation and collisions from asteroids. Hence, on a quite
fundamental level, the entire global community (to say nothing of all other living species) is
implicated in human and robotic space activities and the natural environment in which they
take place. This has led to more recent suggestions that outer space law contains a foundational
commitment to ensuring the preservation and sustainability of outer space itself, rooted in
a conception of inter-generational social justice (Aganaba-Jeanty 2016).
Despite this, space law is state-centric and does not provide rights and protections, or impose
obligations, directly on human beings but rather encompasses individuals and groups by virtue
of their nationality (Hobe et al 2017, pp. 191–8). The outer space regime thus constitutes
a form of what Birdsall and Lang (Chapter 35 in this Handbook) characterise as international
constitutionalism in which states are the central subjects and agents of the legal and political
order. Notably, OST Article IX establishes an expectation of reciprocity whereby spacefaring
actors ‘shall be guided by the principle of co-operation and mutual assistance and shall conduct
all their activities in outer space … with due regard to the corresponding interests of all other
States Parties to the Treaty’. Much of the proceeding discussion applies, legally speaking, to
states alone. The procedural dimensions of this statist focus will be explored in the subsequent
 Global constitutionalism and outer space governance 535

section. Here I want to suggest that the regime established by the OST is constituted by four
more specific omissions involving: (1) ‘developing’ states (and by extension, Global South
peoples); (2) non-state actors; (3) women; and (4) the future of our species beyond Earth.8
Each of these substantially limits the universal aspirations expressed in the OST.
First, the temporally specific emergence of outer space law during the Cold War left an
indelible mark on the legal regime by prioritising the interests of the leading space powers and
their allies. As noted above, decolonisation informed the normative impetus and substance of
the OST, particularly in its commitment to freedom and collective benefit and corresponding
rejection of appropriation. But while decolonisation rapidly produced a large number of newly
independent states, these actors initially lacked national institutions and high-technology
sectors that would allow them to access outer space. As such, while Global South states (which
are by no means a monolithic entity) made major contributions to the development of inter-
national law in other domains, their influence over space law was impeded by their enduring
marginalisation in key diplomatic fora; formal legal equality did not translate into recognition
as consequential stakeholders (van Eijk 2021, p. 8).
Yet developing states have not been without agency. Indeed, in 1976 a collection of
equitorial countries joined together to assert sovereignty over the valuable geostationary
orbit (GEO) above their territories (Brazil et al 1976). Due to orbital mechanics, satellites in
a GEO orbit match the Earth’s rotation and remain in a fixed point in the sky when viewed
from the ground. This is hugely beneficial for military monitoring, weather observation and
commercial telecommunications. Yet at that time, GEO satellites were operated exclusively
by the US, its allies and the USSR. Signatories to the Bogotá Declaration thus characterised
GEO as a ‘natural resource’ and ‘unique facility’ dominated by a few states, representing
a ‘technological partition of the orbit, which is simply a national appropriation’ by other
means. The involved states advanced a novel claim that since GEO ‘depends exclusively on
its relation to gravitational phenomena generated by the earth … it must not be considered
part of the outer space’ and is thus not subject to the prohibition on national appropriation in
OST Article II. Rather, since satellites in GEO are stationed over the equator, segments of the
GEO zone should be considered as extensions of the sovereign territory (airspace) of the states
underneath. Pointedly, these states contended that the OST

cannot be considered as a final answer to the problem of the exploration and use of outer space, even
less when the international community is questioning all the terms of international law which were
elaborated when the developing countries could not count on adequate scientific advice and were thus
not able to observe and evaluate the omissions, contradictions and consequences of the proposals
which were prepared with great ability by the industrialized powers for their own benefit.

This position was rejected by the USSR and US and did not progress. Nonetheless, the Bogotá
Declaration represents an important early attempt to interpret core provisions of the OST in
order claim benefits from space activities in which states (and their peoples) were not directly
involved.
In recent decades, the number of states with national space programmes and assets has
rapidly increased, but ‘barriers to entry still exist, largely disguised as security constraints …

8
Other authors have provided much richer examination of these themes. I offer only brief reflec-
tions here.
536 Handbook on global constitutionalism

[connected to] restricted international cooperation or technology transfer, even where com-
mercial’ (Aganaba-Jeanty 2016, p. 3). As a consequence, space activities remain overwhelm-
ingly concentrated among the core space powers of China, Russia and the United States.9
Membership in the OST and UNCOPUOS has steadily grown, but remains at roughly half of
all states.10 This has led to calls for regional institutional development – such as the creation
of a dedicated African space sector – to enable developing societies to engage in, and benefit
from, twenty-first century space activities (Asiyanbola et al 2021).
Second, outer space law beginning with the OST recognises the potential contributions by
non-state space actors like companies and academic institutions, but delegates their regulation
to states, via national laws and institutions. OST Article VI insists that state parties to the treaty
retain legal responsibility for all space activities undertaken under their jurisdiction. States are
thus obliged to authorise, monitor and register space launches and satellite operations. And
in contrast to most domains of international law, under OST Article VII states (and not the
ultimate operators) remain legally liable for damage involving space assets.11
As a progressively larger proportion of space activities are undertaken directly by commer-
cial operators, the space law regime will inevitably grapple with how to extend recognition
and incorporate these actors into global governance processes (Dickey 2022). This will not
be straightforward, not least because space companies operate complex transnational supply
chains and customer relationships that often implicate multiple states as potential regulators.
And the sheer proliferation of commercial actors argues against fully inclusive engagment.
Private actors do have some avenues for directly contributing to governance mechanisms,
particularly through the development of non-binding technical and operational standards at the
International Telecommunications Union (ITU) (Jakhu and Pelton 2017, p. 35) and through
private industry bodies like the Consortium for Execution of Rendezvous and Servicing
Operations. But these entities lack direct international law-making authority.
The commercialisation of space activites also challenges the current configuration of rights
and responsibilities established by the OST and its emphasis on common benefit in outer space
exploration. For example, does the prohibition of appropriation still permit the extraction min-
erals from celestial objects, and their subsequent sale on Earth, if there is no underlying asser-
tion of ownership of the physical territory itself? In a related vein, there are growing concerns
that the rapid expansion of satellite mega-constellations – most notably SpaceX’s Starlink
constellation12 – will prevent other actors from accessing and using the most valuable orbital
locations, representing a de facto form of appropriation in Low-Earth Orbit by first-movers
(Boley and Byers 2021). Do commercial operators – or their state of registration – have an
obligation to limit the size of their satellite networks given that Earth orbits are a shared and
ultimately finite resource and we do not actually know their sustainable carrying capacity?
Commercial human space travel also raises novel questions regarding who is encompassed

9
Cris van Eijk has calculated that ‘the United States, Russia, and China have jurisdiction over
89% of all space objects, 72% of active satellites, and 91% of all orbital debris. The entire Global South
controls 11.5% of active satellites; the US alone regulates 59%’ (van Eijk 2021, p. 4).
10
As of August 2022, 112 states are parties to the OST, while 100 states are members of
UNCOPUOS. See https://​www​.unoosa​.org/​oosa/​en/​ourwork/​copuos/​members/​evolution​.html.
11
These obligations are further developed in the Liability Convention and Registration Convention.
Intergovernmental organisations can also register spacecraft (Hobe et al 2017, p. 191).
12
As of August 2022, over half of all active satellites in orbit are part of SpaceX’s Starlink constel-
lation (McDowell 2022).
 Global constitutionalism and outer space governance 537

by space law. Should paying customers on short-duration space tourism trips be classified as
astronauts, and thus ‘envoys of mankind’, or merely parties to a commercial transaction (like
passengers on a conventional airliner)? Permanent human settlement beyond Earth will push
these ambiguities further still. SpaceX, the most prominent proponent of interplanetary travel,
harbours a distinctly libertarian perspective and rejects Earth-based legal jurisdiction over its
intended human missions to Mars.13
Third, scholars like Cassandra Steer have persuasively argued that the OST’s gendered
framing of its constituency as ‘mankind’, reinforces existing power structures that privilege
‘male biology and the male experience as the norm’ in space exploration (Steer 2021, p. 169).
Given the enduring structural inequality in high-prestige sectors, it is unsurprising that women
have been systematically under-represented in space sciences and engineering, human space-
flight programmes, and space law.14 Terminology is especially important in constitutional
contexts where texts articulate grand aspirations and delineate boundaries of recognition.
Language thus reflects, and shapes, social expectations and processes which in turn have tan-
gible effects in limiting women’s access to everything from astronaut training and operational
missions to biologically suitable microgravity toilets and spacesuits; this exclusion extends
to the limited scientific literature examining the differential effects of gravity and radiation
on female bodies (Gorman 2021). While by no means a panacea, adopting the neutral term
‘humankind’ would provide a more inclusive basis for imagining, describing and governing
the future of space exploration (Steer 2021).
Fourth, extra-terrestrial human settlement will deeply upend our established notions of sov-
ereignty, political order and identity (Cockell 2015). In the nearer term, permanent settlements
on the Moon will likely remain closely tethered to terrestrial political and economic structures.
In the longer term, however, the extreme distances mean that for most travellers, interplanetary
exploration will be a one-way trip. This fact challenges our existing notions of citizenship: for
how long would they continue to feel allegiance to an Earth-bound government? In a matter of
generations, environmental forces of radiation and low gravity would fundamentally alter our
biological processes. At that point, space settlers may no longer regard themselves as ‘human’
beings at all, with rights and obligations stemming from Earth.

SITES OF LAW-MAKING, MANAGEMENT AND ENFORCEMENT

In the face of these substantial challenges, space law lacks consolidated and, in many cases,
even explicitly enumerated legislative, executive and judicial features that are found in other
domains of international law. Most notably, the OST has no provision for regular meetings of
the state parties to review the operation of the treaty, exchange information or address com-
pliance issues. And while OST Article XV allows members to propose formal treaty amend-
ments, this mechanism has not been utilised to date. Former Canadian diplomat Paul Meyer

13
SpaceX’s terms of service for its (separate) Starlink broadbank internet service state: ‘For
[s]ervices provided on Mars, or in transit to Mars via Starship or other spacecraft, the parties recognize
Mars as a free planet and that no Earth-based government has authority or sovereignty over Martian
activities.’ (SpaceX, no date, para. 10). This statement has no basis or standing in international law.
14
Note, for example, the still-common use of ‘manned’ and ‘unmanned’ to describe human crewed
and robotic space missions, respectively.
538 Handbook on global constitutionalism

has therefore warned of a systematic ‘neglect of the Outer Space Treaty by the very states that
championed its creation’ (Meyer 2017).
Instead, legislative functions are distributed among various fora with differing memberships
and largely separate mandates. This substantive siloing is intentional, as the leading space
powers have long insisted on a strict division of labour between ‘hard’ security and purport-
edly ‘softer’ issues involving the safe and sustainable uses of outer space. UNCOPUOS serves
as the principal international venue for discussing scientific, technical and legal dimensions
of outer space activities and thus partially fills the diplomatic void of the OST. UNCOPUOS
is widely esteemed but limited to subjects relating to peaceful uses of outer space and thus
excludes explicit consideration of the security dimensions of space operations. Multilateral
negotiations relating to military space matters take place in the Conference on Disarmament
(CD). Both of these bodies operate on the basis of consensus which has increased their
legitimacy but also frequently impeded their diplomatic output. The ITU, a specialised UN
agency representing 193 member states, is responsible for allocating radio frequencies and
orbital slots and convening regular conferences where governance procedures and technical
standards are adopted. Finally, the UNGA has been active in promoting space diplomacy on
topics ranging from debris to arms control. While the UNGA lacks law-making authority, its
outputs can reflect opinio juris that contribute to the development of customary international
law (Cheng 1997, pp. 125–49).
This fragmentation in the sites of normative development is mirrored in a notable absence
of centralised executive and judicial functions within the core space institutions. Along with
the lack of diplomatic meetings, the OST has no standing administration to manage the treaty’s
day-to-day affairs. The UN Office of Outer Space Affairs (UNOOSA) acts as the secretariat
to UNCOPUOS and assists the international community through extensive capacity-building,
technical assistance and transparency functions. The UN Inter-Agency Meeting on Outer
Space Activities (UN-Space) provides a further focal point within UNOOSA that brings
together national regional space agencies for annual coordination meetings. Yet these bodies
lack their own decision-making powers.
As Scheuerman (Chapter 30 in this Handbook) asserts, ‘a viable global constitutional order
requires effective legal sanctions’. The OST makes no mention of judicial remedies and the
space regime enjoys no centralised court or legal expert body that can address constitutional
questions relating to the interpretation and application of foundational norms or more spe-
cific subsidiary rules. And while the OST contains general injunctions towards cooperation
and peaceful settlement of disputes, the treaty does not create new mechanisms for dispute
resolution, verification or enforcement (Brisibe 2016). These lacunae can be traced to the
concentration of material and diplomatic power in the early Space Age, when it was assumed
that conflicts among the few spacefaring states could be managed bilaterally rather than via
novel multilateral means (Tronchetti 2013, p. 47). This model of great power management is
no longer sustainable in light of the proliferation of spacefaring actors and applications.
Instead, these functions fall to existing global institutions. The incorporation of the UN
Charter and general international law presumably grants jurisdiction over outer space activities
to the International Court of Justice and international courts, under some circumstances. But
these judicial avenues remain untested: to this point, states have not sought advisory or binding
judgments concerning the legitimacy and legality of the use of force, environmental damage
from space activities, or private property rights on celestial objects in international courts.
 Global constitutionalism and outer space governance 539

Similarly, space-related disputes have not been addressed by the UN Security Council,15 or
specialised institutions like the Liability Convention.16
As such, there is no single venue where affected actors can meet to address fundamental
questions concerning space governance writ large. Some analysts have proposed amend-
ing the OST to expand its authority or creating a new overarching institution – such as an
International Outer Space Authority – that could consolidate and expand these currently
disparate and under-developed functions (Meyer 2017; Kealotswe-Matlou 2021). In the mean-
time, alternative institutional forms have emerged which are variously described as hybrid or
polycentric modes of governance (Jakhu and Pelton 2017; Morin and Richard 2021). Outside
the UN system, a myriad of multilateral institutions (e.g., Inter-Agency Debris Coordination
Committee), industry consortia (e.g., Consortium for Execution of Rendezvous and Servicing
Operations), and scientific bodies (e.g., Committee of Space Research) provide additional fora
for information-sharing, dialogue, and standard-setting.
These transnational responses are further supplemented by a rapidly growing range of
national laws and regulatory bodies which have in effect localised the governance of key space
activites like launch services and satellite operations at the domestic level. For example, the
US Federal Aviation Administration (FAA) regulates US-registered space launch companies
– including by conducting pre-flight environmental impact assessments – while the Federal
Communications Commission (FCC) approves satellite deployments. The most developed
legal scrutiny is therefore found in national courts. Competitor companies have sued the FCC
in US federal courts in an – unsuccessful – attempt to overturn rulings which they perceived
unfairly favoured SpaceX’s Starlink mega-constellation (Brodkin 2021). Similar domestic
institutions are being developed in many states, including Luxembourg and the United Arab
Emirates, suggesting a further decentralisation of outer space governance.

CONCLUSIONS

Outer space is inextricably implicated in the social, economic, political and ethical dynamics
that characterise relations within and between communities on Earth. At the same time, rapidly
emerging opportunities for the exploration and utilisation of outer space promise to extend
human life beyond our planet. This unique domain thus provides another setting in which to
assess the extent of constitutional structures and practices in global affairs, and to reflect on
their impact for tangible governance challenges.
This chapter has suggested that outer space law constitutes a coherent but weakly institu-
tionalised regime. While not reflecting a consciously designed constitutional system, space
law does possess some discernible quasi-constitutional features. But as I have shown, the

15
While OST Article III brings the UN Charter to bear in space matters, it does not explicitly mention
the UNSC. The UNSC has not been called upon in (thus far limited) inter-state disputes, and there is still
considerable ambiguity regarding the extent to which, and under what conditions, the Council’s Chapter
VII enforcement powers would apply in the space domain (Hobe et al 2017, p. 282).
16
The Liability Convention (in Articles XIV–XX) allows for the creation of an independent Claims
Commission to adjudicate inter-state disputes over liability and compensation from damages caused by
space launch or operational accidents, in cases where agreement cannot be reached among the respective
states. However, the treaty does not specify a means of enforcing the decisions of a Claims Commission.
This mechanism has never been utilised.
540 Handbook on global constitutionalism

emergence of space law at a time when only a select few states and companies could access
space raises questions about its inclusivity and normative legitimacy. Human and robotic
space exploration is thus defined by a series of inescapable tensions concerning the fundamen-
tal values that should govern outer space activities, the means of extending and enforcing these
norms and rules, and the actors to be encompassed within this legal system. These challenges
will only become more pronounced as the scope and tempo of outer space activities dramati-
cally expands.
Yet from a constitutional perspective, foundational legal documents are not expected to
anticipate all potential scenarios; contestation is neither surprising nor necessarily harmful to
a well-functioning legal and political system. Effective governance may therefore not be best
achieved through the accumulation of more international law in the form of long-term multi-
lateral negotiations to create a more comprehensive space treaty. Actors may instead be better
served by reinforcing the relevance of existing principles and pursuing the gradual expansion
of more specialised mechanisms. This can be done by directly invoking core OST provisions
in disputes, developing norms and rules that address specific technical subjects, and encour-
aging the creation of national laws and regulatory frameworks in line with the overarching
objectives contained in the OST.

REFERENCES
Aganaba-Jeanty, T. (2016) ‘Space sustainability and the freedom of outer space’, Astropolitics, 14 (1),
pp. 1–19.
Aoki, S. (2016) ‘Law and military uses of outer space’, in R.S. Jakhu and P.S. Dempsey (eds), Routledge
Handbook of Space Law. Abingdon, Oxon: Routledge, pp. 197–224.
Asiyanbola, O.A. et al (2021) ‘Toward African space autonomy: Developmental framework and incor-
porated synergies’, New Space, 9 (1), pp. 49–62.
Azcárate Ortega, A. (2021) Placement of Weapons in Outer Space: The Dichotomy between Word
and Deed, Lawfare. Available at: https://​www​.lawfareblog​.com/​placement​-weapons​-outer​-space​
-dichotomy​-between​-word​-and​-deed (Accessed 12 March 2021).
Blount, P.J. (2021) ‘Peaceful purposes for the benefit of all mankind: The ethical foundations of space
security’, in C. Steer and M. Hersch (eds), War and Peace in Outer Space: Law, Policy, and Ethics.
Oxford: Oxford University Press, pp. 109–122.
Boley, A.C. and M. Byers (2021) ‘Satellite mega-constellations create risks in Low Earth Orbit, the
atmosphere and on Earth’, Scientific Reports, 11 (1), p. 10642.
Brazil et al (1976) ‘Declaration of the First Meeting of Equitorial Countries’. Available at: http://​www​
.root​.ps/​download/​ASM/​dec​_bogota​.pdf (Accessed 3 February 2022).
Brisibe, T. (2016) ‘Settlement of disputes and resolutions of conflicts’, in R.S. Jakhu and P.S. Dempsey
(eds), Routledge Handbook of Space Law. Abingdon, Oxon: Routledge, pp. 90–106.
Brodkin, J. (2021) Judges reject Viasat’s plea to stop SpaceX Starlink satellite launches, Ars Technica.
Available at: https://​arstechnica​.com/​tech​-policy/​2021/​07/​spacex​-wins​-court​-ruling​-that​-lets​-it​-continue​
-launching​-starlink​-satellites/​(Accessed 2 February 2022).
Cheng, B. (1997) Studies in International Space Law. Oxford: Clarendon Press.
Cockell, C.S. (ed.) (2015) Human Governance beyond Earth: Implications for Freedom. Cham,
Switzerland: Springer.
Cross, M.K.D. (2019) ‘The social construction of the space race: Then and now’, International Affairs,
95 (6), pp. 1403–21.
Dickey, R. (2022) Commercial Normentum: Space Security Challenges, Commercial Actors, and Norms
of Behavior. Washington, DC: Aerospace Corporation. Available at: https://​ csps​ .aerospace​ .org/​
papers/​commercial​-normentum​-space​-security​-challenges​-commercial​-actors​-and​-norms​-behavior
(Accessed 26 August 2022).
 Global constitutionalism and outer space governance 541

van Eijk, C. (2021) ‘Unstealing the sky: Third World equity in the orbital commons’. Available at:
https://​papers​.ssrn​.com/​sol3/​papers​.cfm​?abstract​_id​=​3909536 (Accessed 24 August 2021).
Gorman, A. (2021) ‘Moonwalking: When other worlds belong to women’, Griffith Review [Preprint],
(74). Available at: https://​www​.griffithreview​.com/​articles/​moonwalking/​ (Accessed 4 November
2021).
Hobe, S., B. Schmidt-Tedd and K.-U. Schrogl (eds) (2017) Cologne Commentary on Space Law – Outer
Space Treaty. Berlin: Berliner Wissenschafts-Verlag.
Jakhu, R.S. and P.S. Dempsey (eds) (2016) Routledge Handbook of Space Law. Abingdon, Oxon:
Routledge.
Jakhu, R.S. and J.N. Pelton (eds) (2017) Global Space Governance: An International Study. Cham,
Switzerland: Springer International Publishing.
Kealotswe-Matlou, I. (2021) ‘The rule of law in outer space: A call for an international outer space
authority’, in C. Steer and M. Hersch (eds), War and Peace in Outer Space: Law, Policy, and Ethics.
Oxford: Oxford University Press, pp. 91–106.
Larsen, P.B. (2018) ‘Outer space arms control: Can the USA, Russia and China make this happen’,
Journal of Conflict and Security Law, 23 (1), pp. 137–59.
Masson-Zwaan, T. and R. Cassar (2019) ‘The peaceful uses of outer space’, in S. Chesterman, D.M.
Malone and S. Villalpando (eds), The Oxford Handbook of United Nations Treaties. Oxford: Oxford
University Press, pp. 181–200.
McDowell, J. (2022) Starlink Statistics. Available at: https://​planet4589​.org/​space/​stats/​star/​starstats​
.html (Accessed 26 August 2022).
Meyer, P. (2017) The Outer Space Treaty at 50: An Enduring Basis For Cooperative Security, The Space
Review. Available at: http://​www​.thespacereview​.com/​article/​3335/​1 (Accessed 2 October 2017).
Morin, J.-F. and B. Richard (2021) ‘Astro-environmentalism: Towards a polycentric governance of
space debris’, Global Policy, 12 (4), pp. 568–73.
Roulette, J. (2021) ‘More than 600 human beings have now been to space’, The New York Times, 11
November. Available at: https://​www​.nytimes​.com/​2021/​11/​10/​science/​600​-astronauts​-space​.html
(Accessed 20 January 2022).
SpaceX (no date) ‘Starlink pre-order agreement’. Available at: https://​www​.starlink​.com/​legal/​terms​-of​
-service​-preorder (Accessed 27 January 2022).
Steer, C. (2021) ‘“The Province of all Humankind” – A feminist analysis of space law’, in M. de Zwart
and S. Henderson (eds), Commercial and Military Uses of Outer Space. Singapore: Springer Nature,
pp. 169–88.
Tronchetti, F. (2013) Fundamentals of Space Law and Policy. New York: Springer.
Union of Concerned Scientists (2022) UCS Satellite Database. Available at: https://​www​.ucsusa​.org/​
resources/​satellite​-database (Accessed 26 August 2022).
United Nations General Assembly (1966) Treaty on Principles Governing the Activities of States in
the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. Available
at: https://​www​.unoosa​.org/​oosa/​en/​ourwork/​spacelaw/​treaties/​outerspacetreaty​.html (Accessed 15
September 2021).
Weeden, B. and V. Samson (2022) Global Counterspace Capabilities: An Open Source Assessment.
Washington, DC: Secure World Foundation. Available at: https://​swfound​.org/​media/​207350/​swf​
_global​_counterspace​_capabilities​_2022​_rev2​.pdf (Accessed 4 May 2022).
38. The political economy of global
constitutionalism
Christine Schwöbel-Patel1

INTRODUCTION

Political economy and global constitutionalism tend to be thought of as disconnected. The

relationship between the market and the state, the issue of the distribution of wealth, and the
question of the prioritisation of market-related interests over others do not feature prominently
in the current debate on global constitutionalism.2 This is notwithstanding the literature on
the constitutionalising of the World Trade Organization (WTO), which is, as I argue below,
largely limited to legal-technical over structural questions. My point of departure for this anal-
ysis is that the political economy of global constitutionalism, as a matter of distributive justice,
requires attention and, moreover, that the dearth of outlets for talking political economy tells
us something important about the naturalised assumptions engrained in the debate on global
constitutionalism.
I begin by exploring potential connections between political economy and global constitu-
tionalism in the existing discussions. The already mentioned constitutionalisation of the WTO
and the constitutionalisation of socio-economic rights are discussed as possible outlets for
‘talking’ political economy. I argue that these sites of enquiry do not provide a satisfying entry
into questions on the relationship between the market, power, and the law. At the centre of this
analysis is the claim that an assumed division between the public and private spheres, what is
known as the public–private dichotomy, is key to understanding the limited engagements of
political economy with global constitutionalism.
I demonstrate that the division between the public and the private, which has historically
been enshrined in domestic constitutions, has been extrapolated to the global sphere in debates
on global constitutionalism. In its more problematic register, the public–private dichotomy is
mapped onto the division between the political and the economy. The economy is constructed
to be kept apart from the political so that it can unfold unchecked, rendering the private sphere
effectively apolitical. Two consequences of constitutionalism as understood in a separation
between the public and private are highlighted: (1) constitutionalism has the potential to ‘lock
in’ neoliberal capitalism and (2) constitutionalism has been mobilised to serve the interests
of the Global North vis-à-vis the Global South in a neocolonial register. A political economy
perspective on global constitutionalism therefore exposes the potential for a naturalisation of
its neoliberal and neocolonial features.

