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The publication by Jeffrey L. Dunoff and Joel P. Trachtman of Ruling the World?: Constitutionalism,
International Law, and Global Governance brought to the fore in a sustained manner a growing literature
which had appeared somewhat piecemeal in journals of international law, constitutional law, international relations and the like. The theme underscores a major intellectual and academic interest of
I·CON and we dedicate our first I·CON Book Forum to this volume. A dedicated Review Essay by Vicki
C. Jackson is followed by four articles—all related to the theme of the book—by Günter Frankenberg,
Ignacio de la Rasilla del Moral, Christine E.J. Schwöbel, and Eric Ip. Expect the Global Constitutionalism Discourse—and its critics! —to be a permanent feature of I·CON.
JHHW
Paradigms of public law:
transnational constitutional
values and democratic
challenges
Vicki C. Jackson*
A review essay on Ruling the World?: Constitutionalism, International Law, and Global
Governance, by Jeffrey L. Dunoff & Joel P. Trachtman eds., Cambridge University Press,
2009, 414 pages.
The title of this book conveys the coexistence of high ambition and dual anxieties—
anxieties about the threats to constitutions and constitutionalism from the claims of international law; anxieties about the possibilities of international law in the ambitiously
invoked system of global governance. Indeed, the book itself might be thought a symptom
of the struggles to find new paradigms for understanding the foundations of legal legitimacy in a world where the apparent certainties of law production and legitimation,
bounded by national state lines, are in question. As Tom Franck’s introduction suggests
(p. xi), some of the attraction to the idea of a constitution or constitutionalism in international regimes reflects the added “gravitas” of constitutionalism, its positive normativity. This additional gravitas exists to the extent that constitutions—in some states—are
regarded as more like “real law” than is international law, or as more legitimate.1 Be* Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center. Email:
[email protected].
1
See also J.H.H. Weiler & Marlene Wind, Introduction to European Constitutionalism Beyond the State, at 2
(2003) (suggesting that the popularity of debate over a “constitution” for Europe may lie, in part, in its
providing an apparently “ready-made model for solving some of the legitimacy problems of an enlarging
community,” and also may serve as a “subterfuge for not dealing with deep-seated problems of democracy”).
I•CON (2010), Vol. 8 No. 3, 517–562
doi: 10.1093/icon/moq031
518 I•CON 8 (2010), 517–562
hind Franck’s comments, and many of this book’s chapters, lies a long-standing anxiety
about the possibilities of international law. What makes this collection rise above many
others is that, as the editors’ introduction suggests, anxieties about constitutions, their
sources of authority and their legitimacy are in some instances simultaneously explored.
Do territorial state constitutions necessarily rest on a common demos, a sense of
being one people, or of occupying a shared nomos, or “normative universe,” held together by common narratives?2 In some parts of the world, the answer is plainly yes,
to one or the other of these possibilities. In other settings, however, constitutions are
used more as tools of international peacemaking3 and, at the same time, as tools to
try to create a demos or, at least, a shared nomos that can then carry forward in helping to constitute a polity capable of performing state functions. Do national constitutions provide the ultimate legitimacy in law for the actions of their governments? For
many internationalists, the answer is no, not when the action is inconsistent with international law. For some of the authors in this stimulating collection, the answer is only
sometimes, depending, for example, on the degree to which national action imposes
externalities better captured by international law. Other scholars (who go largely unrepresented in this book), for whom national sovereignty is legitimately rooted in the democratic decisions and popular will of those living in a predefined territorial entity, would
say yes, that the national constitution provides the ultimate base of legal legitimacy for
governance and thus defines and limits the internal force of international law.4
The question mark after Ruling the World? signals a tone of skepticism, yet the words
that follow—constitutionalism, international law, and, most of all, global governance—
are very serious words. The phrase “global governance” might be read to make a major
claim, going beyond the state-based meanings implicit in the idea of international law
as a special species of law that exists between states, not law that is concerned with a
grand world governance project. Claims about “ruling the world,” even if made with
a question mark, might be thought to raise problems of premature or inappropriate
constitution making or constitutional aspiration. The book title may itself be a part of
what David Schneiderman calls “a project,”5 one in which the descriptive and normative blend, as the questions whether the WTO has a constitution, or whether the UN
Charter is a constitution, or whether the EU has or should have a constitution imply
the positive normativity of the goal (and, as Professor Schneiderman notes critically,
of associated increases in globalized, integrated economic relations).
