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International constitutionalism
and the state: A reply to Aoife
O’Donoghue
Vlad Perju*
As O’Donoghue tells the story in his timely and ambitious article,1 the world’s legal
landscape is undergoing a process of fast-paced transformation. Overlapping legal
orders have come into existence, and into conflict with one another, reflecting the
fragmentation of the international arena where new types of actors are constantly
repositioning themselves. States do not vanish from this arena, but must reinvent
themselves on the increasingly overcrowded international scene and under the pressure from the changing nature and institutional forms of political power within the
domestic sphere. Even these latter processes are unpredictable and volatile because
the boundaries between international and domestic realms are becoming increasingly
permeable. Documenting these developments is no child’s play. Admiration is therefore due to the article’s ambitious goal of theorizing them.
Since everything can change, although not all at once, the scholar’s task is to find,
amid all the constitutional movement, a stable conceptual ground from which to
reflect on, and perhaps even guide, the ongoing transformations. Concepts such as
state and sovereignty are ill-suited to this task because, as the article tells us, they are
at the center of the political and legal transformations. Where, then, should one look
for a much-needed anchor?
O’Donoghue’s answer is refreshingly old-fashioned: constitutionalism. As the locus
of political will moves beyond the legal form of the state, constitutionalism becomes
the tool of choice for conceptualizing new forms of power and for structuring—and,
yes, limiting2—the exercise of power. Underlying this approach to constitutionalism
is the jurist’s need to bring oversight—or “review” (p. 1028), as O’Donoghue nicely
calls it—to the formation and exercise of political power. Of course, difficult questions
*
Associate Professor, Boston College Law School and Director, Clough Center for the Study of Constitutional
Democracy, Boston College. Email: [email protected].
1
Aoife O’Donoghue, International Constitutionalism and the State, 11(4) Int’l J. Const. L. 1021 (2013).
Further references to the article are within the text.
2
See Jeremy Waldron, Constitutionalism: A Skeptical View, in Contemporary Debates in Political Philosophy
270 (Thomas Cristiano & John Christman eds., 2009) (discussing critically the view that constitutional
government is limited government). I•CON (2013), Vol. 11 No. 4, 1046–1051doi:10.1093/icon/mot050
International constitutionalism and the state: A reply to Aoife O’Donoghue
1047
will arise along the way. If constitutionalism is not parasitic upon the state, how does
it travel beyond the state’s political/legal form? What does the constitutionalization of
the international realm entail and on what type of agency, if any, does it depend? How
can constitutionalism remain a stable ground once international constitutionalism
has started producing a normative spillover effect at the domestic level?
Before turning to these questions, it is worth pausing over the very option for constitutionalism. The reader detects a sense of urgency in the article’s turn to constitutionalism. Perhaps the urgency is in response to recent scholarly attempts to offer
alternative perspectives on the normative architecture of the international legal order.3
To understand this reaction, it helps to ask—à la Dworkin4—what makes constitutionalism valuable or preferable to other options? The question is genuine because the
constitutionalist future of world relations is not predetermined. O’Donoghue writes:
“if the transformation [of the international legal order] is to be constitutional,” then
the question is, “how the state will fit in.” Leaving aside for a moment the state’s role,
why should the transformation be constitutional?
One answer is that political choices and the uses of power at the supranational levels
are steered by law to the extent that they are exercised in an orderly, systematic fashion. If such systems are properly constituted, then they have at least a functional constitution. This answer deflates the challenge because it lowers the stakes of the choice
of constitutionalism, which, from this perspective, appears largely unavoidable. While
perfectly plausible, this answer captures neither the urgency of the article’s choice
of constitutionalism nor the specifics of its argument. O’Donoghue takes for granted
the existence of an international legal order and discusses solely the trajectory of this
already constituted order. It is true that such an order might allow, or even require, a
constitution, but that fact—a constitution without constitutionalism—falls outside
the object of the article.
It is possible, however, to envision a more elaborate version of the functionalist argument. In this account, order is the outcome of constitutive processes, only
that these processes are not dictated from the top down, but arise organically from
within the self-contained spheres of the fragmented international world.5 Each of
these spheres would have its own constitution, leaving open the difficult question of
how these constitutions relate to one another. In principle at least, constitutionalism
allows for the existence of a plurality of constitutions. It is difficult to know where the
author stands in relation to this possibility. At one level, the specification of the norms
of constitutionalism channels the process of constitutionalism and leaves little if any
leeway for organic processes. Yet, at the same time, the article places great emphasis
on the importance of the process of constitutionalization. The analysis leaves critical
aspects of that process so underdetermined that functionalist interpretations of the
See, e.g., Nico Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (2010).
Ronald Dworkin, Hart’s Postscript and the Character of Political Philosophy, 24 Oxford J. Legal Stud. 1
(2004). 5
On fragmentation in international law, see Regime Interaction in International Law: Facing Fragmentation
(Margaret A. Young ed., 2012). 3
4
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I•CON 11 (2013), 1046–1051
type mentioned above could not be ruled out. Greater precision is necessary because,
without it, the relevance of the state to the processes of constitutionalization, which is
taken for granted in the article, becomes questionable. I will pick up this thread again
below.