1
Many thanks to Greg Messenger and Mavluda Sattorova for conversations, comments on earlier
drafts and valuable pointers.
2
For important exceptions, largely in the scope of transnational law, see Kolja Möller (2015) and
Peer Zumbansen (2011).

542
 The political economy of global constitutionalism 543

Following on from this, and in a dystopic register, I consider whether neoliberal and
neocolonial constitutionalism in the global sphere (as a description of a globally ­constituting
process) is already apparent in the global economy. The Transatlantic Trade and Investment
Partnership (TTIP), and any of its regional counterparts for that matter, is considered as
symptomatic of a neoliberal and neocolonial constitutionalism of the global economy. TTIP,
a trade and investment agreement which was negotiated largely in secret, is shown to unfold its
constitutionalising potential through a problematic depoliticisation of the economy, dependent
on the understanding of a strict division between the public and the private.
Negotiations for TTIP ended in 2016 and were declared obsolete and no longer relevant
in an EU council decision of 2019. Mega-regionals marked a particular time in trade history,
which arguably has been followed by a greater turn to nationalism. These more recent trends
notwithstanding, TTIP was as much an indication of sweeping liberalisation as it was of
resistance to such liberalisation. It therefore continues to serve as a fascinating example of the
distributive aspects of constitutionalisation on a global scale.

FINDING POLITICAL ECONOMY IN GLOBAL

CONSTITUTIONALISM

In 2013, David Kennedy claimed that the central questions of our time are not political ques-
tions (regarding questions to be addressed by governments alone) and they are not economic
questions (regarding questions to be addressed by the operations of markets alone), but rather
they concern questions which can best be addressed by ‘thinking of politics and economics
as intertwined projects and close collaborators in the distribution of political authority and
economic reward’ (Kennedy 2013, pp. 7–8). Critical questions pertaining to the distribution of
political authority and economic reward as they apply to global constitutionalism may be the
following: (1) Is the globalising and constitutionalising of certain norms a means of privileging
a particular political and economic elite? (2) Is the assumed division between the public and
private spheres in constitutionalism problematic, particularly if this concomitantly means the
depoliticisation of the economy? (3) If a particular (political and economic) elite benefits from
constitutionalisation of this kind, then who loses out? (4) What and who is left uncontested in
a depoliticised economy? These questions have, to date, largely remained un(der)explored in
debates on (global) constitutionalism; yet their importance appears paramount.
Despite the relative silence on questions of political economy, there are many and varied
aspects to the debate on global constitutionalism. The debate takes place across several dis-
ciplines (including international law, international relations, political science and political
theory), across several different scales of normativity (from claims that some norms are global
constitutional norms to claims of pluralism and a loose formalism), across different geog-
raphies, and different levels of optimism and pessimism. Notwithstanding these variations,
there are also identifiable trends in the debate. It is a debate largely among international law
academics; it is framed in an increasingly procedural rather than substantive register; it is
largely European (with a particular interest from German academics); and is going through
a rather pessimistic phase.3 These trends are important from a political economy perspective
3
In an editorial in March 2015, the editors of the journal Global Constitutionalism ask whether
elements of global constitutionalism ‘have peaked or even entered a period of decline’ (Dunoff et al.
2015, p. 1).
544 Handbook on global constitutionalism

since they may reveal some of the assumptions and biases inherent in the debate on global
constitutionalism.
As already noted, a feature of the debate on global constitutionalism is the lack of political
economy analysis. Why is this? There are two spaces which may provide some scope for
‘finding’ political economy in global constitutionalism. The first is in the debate on the consti-
tutionalising of the WTO and the second is in socio-economic rights.
It may seem puzzling to assert a neglect of political economy in debates on global consti-
tutionalism given that much of the fascination with questions of international constitution-
alism arguably began with a scholarly discussion on the constitutionalisation of the WTO.
In the early 2000s, several scholars were discussing the question whether the legalisation of
the WTO (particularly given its highly legalised dispute settlement system) meant–should
mean–should not mean the constitutionalisation of the WTO and the economic order more
generally (Petersmann 1997, 2006; Howse and Nicolaidis 2001; Walker 2001). Despite this
clear connection between constitutionalism and political economy, the experts of international
economic law have been described as ‘overwhelmingly agnostic’ about globalisation and lib-
eralisation (Cass 2005, p. 72). Bar some important exceptions (see Trachtman 2009; Rolland
2012), international economic lawyers have a reputation for viewing the free market and other
features of neoliberalism as fact. This literature and practice is, perhaps as a consequence of
taken-for-granted neoliberalism, concerned with the constitutionalisation of the trade regime
as a distinct regime and not of the international legal order as a whole (reincarnations of the
debate make this explicit, for example, Peters et al. 2011). In response to this fragmented
understanding of constitutionalism and neoliberalism, Kolja Möller described the international
trade system as radiating into the international community and consequently constitutionalis-
ing on a global scale. The fragmented regime, according to Möller, has an urge for expansion-
ism into its more peripheral legal, political and economic areas. He argues that the colonisation
of the trade system is leading to a globally constitutionalised liberalisation and financialisation
(Möller 2015, p. 276). This seems like a plausible way of explaining the institutionalisation
of the neoliberal order. To me it appears that a neoliberal logic has so permeated thinking
on national, international and transnational levels that we cannot separate it as pertaining to
a commercial or trade sphere. The neoliberal order and international law are at present so
intimately entwined that they constitute and re-constitute one another. The neoliberal order
has, since the end of the Cold War, become the only true contender for global reach and owing
to this monopoly on the institutions, regulations and imagination has become naturalised as
the only way of ordering globally interconnected affairs. As David Harvey states, neoliberal-
ism ‘has become incorporated into the common-sense way many of us interpret, live in, and
understand the world’ (Harvey 2007, p. 3). The WTO is therefore to be understood as both
a product and a constituting factor of a neoliberal order. The prevailing narrative on fragmen-
tation, however, forecloses this structural analysis, as it insists on understanding international
economic law as a distinct field of enquiry. Although debates of the constitutionalisation of
the WTO therefore provide ample opportunity for ‘finding’ political economy, it is largely
missing in the mainstream debate.
Another possible connecting language between global constitutionalism and political
economy lies in an analysis of socio-economic rights. Socio-economic rights would appear
to be an appropriate platform for engaging questions of economic inequality, redistribution of
wealth, and institutionalised privileging of civil and political rights in global constitutionalism.
Social, economic and cultural rights are regularly described as ‘positive’ rights (as opposed to
 The political economy of global constitutionalism 545

civil and political ‘negative’ rights) since they impose obligations, or protective duties, on the
state. In the constitutional debate, socio-economic rights have been part of the conversation
particularly since their inclusion in the South African Constitution. An interesting impetus for
global constitutionalism and socio-economic rights is currently coming from the Global South.
Drawing attention to some of the deficits and limitations of ‘older constitutions’ from the
Global North, David Bilchitz speaks of distributive justice as ‘an ideal’ engrained in the con-
stitutions of India, South Africa and Colombia, which could influence global constitutionalism
in the future (Bilchitz 2013, p. 42). However, the shadow of non-justiciability (and indetermi-
nacy) looms large over socio-economic rights and constitutionalism. The resource question is
regularly invoked.4 The general critique of socio-economic rights in practice is that there is at
most a ‘discursive sensitisation’ in trade law debates (Moyn 2014, 166) and that they are more
generally a ‘powerless companion’ to neoliberalism (Moyn 2014). Such resignation towards
socio-economic rights would appear to prevent a structural critique of the role socio-economic
rights discourse plays in constructing and sustaining neoliberalism. Ultimately, the mapping
of civil and political rights onto the Global North and social, economic and cultural rights
onto the Global South also prevents a more in-depth analysis of neoliberalism as a global
phenomenon. Neither the debate on the constitutionalisation of the WTO nor on the constitu-
tionalisation of socio-economic rights has offered a satisfying impetus for ‘finding’ political
economy in global constitutionalism.

THE PUBLIC–PRIVATE DIVIDE IN (GLOBAL)

CONSTITUTIONALISM

In order to understand the political economy of global constitutionalism, I suggest that the
public–private divide, often also referred to as a ‘dichotomy’, is a crucial analytic. In order to
understand the public–private divide and its consequences, this section looks at constitution-
alism from a historical perspective. Historically, constitutionalism has had two compromising
features, which are often ignored in light of the overwhelming constitutional rhetoric of
freedom and rights: constitutionalism has historically enabled the ‘locking in’ of capitalist
principles5 and constitutionalism has historically been mobilised as a form of legalisation of
colonialism. These two features are relevant for the political economy of global constitution-
alism in that it shows us that constitutionalism when transcending the domestic sphere has
the potential to create and re-inscribe divisions between a political and economic elite and the
politically and economically deprived and silenced. Only a sketching out of these historical
connections is possible here; its purpose is to shift the emphasis from the predominant freedom
and rights associations of constitutionalism to a sensitivity of possible connections with neo-
liberalism and neocolonialism. The public–private divide is shown to inhabit a crucial role in
historically facilitating neoliberal capitalism and colonial power relations.
Neoliberalism encapsulates the division of the public and private in the following way:
in neoliberalism the division is embraced in order to promote policies aimed at keeping the

4
See for example the South African Constitutional Court’s first ruling on positive rights (here
medical treatment) in Soobramoney v Minister of Health (KwaZulu-Natal) (1997) ZACC 17.
5
Stephen Gill (2008) refers to the ‘locking in’ of neo-liberal reforms in the constitutional ­revisions
of the 1990s.
546 Handbook on global constitutionalism

market separate from and protected from state intervention. Neoliberal doctrine, as devised
after World War II among others by political philosopher Friedrich von Hayek and economist
Milton Friedman, foregrounds personal freedom and fiercely opposes intervention of the state
in the market, unless such intervention protects the market. The theory of the ‘invisible hand’,
often attributed to Adam Smith, is, in a neoliberal understanding, often regarded as the best
device for social benefits. According to this reasoning, an individual’s self-interest has some
unintended social benefits such as the redistribution of goods.
The lack of state involvement in the market, other than to protect its freedom, and the met-
aphor of the invisible hand create the problematic fiction that law is not present in this sphere
(Möller 2015, p. 275) – and also that it is not needed in this sphere for the purpose of social
justice. The private sphere of the economy is taken out of state control, and consequently
also largely out of democratic control. The private sphere, in the hands of individuals and
corporations, is consequently depoliticised. It merits emphasising here that the practices of the
economic super-powers are not simply about all-round liberalisation. Indeed, some industries
of the economic heavyweights are (notoriously) protected from, rather than exposed to, the
free market and global competition.6
Constitutionalism has historically entailed a public–private division, arguably providing
fruitful ground for (neoliberal) capitalism to flourish. Constitutionalism, as it emerged from
the British Glorious Revolution of 1668 and the French Revolution of 1789 imposed restraints
upon the absolute power of the monarch relative. This restraint was exercised by merchants
and the middle classes. Stephen Gill has made explicit how struggles between the ancien
régime and this bourgeois class which led in industrial and commercial progress engaged
a constitutionalism associated with the overthrowing of constraints on the accumulation of
capital (Gill 1998, pp. 27–8). Constitutionalism as a mechanism to ensure capital accumula-
tion and the free movement of capital was born. Gill explains how this ‘old’ constitutionalism
entered a phase of ‘progressive constitutionalism’ after World War II. New government inter-
vention meant limitations on capital mobility – as required by post-war reconstruction. At the
same time, a new economy was emerging which gave more weight to workers as producers
and, crucially, as consumers. The newly emerging idea of a welfare state meant that public
authority controlled and channelled the processes of economic liberalisation and redistribution
(Gill 1998, pp. 29, 30). Post-1989, that is, with the end of the Cold War, free trade became
increasingly pronounced as liberalisation was increasingly equated with freedom. This ties in
with the widely held assumption that individual freedoms are guaranteed by freedom of the
market and of trade (Harvey 2007, p. 7). Through a constitutional lens, this was most evident
in the liberalisation of the former Eastern bloc. The new constitutions of formerly socialist or
communist states set out the legal protection of property rights, allowing for a global neoliberal
economy to configure. The contemporary debate on global constitutionalism, although it may
have roots going back many centuries, began in the late 1990s. It coincided with the height of
expansionism of liberalism as a political and as an economic doctrine. Liberalism as a political
doctrine understands the protection and enhancement of the freedom of the individual to be the
central issue of politics. Liberalism as an economic doctrine takes free markets to be the central
issue of global economics. The political economy which has been prevalent ever since is the

6
Examples of US or French agriculture come to mind immediately. Economist Ha-Joon Chang has
pointed out that developed countries became rich by protectionism and are now kicking away the ladder
for developing countries by demanding the implementation of free trade policies (Chang 2002).
 The political economy of global constitutionalism 547

pursuit of individual freedom through free markets. The neoliberal order is associated with an
understanding of market logic extending into all social and public spaces.
The deep commitments to liberalism, and to an extent also neoliberalism, can be found in
the dominant debate on global constitutionalism. I have argued elsewhere that the predominant
global constitutionalism projects from an international legal perspective share some important
properties in the privileging of: (1) the limitation of power, (2) the institutionalisation of
power, (3) social idealism (meaning an idea for the future based on societal values), (4) the
standard-setting capacity of constitutions in the sense of a systematisation of law, and (5) the
recognition of individual rights. Together, these features can further be condensed to a general
liberal democratic idea of global constitutionalism as the pre-eminent interpretation of global
constitutionalism among international lawyers today (Schwöbel 2011).
A further way of describing and categorising these features is through the lens of the
public–private law divide. Global constitutional features all form part of public law, that is,
the area of law which is regulated by the state and concerns relations between the state and
individuals. ‘Limitation of power’ is often found in ideas of the rule of law and associated
checks and balances mechanisms. The ‘institutionalisation of power’ provides for power to
be vested in public institutions which are organised along hierarchies of competence. ‘Social
idealism’ concerns common values; even if these values are pluralism and difference, they are
understood as defined in public law because they concern society as a whole. The hierarchical,
pyramid-style, nature of public law also provides for the ‘systematisation of law’ and for the
articulation of ‘individual rights’ by a centralised power which is thought to be accountable
to the people. Private law, as in the law between two private actors, is generally believed to
be outside the scope of global constitutional debates. As will be shown, this separation of the
public and the private is mapped across a divide of the political and the economy.
The institutionalisation of the separation of the public and private at the international level
can be demonstrated with reference to the WTO. ‘By regulating one class of actor (public)
but focusing on the outcomes for another (private), WTO law is required to engage with the
distinction between the public and the private on a continual basis’ (Messenger 2016, p. 55).
World Trade Organization law, as multilateral international law, applies to those states and
customs unions that have signed up to the organisation. The law created here, ‘the global rules
of trade’,7 is designed to benefit private actors. As the WTO Appellate Body has emphasised,
the WTO’s concern is ‘merely the governmental intervention that affects the conditions under
which like goods, domestic and imported, compete in the market within a Member’s territo-
ry’.8 The role of the public (the state) is therefore to guarantee expedient conditions for the
economy. Trading relationships of and with China exemplify how the public (the political) has
been separated strictly from the private (the economy) (Schwöbel-Patel 2017). Despite con-
tinuous reports of disappearances and persecution of political dissidents as well as territorial
disputes, the People’s Republic of China remains a trading and investment partner because the
public (the political) is factored out of what are thought to be concerns of the economic sphere.
This reinforces Claire Cutler’s argument in Private Power and Global Authority that interna-

7
See https://​www​.wto​.org/​.
8
Korea – Measures Affecting Imports of Fresh, Chilled, and Frozen Beef, Report of the Appellate
Body, WT/DS161/AB/R-WT/DS169/AB/R (11 December 2000) para. 149 (cited in Messenger 2016,
p. 56).
548 Handbook on global constitutionalism

tional law and neoliberalism are not only mutually reinforcing but the former is effectively
rendering private economic activity ‘apolitical’ and neutral (Cutler 2003).
Neoliberalism and constitutionalism both assume a public–private divide which is impor-
tant for thinking about global constitutionalism in terms of political economy. How does
colonialism come into the picture? As we know, not least from Rosa Luxemburg, capitalism
(as the practices connected to the accumulation of capital) and imperialism (as the exercise of
power over foreign territories) are intimately entwined (Luxemburg, 2003 [1913]). European
colonialism, practised primarily by the United Kingdom, the Netherlands, Spain, France and
Portugal, began around the late fifteenth century. Expansionism into Africa, Asia and the
Americas was largely for economic reasons – to provide the European empires with the rich
resources of their colonies. That this was a bloody episode in European history is undenia-
ble. The work of Anthony Anghie and Martti Koskenniemi, among others, has shown how
international law was a central feature to legitimising the unequal relationships between the
colonial powers and the colonies. In particular, Anghie compellingly argues how the notion of
sovereignty played a crucial role in sustaining political-economic power over the colonised.
Invocations of ‘sovereign’ and ‘not sovereign’ helped institutionalise and naturalise a division
between what was considered civilised and what was considered uncivilised (Anghie 2005, see
also Koskenniemi 2001; Rajagopal 2003; Pahuja 2011). International lawyers were far from
ignorant of the imperial expansion; rather, they helped legitimise it. For scholars approaching
international legal thought from a Third World Approaches to International Law (TWAIL)
perspective, it is important to emphasise that the discipline and its central principles were not
only constituted by asymmetries of power between colonial powers and colonial subjects,
but continue to create and naturalise these asymmetries. International law, as the discipline
in which global constitutionalism feels most at home, is implicated in continued colonial and
neocolonial relationships.
Dylan Lino introduces domestic constitutionalism into the historical analysis of colonial-
ism. Lino draws attention to the colonial past of (British) domestic constitutional principles
and traditions, thereby revealing a close relationship, albeit complex, between (British)
constitutionalism and colonialism. This is relevant to global constitutionalism as domestic
constitutional ideas, particularly of the constitutions of the Great Powers, are extrapolated
onto the international. Lino argues that in the latter half of the nineteenth century, in the ‘age
of empire’, British constitutional scholars increasingly envisioned the British Empire as a con-
stitutional order and project (Lino 2016). Employing in particular the work of Albert Venn
Dicey, English constitutional scholar and author of the canon Introduction to the Study of the
Law of the Constitution, the imperial dimension of constitutionalism is drawn out. Spurred in
part by inter-imperial industrial and military competition (Lino 2016 cites here Bell 2007 and
Kennedy 1987), and a waning faith in democracy,9 Dicey arguably saw colonialism as repre-
senting ‘a new form of the undying belief in progress’ (An Observer [AV Dicey] 1901, p. 203,
as cited in Lino 2016, p. 7). With this came an imperial shift in British constitutional thinking
(Lino 2016). Domestic constitutionalism, which acts as a significant impetus for global consti-
tutionalism, is in this narrative historically implicated in imperialism.
In so far as there is a continuation of the assumption of the public–private divide, there are
therefore grounds to suspect global constitutionalism as being a facilitator of neoliberalism

9
The worry about democracy was closely linked with a worry about socialism and, and more impor-
tantly, communism.
 The political economy of global constitutionalism 549

and neocolonialism. Not only do the predominant visions of global constitutionalism take
a public–private divide for granted (as displayed above), and therefore provide fertile ground
for the rendering of private economic activity apolitical; but global constitutionalism in its
self-understanding as universal also sits comfortably in a progress narrative associated with
colonialism and neocolonialism. The likeness with the imperial constitutionalism of the British
Empire and global constitutionalism extends to both being unwritten. This kind of functional
rather than formal thinking10 is opportune for extending ideas of governing and progress to
those deemed to be ‘less governed’ and ‘less progressive’. Global constitutionalism is, from
a formalist perspective, a potential tool of colonialism and neocolonialism, standing in opposi-
tion to the more common narrative of global constitutionalism as being a beacon for rights and
freedom. What happens if we apply this formalist perspective to material conditions?

THE TTIP AS GLOBAL CONSTITUTIONALISM?