Section 1 of this review summarizes the book’s chapters, trying to identify some tensions in the competing definitions and assumptions about constitutions, constitution
4
2
3
5
See Robert Cover, Nomos and Narrative, 97 Harv. L. Rev. 4 (1983).
See Christine Bell, Peace Agreements: Their Nature and Legal Status, 100 Am. J. Int’l L. 373 (2006).
For a thoughtful treatment of the claims of those who resist the pull of the international, see Allen
Buchanan & Russell Powell, Constitutional Democracy and the Rule of International Law: Are They Compatible, 17 J. Pol. Phil. 326 (2008) (arguing that international law and constitutional democracy are
not necessarily compatible, and sometimes compliance with international law or commitments to international law should be understood to require a constitutional moment, or constitutional amendment, of
higher deliberation, in order to mitigate the incompatibility).
David Schneiderman, A New Global Constitutional Order?, in Handbook in Comparative Constitutional Law
(Rosalind Dixon & Tom Ginsburg eds, forthcoming 2011.)
Paradigms of public law: A review of Ruling the World? 519
alism, and international law and their links to the varying normative projects of the
authors. Section 2 identifies and explores three possible purposes or meanings behind
the claim that international law is, in some sense, “constitutional.” Section 3 focuses on
the reconceptualizations of the relationships between national and international law at
the heart of several chapters, especially those in the later part of the book. It argues for
a less ambitious understanding of transnational constitutionalism as a set of values,
not yet legal rules nor even a presumptive matrix for decision making, whose normativity and content are still very much in contest.
1. Defining the project
The book concerns itself with several large debates. One focuses on whether, within
the field of international law, some aspects of that field may be identified as “constitutional” in character with respect to other aspects of international law. A second debate
concerns whether international law, or some aspects of it, are “constitutional” vis-àvis their relationship to domestic state constitutional law, either in particular settings
(such as the EU) or more generally. These two debates are related, since the arguments
for treating some forms of international law as “constitutional” in character relative to
other forms of international law may also be invoked to support the constitutionally
“trumping” character of international law over domestic (including constitutional) law.
1.1. Competing paradigms for scholarship
The first two chapters offer competing paradigms for scholarly work on the questions
of constitutionalism, internationalism, and global governance. They provide strikingly different conceptions of multiple projects of definition and claiming, by institutions and individual actors, of alternative sources of law, and of constraints on law
from nonlaw sources of power.
In the first chapter, Dunoff and Trachtman refine the title of the book: the subject
is “constitutional practice” and “constitutional discourse” at “sites of transnational
governance” (p. 3). This is, indeed, the subject, but note how this description differs
from the title. It is narrower; transnational sites of governance exist, no doubt; but
“global governance” as a unitary phenomenon is a different matter. Note how the
term “governance” as opposed to “government” is associated with the disaggregation of the state.6 One feature of general government, as envisioned in most national
state constitutions existing either in unitary or federal form, is responsibility for a wide
range of issues of governance, from election law to agriculture to banking and securities to health care and social welfare. “Governance,” on the other hand, is a term
6
On disaggregation into functional sectors across national boundaries, see, e.g., Anne-Marie Slaughter,
A New World Order 131–162 (2004); cf. John H. Jackson, Sovereignty, The WTO and Changing Fundamentals
of International Law 57–78, 214–215 (2006) (discussing “sovereignty-modern” and “slicing the concept of sovereignty”).
520 I•CON 8 (2010), 517–562
applied to many discrete regulatory regimes whose decision makers, however complex the questions before them, may have only sectoral responsibilities.