The choice of constitutionalism could also reflect a thicker conception which sees
in constitutionalism a normatively appealing trajectory for the future of the international legal order. In fact, this type of account comes close to explaining the article’s
preference for, and urgency in regard to, constitutionalism. O’Donoghue does not
break bread with the skeptics of constitutionalism.6 But what could explain the normative appeal of international constitutionalism? The only possible answer is the perception that constitutionalism has largely been a success at the domestic level. This
approach posits a normative continuity between international and domestic constitutionalism, which is central to the article’s argument. The continuity is the effect of a
common “core set of norms” (p. 1028). They include the rule of law, democratic legitimacy, rules which constrain individual freedom, as well as tests of proportionality and
necessity, separation of powers, rules oriented towards the settlement of regimes, and
inalienable human rights regimes (p. 1027). One notes that the specification of these
norms is, unfortunately, somewhat uneven, since some norms are over-specified (for
instance, tying constitutionalism to proportionality in the application of fundamental
rights7) whereas other norms, such as democratic legitimacy, would be more accurately described as general values or principles.
I discuss these norms below and, more generally, the relation between different
levels of constitutionalism. There is, I argue, an unresolved tension in O’Donoghue’s
article between domestic and international constitutionalism. The mere mention of
“international constitutionalism” signals that, in O’Donoghue’s view, constitutionalism is not parasitic upon particular institutional arrangements at the state level.
At the core of constitutionalism there are the so-called norms of constitutionalism,
rather than a particular institutional structure. As O’Donoghue writes, “whereas a
particular structure of governance may vary, it is the norms underpinning the aims
of constitutional governance which must be present” (p. 1032). Yet, at the same
time, the state is a vessel by which constitutionalism enters the international realm.
O’Donoghue’s ­challenge is to remove from constitutionalism whatever elements make
it dependent upon the state, without, however, leaving the concept empty or overly
vague, and therefore unusable, at the international level.
Constitutionalism “does not differ between the legal regimes it claims to order”;
it is not “intrinsically linked” (p. 1031) to the domestic legal sphere. There are at
least two ways to understand the “link” and, correspondingly, “detachment” from
domestic law. The first interpretation, to which O’Donoghue clearly subscribes, is as
detachment from the particular institutional structure of any given state. The second
6
7
See, e.g., Jeremy Waldron, supra note 1; Duncan Kennedy, American Constitutionalism as Civic Religion:
Notes of an Atheist, 19 Nova L. Rev. 909 (1995). See generally Vlad Perju, Proportionality and Freedom: An Essay on Method in Constitutional Law, 1(2) Global
Const. 334 (2012).
International constitutionalism and the state: A reply to Aoife O’Donoghue
1049
interpretation is as detachment from any kind of institutional structure whatsoever.
Here, things become more difficult. Understanding the complex relationship between
norms and background institutional structures requires that we turn to the article’s
definition of constitutionalism as “norms of constitutionalism establish[ing] the relationship between the actors within a system” (p. 1032). It is intriguing to emphasize
the relational dimension of constitutionalism, especially in the international context
where newly arrived actors on that stage—such as corporations, individuals, non-governmental organizations, social movements—come with some baggage in relation to
the preeminent actors, the states. Whereas, in the domestic context, constitutionalism
regulates—no state action doctrine aside—the interaction between these actors and
state authorities, international constitutionalism also sets the terms for their interaction, albeit in a different key. The question is just how different that key is. Because
constitutionalism does its domestic work by relying on set institutional frameworks—
constitutional actors in the domestic sphere do not float in the ether but, rather, are
allocated institutional roles—it is necessary to raise the question of background institutional arrangements at the supranational level, as well. If those arrangements are
identical, then constitutionalism seems parasitic on—or intrinsically linked—to the
state. If they are radically different, then what exactly distinguishes O’Donoghue’s
project from one of “constitutionalism without a state”?8
The article does not offer conclusive evidence in either direction. In what follows,
I suggest that the article leans in the first direction, that is, it makes constitutionalism
parasitic upon the state. I base this interpretation on the analysis of two norms of
constitutionalism discussed in the article: the separation of powers and democratic
legitimacy. As O’Donoghue would probably agree, erring in this direction would be
particularly unfortunate because, first, it falls short of instituting a system of “review”
for the exercise of power relations at the international level; and, second, because that
failure also betrays the promise of using the fast-paced transformations to imagine
new institutional arrangements.