A historical political economy perspective on global constitutionalism has highlighted some

taken-for-granted and hidden aspects of a global constitutional project. An important aspect
of the linkages between constitutionalism, neoliberalism and neocolonialism has been shown
to lie in the public–private divide. If we assume that there are some continuations in these
compromising features of constitutionalism, what might this linkage look like?
Scholars of global constitutionalism largely claim to be engaging in both a descriptive as
well as a normative project. My worry is that the idealism behind the normative project is
blinding us to some of the real constitutional impulses which would be part of a descriptive
project. In other words, the utopia is diverting attention from the lived dystopia. If we consider
constitutionalism as a project of integration and of convergence from a descriptive perspective,
it is striking how much more integrated the global economy is vis-à-vis its rights landscape.
One can plausibly say that there is larger consensus on how to conduct the global economy –
by states, organisations, corporations and individuals alike – than there is on rights protection.
The global capitalist economy, which extends across all continents and most cultures is there-
fore my point of departure for a descriptive (and dystopian) analytic. The TTIP is employed
as an example of a moment in recent history when the constitutionalising of the global market
economy reached a neocolonial and neoliberal climax.11
The TTIP was a set of trade and investment negotiations between the US and the EU. The
proposals were not an isolated phenomenon; similar trade agreements were signed between
the US and Pacific states in the Trans-Pacific Partnership (TPP) and between the EU and
Canada in the Comprehensive Economic and Trade Agreement (CETA).12 Any one of these
agreements could have served as an example of a constitutionalising global economy. While

10
Lino (2016) says this about the British constitution, Trachtman (2009) says this about global
constitutionalism.
11
For the purposes of this argument, I am not distinguishing here between ‘big C’ constitutionalism
or ‘small c’ constitutionalism. I am also not going to go into detail about ‘constitution’, ‘constitutional-
ism’ or ‘constitutionalisation’ – all of which have been covered at length.
12
Although much has been made of the secrecy, it is likely to follow the same principles as CETA,
which has already been signed and is therefore publicly available.
550 Handbook on global constitutionalism

much of the debate was side-tracked by a fear of chlorinated chicken and American parmesan,13
there were much more pressing concerns about this partnership. The TTIP agreement was one
of a so-called ‘new generation’ of agreements which combined both trade law and investment
law. The agreement concerned the minimising of regulatory barriers to trade, the convergence
of regulatory standards, and the protection of foreign investment. Given investor property
rights and assets were the protected interests, investors, that is, large corporations, had the
most to gain from such partnerships. The scope of the agreement was extremely broad, ranging
from health care to food standards to environmental standards. What is problematic about this
broadness is that regulatory standards are recast from standards concerning the public good to
measures which hinder competitiveness. Crucially, TTIP, like other mega-regionals, presumed
liberalisation – those areas which were not liberalised were set out in explicit reservations.14
The marketisation of all aspects of social life is a reality; what was novel about the TTIP was
the degree of ‘deep liberalisation’ sought (De Ville and Siles-Brügge 2016).
One of the most controversial aspects of the agreement was the investor state dispute set-
tlement (ISDS) system, described as ‘corporate courts’ or ‘secret courts’.15 This aspect of the
trade and investment agreement set out that corporations can sue governments under the set-
tlement system if one of the investment obligations had been violated. A striking example of
the way in which such trade arbitration had functioned in the past is the Metaclad case, a case
brought by the US Metaclad Corporation against the Mexican government.16 The relevant local
authorities in Mexico had denied landfill management company, Metaclad, a building permit
on a hazardous waste landfill because an environmental audit had revealed severe threats to
the local water supply. Metaclad was forced to cease operating the site. It subsequently suc-
cessfully sued the Mexican government for damages, and was awarded US$16.7 million by
an arbitration tribunal. The tribunal understood this to constitute regulatory expropriation, an
effect deemed ‘equivalent’ to direct expropriation which is understood to include effects on
companies’ future profits.
Further concerns about the ISDS include the fact that arbitrators can be appointed by cor-
porations (providing more strength to corporate power) and that such tribunals do not have to
meet regular transparency requirements (providing less democratic control). From a constitu-
tionalisation angle, the proposed dispute settlement system was interesting since it indicated
a clear attempt to restrain the primacy of politics in favour of private enterprise (De Ville and
Siles-Brügge 2016, p. 11), and therefore the intent to ‘lock in’ a neoliberal standard.17

13
The ‘Chlorhühnchen’ became the symbol for German resistance to TTIP, see, for example, Der
Spiegel (2013) and The Guardian (2014).
14
In the area of services, this is a dramatic departure from The General Agreement on Trade in
Services (GATS), which was (alongside the General Agreement on Tariffs and Trade (GATT)) negoti-
ated as part of the Uruguay Round. In GATS the provision was the reverse: those areas which were to be
open to liberalisation were set out explicitly. Many thanks to Greg Messenger for pointing this out.
15
Civil society organisations have been central in providing information on the negotiations and on
lobbying key stakeholders. See War on Want at http://​waronwant​.org/​what​-ttip or at Global Justice Now
at http://​www​.globaljustice​.org​.uk/​tags/​ttip.
16
The Award can be found at Metaclad Corporation v. The United Mexican States,
ICSID-ARB(AF)/97/1 (30 August 2000).
17
The alternative, proposed by the European Commission in November 2015, is a permanent
investment court system. It has been proposed in particular to address problems of transparency and
independence of arbitrators. Although it may be a step forward in transparency, it would be a further step
into standardisation discussed below.
 The political economy of global constitutionalism 551

The continuation of neocolonial interests in trade and investment agreements lies in the tra-
ditionally unequal benefits between capital-exporting countries (those of the Global North) and
capital-importing countries (those of the Global South). Since the first modern bilateral invest-
ment treaty (BIT), concluded between Germany and Pakistan in 1959, foreign investment in
countries of the Global South has been enabled and capital has been allowed to flow freely into
new territories with rich resources and cheap labour. At the same time, the capital-importing
country was made to believe that foreign investment was crucial for development – a narrative
which had strong backing from the World Bank and the International Monetary Fund (IMF).18
However, the outcome was often, as Mattias Kumm states, ‘an act of collusion between often
corrupt and despotic governments in developing countries and Western states serving the
interests of their corporate constituencies’ (Kumm 2015, p. 3).19
The neocolonial flavour with the TTIP – a trade agreement between developed states – lies
first in the strengthening of big business, which has historically been exploitative of countries
rich in natural resources, and second the standardisation set through the agreement.20 One of
the great myths of multinational and transnational corporations which rely on free-flowing
capital is that they create jobs and ultimately development and prosperity. The Washington
Post, for example, stated about the TPP: ‘On balance, though, free-flowing capital creates
more jobs and wealth than it destroys. The TPP would not only increase economic activity but
also enhance geopolitical ties between the United States and its East Asian allies, especially
Japan.’21 There is insufficient space to vitiate this claim in depth, suffice to say that it is widely
acknowledged by international organisations,22 civil society organisations23 and economists
alike,24 that neoliberalism is experiencing a crisis. Not only did the global financial crisis
expose the weaknesses of a global neoliberal capitalist model, more importantly, neoliberalism
is causing deep income inequalities – as acknowledged by the IMF itself (Ostry et al. 2016).
The rich are becoming richer and the poor are becoming poorer. Arguably, what started as
a financial crisis has spilled over into conflict and social upheaval.25 The damage done by oil
giant Shell in the Niger Delta in Nigeria or Chevron in Ecuador’s Amazon basin, for example,
as regards labour standards, environmental standards and income standards speaks volumes
for the damage done by big business.26

18
Alternatively, as Mavluda Sattorova has recently empirically investigated, government officials in
capital-importing countries (such as Turkey) were largely ‘unaware of the scope and implications of such
treaties’ (Sattorova 2016, p. 58).
19
See interesting moments of resistance to the investment protection regimes, for example, by
Bolivia and Ecuador (Sattorova 2016, pp. 53–80).
20
Mattias Kumm states, ‘investment protection regimes could be described as continuation of
western imperialism under modern conditions’ (Kumm 2015, p. 6).
21
Washington Post (2015).
22
OECD (2015).
23
‘An Economy for the 1%. How privilege and power in the economy drive extreme inequality
and how this can be stopped’, 18 January 2016, Oxfam report on structural inequalities at http://​policy​
-practice​.oxfam​.org​.uk/​publications/​an​-economy​-for​-the​-1​-how​-privilege​-and​-power​-in​-the​-economy​
-drive​-extreme​-inequ​-592643.
24
Piketty’s (2014) book was particularly influential.
25
For an interesting short video overview, see Mason (2015).
26
Particularly in the Niger Delta in Nigeria, Shell has done much damage. Often corporate damage is
not exposed because court cases are settled in order to prevent transparency. However, the case of Kiobel
revealed some of the poor labour and environmental standards employed or endorsed by Shell.
552 Handbook on global constitutionalism

Standardisation is a major goal of investment agreements such as the TTIP. This type of
standardisation on how to manage the economy, particularly through liberalisation, sets a path
for developing states to mimic mythical paths to development as promoted by wealthy states
(Schneiderman 2008).27
Much concern of activist resistance to TTIP was around the fact that the negotiations for
the TTIP were largely held in secret and therefore not open to democratic contestation. This
highly separated and depoliticised activity of the private sphere is symptomatic of the strict
separation between the private and public spheres described as one of the problematic aspects
of constitutionalism above.28
Despite the declared obsolete nature of the TTIP negotiations (and the fact that Brexit would
necessitate new negotiations anyhow), it is worth noting that a dystopia of a constitutionalised
separation of the public and private sphere may already be upon us in the global economy.
If we adopt a descriptive approach to global constitutionalism, we may find that the global
economy is already constitutionalising at the same time as the Enlightenment project of global
constitutionalism declares rights and freedoms as central. By insisting on a public–private
division within the global constitutional debate, a further closing in and locking in of neolib-
eral and neocolonial global constitutionalism may (unwittingly) be made feasible.

CONCLUSION

In the above, I set out the relevance of a political economy perspective on global constitu-
tionalism. Constitutionalism has been exposed as a project which historically has locked in
neoliberalism and has facilitated (neo)colonialism. These limitations of constitutionalism are
important for the global constitutional debate as ideas from domestic constitutionalism tend to
be extrapolated to the international sphere. The divide between the public and private is key
to understanding the problems associated with constitutionalism. The mapping of the political
onto the public and the economy onto the private has created an apolitical notion of private
activity which is preventing redistributive justice mechanisms. A real risk of the inability of
global constitutionalism to talk about political economy lies in the unchallenged integration
of more and more neoliberal policies. Indeed, in a dystopic turn, a global constitutionalism in
which private activity is rendered entirely apolitical may already exist. The TTIP, as I have
argued, was symptomatic of this form of global constitutionalism, and although obsolete,
marks an important moment in the efforts to make real a neoliberal dystopia.
Let us return to the questions posed above: (1) Is the globalising and constitutionalising
of certain norms a means of privileging a particular political and economic elite? Private
property owners, businesses, multinational corporations and financial capital are those parties
who are best served by a separation of the public and the private because it offers them an
unbridled and protected space of activity. (2) Is the assumed division between the public and

27
The TTIP has been described by several commentators as an ‘economic NATO’, including the
NATO Secretary General Anders Fogh Rasmussen (Rasmussen 2013). The combative tone, and the
association of the containment of enemies which goes with it, of the leading military powers is what
makes this particularly worrying.
28
De Ville and Siles-Brügge (2016) argue that a paradoxical and unintended outcome of this secrecy
has been heightened civil society interest and political participation.
 The political economy of global constitutionalism 553

private spheres in constitutionalism problematic, particularly if this concomitantly means the

depoliticisation of the economy? The assumed and naturalised division between these spheres
essentially renders the activity of private entities apolitical; constitutionalism ‘locks in’ as well
as legitimates this. (3) If a particular (economic) elite benefits from constitutionalisation of this
kind, then who loses out? Neo-liberalism has a way of increasing income disparities because it
is incapable of meaningful distributive justice. This means that a small economic elite benefits
at the expense of the rest. (4) What and who is left uncontested in a depoliticised economy?
Precisely these inequalities are left uncontested. As there is no way of politically challenging
the practices of the private sphere, there can be no contestation of it.
A political economy perspective on global constitutionalism not only allows us to ask
important questions on distributive justice in the international (and domestic) sphere, it also
forces us to think about the material conditions today. At the same time as attention is on the
utopian visions of global constitutionalism, espoused by mainly well-meaning scholars, we
may be missing the constitutionalisation of a troubling dystopian neoliberal and neocolonial
order.

REFERENCES
An Observer [A.V. Dicey] (1901), ‘The causes of imperialism in England’, Nation, 73, 203.
Anghie, A. (2005), Imperialism, Sovereignty, and the Making of International Law, Cambridge:
Cambridge University Press.
Bell, D. (2007), The Idea of Greater Britain: Empire and the Future of World Order, 1860–1900,
Cambridge: Cambridge University Press.
Bilchitz, D. (2013), ‘Constitutionalism, the Global South, and economic justice’, in D.B. Maldonado
(ed.), Constitutionalism in the Global South: The Activist Tribunals of India, South Africa and
Colombia, Cambridge: Cambridge University Press, pp. 41–94.
Cass, D.Z. (2005), The Constitutionalization of the World Trade Organization, Oxford: Oxford
University Press.
Chang, H.-J. (2002), Kicking Away the Ladder: Development Strategy in Historical Perspective,
London: Anthem Press.
Cutler, A.C. (2003), Private Power and Global Authority: Transnational Merchant Law in the Global
Political Economy, Cambridge: Cambridge University Press.
Der Spiegel (2013), ‘Chlorhühnchen im Shitstorm’, 25 February, at http://​www​.spiegel​.de/​spiegel/​print/​
d​-91203413​.html.
De Ville, F. and G. Siles-Brügge (2016), TTIP: The Truth about the Transatlantic Trade and Investment
Partnership, Cambridge: Polity Press.
Dunoff, J.L., A. Wiener, M. Kumm, A.F. Lang, Jr., and J. Tully (2015), ‘Editorial: hard times: progress
narratives, historical contingency and the fate of global constitutionalism’, Global Constitutionalism,
4 (1), 1–17.
Gill, S. (1998), ‘New constitutionalism, democratisation and global political economy’, Pacifica Review,
10 (1), 23–38.
Gill, S. (2008), Power and Resistance in the New World Order, 2nd edn, New York: Palgrave Macmillan.
The Guardian (2014), ‘Say bye to parmesan, muenster and feta: Europe wants its cheese back’,
11 March, at http://​www​.theguardian​.com/​lifeandstyle/​2014/​mar/​11/​europe​-trade​-talks​-cheese​-back​
-parmesan​-feta.
Harvey, D. (2007), A Brief History of Neoliberalism, Oxford: Oxford University Press.
Howse, R. and K. Nicolaidis (2001), ‘Legitimacy and global governance: why constitutionalizing the
WTO is a step too far’, in R.B. Porter, P. Sauve, A. Subramanian and A.B. Zampetti (eds), Efficiency,
Equity, and Legitimacy: The Multilateral Trading System at the Millennium, Washington, DC:
Brookings Institution Press, pp. 227–52.
554 Handbook on global constitutionalism

Kennedy, D. (2013), ‘Law and political economy of the world’, Leiden Journal of International Law,
26 (1), 7–48.
Kennedy, P. (1987), The Rise and Fall of the Great Powers: Economic Change and Military Conflict
from 1500 to 2000, New York: Random House.
Knox, R. (2016), ‘Valuing race? Stretched Marxism and the logic of imperialism’, London Review of
International Law, 4 (1), 81–126.
Koskenniemi, M. (2001), The Gentle Civilizer of Nations: The Rise and Fall of International Law
1870–1960, Cambridge: Cambridge University Press.
Kumm, M. (2015), ‘An empire of capital? Transatlantic investment protection as the institutionalization
of unjustified privilege’, ESIL Reflections, 4 (3), at http://​www​.esil​-sedi​.eu/​sites/​default/​files/​ESIL​
%20Reflection​%20KUMM​%20final​_0​.pdf.
Lang, A. (2011), World Trade Law after Neoliberalism: Reimagining the Global Economic Order,
Oxford: Oxford University Press.
Lino, D. (2016), ‘Albert Venn Dicey and the constitutional theory of Empire’, Oxford Journal of Legal
Studies, 36 (2), 1–30.
Luxemburg, R. (2003, originally published 1913), The Accumulation of Capital, Oxford: Routledge
Classics.
Marks, S. (2000), The Riddle of all Constitutions, Oxford: Oxford University Press.
Mason, P. (2015), ‘Capitalism is failing. It’s time to panic’, The Guardian, 12 August, at http://​www​
.theguardian​.com/​commentisfree/​video/​2015/​aug/​12/​paul​-mason​-capitalism​-failing​-time​-to​-panic​
-video.
Messenger, G. (2016), The Development of World Trade Organization Law: Examining Change in
International Law, Oxford: Oxford University Press.
Möller, K. (2015), ‘Formwandel des Konstitutionalismus’ (‘Transformation of constitutionalism’),
Archiv für Rechts- und Sozialphilosophie, 101 (2), 270–89.
Moyn, S. (2014), ‘A Powerless Companion: Human Rights in the Age of Neoliberalism’, Law and
Contemporary Problems, 77, 147–169.
Organisation for Economic Co-operation and Development (OECD) (2015), ‘In it Together: Why Less
Inequality Benefits All’, OECD Report, 21 May, at http://​www​.oecd​.org/​social/​in​-it​-together​-why​
-less​-inequality​-benefits​-all​-9789264235120​-en​.htm.
Ostry, J.D., P. Loungani and D. Furceri (2016), ‘Neoliberalism: oversold?’, Finance & Development, 53
(2), 38–41.
Oxfam (2016), ‘An economy for the 1%. How privilege and power in the economy drive extreme ine-
quality and how this can be stopped’, 18 January, Oxfam report on structural inequalities, at http://​
policy​-practice​.oxfam​.org​.uk/​publications/​an​-economy​-for​-the​-1​-how​-privilege​-and​-power​-in​-the​
-economy​-drive​-extreme​-inequ​-592643.
Pahuja, S. (2011), Decolonising International Law: Development, Economic Growth and the Politics of
Universality, Cambridge: Cambridge University Press.
Peters, A., K. Armingeon, K. Milewicz and S. Peter (2011), ‘The constitutionalisation of international
trade law’, in T. Cottier and P. Delimatsis (eds), The Prospects of International Trade Regulation:
From Fragmentation to Coherence, Cambridge: Cambridge University Press, pp. 69–102.
Petersmann, E.-U. (1997), ‘Constitutionalism and international organizations’, Northwestern Journal of
International Relations, 17 (1), 398–469.
Petersmann, E.-U. (2006), ‘Human rights, constitutionalism and the World Trade Organization: chal-
lenges for World Trade Organization jurisprudence and civil society’, Leiden Journal of International
Law, 9 (3), 633–67.
Piketty, T. (2014), Capital in the Twenty-First Century, Cambridge, MA: Harvard University Press.
Rajagopal, B. (2003), International Law from Below: Development, Social Movements and Third World
Resistance, Cambridge: Cambridge University Press.
Rasmussen, A.F. (2013), ‘A new era for EU-US trade’, speech delivered at the Confederation of Danish
Industry, Copenhagen, 7 October, at http://​www​.nato​.int/​cps/​en/​natolive/​opinions​_103863​.htm.
Rolland, S.E. (2012), Development at the WTO, Oxford: Oxford University Press.
Sattorova, M. (2016), ‘Reassertion of control and contracting parties’ domestic law responses to invest-
ment treaty arbitration: between reform, reticence and resistance’, in A. Kulick (ed.), Contracting
 The political economy of global constitutionalism 555

Parties Reassertion of Control over IIAs and Investment Treaty Arbitration, Cambridge: Cambridge
University Press, pp. 53–80.
Schneiderman, D. (2008), Constitutionalizing Economic Globalization: Investment Rules and
Democracy’s Promise, Cambridge: Cambridge University Press.
Schwöbel, C. (2011), Global Constitutionalism in International Legal Perspective, Leiden: Martinus
Nijhoff.
Schwöbel-Patel, C. (2018), ‘Global constitutionalism and East Asian perspectives in the context of politi-
cal economy’, in T. Suami, M. Kumm, A. Peters and D. Vanoverbeke (eds), Global Constitutionalism
from European and East Asian Perspectives, Cambridge: Cambridge University Press.
Trachtman, J.P. (2009), ‘Constitutional economics of the World Trade Organization’, in J.L. Dunoff
and J.P. Trachtman (eds), Ruling the World? Constitutionalism, International Law, and Global
Governance, Cambridge: Cambridge University Press, pp. 206–29.
Tushnet, M. (1999), ‘The possibilities of comparative constitutional law’, Yale Law Journal, 108 (6),
1226–306.
Walker, N. (2001), ‘The EU and the WTO: constitutionalism in a new key’, in G. de Búrca and J. Scott
(eds), The EU and the WTO: Legal and Constitutional Issues, Oxford: Hart, pp. 31–57.
Washington Post (2015), Editorial Board, ‘Don’t buy the trade deal alarmism’, 11 March, at https://​www​
.washingtonpost​.com/​opinions/​don’t​-buy​-the​-trade​-deal​-alarmism/​2015/​03/​11/​41575fee​-c1d5​-11e4​
-9271​-610273846239​_story​.html.
Zumbansen, P. (2011), ‘Neither “public” nor “private”, “national” nor “international”: transnational
corporate governance from a legal pluralist perspective’, Journal of Law and Society, 38 (1), 50–75.
39. Global religion in a post-Westphalia world
Susanna Mancini

CUIUS REGIO EIUS ET RELIGIO: THE CHALLENGE OF

DE-PRIVATIZED RELIGION AND THE INTERPLAY BETWEEN
FAITH AND REASON

Globalization, de-privatization, mass-scale migration and the rise of supranational con-

stitutional organisms have squarely challenged the premises of the Westphalian model of
coordination of religion and political boundaries. Ironically, as a result of such challenges,
our contemporary post-Westphalian predicament shows some remarkable parallels with the
pre-Westphalia era, which was characterized by flux in sovereignty, religious transnational-
ism, religious conflicts and wars of religion (Philpott 2004, p. 982).
The Peace of Westphalia, signalling the official end to the Thirty Years War, established
the principle cuius regio eius et religio (in who’s region, who’s religion), which conferred
upon the constituent imperial estates of the Holy Roman Empire the power to determine the
religion of their subjects. The principle cuius regio eius et religio not only fostered religious
homogeneity; it also enabled the state to regulate religion as part of state sovereignty, which
encompassed the power to determine the frontiers of religious jurisdiction. Westphalia inau-
gurated a system based on the absolute monopoly of power residing in states, the congruency
of territory, state, people and nation, and set the premises for the privatization of religion.
The sovereign state became the basic unit of international relations: in this light, Westphalia
‘secularized international relations by undermining religion as a mode of legitimacy’ (Teschke
2003, p.3). Perhaps even more importantly, Westphalia provided a ‘liberal’ solution to reli-
gious disagreement: ‘by devolving the question of controversial rights to subnational govern-
ments, Westphalian liberalism ensure[d] that different conceptions of the right can prevail in
different jurisdictions’ (Hills 2006, pp. 782, 788).
During three centuries, while the conceptualization of the sources of state sovereignty
underwent profound changes, the premises of the Westphalia system remained fairly unchal-
lenged. Since the inception of the new millennium, however, religion has returned as a con-
tentious issue both domestically and internationally. Globalization and mass-scale migration
have produced a blurring of the line between the private sphere and the public sphere. First,
large-scale migration produces intra-state religious diversity, leading to confrontations with
religious cultures that are at significant odds with prevailing mores that are well integrated
into the country of immigration, and triggering defensive reactions. In Europe, for example,
‘the presence of an increasingly assertive Muslim “diaspora” . . . has provided opportunities
for a re-politicization of Christianity, in opposition to both the secularization and perceived
“Islamization” of Europe’ (Shani 2009, p. 311). Moreover, several commentators, including
the philosopher Jürgen Habermas, have argued that intensification of religious fanaticism and
fundamentalism – including that behind global terrorism – is a direct reaction to dislocations
and inequities associated with globalization (Habermas and Borradori 2003, p. 36). In a trend
that started in the 1970s in different parts of the world, such as the United States, Brazil,