For these authors, “the distinguishing feature of international constitutionalization
is the extent to which law making authority is granted or denied to a centralized authority” (p. 4). International constitutions, they say, may either enable or constrain
the production of international law; they also perform a “supplemental function” to
national constitutions. Thus, the authors treat as a defining feature of constitutions
their authorization of secondary legislation or rules. The authors do not, however,
defend these as quintessentially constitutional: How are state or international constitutions different from those of a golf club that authorizes an executive committee to develop its rules?7 In the domestic public law setting, statutes may enable the
production of other norms and may constrain norms, as well. The authors appear to
further refine their efforts to distinguish international constitutionalism with the idea
of enabling an “aggregate allocation” of authority (p. 11). This definition implies not
widespread multifunctional competencies but, rather, the authority to make multiple
decisions in the future, designed under a “veil of uncertainty” with respect to the distributive consequences of the authorization of action. (p. 11).
As for “supplemental” constitutionalism, the authors suggest that international
law interacts with or backstops domestic constitutional law (pp. 14–15) in ways not
dissimilar to those of Anne Peters’s “compensatory” constitutionalism.8 Dunoff and
Trachtman’s examples include two kinds of supplements. First, they describe the reciprocal emergence of international due process or other individual rights norms,
designed to enable the recognition of other international norms within domestic
constitutional systems by providing adequate assurances of meeting similar fundamental standards (as with the Solange or Kadi cases). Second, they describe resort to
international law to try to constrain abusive hegemonic behavior by powerful states
(for example, by the U.S. in Guantanamo) (pp. 15–17). The “pressures” for international development of constitution-like constraints, which they describe in the first
set of examples, come from domestic states seeking to spread their own norms to the
actions of international bodies; in the second set, international bodies and foreign
states seek, regardless of reciprocity, to spread their norms to the domestic actions of a
human rights–violating state. As I will suggest below in section 3, these two different
postures entail somewhat different normative justifications and challenges.
Dunoff and Trachtman go on to distinguish the major functions of international
constitutionalism from its mechanisms, which include the creation of governance
institutions and allocation of horizontal authority; the allocation of vertical authority;
supremacy doctrines; stability and entrenchment rules; fundamental rights; judicial
7
8
Cf. Mattias Kumm, Beyond Golf Clubs and the Judicialization of Politics: Why Europe has a Constitution Properly So Called, 54 Am. J. Comp. L. (Suppl.) 505 (2006).
See Anne Peters, Compensatory Constitutionalism: The Functions and Potential of Fundamental International
Norms and Structures, 19 Leiden J. Int’l L. 579, 580 (2006) (suggesting that a “constitutionalist reconstruction” of international law “is a desirable reaction to visible de-constitutionalization on the domestic
level” as a result of globalization); see also Anne-Marie Slaughter & William Burke-White, The Future of
International Law is Domestic (or, The European Way of Law), 47 Harv. Int’l L. J. 327, 339–343 (2006).
Paradigms of public law: A review of Ruling the World? 521
review; and accountability/democracy mechanisms. This is a predominantly functional and institutional approach to defining degrees of constitutionalization, having
as a goal to provide a matrix, non-normative in character, to promote further study.