The article first discusses the separation of powers. As a norm of constitutionalism,
the implication is that separation of powers is a necessary feature of a constitutional
system properly so called. This norm requires the state to “step back from being the
sole subject of international law and take a place outside other points of governance”
(p. 1044). To be sure, the existence of non-state actors on the new international stage
presumably does not depend on actions taken by states. But states do need to take a
step back as they are but one of the powers to be separated. The international legal
order is subject to a vertical separation of powers, much like that of a federal system,
and states are one of the levels. The article mentions the recent Kadi saga9 in the Court
of Justice of the European Union, which suggest a system where each power basically
has the capacity to check the legislative outcome of law-making processes in some
of the other legal “orders”—or “powers”, in O’Donoghue’s account. This example is
helpful, but it seems limited to the European context. The EU is a very special case of
8
9
Gunther Teubner, Constitutional Fragments: Societal Constitutionalism and Globalization (2012). Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat, 2008 E.C.R. I-6351.
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I•CON 11 (2013), 1046–1051
constitutional integration, at least to the extent that its legal systems are integrated
within a highly elaborate and unique institutional system. Even bracketing away its
problems of democratic legitimacy, such a system possesses institutions that enforce
its secondary rules for the resolution of conflicts relating to the allocation of competencies. As O’Donoghue acknowledges, this allocation is bound to be the object of
dispute within any system that allocates power along a vertical axis, akin to a federal system.10 The existence of an institutional framework, such as the one at play in
Kadi, or, indeed, in any domestic jurisdiction, makes the situation more manageable
because it assumes the existence of a process already in place of mutual recognition
of the different normative systems. But, if that structure is not in place, can processes
of constitutionalization create a momentum to get the separated powers, as they are
called in the article, to provide normative checks on one another outside of such a
framework?
This leads us to a bigger difficulty with the separation of powers. The article portrays
separation of powers as the solution to the dangers of the accumulation of power. This
norm of constitutionalism is said to undercut the exercise of monopoly power and
therefore has to have the effect of limiting it. However, one should be careful not to
mistake the principle of separation of powers for either the principle of the limitation
of powers or the principle of checks and balances. As Jeremy Waldron has recently
argued, the separation of powers has more to do with process of governance, and specifically with “articulated government through successive phases of governance, each
of which maintains its own integrity.”11 The idea is that, in a system of separated powers, each branch can bring its own special role to the governance of society through
law. We find here the centrality of its institutional dimension and its role in the lawmaking process. Even granting O’Donoghue’s claim about vertical separation of powers at the international level, more needs to be said about the background institutions
to which the principle would apply (who are its addressees?). The article glosses over
these details, presumably because it mistakes the international level for the domestic
level, where such matters are taken for granted. But this only reinforces the depend­
ence of this type of constitutionalism upon the state.
I will be briefer on democratic legitimacy, which is the second norm of constitutionalism discussed in O’Donoghue’s article. This norm is related to separation of powers
and seeks to “establish democratic will formation powers at all points of governance
within the international legal order” (p. 1041). But what does democratic will formation entail at various jurisdictional levels? What does democracy, and democratic
legitimacy, mean across local, state, regional, and various international legal spheres?
One lesson to be learned from the history of the European Union is that the meaning and institutional dimensions of democracy are different at various levels of governance. Past attempts to mitigate the Union’s democratic deficit have focused on
the European Parliament under the questionable assumption that mechanisms of
O’Donoghue, supra note 1, at 1036 (discussing “differing governance competences at the state and international level”).
11
Jeremy Waldron, The Separation of Powers in Thought and Practice?, 54 B.C. L. Rev. 433, 467 (2013).
10
International constitutionalism and the state: A reply to Aoife O’Donoghue
1051
democratization at the national level must be replicated at the supranational level.
What is long overdue within the EU is a serious rethinking of the nature of political
representation at the European level. The same is true more generally at the international level. For our purposes, if the implications of this norm of constitutionalism turn out to be significantly different at various levels of governance, one can ask
whether there might be a plurality of norms of democratic legitimacy.
Because O’Donoghue’s article does not pursue this line of inquiry, its approach to
democratic legitimacy comes closer to the study of a general value, rather than of
a constitutional norm. The stability of constitutionalism, to which I referred at the
beginning of this reply, should not be a function of the vagueness of concepts such
as democracy. The meaning of constitutionalism and democracy comes across not so
much as stable but as static. The emphasis on democratic legitimacy, and particularly
on the interplay between domestic and international legitimacy, shows the limits of
holding the meaning of constitutionalism artificially constant. The article claims that,
in order to be “fully democratically legitimate within the state, the state must only act
in the state’s interest and ought not to take extraneous considerations into account”
(p. 1041).12 This conception tracks too closely the definition of democracy that has
been put forth in domestic constitutionalism. There is a risk that the norm of democratic legitimacy becomes the medium through which the domestic conception enters
the international realm. In its present formulation, like separation of powers, democratic legitimacy is a norm of constitutionalism that is overly dependent on the state
and insufficiently tailored to the international sphere.
For a similar view, see Jack Goldsmith, Liberal Democracy and Cosmopolitan Duty, 55 Stan. L. Rev. 1667
(2003).
12