556
 Global religion in a post-Westphalia world 557

Nicaragua, Poland, Turkey and Iran, religions increasingly seek a role in the public sphere, and
particularly in the political arena. To describe this phenomenon, sociologist José Casanova has
famously coined the expression ‘de-privatized religion’ (Casanova 1994).
The de-privatization of religion raises a major dilemma for Western constitutionalism,
which rests on the acceptance of a clear-cut distinction between the realm of faith and that
of reason, and is committed to ruling the public sphere according to the dictates of reason.
Thus, as maintained by the philosopher John Rawls in Political Liberalism, a political actor
can be motivated by his religious faith and yet his political actions would remain consistent
with secularism as long as he sought to influence and persuade other political actors through
arguments deriving from public reason (Rawls 1993). In ‘The idea of public reason revisited’,
Rawls argues that religious doctrines should endorse constitutional democracy, which is the
only fair way to ensure that the liberty of their adherents is consistent with the equal liberties
of other reasonable, free and equal citizens. Importantly, Rawls added that his revisited public
reason requires a religiously pluralistic polity, where all citizens, irrespective of their faith,
feel a ‘duty of civility’. This duty, for religious citizens, means that they should use arguments
and ideas that, albeit rooted in religion, are in harmony with toleration for all and with funda-
mental rights (Rawls 1997, pp. 765–807). Currently, however, religious arguments, often cast
in the language of ‘natural law’, are increasingly invoked to antagonize the ‘culture of rights’
and the very legitimacy of the dominant conception of constitutionalism and its nexus to the
principle of secularism. For example, in 2009, over 150 American religious leaders signed the
Manhattan Declaration, a manifesto issued by Orthodox, Catholic and Evangelical Christian
leaders, advocating the protection of life from the moment of conception, opposite-sex mar-
riage only and religious freedom. The latter is defined by the Declaration in these terms: ‘No
one should be compelled to embrace any religion against his will, nor should persons of faith
be forbidden to worship God according to the dictates of conscience or to express freely and
publicly their deeply held religious convictions.’ The Declaration refers to the ‘weakening of
conscience clauses’ and to the use of anti-discrimination law to compel ‘religious institutions,
businesses and service providers of various sorts to comply with activities they judge to be
deeply immoral or go out of business’, and openly vows civil disobedience:

We are Christians who have joined together across historic lines of ecclesial differences to affirm
our right – and, more importantly, to embrace our obligation – to speak and act in defense of these
truths . . . no power on earth, be it cultural or political, will intimidate us into silence or acquiescence.
. . . Through the centuries, Christianity has taught that civil disobedience is not only permitted, but
sometimes required.1

Similarly, in a lecture delivered in 2008, the Archbishop of Canterbury stressed ‘the reluctance
of a dominant rights-based philosophy to acknowledge the liberty of conscientious opting-out
from collaboration in procedures or practices that are in tension with the demands of particular
religious groups: the assumption, in rather misleading shorthand, that if a right or liberty is
granted there is a corresponding duty upon every individual to “activate” this whenever called
upon’ (Williams 2008).

1
Manhattan Declaration, accessed 28 April 2017 at http://​manhattandeclaration​.org/​man​_dec​
_resources/​Manhattan​_Declaration​_full​_text​.pdf.
558 Handbook on global constitutionalism

The arguments used by advocates of this thick conception of religious freedom invoke
reason instead of faith, use the language of religious freedom and anti-discrimination, based
on the claim that the right use of reason in legal arguments leads to the same conclusions as
theological reasoning (Lemaitre Ripoll 2012). According to former Pope Benedict XVI, for
example, ‘Religion is not a problem for legislators, but a vital contribution to the national
conversation’ and to a more effective implementation of a just political and legal system
(Ratzinger 2010). This is because the Catholic tradition maintains that ‘the objective norms
governing right action are accessible to reason, prescinding from the content of revelation’
(Ratzinger 2010). The theoretical premise of this position is the Schmittian assumption that
modernization does not entail the privatization of religion but, rather, its transfer into the
political. Thus, ‘All significant concepts of the modern theory of the state are secularized
theological concepts’ (Schmitt 1922 [1985], p. 36/G43), a position clearly echoed in the
words of former Pope Benedict in his address to the German Parliament: ‘In history, systems
of law have almost always been based on religion’ (Ratzinger 2011). In this light, Catholics
do not intervene in political discourses in the name of religious dogmas, but on the authority
of reason. ‘The originality of Christianity with respect to other religions is self-evident in this
thought . . . it is not revelation, but “reason and nature in their interrelation that form the uni-
versally valid form of law”’ (Cartabia and Simoncini 2015, p. 4). What follows is that religion
ought to be an essential part of the foundation and infrastructure of the modern constitutional
and human rights regime.
Reflecting on the preconditions of democracy, Hans Kelsen famously argued against ‘the
claim of theology that it furnishes a foundation for democracy which it attempts to verify
by showing that there is an essential connection between democracy and Christian religion’
(Kelsen 1955, p. 41). For Kelsen, a ‘democratic attitude’ requires a relativistic philosophy
of values, that is, a system that ‘leaves the decision about the social value to be realized to
the individual acting in political reality. It does not and cannot take the burden of this grave
responsibility off his shoulders’ (Kelsen 1955, p. 40). On the contrary, the assumption ‘that
cognition of absolute truths, insights into absolute values were possible’, is likely to produce
an ‘autocratic attitude’ (Kelsen 1929 [2000], p. 107). In this light, religious doctrines that use
the framework of constitutional rights allocation and the rhetoric of human rights discourse
are likely to turn protection of rights on its head and in fact assert a religious hegemony that
would deprive others of fundamental rights and return to a pre-modern constitutional statute.
In effect, what is claimed in this context is not religious freedom but rather religious authority.
Unsurprisingly, claims for religious exemptions from the application of general laws have
proliferated in recent years. In 2014, the US Supreme Court ruled that corporations controlled
by religious entrepreneurs cannot be required to comply with a law that compels employers
to provide their employees with a health insurance plan that covers contraceptives. The court
found that this requirement placed a substantial burden on the religious freedom of the employ-
ers, who believed that certain contraceptives were a­ nalogous to abortions and did not want to
become complicit in the sinning of their employees (Burwell v Hobby Lobby 2014). Similar
cases have occurred in the context of same-sex marriage. State officials have refused to reg-
ister same-sex unions, on the ground that they are immoral (Eweida and Others v the United
Kingdom 48420/10, 59842/10, 51671/10 and 36516/10, ECtHR 2014), and professional pho-
tographers and bakers have claimed the right to discriminate against gay and lesbian clients,
denying them their services (Lee v Asher (County Court in Northern Ireland) 19/05/2015).
Italy was recently condemned by the European Committee for Social Rights for ‘violation
 Global religion in a post-Westphalia world 559

of the right to health . . . due to inadequate protection of the right to access procedures for
the termination of pregnancy’, on the ground that over 70 per cent of gynaecologists object
to participating in abortion procedures (IPPF v Italy, Complaint No. 87/2012, 2013, ECSR).
Claims of this kind testify to a profound distortion of the very idea of conscientious objec-
tion, from a right traditionally provided to minorities (such as pacifists) holding anomalous
views to a politically motivated collective strategy to undermine the general applicability of
secular laws in the name of religious principles. The claims of ‘conscientious objection’ have
turned into claims for ‘jurisdictional objection’, which constitutes a direct challenge to the
state power to determine the frontiers of religious jurisdiction.
The preceding observations should be understood in the context of two essential changes
brought about by globalization and the expansion of plurality of conceptions of the good in
various policies. On the constitutional level, the unity of the Westphalian legal regime has
increasingly given way to legal pluralism and to the need to accommodate and harmonize
legal norms issued from different and sometimes competing regimes. From the standpoint
of secularism, as a paramount organizing principle in the Westphalia constitutional order,
there seems to be an equivalent transformation from unitary secularism towards a plurality of
religious ideologies in competition with one another. These are parallel and, at least to some
extent, related trends that raise the following key question: can legal pluralism in a globalized
world successfully replace Westphalian legal unity? Also, can concurrently value pluralism as
embodied in religious diversity successfully supplant state sponsored secularism?
This latter question does not admit of any easy or ready-made answer, however, certain
implications and developments suggest fertile ground for further inquiry. On the one hand,
it appears that the parallel between value pluralism in relation to religion and legal pluralism
breaks down at important junctures. This becomes obvious when we compare an imagined
religious pluralistic solution to a solution animated by value pluralism. As Isaiah Berlin clearly
indicated, value pluralism depends for its success on the selection of a number of different
values that cannot be mutually integrated but that fit within a fairly narrow range of accepta-
bility (Berlin 1969). It is difficult to imagine that the proponents of competing and conflicting
religions, many of which have been at odds with one another for millennia, could be contained
in a logical and orderly fashion in the same way as the divergent values that Berlin defends. On
the other hand, as suggested by the passages by former Pope Benedict XVI, there are religious
visions that aim at merging religious truth with the insights of reason. Taking this position to
its logical conclusions, we could imagine that a particular type of non-secular religious plural-
ism could align with legal pluralism to define the landscape of the post-national constitutional
order.

THE GLOBALIZATION OF CULTURE WARS

The erosion of state sovereignty and the weakening of the territorial dimension of identity
have made room for the resurgence of religions as transnational actors. Sociologist Olivier
Roy has remarked that globalization, by facilitating the detachment of religion, culture, and
territory, unravels religious traditions from particular cultures and nationalities. Moreover, as
the experience of certain global religious movements, such as Salafism, Pentecostalism and
Evangelicalism shows globalization sets the premises for a fundamentalist turn of religion,
because its claim of a universal truth is inherently disconnected from particular states and
560 Handbook on global constitutionalism

societies (Roy 2010). The success of transnational religions is not limited to movements such
as Pentecostalism, that do not rely upon a highly centralized structure, nor on historical links
to tradition and have no territorial roots or identity ‘and . . . therefore can make [themselves] at
home anywhere in the globe where the Spirit moves’ (Casanova 2008, p. 115). José Casanova
has remarked that, thanks to the opportunities provided by globalization, contemporary
Catholicism has recuperated its transnational dimensions ‘which had been characteristic of
medieval Christendom, from the transnational Papacy to transnational religious orders, to
ecumenical councils, to transnational universities and centers of Catholic learning, to trans-
national pilgrimages’ and had disappeared with the emergence of the Westphalian system
(Casanova 2008, p. 115).
Transnational religious actors have found a fertile terrain to ‘articulate a transnational
identity which, potentially, challenges the international order of territorialized nation-states,
that dates back to the Peace of Westphalia’ (Shani 2009, p. 308), and, at the same time, under-
mines the very legitimacy of transnational constitutionalism, because it predicates constitution
making on what it perceives as universally applicable religious precepts (Backer 2006, p. 91).
As Catá Backer explains, ‘the principal project of convergence-oriented supranational con-
stitutionalism is the search for consensus on values, [which] requires imposing limits on the
powers of government, adherence to the rule of law, and the protection of fundamental rights’
(Backer 2006, p. 99ff.). Transnational religious actors appropriate and transform the distinc-
tion between faith and reason, which was adapted to the nation state during the Westphalian
era. They conflate faith and reason disregarding all the cultural, political and traditional
nation-state connections that were prevalent in the Westphalian setting, which results in free
floating, all applicable doctrines that supposedly satisfies both faith and reason at the trans-
national level. Kelsen’s point regarding the democratic necessity of a relativistic philosophy
of values is even more acute in the transnational context in which there is bound to be a much
greater diversity of religions, cultures and ideologies. The religious claim to a particular truth
that is applicable to all seems in direct contradiction with supranational constitutionalism,
which must and seeks to reserve a large space for a pluralism of values, including pluralism
within and beyond religious communities (Chapter 33 in this Handbook. This leaves an
important question open, namely, how much cultural and religious diversity supranational
constitutionalism is capable of accommodating. As Philpott argues, ‘The dilemma is height-
ened most by the advocacy of certain norms that are both arguably universal, justly demanded
upon states, as well as religious in their content, evoking deep value conflicts. The human right
of religious freedom . . . is precisely such a norm’ (Philpott 2004, p. 982). Thus, globalization
has paved the way for a transnationalization of the American ‘culture wars’, that is, the clash
between liberal secular and conservative religious social forces. Today, governments, lobbies
and non-governmental organizations (NGOs) compete worldwide to impose ‘their’ suppos-
edly universal notion of religious freedom. In 1998, the United States Congress adopted the
International Religious Freedom Act, which mandates the promotion of religious freedom
around the world as a central element of US foreign policy. The US model was soon replicated
by Canada and the European Union.2 The ‘export’ of Western models of religious freedom
poses, in the first place, the problem of how to identify the forms of religious freedom to be
protected and those to be punished. This carries the risk of turning international protection

2
EU Guidelines on the promotion and protection of freedom of religion or belief, Foreign Affairs
Council meeting, Luxembourg, 24 June 2013.
 Global religion in a post-Westphalia world 561

of religious freedom into an imperialistic attempt of cultural colonization and promotion of

‘strategic interests through social and religious engineering projects abroad’ (Shakman Hurd
2014, p. 232). At a deeper level, as Elizabeth Shakman Hurd explains:

The promotion of religious freedom is more complex than accounts that tell of the progressive dis-
semination of a universal norm and American or European legal standard would suggest. In positing
the primacy of religious identity and difference over other social, political and economic ties and
affiliations, international religious freedom advocacy accentuates and rigidifies religious divisions,
making them more politically salient – and potentially more socially divisive. As a discursive frame-
work and a language of political action, advocacy for religious freedom obfuscates complex political
realities and obscures diverse and multiform religious affiliations and practices. (Shakman Hurd
2014, p. 241)

Western countries are not alone in their attempt to export religious freedom and/or religious
doctrines in the global arena. The United Nations (UN) has become the venue of a bitter con-
frontation among supporters of different conceptions of religious freedom and, more gener-
ally, of the role of religion in the international legal order. In 2011, the United Nations Human
Rights Council passed a resolution entitled ‘Promoting human rights and fundamental free-
doms through a better understanding of traditional values of humankind’.3 The resolution was
prompted by the Russian Government, which gained the support of the ‘Global South’, includ-
ing countries of the Arab League. The resolution echoes the position of the Russian Orthodox
Church concerning the foundations and scope of human rights (Stoeckl 2014, p. 111), affirm-
ing that ‘dignity, freedom and responsibility are traditional values’, and that family, commu-
nity, society and educational institutions have a fundamental role in maintaining and passing
on such values. As McCrudden notices, in this construction, ‘In particular, dignity is seen . . .
as having the potential to rebalance international human rights back towards the local and the
indigenous, weakening the pull of a homogenizing, universal, and liberal agenda’ (McCrudden
2014, p. 3).4 The EU pointed to the ‘potential harm posed by the concept of traditional values
in undermining the universality and inalienability of human rights’.5 Hence the resolution can
be viewed as part of an attempt by Russia to re-affirm the transcendent foundations of human
rights and the role of ‘religious beliefs in the sphere of norm creation, interpretation and
interpretation’ (McCrudden 2014, p. 12) and as a strategy to impose an ideological monopoly,
by bringing together conservative governments and religious actors from different Christian
denominations, unified by an agenda mostly focused on opposing Lesbian, Gay, Transgender,
Bisexual and Queer (LGTBQ) rights and women’s equality.6
Transnational religious activism reaches well beyond the UN. A powerful network of
faith-based NGOs, mainly led by US Evangelicals and other right-wing Christians, has

3
Resolution A/HRS/16/L.6 entitled ‘Promoting human rights and fundamental freedoms through
a better understanding of traditional values of humankind’, 24 March 2011.
4
See, for example, former Pope Benedict XVI: ‘The essential foundation of human dignity lies in
the common origin of the person as image of the Creator’ (Ratzinger 2008, pp. 5–6).
5
EU Statement to the Human Rights Council, 13 September 2013.
6
See UN High Commissioner for Human Rights, Summary of information from States Members
of the United Nations and other relevant stakeholders on best practices in the application of traditional
values while promoting and protecting human rights and upholding human dignity, A/HRC/24/22, para
3, cautioning against the negative impact on the implementation of human rights, ‘especially those con-
cerning violence against women, sexual orientation, gender identity, age and disability’.
562 Handbook on global constitutionalism

become highly influential in shaping anti-gay and anti-abortion legislation abroad. In Africa,
organizations such as the American Center for Law & Justice, Human Life International,
and Family Watch International ‘work both separately and in tandem to renew and expand
colonial-era proscriptions on sexual rights’, building political networks and legal infrastruc-
ture across the continent (Kaoma 2012, p. iii). As a result, anti-gay laws have been adopted
in several African countries, notably Mali, Nigeria and Uganda, where a 2009 bill instituted
the death penalty for ‘aggravated homosexuality’. Similar dynamics are at play in Russia,
where the alliance between governmental actors, the Orthodox Church and US Evangelicals
has been particularly fruitful. Laws have been adopted targeting sexual minorities and heavily
limiting reproductive rights. Ironically, Russian conservatives systematically rely on the
equation between sexual and reproductive rights and ‘Western’ attempts to uproot local tra-
ditional values. However, the Russian 2011 abortion law clearly echoes the language of US
pro-life propaganda (Federman 2014). In 2011, the World Congress of Families (WCF, an
interfaith intercontinental organization advocating for the ‘natural family’ as the fundamental
social unity) held its first Demographic Summit in Moscow. It was attended by leading US
Evangelicals, Orthodox Church leaders and prominent Russian politicians. In promotional
materials the WCF claims that the summit ‘helped pass the first Russian laws restricting abor-
tion in modern history’ (Federman 2014).
Transnational religious actors also heavily engage in both domestic and international
religious litigation. As the conservative Christian Alliance to Defend Freedom declares on
its website: ‘We are working to defend religious freedom in key international cases’, because
‘[i]nternational cases have the potential to set legal precedents that cross national borders,
and even impact US law.’7 The European Convention on Human Rights (ECHR) has proven
to be a particularly successful forum for religious lobbies to intervene in cases regarding gay
marriage, abortion and religious freedom. For example, in the high profile case of Lautsi
v Italy (Lautsi and Others v Italy App. no. 30814/062 (ECtHR Nov. 2009)), the European
Court of Human Rights (ECtHR) condemned Italy for the mandatory display of crucifixes
in state schools. This decision was reversed two years later (Lautsi and Others v Italy App.
no. 30814/06, ECtHR, GC 2011), thanks to the combined effort of a ‘variegated coalition of
actors’ ranging from the Vatican to Russia, as well as to American Conservative Evangelicals,
whose experience in religious litigation served as a model for their European counterparts
(Annicchino 2011). Alliance Defending Freedom represented 33 members of the European
Parliament who intervened on the side of Italy. According to the Alliance legal counsel:

A loss in this case would have . . . set a dangerous example for the rest of the world. For instance,
lawsuits that seek to tear down religious symbols . . . are very common in the U.S. In addition to the
concerns directly related to this case, ADF wants to head off any opportunity for activists in the U.S.
to cite foreign court decisions as patterns to follow. We will continue fighting that battle in all of the
cases in which we are involved.8

7
http://​www​.adflegal​.org/​issues/​international (accessed 27 April 2017).
8
Alliance Defending Freedom website, accessed 23 June 2016 at http://​www​.adfmedia​.org/​News/​
PRDetail/​4037.
 Global religion in a post-Westphalia world 563

CUIUS RELIGIO EIUS ET REGIO: RELIGIOUS NATIONALISM AND

THE CULTURALIZATION OF CITIZENSHIP

Secularization has been conceived as a key issue in the road to modernization since the
Enlightenment. In Max Weber’s influential account, the entire history of Western legal
systems consists in a process of rationalization that unravelled the conflation of ethical,
religious and legal norms that was typical of pre-modern law. A process of rationalization
led to the replacement of superstitious and ceremonial law of primitive peoples by, first the
integration of faith and reason of Christianity and the other monotheistic religions, and later by
entirely reason-based modern secularism issued from the Enlightenment (Weber 1922 [1978],
p. 644ff.).
Since 1997, the Western secular model has been subject to much criticism. In particular, the
assumed neutrality of the Western secular public sphere has been challenged on the ground
that the historical and cultural nexus between secularism and Christianity prevents the equal
treatment of all religions and ends up penalizing non-Christian denominations. In this light,
secularism is not a universal doctrine, but rather Christianity by another name (Anidjar 2003).
The notion of a neutral secular reason that has traditionally undergirded secularism as a polit-
ical doctrine has also been questioned. Talal Asad, for example, holds that ‘The ideology of
political representation in liberal democracies makes it difficult if not impossible to represent
Muslims as Muslims. Why? Because in theory the citizens who constitute a democratic state
belong to a class that is defined only by what is common to all its members and its members
only’ (Asad 2003, p. 173). Thus, both secularism and religion cannot be decontextualized and
disentangled from a specific cultural and historical form.
These critiques offer a particularly useful conceptual platform to understand contemporary
paroxysm around Muslim citizens and migrants and its nexus to the emphasis on the Christian
roots of Western civilization. Islamophobia is a complex, multifaceted phenomenon. One of
its component is the construction of Muslims as a challenge to liberal, secular Western values,
because of their assumed religious backwardness and inability to accept a clear-cut divide
between (their) faith and reason. Political belonging is thus increasingly understood in terms
of a distinction between the Western secular self and a religiously threatening Muslim other.
At the same time, however, cultural Christianity has regained an overriding influence in con-
stituting the imagined identity of Western peoples. The interplay of secularism and religion
has thus become a central feature of contemporary struggles over identity and citizenship. This
dynamic ultimately blurs the line between secularism and religion: the first loses its historical
and ideological component, and the latter ceases to be a belief system. Secularism and religion
become empty and yet powerful representations of romanticized identities, that mark clear-cut
divisions between insiders and outsiders (Mancini 2014). In effect, paradoxically, it seems as
if secularism and religion had both absorbed the qualities that Carl Schmitt attributed to the
Catholic Church: an institutional embodiment of the underlying unity of European political
civilization, a ‘political form’ which revitalized the significance of national and class oppo-
sitions, a complex of opposites. For Schmitt, the Catholic Church was the inheritor of the
Roman Empire, the living embodiment of the classical political civilization which all Western
European peoples shared, responsible for the historical evolution of Europe’s distinctive
national cultures. The Catholic Church represented the values which were the essence of
European civilization – as a unity expressed in diverse national forms – and separated it from
barbarism (Schmitt 1923 [1996], p. 8).
564 Handbook on global constitutionalism