Yet one message of David Kennedy’s chapter is the impossibility of separating empirical and descriptive scholarship from normativity. Offering a synthetic intellectual
history of “Earlier Efforts to Reimagine the . . . World in Legal Terms” (p. 43), Kennedy
problematizes the idea of world constitutionalism as a project, pointing out the implicit normativity of nominally empirical inquiries. Arguing the purposivist and proceduralist bias of the project of international constitutionalization, Kennedy notes that
the constitutional vocabulary may obscure, rather than advance, scholarly work by
implying things are more settled than they are. Moreover, some features of constitutionalization that might at first appear normatively neutral or conventionally desirable, such as judicial review, may have quite adverse distributive consequences and/or
threaten democracy, as Kennedy notes Professor J. H. H. Weiler’s question whether it
advances democracy to allow private persons to bring judicial challenges to “national
democratic decisions” based on EU law. (p. 64). Kennedy’s chapter adds an important
note of caution, warning, and epistemic humility to the enterprise; indeed, one might
take the theme of this second chapter to be the need to ask a whole range of other questions before the “ruling the world” question. Kennedy’s paper suggests we may not yet
know enough to know whether, as a normative matter, regimes like the UN, or the
WTO, are worth stabilizing or further developing with respect to law-enabling or lawconstraining capacities or whether they should, instead, be objects of “unsettlement.”9
Unlike the structural and functional matrix of the introductory chapter, Kennedy’s
scholarly agenda is fundamentally concerned with the actual distributions of power—
whether among corporate and financial actors, or private arms merchants, or criminal organizations, as compared with governments and civic populations, or about
the role and power of experts and who is identified or constructed as an expert. It also
raises comparative disciplinary questions: Why the frame of constitutionalism rather
than any of the many other frames through which nonstate rules of ordering could
be examined—in standards-setting bodies, through the new global administrative
law project, in the “systems theory” work of Gunther Teubner and Niklas Luhmann,
or the work of Boaventura de Sousa Santos and others on “law from below”? What
does constitutionalism add, and what does it obscure? Conventional understandings
and frames of “constitutionalism,” he suggests, are not “up to the task of holding the
fort,” or of “channeling peaceful change” (p. 66). In taking a functional, institutional
turn himself, at the end of the essay, Kennedy urges a more imaginative, experimental
approach, asking us to imagine how to build a transnational political will by, for example, giving each citizen of the world three votes.
A question raised by Kennedy’s essay is whether constitutionalism itself might supply a more critical frame. For some other scholars, not in this collection, like Martti
9
Louis Michael Seidman, Our Unsettled Constitution: A New Defense of Constitutionalism and Judicial Review
(2001) (proposing a theory of judicial review based on its capacity to unsettle normatively problematic
decisions made elsewhere).
522 I•CON 8 (2010), 517–562
Koskenniemi, “what is important is the use of the constitutional vocabulary to express
a fundamental critique of present politics;” he suggests that “the virtue of constitutionalism in the international world follows from a similar universalizing focus, allowing extreme inequality in the world to be not only shown but also condemned;” dying
of malaria or suffering torture can be seen not just as unfortunate historic events but
as endowed “with sacredness or with a symbolic meaning that lifts them beyond their
individuality,” working as “ ‘archetypes’ ” or normative moorings for political identity.”10 Constitutionalism, here, then, seems to be another word for a higher morality
of governance, within a generally Kantian project.
Koskonniemi’s conception of the critical capacity of constitutionalism may be contrasted with David Schniederman’s, who has distinguished comparative constitutional
law as a “project” from comparative constitutional law as a “critique,”11 arguing that
a critical posture on constitutionalism, one that looks at the harms associated with the
constitutionalization or entrenchment of unjust regimes, should be high on the scholarly agenda. To the extent that constitutions are understood as special forms of law,
entrenched beyond ordinary politics, those at the bottom end of an unjust distribution
of powers may object to the very idea of settlement or entrenchment.12 Perhaps for
Kennedy, as for Schneiderman, the valorization and power implications of constitutional or international law is a more important inquiry than the categorization of systems as constitutional or not. In any event, together, the opening chapters invite us
to consider not merely questions of definition but whether the questions of the book’s
title are the best questions for scholars to be thinking about.
1.2. International legal structures as constitutional?
The next six chapters, constituting much of the middle portion of the book, are, with
at least one clear exception, situated within what Kennedy (and Schneiderman) might
view as the “constitutionalism as project” camp. That is, to be or to have a “constitution” is assumed, in some respect, to be normatively desirable. As these chapters also
illustrate, there are multiple conversations about constitutions and constitutionalism in
play, some of which pass each other by without directly joining issue on their underlying
disagreements over what it means to be a constitution in a normatively significant sense.