This conflation of secularism and religion in defining political belonging is clearly perceiv-
able in the many European democracies. The de-privatization and the transnationalization
of religion have altered the traditional models through which democracies have managed
the relationship between religion and the state, which were embedded in the principles that
emerged after Westphalia.
Western models of managing the relationship between religion and the state vary consider-
ably. France and the United States are traditionally described as strictly secular, whereas the
United Kingdom, the Scandinavian countries and Greece provide models where an official
religion coexists with institutionalized tolerance for minority religions, and Italy and Spain
constitute a middle-ground model, where special privileges are conferred upon the major-
ity Catholic Church within an otherwise secular frame. From a constitutional standpoint,
however, all Western models of managing religion are steeped in the normative order issuing
from the Enlightenment. Hence, irrespective of their differences, they all adhere to two funda-
mental principles: the separation of Church and State in the public sphere and the protection
of freedom of and from religion within the private sphere. Many constitutions reflect this dual
constitutional prescription. Thus, the US Constitution’s ‘Establishment Clause’ prohibits the
state from adopting, preferring or endorsing a religion, whereas its ‘Free Exercise Clause’
enjoins the state from interfering with the religious freedom of its citizens. Article 1 of the
French Constitution specifies the secular character of the Republic and the duty of the state to
respect all beliefs. Other constitutions only contain a freedom of religion clause, but implic-
itly embed separation in the founding principles of the system. Globalization and mass scale
migration put in question the powers of integration of a secularized society. Secularization and
the transition to liberalism resulted in a state model no longer endorsing a conception of the
good related to a particular religion. Thanks to the crisis of the nation state, however, religions
have regained a central position as sources of integration of the polity. In this respect, the
emphasis is often not placed on the transcendent nature of religion but, rather, on its cultural
dimension. Thus, religion undergoes a process of secularization and semantic disarticulation,
and becomes an implicit mainstay engrained in the secular nation’s tradition and culture. This
process leads to two consequences: on the one hand, it fosters the return of Christian culture
and tradition in the public sphere, challenging the principle of separation between Church
and State. The premise is that states must recognize that the national religious inheritance
is not just one among other denominations, but rather an element of civic cohesion. What
follows is that the historical national religion should enjoy a preferential treatment, while
other denominations should simply be tolerated. Secularism, thus, turns into a ‘pale reincar-
nation of the past’, a sort of ‘semi-secularism’ that represents what remains of the old dream
of the ‘Christian Republic’ and is based on the opposite of the Westphalian principle: cuius
religio, eius et regio. The result is a ‘new form of alliance between religion and public power,
where the ethical force of the first one upholds the political force of the latter and vice versa’
(Zagrebelsky 2008, pp. 17–19). On the other hand, the culturalization of religion facilitates
the othering and the marginalization of non-Christian cultures, thus lowering the protection of
religious freedom (Mancini 2014).
In Europe this dynamic is vividly exemplified by the struggle over the presence of reli-
gious symbols in public spaces. The European Court of Human Rights has legitimized the
display of the crucifix in Italian state schools, on the ground that the crucifix is a ‘passive’
symbol, whereas it has consistently upheld all bans on Muslim attire, judging the latter
‘powerful religious symbols’ that cannot be reconciled with secularism, gender equality, the
 Global religion in a post-Westphalia world 565

religious freedom of others or, simply, run contrary to the understanding of ‘living together
as a community’.9 In this construction, Islam becomes an utterly irreconcilable other, at odds
with ‘Western’ values, while Christianity is construed as a structural element of the secular
European public sphere. Paradoxically, this results in the blurring of the line between secu-
larism and religion, which both become guarantors of cultural convergence (Mancini 2014).
The conflation of religion and culture is also clearly perceivable in the increasing ‘cultur-
alization’ of citizenship. Recently, many states introduced citizenship tests or have added
stricter requirements of civic knowledge to previously existing language tests. In 2006,
the German Land of Baden-Württemberg proposed to introduce as part of the citizenship
test a questionnaire that was later retracted and replaced by a federal citizenship test. The
questionnaire covered virtually all perceived sources of cultural or religious clashes with the
Muslim community: homosexuality, forced marriage, polygamy, honour killing, and so on. It
included questions such as: ‘How would you react if your adult daughter wanted to dress as
any German woman? And if your brother or son was insulted?’ In 2008, the French Conseil
d’Etat (Council of State) rejected the appeal of Ms. M., a Moroccan national who had been
denied French citizenship on the ground that she was not sufficiently assimilated, based on her
dress (a full-face veil), virtual seclusion and submission to her husband. The Conseil d’Etat
held that ‘Despite having a good command of French, the applicant has nevertheless adopted
a radical practice of her religion, which is incompatible with the essential values of the French
community and particularly with the principle of sex equality; therefore, she does not satisfy
the requirement of assimilation.’ The Conseil added that this decision did not entail a violation
of Ms. M’s religious freedom (Conseil d’Etat, 27 June 2008 req. no. 286798). Many European
countries have also progressively widened the power of the government to strip naturalized
citizens of their nationality. ‘Since 2006, the UK has stripped at least fifty-three UK nationals
of citizenship ... All but one of the subjects of national security revocations were Muslim
males, and in all but two known cases since 2006, the Home Secretary issued the order when
the person was abroad’, thus barring him from appealing the decision (Macklin 2014, p. 17).
A similar dynamic can be observed in the responses to the refugee and asylum seekers crisis
that hit Europe as a consequence of the conflicts in the Middle East. In August 2015, Hungary
erected a 170-kilometre razor-wire fence along its border with Serbia, to keep out asylum
seekers. According to the Hungarian Prime Minister Victor Orban:

Those arriving have been raised in another religion, and represent a radically different culture. Most
of them are not Christians, but Muslims. This is an important question, because Europe and European
identity is rooted in Christianity. Is it not worrying in itself that European Christianity is now barely
able to keep Europe Christian? There is no alternative, and we have no option but to defend our
borders.10

9
See decisions Lautsi and Others v Italy App. no. 30814/06 ECtHR, GC (2011), Dahlab v
Switzerland, App. no 42393/98 ECtHR (2001), Sahin v Turkey, App. no. 44774/98, ECtHR (2007),
Dogru v France, App. no. 27058/05 ECtHR (2008) and S.A.S v France, App. no. 43835/11 ECtHR GC
(2014).
10
The New York Times, 2 September 2015 (accessed 27 April 2017) at http://​www​.nytimes​.com/​
2015/​09/​04/​world/​europe/​hungarian​-leader​-rebuked​-for​-saying​-muslim​-migrants​-must​-be​-blocked​-to​
-keep​-europe​-christian​.html​?​_r​=​0.
566 Handbook on global constitutionalism

These examples show that the dynamics associated with the return of strong religions in an
age of globalization and mass-scale migration contribute to the establishment of boundaries
between the self and the other and to the avoidance of dialogue and compromise. By conflat-
ing ethnicity, culture, religion and identity, and by radicalizing ideological confrontations,
the return of strong religion has the potential to undermine the premises of any constitutional
project founded on pluralism and mutual recognition. For all the changes that have taken place
it seems as if our predicament is still caught between a Schmittian identity-centred conflict
between friend and foe, and a Kelsenian need for a formalistic framework that transcends or
sets differences aside.

REFERENCES
Anidjar, G. (2003), The Jew, the Arab: A History of the Enemy, Stanford, CA: Stanford University Press.
Annicchino, P. (2011), ‘Winning the battle by losing the war: the Lautsi case and the holy alliance
between American Conservative Evangelicals, the Russian Orthodox Church and the Vatican to
reshape European identity’, Religion and Human Rights, 6 (3), 213–19.
Asad, T. (2003), Formations of the Secular: Christianity, Islam, Modernity, Stanford: Stanford
University Press.
Backer, L.C. (2006), ‘Theocratic constitutionalism: an introduction to a new global legal ordering’,
Indiana Journal of Global Legal Studies, 16 (1), 85–172.
Berlin, I. (1969), ‘Two concepts of liberty’, in I. Berlin, Four Essays on Liberty, Cambridge: Cambridge
University Press.
Cartabia, M. and A. Simoncini (2015), ‘A journey with Benedict XVI through the spirit of constitution-
alism’, in M. Cartabia and A. Simoncini (eds), Pope Benedict XVI’s Legal Thought. A Dialogue on the
Foundation of Law, Cambridge: Cambridge University Press, pp. 1–30.
Casanova, J. (1994), Public Religions in the Modern World, Chicago, IL: University of Chicago Press.
Casanova, J. (2008), ‘Public religions revisited’, in H. de Vries (ed.), Religion: Beyond the Concept, New
York: Fordham University Press, pp. 101–19.
Federman, A. (2014), ‘How US Evangelicals fueled the rise of Russia’s “pro-family” right’, The Nation,
January, accessed 6 June 2016 at http://​www​.thenation​.com/​article/​how​-us​-evangelicals​-fueled​-rise​
-russias​-pro​-family​-right/​.
Habermas, J. and G. Borradori (2003), Philosophy in a Time of Terror: Dialogues with Jürgen Habermas
and Jacques Derrida, Chicago, IL: University of Chicago Press.
Hills, R.M., Jr. (2006), ‘Federalism as Westphalian liberalism’, Fordham Law Review, 75 (2), 769–98.
Kaoma, K. (2012), Colonizing African Values: How the U.S. Christian Right is Transforming Sexual
Politics in Africa, Somerville, MA: Political Research Associates.
Kelsen, H. (1929), ‘On the essence and value of democracy’, reprinted in A. Jacobson and B. Schlink
(eds) (2000), Weimar: A Jurisprudence of Crisis, Berkeley, CA: University of California Press,
pp. 84–109.
Kelsen, H. (1955), ‘Foundations of democracy’, Ethics, 66 (1), 1–101.
Lemaitre Ripoll, J. (2012), ‘By reason alone: Catholicism, constitutions, and sex in the Americas’,
International Journal of Constitutional Law, 10 (2), 493–511.
Macklin, A. (2014), ‘Citizenship revocation, the privilege to have rights and the production of the alien’,
Queen’s Law Journal, 40 (1), 1–54.
Mancini, S. (2014), ‘The tempting of Europe, the political seduction of the cross: a Schmittian
reading of Christianity and Islam in European constitutionalism’, in S. Mancini and M. Rosenfeld
(eds), Constitutional Secularism in an Age of Religious Revival, Oxford: Oxford University Press,
pp. 11–135.
McCrudden, C. (2014), ‘Human rights, southern voices and “traditional values” at the United Nations’,
Public Law Research Paper No. 419, 28 May, University of Michigan, Ann Arbor, MI.
Philpott, D. (2004), ‘Religious freedom and the undoing of the Westphalian state’, Michigan Journal of
International Law, 25 (4), 981–98.
 Global religion in a post-Westphalia world 567

Ratzinger, J. (Pope Benedict XVI) (2008), Address to the General Assembly of the United Nations
organisation, New York, 18 April.
Ratzinger, J. (Pope Benedict XVI) (2010), meeting with the representatives of British society,
Westminster Hall, Westminster, 17 September.
Ratzinger, J. (Pope Benedict XVI) (2011), address to the Bundestag, Berlin, 22 September.
Rawls, J. (1993), Political Liberalism, New York: Columbia University Press.
Rawls, J. (1997), ‘The idea of public reason revisited’, University of Chicago Law Review, 64 (3),
765–807.
Roy, O. (2010), Holy Ignorance: When Religion and Culture Part Ways, New York: Columbia
University Press.
Schmitt, Carl (1922), Political Theology: Four Chapters on the Concept of Sovereignty, trans. G.
Schwab (1985), Chicago, IL: Chicago University Press.
Schmitt, C. (1923), Roman Catholicism and Political Form, trans. G.L. Ulmen (1996), Westport, CT:
Greenwood Press.
Shakman Hurd, E. (2014), ‘Religious freedom, American-style’, Quaderni di Diritto e Politica
Ecclesiastica, 1 (April), 231–42.
Shani, G. (2009), ‘Transnational religious actors and international relations’, in J. Haynes (ed.),
Routledge Handbook of Religion and Politics, Abingdon: Routledge, pp. 308–22.
Stoeckl, K. (2014), The Russian Orthodox Church and Human Rights, London and New York: Routledge.
Teschke, B. (2003), The Myth of 1648: Class, Geopolitics and the Making of Modern International
Relations, London: Verso.
Weber, M. (1922), Economy and Society: An Outline of Interpretive Sociology, vol. 2, reprinted 1978,
Berkeley, CA: University of California Press.
Williams, R. (Archbishop of Canterbury) (2008), Civil and Religious Law in England: A Religious
Perspective, Temple Festival series at the Royal Courts of Justice, 7 February.
Zagrebelsky, G. (2008), ‘Stato e Chiesa. Cittadini e cattolici’ (‘Church and State, citizens and Catholics’),
Passato e Presente, 73, 5–19.
40. Constitutionalism and pluralism
Neil Walker

A CONFLICTED RELATIONSHIP

The briefest conceptual inquiry suggests why the relationship between constitutionalism and
pluralism may be a conflicted one. Constitutionalism is based on the broad conviction that an
institutional and normative framework for our common forms of political life can be supplied
through a legal code. For its part, pluralism offers a concept with an even wider referential
scope. Yet what all variants of pluralism have in common is an emphasis upon the existence
of a multiplicity and diversity of sources of whatever is central to the particular plural domain
in question, and upon the need to accommodate that multiplicity and diversity in terms that are
not reducible to a set ranking or any other general ordering formula (Muniz-Fraticelli 2014,
p. 11). These features are present whether we are concerned with a pluralism of social and
political constituencies – the type of pluralism (‘political pluralism’ for short) with which con-
stitutionalism is most directly engaged – or with a pluralism of moral values, or world-views,
or institutional forms, or even of overall normative systems.
The scope for constitutionalism and pluralism both to repel and to embrace one another is
immediately apparent. The formal promise of constitutionalism typically sounds in singular
terms. Constitutionalism is predicated on the idea of one overarching register of authority for
the political domain as a whole, paradigmatically in the shape of the modern state. Yet the
notions of unity, closure and hierarchical organisation of the duly constituted ‘body politic’
implicit in the idea of constitutional achievement are at odds with those of diversity, unsettle-
ment and heterarchical accommodation we associate with the condition of political pluralism
and its management. That is to say, the material circumstances and terms of engagement
of constitutionalism are highly pluralistic. The making and sustaining of political society
is more than ever concerned with the negotiation and reconciliation of the differences in
self-understanding and world-view between these individuals and groups who live together in
physical or other forms of practical proximity. It follows that the success of any constitutional
project in fashioning and sustaining such a polity depends on how acutely it comprehends and
how effectively it addresses that basic plurality and variety, notwithstanding constitutional-
ism’s own formal singularity and unity.
Briefly, constitutionalism operates in a pluralistic political environment – its methods
and solutions shaped by the demands of that environment, but it does so in accordance with
an internal normative logic that appears to run against the pluralist grain. By exploring that
disjunction, and its associated tensions, we can capture much of the distinctive promise, limi-
tations and challenges of the constitutional method today. In the following sections I conduct
that exploration by looking at the two ways in which constitutionalism in practice seeks to
entertain political pluralism. It does so most immediately as a matter of internal reference,
operating within the confines of the constitutional order itself through what we may call ‘plural
constitutionalism’ (Rosenfeld 2010; Walker 2010). It also does so more remotely as a matter
of external reference, addressing the relationship of overlap and interplay between constitu-

568
 Constitutionalism and pluralism 569

tional orders through what we may call ‘constitutional pluralism’ (MacCormick 1993; Walker
2002). In making these inquiries, we must also address the key question of just how much
continuity there is or can be between these two approaches – between plural constitutionalism
and constitutional pluralism. To what extent, if at all, does it make sense to see these as the
product of one and the same constitutional ethic?

A PLURALITY OF PLURALISMS

Before we carry out these investigations, however, we need to say a little more by way of
specifying pluralism’s multiple fields of reference, and indicate how acknowledgement of this
wider domain helps us better to appreciate its relationship with the concept of constitutional-
ism. As already noted, the type of pluralism with which constitutionalism is most concerned,
and with which, therefore, we are most concerned in this chapter, is that pluralism of social and
political constituencies which has come to assume such a prominent place in the late modern
political landscape. That is, our focus is upon the way in which the fabric of common life, in
Michel Rosenfeld’s term, becomes increasingly ‘communally pluralistic’ (Rosenfeld 2010,
p. 21) with our basic common membership of the polity both embellished and qualified by
various other forms of collective identity or association predicated upon shared material inter-
ests, ethnicity, language, culture, religion, gender, and so on. Political pluralism, so broadly
understood, has both empirical and normative elements. Its point of departure is a range of
descriptive and explanatory accounts of the significance of group affiliation in the political
domain. Normatively, political pluralism invites us to take that empirical trend seriously – to
view it, for reasons developed below, as an authentic expression of what we value individually
and collectively and as a healthy component of a stable and diversely responsive political
system, and so as worthy of respect and nurturing.
The highlighting of political pluralism, however, does not mean that the various other
forms of pluralism that figure in the literature of legal and political theory are irrelevant to
our inquiry. Instead, they help us both explicate the value of political pluralism and track the
range of possible constitutional responses to political pluralism. As we shall see, these other
modalities of pluralism, rather than primarily empirical claims about developments in modern
society, involve more rarefied ontological and epistemological claims about the fundamental
character and basic structure of moral and political values and how we access knowledge of
this, as well as more detailed normative claims justifying political pluralism and shaping or
adjusting the legal and political landscape in light of that justification.
Let us take, first, value pluralism, otherwise known as meta-ethical pluralism. This is the
most abstract and philosophically the most fundamental species of pluralism. Much influenced
by the seminal work of Isaiah Berlin (1969), meta-ethical pluralism holds, as a basic structural
feature of our moral universe, that there are many different ends we may seek and values we
may live by – equality, liberty, dignity, and so on, which are equally rational and equally
defensible. Yet these values and ends are also incommensurable or, at least, we do not know
and cannot agree on how to measure them to a common standard. They cannot be entirely
reconciled, nor can they be situated on any single scale of measurement without some being
elevated at the expense of others. In close company with value pluralism we may place the
pluralism of world-views. This is perhaps most influentially depicted in John Rawls’s notion
of a public political culture marked by a ‘reasonable pluralism’ (Rawls 1996, p. 217) in which
570 Handbook on global constitutionalism

citizens live together in accommodation of their differing comprehensive conceptions of the

good. Such comprehensive conceptions, according to Rawls, refer to ‘what is of value in
human life’ (Rawls 1996, p. 13), including ideals of character, friendship and family relations,
as well as notions of what is worth striving for in a life well lived.
These two conceptions of pluralism are linked, both conceptually and normatively.
Conceptually, if we accept the pluralism of values, we should also recognise that such an
incommensurable – or at least, inscrutable – value set will figure in various combinations and
with various emphases to produce a diversity of similarly incommensurable comprehensive
conceptions of the good, both religious and secular. Normatively, while, as value pluralists
we may, like Hobbes, discover in the absence of a gold standard of values a justification
for the imposition of an absolute political authority as a way of avoiding or suppressing the
chaos of ‘the war of all against all’ (Hobbes 1651[1948], p. 82), our sense that our political
arrangements should be congruent with our moral understanding is more likely to persuade
us to promote and defend institutions and ideologies that respect the pluralism of values and
life-choices. That, in turn, implies support for a liberal conception of justice that does not
seek to enforce or favour any particular comprehensive conception of the good, but instead
tailors its reasonable pluralism to the endorsement of all such comprehensive conceptions that
would subscribe to an ‘overlapping consensus’ (Rawls 1996, ch. 4) on the values of liberal
democratic society itself. Also, a key such liberal democratic value is precisely the equal right
of each person to uphold and seek to realise his or her own conception of the good, provided
his or her actions are consistent with upholding a like right for others.
These two variants of pluralism, with their close ties to liberalism, also connect to our
key idea of political pluralism. In Rosenfeld’s terminology, they indicate an ‘individually
pluralistic’ strain that, arguably, goes hand in hand with the communally pluralistic trend and
underlying ethic of contemporary society (Rosenfeld 2010, p. 21). In this joining of hands is
manifest a new kind of liberalism, namely a liberal pluralism (Galston 2002), which holds
that membership of cultural communities, or other communities of interests or value, and
the right to active participation in them, is vital to the exercise of true freedom for one or
both of two reasons. On the one hand, for at least some strains of liberal pluralism, unlike the
individual-centred tradition of classical liberalism, cultural membership is deemed essential
to personal identity and its expression, and in that basic sense is constitutive of individual
freedom (for example, Sandel 1982; Taylor 1992; Kymlicka 1995; Miller 1995). On the other
hand, in a political environment characterised by the coexistence of different and sometimes
contending communal identities, the capacity to pursue interests or values in common with
like-minded group members may be crucially instrumental to the defence or pursuit of the ends
of the group (for example, Dahl 1968; Hirst 1994; Muniz-Fraticelli 2014, pp. 17–25).
Yet we should not underestimate the difficulties of containing the fact and value of political
pluralism within the justificatory orbit of a specifically liberal pluralism, however broadly
conceived. In the first place, the political affirmation of group identity can increase the power
over their members of those cultural communities – religious, national or ethnic – that boast
strong rights-trumping conceptions of the collective good, and may do so in ways that curtail
individual autonomy. In the second place, the equal autonomy of the members of different
groups may be compromised by privileging the communal good of some kinds of groups,
typically national or other ethnic groups, over that of others. Most pointedly, the emphasis on
the communal good as the road to individual self-realisation may lead to the elevation not only
of the concerns of particular types of group over other types, but even of a particular dominant
 Constitutionalism and pluralism 571

group or groups, again typically a dominant national or ethnic group, within a particular type.
In the third place, the boundaries of membership of privileged groups may not be clear-cut
or may, at the behest either of powerful insiders or of non-members, be drawn in a manner
that does not command general agreement – leading those liable to be excluded to experience
discrimination in terms of their capacity for individual self-realisation.
It appears, then, that while its normative justification in some measure rests on liberal
pluralism, whenever its more collectivist or communitarian orientation is emphasised political
pluralism may come into conflict with liberalism’s individualist premises. That is, we cannot
assume that the values associated with the ‘individually pluralistic’ and the ‘communally plu-
ralistic’ always do go hand in hand, and we must factor in the inherent tensions between them
when having regard to constitutionalism’s treatment of political pluralism.
If value pluralism and the pluralism of world-views are situated conceptually and norma-
tively ‘upstream’ of constitutionalism’s focal concern with a pluralism of social and political
constituencies, the other two variants of pluralism on our checklist are located ‘downstream’.
They both describe constitutionalism’s way of addressing the fact of pluralism. By institu-
tional pluralism we mean these arrangements by which a governmental function or range of
functions within a political community is exercised in such a way that no single institution
within the governmental system possesses or can exercise a monopoly of authority. Authority
is instead divided or shared between institutions or is subject to inter-institutional checks and
balances (Halberstam 2012, pp. 109–24). By systemic pluralism we mean the juxtaposition of
a number of entire normative systems – and of their referent ‘political communities’ – such
that each system exercises some measure of authority over the same functional range, and so
each is bound to acknowledge and, perhaps, accommodate the claims of the other system(s)
(Halberstam 2012, pp. 94–109).
We are already familiar with the distinction between institutional pluralism and systemic
pluralism, for it maps onto the vital distinction between constitutionalism’s internal and exter-
nal engagement with political pluralism, or between what we have termed plural constitution-
alism and constitutional pluralism. It is to these two forms of engagement that we now turn.

THE INTERNAL APPROACH: PLURAL CONSTITUTIONALISM

In the introduction I noted the tension between the formal promise of constitutionalism and
the material terms of its engagement. How does that tension manifest itself? Bluntly, constitu-
tionalism involves the construction and preservation of a certain kind of unit and also a certain
kind of unity – the unity of the ‘constitutional people’, but in so doing it is bound to work
with materials which speak to quite different kinds of units and unities – those that are the
product of national, religious, ethnic, gender and other culture or interest-centred communal
identities. This tension presents opposite dangers. On the one hand, the overarching political
identity forged and presented as a constitutional identity must distinguish itself sufficiently
from these other communal identities to be able to provide the framework of institutions,
rights and responsibilities necessary for an individually and communally pluralistic polity that
is proof against the undue influence of any of these other communal identities. On the other
hand, in order to gain the necessary social and political traction to pursue its pluralist ambition,
the project of constitutional identification must win and retain popular support across all of
its social and political constituencies, and so must, in some measure, continue to recognise
572 Handbook on global constitutionalism

and accommodate these same dominant or influential social and cultural forces from which it
must first distance itself. The achievement of plural constitutionalism, therefore, is necessarily
fragile. It is precariously posed between the Scylla of an anti-pluralist over-investment in prior
collective interests and identities and the Charybdis of an under-investment in these same
collective forms that would undermine its basic capacity to provide a mechanism of societal
integration (Rosenfeld 2010, p. 29).
How successfully the constitutional project manages the pluralist balancing act depends
on a complex mix of variables. Even if we restrict our attention to national and other ethnic
identity-based forms of pluralism, any particular constitution’s treatment of political plural-
ism is a highly variable function of its formative context, its relationship to ambient national
and other cultures, and its design choices. Constitutions are born in different circumstances,
whether the classic revolutionary model of French or American vintage – which may (as in
the American case) or may not also involve a national independence movement, the ‘invisible’
model of British incrementalism, the externally coerced ‘war’ model of modern Germany, the
increasingly influential ‘pacted transition’ model of contemporary Spain and South Africa,
or – as a cosmopolitan variant on that last theme – the (typically United Nations-inspired)
‘internationally grounded’ model in contexts as diverse as East Timor, Bosnia and Sudan
(Rosenfeld 2010, ch. 6).
These formative models feed in a non-linear fashion into different relationship patterns
between constitutional and other forms of identity. Whereas in the original German style the
ethnic nation precedes both the state and the reflexively engaged constitutional identity, in the
French style the state precedes the nation and gradually constructs the latter as demos rather
than ethnos through a process of constitutional self-identification and guidance, while in the
American style the constitution precedes both nation and state, to which it gives simultaneous
birth. Beyond these classical paradigms, there are other increasingly prominent approaches,
such as the Spanish style where the constitution seeks to (re)bind the multi-ethnic community,
and the post-colonial style, which typically involves a complex mix of rejection of the imperial
hegemon and reincorporation of familiar parts of its constitutional model (Rosenfeld 2010, ch.
5).
The net result of these two sets of dynamics is to provide a range of different needs, resources
and motivations for constitutions to recognise (or not) plural political constituencies. The
circumstances of its birth and the homogeneity or otherwise of its cultural environment mean
that the constitution may have greater or fewer cultural divisions to address and may count
on more or less popular backing in developing pluralism-supportive norms and mechanisms,
while the extent to which one or more dominant groups controls the commanding heights of
constitution-making in the founding, or in later phases of amendment, may suggest a greater
or lesser inclination to promote or endorse any such pluralist arrangements. Crudely, while
there may be a felicitous fit between the existence of cultural divisions that require recognition
and treatment on the one hand, and the adequacy of legitimating resources and the ripeness
of motivation to supply such recognition and treatment on the other – especially where there
has been an inclusive process of constitution-making or post-initiative homologation – we
cannot guarantee such a virtuous cycle. Instead, the support for constitutions may track their
affirmation of a dominant cultural community in ways that are neglectful or dismissive of
minority rights and interests. Alternatively, a constitutional setting that is pronouncedly cul-
turally heterogeneous, especially a setting in which a range of interest and identity cleavages
(for example, national, religion and social class) are not cross-cutting but mutually reinforcing,
 Constitutionalism and pluralism 573

may find scant resources of symbolic identification and little common motivation to provide
the means to overcome or manage its differences.
However, in order to refine and test these kinds of hypotheses we also have to appreciate the
sheer range and diversity of mechanisms available for constitutions to ‘design in’ or ‘design
out’ political pluralism. One general distinction in design philosophy, which can be used to
frame and explain particular architectural decisions, is often made between integration and
accommodation (Choudhry 2008), both of which, with their lesser or greater commitment to
political pluralism, can be further distinguished from the determined pursuit of cultural homo-
geneity characterised by an assimilationist approach (McQuarrie et al 2008). Integrationists
typically promote a single public identity coincidental with the state’s territory. They are gen-
erally against public institutional recognition of group identities and instead see convergence
around a single public norm as crucial to stability, unity, equal respect for a classical liberal
catalogue of individual rights and the overcoming of group-based parochialism and chauvin-
ism. Accommodationists are much more receptive to difference. They support and promote
dual or multiple forms of public group identity, and advocate cross-group equality of respect
for difference-representing institutions. Social stability and parity of group status – here seen
as a vital aspect of the state’s commitment to a ‘communally pluralistic’ form of equality – are
viewed as crucially dependent upon this more difference-sensitive method of constitutional
management.
Integrationists differ from assimilationists in that they do not seek the erosion of private
cultural or other forms of difference among citizens. In addition, the kind of single public
identity that integrationists advocate is not closely modelled on a particular cultural norm that
is not generally shared. Yet some forms of integrationist can nevertheless tend in an assimila-
tionist direction (McQuarrie et al 2008, pp. 46–51). Republican integrationists, in particular,
as in the cases of France and Turkey, have tended to hold an expansive view of what should be
rendered publicly ‘neutral’ or homogeneous. They have subscribed to a robust secularism or
laicism in the public sphere, and tended to favour the retention of a unitary state in which the
political wishes of the people as a whole are paramount and disaggregated territorial groups
are allowed little scope for self-government. Socialist integrationists are also universalistic in
approach, though they have been more likely than republicans to be critical of difference-blind
approaches to inequalities between groups. Liberal integrationists are the least committed to
uniformity within this category of constitutional designer. They do not share the republican
faith in unqualified popular sovereignty or the socialist faith in a general conception of the
economic good. They have been more likely to insist on universal rights protection, as well as
the checks available from a division of authority and electoral competition between different
levels of government. As such, they may countenance or even favour federal arrangements,
though based upon a principle of ‘territorial federalism’ (Kymlicka 2001, pp. 91–119) in
which provincial boundaries are demarcated so as to minimise or counter ethnic or national
divisions rather than to recognise them.
On the accommodationist side of the divide, there are also a variety of broad options,
two of which stand out. One is the model of multicultural or ‘multinational federalism’
(Kymlicka 2001, 91–119) in which either through classical forms of symmetrical federalism
or through made-to-measure arrangements for the diversely aspirational internal parts of
‘Union states’ (in Canada, the UK, Belgium and elsewhere), significant allowance is made
for self-government of territories representing different national or cultural identities (Keating
2001; Tierney 2004). Another and more emphatically accommodationist model is supplied by
574 Handbook on global constitutionalism

consociationalism, where, in addition to the multiculturalist insistence on a measure of group

autonomy, provision is made for cross-community executive power-sharing and minority
vetoes at the centre. Consociationalism tends to be associated with political societies that have
experienced deep antagonisms, as in the state of Bosnia and Herzegovina or the ‘statelet’ of
Northern Ireland (McQuarrie et al 2008, pp. 58–63).
A number of concluding observations may be made about constitutionalism’s engagement
with pluralism within the confines of the polity. In the first place, there is simply no guarantee
that constitutional arrangements will tend in a political pluralist direction. We observed how
respect for political pluralism is always a precarious balancing act, and that constitutions can
over-invest in cultural forces that favour hegemonic forms of identity. The brief discussion
of the dangers of assimilationism made reference to this, but we should acknowledge that
constitutional anti-pluralism comes in many forms. As the recent resurgence of authoritarian
populism and ‘illiberal democracy’ in Europe and beyond demonstrates (Sajo et al 2022),
some of these forms depart from pluralism not as a matter of fine balance but in a quite funda-
mental way; through a conscious rejection of the liberal freedoms that are one of pluralism’s
prerequisites, or through the denial of the basic rights of representation of diverse interests
we associate with parliamentary democracy. That is, as in the ‘decent hierarchies’ or ‘outlaw
states’ of John Rawls’s (1999) typology, there are many living constitutional models for whom
the framework of formal unity is developed and deployed in aid of a material project that
actively opposes and represses political pluralism.
Secondly, however, there is undoubtedly much in modern constitutionalism that is also
supportive of pluralism. We can see, indeed, that two dominant approaches to constitutional
design, the integration approach and the accommodation approach, are distinguished not in
terms of being pro- or anti-political pluralism, but merely as regards the extent to which, and
some of the instruments through which, they acknowledge and channel political pluralism. On
either side of this divide, however, there is much in the available methods of constitutional
design for dispersing and accounting for political power that may conduce to the generation
and preservation of political pluralism. These range beyond the more emphatic pluralist
markers such as federal or union state arrangements, fundamental rights catalogues and forms
of institutional support for religious diversity, to include many of the staples of modern consti-
tutional architecture, such as the basic forms of representative democracy, commitment to the
interpretive autonomy of the separate branches of government (Halberstam 2012, pp. 110–25)
and the majoritarian-corrective functions of second legislative chambers.
Thirdly, however, we cannot conclude from this that the deployment of the expansive set
of pluralism-conducive constitutional design tools is underwritten by a coherent and settled
philosophical approach to political pluralism. Instead, the built environment of the constitution
is in significant measure under-determined by design philosophy. Constitutional structures
tend to evolve gradually, often a patchwork of different design ideas and tools deployed from
different periods. And as the key example of federal form demonstrates, even specific individ-
ual tools and institutions can have a variable and disputed significance. They are potentially
supportive of different candidate pluralism-supportive visions – integrationism and accommo-
dationism – whose abiding rivalry indicates how little agreement there is on how far political
pluralism should extend and on what grounds. These two approaches map quite neatly onto
the deeper distinction and tension between a classical individually pluralistic liberalism and
an approach that gives greater weight to the collectively pluralistic, and that may even stretch
beyond the boundaries of a more expansive liberal pluralism. As we shall see, this drift of plu-
 Constitutionalism and pluralism 575

ralism as a normative project beyond the boundaries of conventional liberal thought becomes
more pronounced as we now turn away from ‘plural constitutionalism’ to consider the external
face of constitutionalism’s relationship with pluralism.

THE EXTERNAL APPROACH: CONSTITUTIONAL PLURALISM

Constitutional pluralism is concerned with the emergence, as part of a broader globalising

trend, of a wide range of normative entities that challenge the monopoly or preponderance of
the state-centred, self-contained sovereigntist paradigm of constitutional authority. These enti-
ties might take the form of supranational public authorities such as the European Union (EU),
the Council of Europe, the African Union or the World Trade Organization; or transnational
private authorities such as the Fédération internationale de football association (FIFA) or the
International Standards Organization; or hybrid public–private authorities such as the Internet
Corporation for Assigned Names and Numbers (ICANN). As noted earlier, what is structurally
distinct about this approach is that it refers to a second-order pluralism of normative systems
as a whole, rather than a first-order pluralism of institutions within a single such system (for
example, Walker 2002, 2015; Krisch 2010; Berman 2012; 2020 Lindahl 2013).
The scope of constitutional pluralism, and its relationship to other forms of legal or nor-
mative pluralism, is disputed. For the sake of clarity, therefore, some stipulation is necessary.
This involves an approach that is restrictive in one respect, but generous in another. On the
one hand, consistent with the internal or external distinction, constitutional pluralism should
not refer to these forms of legal pluralism that are deemed to operate within a single ‘national
time-space’ (De Sousa Santos 2004, p. 92), whether we are talking about, say, the relationship
between the official constitutional law of a state legal system on the one hand and, on the other,
a body of religious law of a significant internal community of faith, or the common law of
some region of the state; or, in the colonial context, the relationship between the imposed law
of the imperium and the customary law of the indigenous population. In such cases, though
questions of political pluralism of the kind considered in the previous section undoubtedly
arise, the final authority of the official constitutional order is widely acknowledged – even if
reluctantly in some quarters – and remains largely effective in practice. Instead, constitutional
pluralism should be retained only for contexts where the territorial or functional autonomy of
each system is such that there is no generally acknowledged hierarchy governing the terms of
their exchange, or indeed, any generally authoritative tertium quid to deal with conflicts.
On the other hand, once we acknowledge the absence of inter-systemic hierarchy, there
seems no satisfactory basis for further distinguishing between specifically constitutional and
other forms of external legal pluralism. The addition of the ‘constitutional’ modifier may
suggest something about the elevated standing of the institutional parties to the pluralistic rela-
tionship, as is the case in the most frequent and familiar use of the constitutional pluralist label
to describe legal relations between national courts and legal systems and the unusually pow-
erful court and central institutions of the EU (Avbelj and Komarek 2012; Davies and Avbelj
2018). Alternatively, the label may imply the derivation of the pluralist maxim or orientation
from a broader tradition of constitutional thought in infra-state and other settings (Kumm
2009). However, these are mere tendencies, and as there is in fact no clear and undisputed
distinction of kind between constitutional and other unqualified forms of legal pluralism in the
576 Handbook on global constitutionalism

matter of lateral co-ordination between legal orders, we are better to adopt a more inclusive
approach.1
Having done so, however, we are immediately faced with a methodological challenge in
mapping such a wide and diversely cultivated field. Just because constitutional pluralism, by
definition, lacks a pre-given and settled formula of authority, in looking for explanatory and
normative patterns we are bound to focus instead on the uneven, unpredictable and contingent
quality of exchanges, and the recurrent need to find agreement and establish closure in situ
across a broad range of heterarchical relations between legal orders. Such general principles, if
any, as can be fashioned, such bridging mechanisms as may be devised or such common orien-
tations as may be discerned in the new pluralism tend to emerge organically – and sometimes
only bilaterally – from the interaction between legal orders and tend to be couched in such
broad, fluid and underspecified terms that they require additional refinement or negotiation in
order to resolve any concrete dispute.
In so far as we are able to identify different strains of constitutional pluralist thought in
this highly diverse terrain, or at least different interpretations of the core of such thought, it
is instead in terms of a gradation between ‘thin’ and ‘thicker’ – between provisional and ad
hoc forms of accommodation, on the one hand, and relatively stable and generalised rules or
guidelines, on the other. At the ‘thin’ end of the spectrum we find so-called ‘radical pluralism’
(MacCormick 1993; Krisch 2011). According to this approach, the relationship between
different orders neither stems from nor contributes to a general set of pluralist norms but is
merely a product of power relations and strategic considerations. Such a relationship might
not be considered in legal terms at all, but merely as the outcome of a broader competition of
power, influence and collective self-interest; although perhaps, as in some understandings of
the EU as a kind of quasi-federal entity in its own right, this legal unsettlement may be seen
to be underpinned by a kind of multi-polar institutional grid of constituency representation
and mutual accommodation that speaks to some of the same understandings of infra-polity
political pluralism as considered above (Walker 2016). Alternatively, to draw further from
the well-developed example of relations between the EU and its member states, the radical
conception of pluralism may be one for which a legal dimension does exist but only in the form
of those bridging mechanisms, such as an inter-court reference jurisdiction, a context-specific
principle of subsidiarity, or a division of authority between legislative institutions, that are
actively chosen by the parties to the relationship and which remain within their ultimate ‘con-
tractual’ gift.
As we begin to take our distance along the pluralist spectrum from this radical pole we
encounter types, such as Nico Krisch’s ‘interface norms’ (2010, pp. 285–96), where the focus
is on the emergence of very general principles or methodologies of mutual toleration and
responsiveness between different orders locked in a recursive relationship of interdependence.
Here, emphasis is placed on courts and other institutions developing arm’s length forms of
inter-systemic accommodation, ranging from a requirement to ‘take into account’ the norms of
the other order, through various forms of conditional recognition of the other norm, to a general

1
Nico Krisch (2010, pp. 89–103) for example, explicitly distances himself from constitutional
language in the development of his pluralist approach, but only after having defined constitutionalism
in strong state-centric ‘foundational’ terms. He proceeds to develop a test of the ‘public autonomy’ of
those political forms that inhabit his institutional landscape which would, in fact, meet the less exacting
standard of constitutionalism of many other analysts.
 Constitutionalism and pluralism 577

commitment to find a lowest common denominator or ‘incompletely theorized agreement’

(Sunstein 1995) between legal orders. What sets this approach apart from the rawer ‘realism’
of radical pluralism is a search for general value in the very idea of inter-systemic accommo-
dation. In particular, it involves appreciation of what such accommodation might imply for the
general balance of transnational power and the checking of unilateral jurisdictional excess, for
the encouragement of tie-breaking or dialogue, or, in ways that again recall the broader ambi-
tion of infra-systemic normative pluralism, for the equal recognition of different and diverse
constituencies and their corresponding legal regimes and institutions.
A similar but more explicit attempt to find in external constitutional pluralism a measure
of continuity with the ethics associated with an internal constitutional pluralism can be
found in the more evolutionary perspective at the heart of Miguel Maduro’s ‘thicker’ idea of
contrapunctual law (Maduro 2003). In this approach, which once again draws heavily on the
densely interpenetrated example of the relationship between EU law and the national law of
its member states, the focus is upon the gradual harmonisation of the different normative ele-
ments as a distinct legal melody. Particular reference is paid to the need for mutual adjustment
in ultimate search of a justificatory framework that is generalisable across all inter-systemic
components without destroying the autonomous integrity of the parts. As with Krisch, there is
no a priori normative framework to guide relations. Unlike Krisch, there is close attention to
the prospect of an inter-systemic convergence of horizons that extends beyond mere mutual
tolerance and accommodation.
At the ‘thickest’ end of the spectrum, finally, we find versions of constitutional pluralism
that envisage the strongest continuity between the general pluralist constitutional norms inter-
nal to a particular constitutional order and trans-systemic norms. Those who see a role across
the diverse sites of global legal pluralism for broad principles of participation, accountability,
subsidiarity and legality (Kumm 2009), or for a general formula balancing voice, rights and
efficiency of substantive outcomes (Halberstam 2009), are normatively pluralist in as much
as they recognise the importance both of an ‘individually pluralistic’ framework of human
rights protection and of a ‘communally pluralistic’ attention to a diversity of voices within
a multi-level global order. Yet they are also universalist precisely in their confidence that one
size fits all, at least at a high level of abstraction. They believe, ultimately, that there is no
difference in kind, but only in degree, between how we should assess and conduct relations
among the various parts of a legal and political community inter se, and how we should assess
and conduct relations between different legal and political communities as a whole.

CONCLUSION: A FAMILY RELATIONSHIP?

The two modes of constitutional engagement with a plural political landscape – what we
have called plural constitutionalism and constitutional pluralism – are clearly far from being
entirely unrelated. In some measure, the same sovereign-state-decentring social forces that
have produced one have also produced the other. Equally, the tension between the unitary
logic of the constitutional form and the material pluralism of its landscape and techniques of
engagement applies in both cases, albeit in the first case the formalist logic applies as a single
all-embracing closure whereas in the second case it describes, in contrast, a set of mutually
exclusive closures. Substantively too, as we have seen above, the kinds of problems that are
diagnosed and solutions offered under the two approaches are certainly not unrelated.
578 Handbook on global constitutionalism

Yet we should not overstate the closeness of the family relationship. In the first place, some-
times the relationship may actually develop an inverse quality, in that the reaction against the
growth of inter-state authority, with its attendant encouragement of constitutional pluralism,
may involve a revival of assimilationist or otherwise monist attitudes within affected states.
The recent opposition of national populist leaders in Hungary and Poland to the supranational
strength of the EU is a case in point (Sadurski, 2019). In the second place, even where do see
questions of individual and group autonomy familiar from the internal constitutional context
arising in the external domain of constitutional pluralism, and suggesting some of the same
answers, we should be slow to draw general conclusions. The sheer novel diversity and
open-ended proliferation of that external domain, ranging as it does from a relatively state-like
polity such as the EU with its expansive conception of the range and depth of its supranational
jurisdiction and citizenship, to restricted functional domains such as ICANN and FIFA with
their narrowly interest-specific constituencies of stakeholders, should counsel prudence. The
very fact that there are so many contending theories of constitutional pluralism suggests a sig-
nificant gap between the perceived significance of the puzzle(s) before us and the adequacy
of our present solution-finding practice. It would not be an exaggeration to say that many of
the most pressing and consequential questions of the legitimate design of global governance
in an increasingly post-national world may be gathered under this wide umbrella of consti-
tutional pluralism. That the task is so great and stakes are so high offers one reason why we
might be tempted to reinvest heavily in answers that have long been considered appropriate to
a state-centred world, but also cautions us to give pause before doing so.

REFERENCES
Avbelj, M. and J. Komarek (eds) (2012), Constitutional Pluralism in the European Union and Beyond,
Oxford: Hart.
Berlin, I. (1969), ‘Two concepts of liberty’, in I. Berlin, Four Essays on Liberty, Cambridge: Cambridge
University Press.
Berman, P.S. (2012), Global Legal Pluralism: A Jurisprudence of Law beyond Borders, Cambridge:
Cambridge University Press.
Berman, P.S. (ed.) (2020), The Oxford Handbook of Global Legal Pluralism, Oxford: Oxford University
Press.
Choudhry, S. (2008), ‘Bridging comparative politics and comparative constitutional law: constitutional
design in a divided society’, in S. Choudhry (ed.), Constitutional Design for Divided Societies:
Integration or Accommodation?, Oxford: Oxford University Press, pp. 3–40.
Dahl, R.H. (1968), Pluralist Democracy in the United States: Conflict and Consent, Chicago, IL: Rand
McNally.
Davies, G. and M. Avbelj (eds) (2018), Routledge Handbook on Legal Pluralism and EU Law, London:
Routledge.
De Sousa Santos, B. (2004), Towards a New Legal Common Sense: Law, Globalization and
Emancipation, 2nd edn, Cambridge: Cambridge University Press.
Galston, W. (2002), Liberal Pluralism: The Implications of Value Pluralism for Political Theory and
Practice, Cambridge: Cambridge University Press.
Halberstam, D. (2009), ‘Constitutional heterarchy: The centrality of conflict in the European Union and
the United States’, in J.L. Dunoff and J.P. Trachtman (eds), Ruling the World? Constitutionalism,
International Law and Global Governance, Cambridge, Cambridge University Press, pp. 326–55.
Halberstam, D. (2012), ‘Systems pluralism and institutional pluralism in constitutional law: national,
supranational and global governance’, in M. Avbelj and J. Komarek (eds), Constitutional Pluralism in
the European Union and Beyond, Oxford: Hart, pp. 85–125.
 Constitutionalism and pluralism 579

Hirst, P.Q. (1994), Associative Democracy: New Forms of Economic and Social Governance,
Cambridge: Polity.
Hobbes, T. (1651), Leviathan, reprinted 1948, M. Oakeshott (ed.), Oxford: Blackwell.
Keating, M. (2001), Plurinational Democracy: Stateless Nations in a Post-Sovereignty Era, Oxford:
Oxford University Press.
Krisch, N. (2010), Beyond Constitutionalism: The Pluralist Structure of Postnational Law, Oxford:
Oxford University Press.
Krisch, N. (2011), ‘Who’s afraid of radical pluralism? Legal order and political stability in the postna-
tional space’, Ratio Juris, 24 (4), 386–412.
Kumm, M. (2009), ‘The cosmopolitan turn in constitutionalism: on the relationship between consti-
tutionalism in and beyond the state’, in J.L. Dunoff and J.P. Trachtman (eds), Ruling the World?
Constitutionalism, International Law and Global Governance, Cambridge: Cambridge University
Press, pp. 258–325.
Kymlicka, W. (1995), Multiculturalism, Oxford: Oxford University Press.
Kymlicka, W. (2001), Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship,
Oxford: Oxford University Press.
Lindahl, H. (2013), Fault Lines of Globalisation: Legal Order and the Politics of A-Legality, Oxford:
Oxford University Press.
MacCormick, N. (1993), ‘Beyond the sovereign state’, Modern Law Review, 56 (1), 1–18.
Maduro, M. (2003), ‘Contrapunctual law: Europe’s constitutional pluralism in action’, in N. Walker
(ed.), Sovereignty in Transition, Oxford: Hart, pp. 501–37.
McQuarrie, J., B. O’Leary and R. Simeon (2008), ‘Integration or accommodation? The enduring debate
in conflict regulation’, in S. Choudhry (ed.), Constitutional Design for Divided Societies: Integration
or Accommodation?, Oxford: Oxford University Press, pp. 41–88.
Miller, D. (1995), On Nationality, Oxford: Oxford University Press.
Muniz-Fraticelli, V. (2014), The Structure of Pluralism: On the Authority of Associations, Oxford:
Oxford University Press.
Rawls, J. (1996), Political Liberalism, New York: Columbia University Press.
Rawls, J. (1999), Law of Peoples, Cambridge, MA: Harvard University Press.
Rosenfeld, M. (2010), The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and
Community, London and New York: Routledge.
Sadurski, W. (2019), Poland’s Constitutional Breakdown, Oxford: Oxford University Press.
Sandel, M. (1982), Liberalism and the Limits of Justice, Cambridge: Cambridge University Press.
Sajo, A., R. Uitz and S. Holmes (eds) (2022), Routledge Handbook of Illiberalism, Abingdon: Routledge.
Sunstein, C. (1995), ‘Incompletely Theorized Agreements’, Harvard Law Review, 108 (7), 1733–72.
Taylor, C. (1992), ‘The politics of recognition’, in C. Taylor (ed.), Multiculturalism, Princeton, NJ:
Princeton University Press, pp. 25–74.
Tierney, S. (2004), Constitutional Law and National Pluralism, Oxford: Oxford University Press.
Walker, N. (2002), ‘The idea of constitutional pluralism’, Modern Law Review, 65 (3), 317–60.
Walker, N. (2010), ‘Rosenfeld’s plural constitutionalism’, International Journal of Constitutional Law,
8 (3), 677–84.
Walker, N. (2015), Intimations of Global Law, Cambridge: Cambridge University Press.
Walker, N. (2016), ‘Constitutional pluralism revisited’, European Law Journal, 22 (3), 333–55.
Index

9/11 440, 443–4 Backer, C. 560

Bain, W. 158
abortion 78, 471, 558–9, 562 Baines, B. 188, 191, 196, 198, 200
absolute power 311, 546 balance of power 3, 11–12, 17, 52, 104, 106, 153,
accountability 17, 38, 63, 92, 166, 171, 258, 265, 157, 160, 240, 308–16, 443, 460–61
267, 290, 311, 313, 315, 320, 367, 378, see also separation of powers
425, 428, 445, 497, 512, 522, 525–6, 547, Ban, K.-m. 486
577 Banda Islands 47, 51–4
Achaean League 28–30 Barak-Erez, D. 200
Adams, J. 10 Basel Committee on Banking Supervision 282,
Adler, E. 119–20 284
administrative law 86, 132, 173–4, 232, 234, 259, Batros, B. 381
269, 277, 280–82, 284–5, 290, 350, 378 Baxi, U. 146, 148
Afghanistan, US invasion of 1–2 Bell, D. 189
African Charter on Human Rights 442 Bell, G. 195–6
African Union 191, 575 Belmessous, S. 47, 49
agency 10, 27, 41–2, 54, 69–70, 108, 123, 148, Benedict XVI, Pope 558–9
154, 160, 196, 244, 258, 294–5, 373, 376, Benveniśtî, E. 269
400, 416, 449, 463, 534–5 Berkel, D. van 385
agents of change 102, 373–89 Berlin, I. 559, 569
Allott, P. 278 Besson, S. 220, 418
Althusius, J. 448, 457 Biden, J. 110, 431, 444
American Center for Law & Justice 562 bilateral investment treaties 349, 356, 551
American Civil Liberties Union 377 bilateralism 268–9, 292, 412, 415
American Constitutional Convention 10 Bilchitz, D. 545
American Convention on Human Rights 442 Bill of Rights (US) 77, 220
American Revolution 23, 65, 68–9, 168, 193, Birdsall, A. 529
298, 365, 572 Blackwater 283
Amphictyonic League 28, 30 Bloch, M. 38
Anghie, A. 171, 548 Blount, P.J. 533
Annan, K. 400, 460, 468, 470 Bodansky, D. 220
Appiah, K. 97 Bodin, J. 63, 135
Aquinas, T. 8, 211 Bogotá Declaration 535
Arab League 561 Bolton, J. 470
Archibugi, D. 96 Borah, W. 18
Arendt, H. 335 Bosco, D. 514
Aristotle 6–7, 9, 11, 14, 23, 210, 245, 309 Boutros-Ghali, B. 172
see also Stoics Bretton Woods 179, 468, 471
Arminius 49 Brexit 1, 265, 325, 431, 492–3, 497–8, 501
Asad, T. 563 Brock, L. 398
Atrey, S. 194–5, 198–9 Brown, G.W. 97
Austin, J. 212–13, 245 Brown v Board of Education 377
Austin, R. 467 Brunnée, J. 119–20
authoritarianism 7, 11, 84, 250, 266, 268, 271–2, Buchanan, A. 336
430–32, 443–4, 505, 574 Bull, H. 107, 155, 158, 160
Azmy, B. 375 Bush, G.W. 109–10, 431–2, 470–71
Buss, D. 192
Bachelet, M. 380–81 Buzan, B. 160

580
 Index 581

Calhoun, C. 442 constitutional law 59, 61–2, 66, 68, 70–71,

Canadian Supreme Court 81, 449 142, 148, 166–8, 171, 173, 176, 178–80,
Cançado-Trindade, A.A. 215 186–91, 194, 198–9, 201, 208–9, 212–13,
Cannizzaro, E. 355 219–20, 223, 227, 255, 258–60, 279,
capitalism 55, 93, 170–71, 175, 177, 180, 433, 331–41, 346, 348, 353, 355, 363–5, 367–8,
455, 532, 542, 545–6, 548–9, 551 378, 384, 429, 451, 455, 575
Cardwell, P. 501 constitutional patriotism 14, 83–4, 103
Casanova, J. 557 constitutional pluralism 91, 160–61, 229, 258,
Center for Constitutional Rights 375, 381 280, 303, 418, 420, 543, 566, 568–78
Cerfaux, L. 35 constitutional principles 11–15
Charlesworth, H. 193–4, 198–9 Constitutional Treaty 496–7
Chatterjee, P. 170 constitutionalism
Cheng, B. 217 ancient worlds 6–8, 23–33
Chinkin, C. 194 see also Greek law; Roman law
Christian Alliance to Defend Freedom 562 from below 145–9
Cicero, M.T. 7, 23–5, 27, 30–32, 94, 210–11 cosmopolitan 14, 91, 93–5, 98–9
citizenship 13, 31, 33, 95, 191, 430, 468, 495, critical theory 14, 122, 140–49, 286
498, 503–4, 537, 563–6, 578 early modern 8–9, 46–55
Clark, I. 15, 155, 160 English School 106–7, 152–62
ClientEarth 386 Enlightenment 9–10, 59–72, 76, 86, 120,
climate change 123–4, 244, 266, 269, 275, 292, 141, 146, 246–7, 552, 563
373–4, 377–87, 426, 432, 500 feminist approaches to 185–201
Clulow, A. 52 historical antecedents 5–11, 76–86
Coen, J.P. 53–4 legal 225–36
Cohen, J. 14 medieval 8, 35–44, 309
Coke, E. 67–8 modern 10–11, 76–86
Cold War 103, 105, 109, 117, 167, 172, 175, 193, new 141–8, 456
298, 370, 397, 425–6, 428, 474, 530, 532, and outer space governance 4, 16, 431,
535, 544, 546 529–40
Colley, L. 170 postcolonial 166–80
colonialism 4, 47–9, 54, 67–8, 148, 161, 166, realist perspectives on 129–36
168–71, 175, 192, 196, 200, 249, 545, rule of law see rule of law
548–9, 552 written versus unwritten 5, 363–70, 508
Colón-Ríos, J.I. 373 constitutionalization 3, 15–17, 89, 95–6, 99,
Committee of Space Research 539 122–3, 187–8, 193, 199, 240, 280, 321–3,
complementarity 333–6, 339, 510, 516 331
Comprehensive Economic and Trade Agreement constructivism 115–25
320–21, 505, 549 contestation 1–2, 5, 12–13, 15–17, 80, 89,
Conference on Disarmament 538 118–20, 140, 157, 161, 166, 169, 174, 178,
Congress of Vienna 38 190, 199, 246, 248, 250, 276, 303, 316,
Connell, R. 175 327, 373, 376–7, 379–81, 383–9, 533–4,
Consortium for Execution of Rendezvous and 540, 552–3
Servicing Operations 539 Convention on the Elimination of All Forms
constituent power 3–5, 27, 60, 318–28, 461, 490, of Discrimination against Women 187,
509 189–90
in the EU 323–5 Cooper, D. 197
and political institutions 326–8 corporatism 71, 171
and supra-state constitutionalization 321–3 cosmopolitan constitutionalism 14, 91, 93–5,
traditional view 319–21 98–9
weakening of 68–70 cosmopolitanism 14, 89–99
see also pouvoir constituant legal 14, 90–94, 97, 99
Constitutional Court of South Africa 461 cosmos 24–5
Council of Europe 176, 272, 322, 339, 479, 575
countermeasures 217, 221, 348, 350–52, 355–6,
359, 384
582 Handbook on global constitutionalism

Court of Justice of the EU 81–2, 313, 411, Enlightenment 9–10, 59–72, 76, 86, 120, 141,
413–14, 485, 490–93, 495–7, 501–6 146, 246–7, 552, 563
Courthope, N. 53 Enloe, C. 198
Covell, C. 95 environmental issues 155, 287, 378, 521, 531,
Covid-19 pandemic 265, 271, 432, 441, 443–5, 538, 551
499, 501, 504 climate change 123–4, 244, 266, 269, 275,
Craig, P.P. 314 292, 373–4, 377–87, 426, 432, 500
criteria of legality 241–4, 246, 250–51 environmental law 166
critical constructivism 15, 116–24, 399 eternal law 211
critical theory 14, 122, 140–49, 286 Eurocentrism 122, 146, 154, 196, 247, 251
cultural pluralism 97 European Center for Constitutional and Human
culture wars 559–62 Rights 374
Cutler, C. 547–8 European Central Bank 373, 441, 502
Czempiel, E.-O. 426 European Coal and Steel Community 254
European Committee for Social Rights 558–9
Dawson, M. 314 European Convention on Human Rights 347–9,
De Jure Belli ac Pacis 46, 50–51 357, 383, 442, 501–2, 562
De Jure Praedae 46, 51 European Court of Human Rights 60, 81, 159,
De Wet, E. 131–2, 187, 194 272, 322, 336, 339–40, 356–7, 383–4,
decisionism 9, 438–9, 455 417–19, 512, 562, 564
Declaration of Independence (US) 65, 67, 103, European Court of Justice 60, 159, 322, 324–5,
219 347, 473
Declaration of the Rights of Man and of the European Economic Community 426
Citizen 461 European Free Trade Association 498
Declaration on the Rights of Man (France) 77 European Parliament 313, 324–5, 430, 494, 497
Decretum 39–40 European Space Agency 530
Delors, J. 494 European Stability Mechanism 499
democracy 1–3, 6–7, 11, 15, 17, 23, 27, 29, 32, European Union 1, 12, 16, 18, 81–4, 134, 176,
76, 78, 83, 116, 142–3, 166, 170, 178, 188, 191, 253, 257, 261–2, 280, 300, 302–3,
218, 258, 269, 276, 283, 291, 294–5, 314, 308, 312–15, 319–27, 347, 350, 383, 410,
336, 338, 340–41, 411, 425, 427, 439, 449, 413–14, 428, 430–31, 441, 443, 445, 449,
461, 465, 467, 485, 495–7, 500, 504, 526, 451, 453–4, 456–7, 460, 473, 478, 485,
548, 557–8, 574 490–506, 519–22, 524, 526, 543, 560–61,
cosmopolitan 91, 93, 96 575–7
Dicey, A.V. 451, 548 Brexit 1, 265, 325, 431, 492–3, 497–8, 501
dignity 84, 495 European University Institute 479
dispute settlement 166, 240, 322, 348, 356, Euroscepticism 431, 498
412–13, 419, 519–20, 524, 544 see also Brexit
divine law 211 exceptionalism 30, 449, 492
domestic human rights law 331, 333–7, 417–19 executive 11–12, 37–9, 43, 103, 222, 247, 260,
Donaldson, M. 286 283, 310, 314–15, 319–25, 410–14, 418,
duality 197, 331 424, 428, 430, 437–45, 452, 473, 479, 501,
Dunoff, J.L. 131–2, 154, 257, 259, 461, 521 519–20, 537–8, 574
Dutch East India Company 46–9, 51–4
Dutch Supreme Court 380, 383–4 Falk, R. 132
Dworkin, R. 12, 81 Family Watch International 562
Dyzenhaus, D. 245 Farabundo Martí National Liberation Front 467
Fassbender, B. 13, 96, 131, 222, 477, 483–4, 509
early modern constitutionalism 8–9, 46–55 Federal Communications Commission 539
Ecuadorian Constitution 148 federalism 12, 96, 188, 426–7, 448–57, 460, 573
elections 196, 299, 325, 416, 425, 430, 433, 452, Federalist Papers 10, 28, 69, 365, 424, 449,
466–7, 497–8, 503–4 451–3
emergency situations 245, 314, 349, 437–45, 499 Fédération internationale de football association
English East India Company 47–9, 51–4 575, 578
English School 106–7, 152–62 feminism 14, 185–201, 275, 286
 Index 583

feudalism 37–8, 40, 71, 170 Glanville, L. 403

Fierke, K.M. 198 Glenn, P. 97–8
financial crises Global Administrative Law 232
2008 global financial crisis 145, 426, 500 Global North 168, 171, 175–7, 186, 192–3, 275,
Greek financial crisis 83 532, 542, 545, 551
Finnemore, M. 119 global politics 2, 6, 89, 115, 162, 292, 395,
Finnis, J. 214 398–402, 438
Fiscal Compact Treaty 314 Global South 140, 146–8, 167–9, 172, 174–9,
force, use of 4, 32, 105, 109, 208, 213, 220, 223, 190, 192, 275–6, 532, 535–6, 542, 545,
301, 352, 368, 395–403, 418, 424, 466, 551, 561
483, 534, 538 globalization 95, 97–8, 105, 140–48, 175, 265,
foreign policy 96, 156, 319–20, 425, 497, 560 268, 346, 440–42, 526, 543, 556, 559–62,
formalism 129–31, 136, 233–6, 249–50, 268, 492, 564
509, 543, 549, 577 Glorious Revolution 546
Foucault, M. 289 Goethe, J.W. von 130
fragmentation 133, 174, 217–18, 221–2, 227–9, Goldsmith, J. 271
257, 301–2, 313, 356, 358, 364, 419–20, Gordon, M.M.L. 194
444, 490, 538, 544 Gortyn 26
Franck, T. 172, 462 Gouges, O. de 195
Frank, J. 131 Gramsci, A. 175
Franklin, B. 473–4 Gratian 39–40
free trade 85, 168, 171, 177, 179, 320, 351, 354, Grear, A. 194, 198
356, 411, 413, 415, 546 Great Depression 130
freedom of assembly 335, 416 Greek law 6–7, 23–30, 32–3, 210, 364
freedom of speech 29, 335 Greenpeace 286
French Constitution 218, 254, 564 Gregorian reform movement 36–7, 39
French East India Company 50 Grimm, D. 505
French Revolution 12, 23, 64–7, 69–70, 168, 170, Grotius, H. 8–9, 46–51, 54, 94, 211–12
193, 195, 298, 319, 365, 461, 546, 572 Grundnorm 61, 77, 157, 214, 245
Friedman, M. 546 Gustavus Adolphus, King of Sweden 50
Friedmann, W. 226, 278, 369
Fuller, L. 243, 246–7, 295, 297 Habermas, J. 14, 76–8, 83–4, 324–5, 477, 483,
functionalism 13, 133, 177, 179, 253–62, 277, 556
279, 425, 477–87, 492, 520 Haitian Revolution 168, 170
Hallstein, W. 492
G20 430, 479 Hamilton, A. 10, 69, 365, 438, 445, 449, 453
Gago, V. 201 Hammarskjöld, D. 473, 481
Gardam, J. 217 Hansen, J. 385
Gardner, R. 256 hard law 282
gender 169, 185–201, 564, 569, 571 Hart, H.L.A. 155, 214, 363
General Agreement on Tariffs and Trade 353–4, Harvey, D. 544
356, 473, 519–20 Hayek, F. von 546
general principles of law 215–20, 301 Heathcote, G. 192–3, 195–6, 198–200
Geneva Conventions 402 Hegel, G.W.F. 10, 97
Geneva School 178 Held, D. 97
genocide 173, 397, 461 Helfer, L. 461
Genocide Convention 397, 461 Hellenic League 30
German Constitution 455–6 Hervey, T. 501
German Federal Constitutional Court 455–6, 493, Higham, C. 378
500, 502–3 Hobbes, T. 8–9, 63, 77, 92, 129, 132, 135, 153,
German reunification 83, 497 212–13, 424, 438, 570
German Revolution 79 Hohfeld, W. 12
Giddens, A. 118 Houghton, R. 188, 196
Gill, S. 546 Human Development Index 290
Ginsburg, T. 272 Human Life International 562
584 Handbook on global constitutionalism

human rights 2, 4, 12–13, 23, 69–70, 76–7, 81–2, International Convention for the Regulation of
84, 93, 96, 131, 143, 155, 173, 175, 187–9, Whaling 350
191, 200, 218, 230, 257, 265, 275, 280, International Court of Justice 46, 159, 213,
283, 287, 291, 294–5, 303–4, 306, 347, 215–18, 221, 350, 356, 412–15, 462–5,
351, 358, 377–8, 380–82, 384, 395–403, 473, 481–3, 485, 538
424, 427–30, 461, 479, 485–6, 513–14, Gabçikovo-Nagymoros decision 221
526, 531, 558, 560–61 Lockerbie case 415, 465, 485
African Charter on Human Rights 442 International Covenant on Civil and Political
American Convention on Human Rights 442 Rights 349, 357, 415, 442
courts 410–11, 413, 416–18 International Covenant on Economic, Social and
domestic human rights law 331, 333–7, Cultural Rights 415
417–19 International Criminal Court 4, 16, 46, 131, 133,
European Convention on Human Rights 161, 359, 381, 402, 412, 414–15, 430–31,
347–9, 357, 383, 442, 501–2, 562 491, 508–17
European Court of Human Rights 60, 81, International Criminal Tribunal for the former
159, 272, 322, 336, 339–40, 356–7, Yugoslavia 512
383–4, 417–19, 512, 562, 564 International Development Goals 470–71
Inter-American Court of Human Rights 60, international human rights law 59–62, 135, 288,
339, 417–19 331–41, 381, 396, 401–3, 414, 416–19,
international human rights law 59–62, 135, 440
288, 331–41, 381, 396, 401–3, 414, international humanitarian law 159, 351–3,
416–19, 440 357–8, 396, 401–3
United Nations Human Rights Council 509, international institutional law 176, 194, 230,
561 277–9, 281
Universal Declaration of Human Rights 59, international institutions 4, 15, 96, 98, 136, 178,
77, 430 185, 230, 265–73, 276–9, 282–3, 285,
see also individual courts 287–92, 300, 304, 333–4, 400, 403, 491
Hurrell, A. 15, 155, 366 see also individual institutions
international law 13, 59, 65–6, 89, 91–3, 143,
identarian theory 85 152, 157–8, 240, 249–51, 257, 281–6,
Ikenberry, G.J. 14, 101–2 302–6, 320–21, 352–6, 363, 367–9, 428,
imperialism 47, 49, 54, 90, 111–12, 135, 166–7, 482–3, 514, 523–5
169, 171, 175, 178–9, 548, 561 and constructivism 115–16, 118–19, 122
indigenous peoples 47–9, 53–4, 148 and feminism 186–91, 193–4, 199–201
Innocent III, Pope 42 international human rights law 59–62, 135,
institutional balance 6, 308–16 288, 331–41, 381, 396, 401–3, 414,
integration 36, 79, 256, 261, 318, 325–6, 412, 416–19, 440
418, 426, 440, 460, 472–4, 477, 490–95, international humanitarian law 159, 351–3,
498, 500–501, 504–6, 520–22, 525–6, 534, 357–8, 396, 401–3
549, 552, 563–4, 572–4 international institutional law 176, 194, 230,
interactional law 241, 244, 250–51 277–9, 281
Inter-Agency Debris Coordination Committee international public law 4, 133, 135, 267,
539 269–70, 273, 276–8, 281, 284,
Inter-American Court of Human Rights 60, 339, 290–91, 333
417–19 international trade law 178, 272, 322
Intergovernmental Panel on Climate Change 123, judicial review see judicial review
382 and legal constitutionalism 226–30, 234
intergovernmental relations 452–3 and natural law 208–9, 212–19
International Centre for the Settlement of and post/colonialism 166–8, 171, 174, 176,
Investment Disputes 352, 359 178–80, 249
International Commission on Intervention and and realism 131, 136
State Sovereignty 398, 400 rule of law see rule of law
international constitutionalism see sources of 174, 234, 350, 363, 413, 461
constitutionalism space law 4, 16, 529–40
 Index 585

Third World Approaches to 173, 176, 200, standards of 411, 415–16, 420
276, 548 jus cogens 187, 194, 214–18, 220–22, 229, 233,
International Law Commission 133, 174, 217–19, 302, 367, 415, 461, 533
221–2, 346, 348, 368 jus gentium see law of nations
international legal theory 13, 90, 194 just war 26–7, 31, 47, 51, 54
International Monetary Fund 292, 470, 472,
478–9, 501, 551 Kahana, T. 200
international organizations 4, 15, 17, 89, 134, Kant, I. 9–10, 14, 64, 70, 77, 79, 91–2, 94–5, 111,
157, 160, 213–14, 246, 253, 256, 265–6, 123, 130, 153, 213, 298, 309, 426–7
272, 277–8, 281, 286–7, 290, 300, 302, Keeling, W. 53
432, 441–2, 444–5, 463, 473, 477–80, Keens-Soper, M. 154–6, 158
482–3, 485–6, 519, 522 Kelsen, H. 76–7, 157, 214, 245, 275, 286, 305,
see also individual organizations 437, 439, 558, 560, 566
international public authority 13, 168, 265–92 Kennedy, D. 49, 115, 132, 276, 543
international public law 4, 133, 135, 267, 269–70, Keohane, R. 104–5
273, 276–8, 281, 284, 290–91, 333 Keynesianism 145
international relations theory 1, 4, 6, 14–16, 118, Khan, T. 380–81, 385
120, 142–3, 161, 194, 198, 243, 253, 375 Khmer Rouge 467
see also individual theories Kingsbury, B. 286
International Religious Freedom Act 560 Klabbers, J. 89, 256, 277–8
international society 4, 15, 65, 106, 123, 136, Knop, K. 190
152–62, 227, 240–41, 243, 246, 248–51, Koselleck, R. 175
366, 376, 508 Koskenniemi, M. 89, 136, 174, 274, 312, 548
International Telecommunications Union 530, Kosovo conflict 398
536, 538 Kratochwil, F. 117–18
international trade law 178, 272, 322 Krisch, N. 136, 576–7
International Tribunal for the Law of the Sea Kula, L. 200
351–2, 359 Kumar, V. 193
Internet Corporation for Assigned Names and Kumm, M. 133, 418, 551
Numbers 575, 578
investment protection law 166, 168, 177, 348–50, Laeken Declaration 499
352–3, 356, 360 Lam, J.D. 53
Irving, H. 189, 195 Lamy, P. 522
Isiksel, T. 261–2 Lang, A.F. Jr. 3, 240, 457, 460, 529
Islam 500, 556, 563, 565 Langton, S. 37
ius ad bellum 395–6, 402 Las Casas, B. de 94
ius fetiale 31–3 Lasswell, H.D. 132
ius in bello 396, 402 Lauterpacht, H. 129, 305
law of nations 51, 65–6, 95
Jabri, V. 198 League of Nations 17–18, 28–30, 46, 154, 172,
Jackson, R. 15, 155 213, 426, 464, 477, 479, 482
Jacqué, J.-P. 312, 314 legal constitutionalism 225–36
Japan 37–8 legal cosmopolitanism 14, 90–94, 97, 99
Jay, J. 10 legal forms 169, 225–36, 295
Jefferson, T. 10, 65 legal pluralism 33, 93, 98, 159, 259, 270, 274,
Jellinek, G. 213 301–3, 308, 310, 333–4, 336–7, 411, 559
Jenks, C.W. 226 legal realism 92, 130–33, 136, 268
Jessup, P. 428 legal theory 240–51
John, King of England 37 legalism 7, 17, 30, 93, 129, 131, 135, 178, 298,
John of Salisbury 130 305, 309, 504
Johnstone, I. 467 legality, practice of 119, 240–41, 243–4, 246, 250
Jones, E. 193, 198–9 legislatures 424–33
judicial review 10, 12, 68, 142, 144, 218, 258, legitimacy 298–300, 320
260, 285, 299, 410–20, 427, 429, 432, Leibniz, G.W. 63–4, 70
485–6, 519, 524 lex mercatoria 270–71
586 Handbook on global constitutionalism

LGBTQ+ rights 2, 561–2 Möller, K. 544

Liability Convention 539 Monnet, J. 492
liberal internationalism 1, 92–4, 108–11, 265–7, Montesquieu 9, 11, 28
309 Montevideo Convention 249
liberal pluralism 570–71, 574 Montreal Convention 465
liberal theory 1, 14, 101–12, 118, 193 Morelli, M. 522–4
liberalism 1–2, 93, 101, 103, 110, 169–70, 187, Morgan, M. 191
247, 546–7, 553, 556–7, 564, 570, 574 Morgenthau, Hans J. 131–2, 134–5
Lino, D. 548 Mortati, C. 152, 156–7, 161
litigation networks 16, 373–89 Müller, J.W. 490
Livy 23, 27, 31–2 Muller, T. 154–5
Llewellyn, K.N. 131 Mureinik, E. 360
Lobel, J. 375 Murray, C. 189
Locke, J. 8–9, 38, 67, 77–8, 212, 319–27
Lockerbie case 415, 465, 485 National Association for the Advancement of
Loewenstein, K. 365 Colored People 377
Loughlin, M. 26–7, 122, 318 natural law 8, 32, 51, 63, 69, 92–5, 208–23, 227,
Louis XIII of France 50 233, 296–7, 320, 326
Lubanga Dyilo, T. 509, 511–14 Navari, C. 155, 157, 160
Lundstedt, A.V. 131 Nazism 84, 171–2
Luxemburg, R. 548 Nehru, J. 175
Lykourgos 25–6 neocolonialism 542–3, 545, 548–9, 551–3
neo-conservativism 109–10
Macdonald, J.A. 452 neoliberalism 93, 133, 140, 142–7, 153, 159, 178,
Machiavelli, N. 212, 309, 438 265, 276, 416, 433, 456, 542–53
MacKinnon, C. 189 Nesiah, V. 192, 198
MacKinnon, D. 155 networks 4, 15–16, 25, 185, 189–91, 193, 199,
Madison, J. 10, 27–8, 30, 35, 315, 424, 451–2, 254, 267, 283, 373–89, 536, 562
461 new constitutionalism 141–8, 456
Maduro, M. 577 Nic Shuibhne, N. 493
Maggi, G. 522–4 Nicolas of Cusa 8
Magill, E. 309, 311 Nietzsche, F. 132, 169
Magna Carta 37–8, 365 noble savage 47–8
Mandela, N. 466 non-governmental organizations 4, 15, 85, 398,
Manhattan Declaration 557 471, 509, 560–61
Marcus Aurelius 24–5, 94 Nordic Investment Bank 478
Marshall, J. 10, 66, 68 normative change 17, 121, 373, 375–6, 379–88
mass atrocities 395–403 normative order 17, 77, 121, 136, 318, 388, 564
material constitution 152, 156–7, 331 normativism 189, 439
Maurice, Prince of Orange 50 normativity 117, 120–21, 123–4, 129, 136,
Mayall, J. 155 193–4, 213–14, 222, 242, 258–9, 274, 332,
Mazower, M. 17–18, 172 375–6, 387, 418–20, 439, 543
McCrudden, C. 561 North American Free Trade Association 348
McDougal, M. 131–2 North Atlantic Treaty Organization 18, 398, 400,
McIlwain, C. 5 428, 478, 500
meaning-in-use 14, 16–17, 119, 380 Nuremberg Military Trials 171
medieval constitutionalism 8, 35–44, 309 Nye, J. 104–5
Melzer, P. 196
Metaclad 550 Oakley, F. 8
methodology 91, 186, 201, 220, 228, 253, Obama, B. 110, 431
259–60, 326, 374–5 Ocampo, L.M. 512–13
Meyer, P. 537–8 O’Donoghue, A. 188, 196
Michelman, F. 461 Oldenbarnevelt, J. van 49
Millennium Development Goals 460, 467–73 Olivecrona, K. 131
Mitrany, D. 255–6, 277–8 Onuf, N. 117
 Index 587

Operation Restore Hope 397 political economy 16, 143, 145, 168, 175,
Orbán, V. 504–5, 565 177–80, 268, 275–6, 542–53
Orford, A. 116 political pluralism 568–76
Organisation for Economic Co-operation and political realism 15, 129–30, 132–6, 209, 211–15
Development 289–90, 470 Polybius 7, 23, 26, 28–30, 309
Organization for Security and Co-operation in positive law 26–7, 80, 92, 96, 129, 208–23, 244,
Europe 278 247, 281, 294, 296, 303, 363–4, 375,
Organization of American States 478 387–8
Organization of Petroleum Exporting Countries positivism 13, 46, 60, 63–4, 76–84, 86, 92,
478 118–19, 121, 129, 145, 155, 157, 209,
Otto, D. 194, 196, 198–9 211–14, 221, 232–3, 236, 245–6, 248–50
outer space 4, 16, 431, 529–40 Posner, E. 271
Outer Space Treaty 529–40 postcolonialism 4, 14, 49, 122, 166–80
Outright Monetary Transactions 502 Pouliot, V. 119–20
Oxenstierna, A. 50 Pound, R. 130
pouvoir constituant 4, 12, 17, 32, 121, 134, 262,
pacta sunt servanda 46, 51, 54, 158, 214–15, 531 280, 319, 321–7, 367, 457
Paiement, P. 381–2 see also constituent power
Paine, T. 10, 26 poverty 276, 287, 305, 468–72
papacy 36, 39–42, 44, 558–9 power
Paris Agreement 382 absolute 311, 546
Paris Club 479 balance of 3, 11–12, 17, 52, 104, 106, 153,
Patton, P. 49 157, 160, 240, 308–16, 443, 460–61
peacekeeping 440, 460, 466–7 constituent see constituent power, pouvoir
Pedersen, O.W. 384 constituant
Peisistratos 27 separation of 2–5, 7, 9, 11–12, 37, 67, 82, 89,
Pella, J. 160 135, 186, 188, 218–22, 240, 246, 250,
Perez, O. 376, 388 257–8, 310–13, 315, 320, 373, 379,
Permanent Court of Arbitration 46, 410 437–8, 440, 442–3, 445, 457, 461,
Permanent Court of International Justice 213, 490–91, 505, 509–16
410, 415 practical reason 26, 64, 97, 102, 245–6, 309
permanent sovereignty over their natural practice of legality 119, 240–41, 243–4, 246, 250
resources 179 Prebisch, R. 175
Peters, A. 89, 96, 221, 258–9, 401–2, 418 Preuss, U.K. 131, 324
Petersmann, E.-U. 178 Price, R. 111
Philip II, King of Spain and Portugal 47, 51, 54 primary institutions 152–3, 158–62
Philip of Macedon 28 private law 41–2, 84, 168–9, 178, 180, 227,
Philpott, D. 560 268–72, 283–5, 333, 414, 547
Plato 6–7, 23, 130, 210, 296 see also private–public divide
see also Stoics private property 269, 538, 552
pluralism 16–17, 90, 97, 148, 155–6, 228, 286, private–public divide 142–3, 169, 178, 192, 275,
355, 486, 495, 547, 557 281, 283–5, 542, 545–9, 552–3, 575
constitutional 91, 160–61, 229, 258, 280, Programme for International Student Assessment
303, 418, 420, 543, 566, 568–78 290
cultural 97 property rights 38, 41, 55, 158, 168, 177, 288,
legal 33, 93, 98, 159, 259, 270, 274, 301–3, 349, 538, 546
308, 310, 333–4, 336–7, 411, 559 proportionality 13, 346–60
liberal 570–71, 574 protectionism 271, 520–22, 546
pluralism-solidarism distinction 152–3, public interest 143, 284, 286, 312, 351–6, 360,
158–9, 162 375, 529
political 568–76 Public International Unions 425
religious 557, 559–60 public opinion 266, 271, 278, 284–7, 291–2
value 559–60 publicness 283–7
Poland 61 public–private divide 142–3, 169, 178, 192, 275,
politeia 23–7, 364 281, 283–5, 542, 545–9, 552–3, 575
588 Handbook on global constitutionalism

Puetter, U. 399 Sabin Center for Climate Change Law 377–8

Pufendorf, S. 63, 94 Said, E. 169
same-sex marriage 558
Quijano, A. 175 Santos, B. de S. 145, 147, 175, 177
Sapiano, J. 198
Radbruch, G. 297 satellites 30, 529–36, 539
raison de systéme 156 Sayre, F.B. 478
rational choice approach 118, 268, 271–3 Schermers, H.G. 478
rationalism 63–4, 70, 103, 110, 119, 154, 174, Scheuerman, W.E. 538
243, 272, 315, 325, 439 Schiller, F. 130
Rawls, J. 76–8, 102–4, 557, 569–70, 574 Schmitt, C. 78, 83, 85, 157, 245, 323, 433,
Raz, J. 288, 297 439–40, 558, 563, 566
Reael, L. 53 Schumann, R. 492
realism 1, 92, 104, 120, 129–36, 211–15, 268 secondary institutions 152–3, 158–62
legal 92, 130–33, 136, 268 secularism 557, 559, 563–5, 573
political 15, 129–30, 132–6, 209, 211–15 self-interest 23, 27, 29, 32, 92, 94, 106, 147, 272,
Realpolitik 129, 132 274, 284, 286, 341, 546, 576
Rechsstaat 79, 424 separation of powers 2–5, 7, 9, 11–12, 37, 67, 82,
reflexivity 122–4 89, 135, 186, 188, 218–22, 240, 246, 250,
refugee crisis 83, 292 257–8, 310–13, 315, 320, 373, 379, 437–8,
regional human rights courts 410–11, 413, 440, 442–3, 445, 457, 461, 490–91, 505,
416–17 509–16
regionalization 152, 161–2 see also balance of power
Reinsch, P. 277, 478 Setzer, J. 378, 385
religion 8, 36–42, 49, 63, 80, 154, 208–12, 332, Shakman Hurd, E. 561
335, 433, 556–66, 569, 571 Sieyes, E. 319–22, 324, 326–7
Islam 500, 556, 563, 565 Sieyès, E.J. 12, 68–70, 319–23, 326–7
papacy 36, 39–42, 44, 558–9 Simma, B. 483
religious pluralism 557, 559–60 Singh, N. 478
Responsibility to Protect 4, 16, 160, 382, 395–6, Single European Act 494, 497
398–403, 430, 432 slavery 54, 79
Reus-Smit, C. 155 Slobodian, Q. 178
Richelieu, Cardinal 50 Smith, A. 67, 170, 546
Riker, W. 448 Smith, K. 397
Robespierre, M. 70 Smuts, J. 172
Roman law 7–8, 11, 23, 30–33, 38–41, 43, social contract theory 4, 8, 48, 77, 79–81, 96, 212,
210–11, 285, 364 326, 365
Root, E. 17 social norms 208, 240, 242, 384–5
Rosenau, J. 426 sociological description 132, 136
Rosenfeld, M. 311, 313, 569–70 sociology of knowledge 115, 121
Ross, A. 131 soft law 250, 282, 285, 333, 471–2
Rousseau, J.-J. 47–8, 68, 70, 77, 309, 426–7 solidarism 152–3, 158–61
Rubio-Marín, R. 188–9, 191, 196–7, 199 Solon 26–7
Ruggie, J. 117–18 sources of international law 174, 234, 350, 363,
rule by law 11, 294–7, 427, 431 413, 461
rule of law 2–3, 9, 11, 14, 17, 23, 36–7, 43, 47, South African Constitution 545
76, 143, 188, 219–20, 226, 234, 240–51, South West African Peoples Organization 467
257, 259, 265, 280, 294–306, 314, 359, space law 4, 16, 529–40
373, 424–5, 431, 437, 441–2, 457, 460, SpaceX 536, 539
486, 490, 496, 509, 513, 531–4, 560 Spanish Constitution 81
rule of persons 296 Spanish Supreme Court 81
rule of reason 76, 294, 296–7 Spivak, G.C. 200
Russia–Ukraine war 1–2, 18, 161, 167, 241, 305, Stahn, C. 509
395, 500, 505 Stalinism 84
Rwandan genocide 173, 397 standards of judicial review 411, 415–16, 420
 Index 589

Stanton, E.C. 195 Transparency International 286

state sovereignty 48, 91–2, 95, 121, 227, 230, treaty federalism 448, 456–7
248, 278, 369, 398, 400, 410–12, 418, 498, Treaty of Amsterdam 495–6, 502
510, 556, 559 Treaty of Lisbon 82, 496–7, 502
state-owned enterprises 271, 284 Treaty of Maastricht 494–5, 499
Steer, C. 537 Treaty of Nice 496, 499
Stegmann, O. 376 Treaty of Rome 426, 492, 524
Stoics 23–5, 210 Treaty of Westphalia 78, 91, 95, 123, 154, 236,
see also Aristotle; Plato 277, 427–8, 556, 559–60, 564
strategic litigation 374–7, 385–6, 388–9 Treaty on European Union 492, 496, 503, 519–20
Stuart, H.V. 512 Treaty on the Functioning of the European Union
Student Climate Network 385 495–6, 502
Suarez, F. 211 Treipel, H. 213
subsidiarity 96, 334, 339–40, 350, 369, 450–51, Truman, H.S. 254
453, 457, 494, 522, 526, 576–7 Trump, D. 1, 272, 431, 444
Suk, J. 189 Tully, J. 13–14, 47–9, 122–3, 135
Sullivan, K. 197–8
supranationality 460, 462–5, 467, 472–4 unequal treaties 46, 55, 173
Svarez, C.G. 347 United Nations 4, 13, 16, 38, 46, 77, 96, 105, 159,
Sylvester, C. 400 161, 167, 169, 172–4, 176, 179, 254–6,
Syrian civil war 83 283, 300, 302, 321, 323, 370, 398, 413,
systems theory 270–71 415, 426, 440–41, 444, 477–87, 513, 561
United Nations Charter 13, 82–3, 96, 131, 133–4,
Taft, W.H. 17 159, 171–2, 186, 222, 255, 259, 301–2,
Taliban 1 346–7, 351, 364, 367–70, 395–6, 426,
Tanaka, K. 213 428–31, 440, 443, 451, 460–74, 479,
taxation 42–3, 178, 425, 430, 455, 521 481, 483, 486, 509, 530–32, 538, United
Taylor, T. 171 Nations Charter
terrorism 103, 109–10, 167, 432, 440, 443, 473, United Nations Committee on the Peaceful Uses
556 of Outer Space 530, 536, 538
Teubner, G. 191, 321, 325 United Nations Convention on the Law of the Sea
Third World Approaches to International Law 131, 326, 352, 429
173, 176, 200, 276, 548 United Nations Convention on the Rights of the
Thirty Years War 50, 556 Child 384
Thomasius, C. 63 United Nations Covenant on Civil and Political
Thornhill, C. 325 Rights 82
Tierney, B. 8 United Nations Covenant on Social, Economic
Tomushat, C. 366 and Cultural Rights 82
Tondriau, J. 35 United Nations Development Programme 290,
Toope, S. 119–20 470–72
torture 187, 216, 220, 304, 440, 442 United Nations Framework Convention on
Trachtman, J.P. 131–2, 257, 259, 461, 521 Climate Change 159–60, 291, 382–3
trade liberalization 523 United Nations General Assembly 4, 217, 222,
Transatlantic Trade and Investment Partnership 287, 400, 427–32, 462, 468, 470, 479, 485,
543, 549–52 530, 532, 538
transnational consensus 332, 340 United Nations High Commissioner on Human
transnational corporations 48, 54, 191, 306 Rights 380–81
transnational law 38, 168, 333, 375, 379, 382–3, United Nations Human Rights Council 509, 561
387–8 United Nations Implementation Force 466
see also international law United Nations Inter-Agency Meeting on Outer
transnationality 332–40 Space Activities 538
Trans-Pacific Partnership 549 United Nations International Law Commission
transparency 166, 241, 244, 250, 265, 267, 280, 214
286, 290, 313, 315, 350, 425, 440, 443, United Nations Office of Outer Space Affairs 538
445, 538, 550 United Nations Protection Force 466
590 Handbook on global constitutionalism

United Nations Security Council 96, 222, 288, Vliegenthart, R. 381

300, 303–5, 322–3, 395–7, 400, 412, 415, voluntarism 63–4, 66, 69–70, 234, 236, 296–7,
419, 429, 440, 443, 454, 462–6, 473–4, 320
479, 486, 502, 514, 517, 519, 539
United Nations Transitional Administration for Waldron, J. 97, 245, 286, 418
Eastern Slavonia, Baranja and Western Walker, N. 95, 135, 324, 369
Sirmium 466 Walter, M. 245
United Nations Transitional Authority in war crimes 216, 241, 398, 511–12, 514
Cambodia 467 War on Terror 103, 109–10, 167
Universal Declaration of Human Rights 59, 77, Wassenaar Agreement 479
430 Watson, A. 155
universalism 2–3, 78, 90, 97, 135, 169, 171, 173, Weber, M. 433, 466
178–9, 185, 187, 191–2, 210, 260, 298, Weeramantry, C. 215
304, 573, 577 Welsh, J. 399, 401
universality 173–5 Wenger, E. 242
Urgenda Case 373–4, 377, 379–86, 388–9 Westerman, P.C. 375
Urquhart, Brian 465 Wheare, K.C. 449
US Congress 18, 426, 520, 560 Wiener, A. 135, 240, 373, 377, 385, 399, 457,
US Constitution 68, 79, 81, 103, 198, 218–20, 460
254, 461–2, 519–20, 564 Wight, M. 155
US invasion of Afghanistan 1–2 Williams, A. 468
US Supreme Court 66, 68, 78, 221, 322, 347, 377, Williams, S. 188
473, 558 Wilson, W. 18, 110
use of force 4, 32, 105, 109, 208, 213, 220, 223, Wittke, C. 189
301, 352, 368, 395–403, 418, 424, 466, Wolff, C. 64
483, 534, 538 Wonneberger, A. 381
utopianism 90, 122, 129, 136, 172, 196–8, 549, World Bank 283–4, 444, 470, 472, 478, 551
553 World Congress of Families 562
World Health Organization 272, 444–5, 472,
value pluralism 559–60 479–81
van Eijk, C. 533 world public opinion 266, 271, 278, 284–7, 291–2
Vanhala, L.C. 378 World Social Forum 327
Vattel, E. de 9, 14, 94, 212 World Trade Organization 13, 16, 60, 85, 134,
Venezuela 60 166, 173–4, 177–8, 244, 246, 257, 259,
Verdross, A. 214–15, 226, 483 322–3, 348, 351, 353–4, 356, 359, 411–13,
Verenigde Oostindische Compagnie see Dutch 415, 419, 444, 468, 473, 478, 509, 519–26,
East India Company 542, 544–5, 547, 575
Verhoef, P.W. 52–3
Vico, G. 246 Xerxes 30
Vienna Convention on the Law of Treaties 59,
249, 357, 367, 415 Zemanek, K. 258–9, 369