Andreas Paulus denies that international law, as a whole, can be thought of as
a constitution, because it is fragmented into multiple different regimes, lacking the
quality of governance across issue areas characteristic of a national constitution
(p. 108). Paulus argues that constitutionalism need not be associated with particular
institutions but rather constitutionalism as a “mind-set” is called for (p. 109, quoting Koskonniemi). For Paulus, the essence of constitutionalism is to “control inter Martti Koskenniemi, Constitutionalism as Mindset: Reflections on Kantian Themes About International Law
and Globalization, 8 Theoretical Inq. L. 9, 35–36 (2007).
11
Schneiderman, supra note 5.
12
See Vicki C. Jackson, Gender Equality and the Idea of a Constitution: Entrenchment, Jurisdiction and Interpretation, in Constituting Equality: Gender Equality and Comparative Constitutional Law (Susan H. Williams ed.,
Cambridge Univ. Press, 2009).
10
Paradigms of public law: A review of Ruling the World? 523
national power” (p. 88). Quite explicitly limiting the query to constitutionalism in the
Western tradition, he identifies democracy, solidarity, the rule of law, separation of
powers, respect for the rights of states, and respect for human rights as the substantive
elements. On these elements, international law cannot be said to have a constitution.
Paulus argues that an international law “constitution needs substantive principles to
stand on, not merely a formal derivation of all rules from a common source” (p. 87).
Why should the constitutionalism of the international system inhere in its substance?
Because doing so would enhance the legitimacy of international law and, thus, make
it more attractive for nations to follow, he says (p. 87). Some attributes of national
constitutions and constitutionalism can be pursued, realistically, at the international
level, including the application of human rights as a constraint on the actions of international organizations. Other gaps between international law and national constitutions, with respect to core attributes of constitutionalism, including democracy and
solidarity, cannot so easily be bridged (pp. 90–106).
The next two chapters take up whether the UN Charter can be viewed as a global
constitution. Michael W. Doyle proposes several criteria (many of which overlap
those proposed in the editors’ introduction), characteristic of domestic constitutions,
against which to measure the Charter. Like Paulus, he concludes that a national constitution is characterized, in part, by the pervasiveness of its subject areas and its claim to
be the foundation for all other law in the system; neither of these characteristics—of
pervasiveness or being “basic”—he argues, characterizes the UN Charter. Much international law, he says, precedes the Charter and much develops independently of it.
In some respects, however, the UN Charter is constitution-like. It has supremacy
over other forms of international law in some areas; it is meant to endure perpetually
and is very hard to amend (pp. 114-115); and, of particular note, the Charter authorizes nonunanimous decision making—a form of “ ‘supranationality’ ” that “permits
authoritative decisions without continuous consent” (p. 115). Doyle argues that this
attribute of “supranationality”—of authorized, nonunanimous decision making—
enables the asymmetrical exercise of authority (asymmetrical especially with respect
to the five permanent members of the Security Council who, in effect, can exempt
themselves from certain commitments). He also describes how ”supranational” elements of the UN Charter facilitate several different forms of nonunanimous decision
making—in administration, in the delegation of authority to the secretary-general,
and in decision making by the Security Council for the members (pp. 116–131). At
the same time, however, he notes that the exercise of “supranationality” can generate objections by member states, concluding that the “UN ‘constitution’ of 1945
still authorizes more than the members are now prepared to cede” (p. 132).
For Bardo Fassbender, by contrast, the UN Charter is more clearly a constitution for the international legal order. Applying functional criteria, Fassbender concludes that the UN Charter meets all criteria for a constitution, albeit one dressed
“in the clothes of a treaty” (p. 133). The Charter, in his view, is a constitution both
for the UN as an institution and for the international community (p. 138). He offers
a nonsubstantive formal definition of a constitution, namely, that it deals with the
governmental organization of a community, is intended to last indefinitely in time,
524 I•CON 8 (2010), 517–562
and to be binding and paramount on “governmental institutions and the members of
the community alike” (p. 139).13 Fassbender also embraces substantive elements—
fundamental rights, judicial review, and democracy/accountability—and argues
that the UN Charter does as well. The Charter has primacy over other international
law (p. 140); and, to the extent that constitutions are supposed to be aspirational,
the UN Charter’s aspirations meet those criteria. UN members are “ ‘constituent parts
of politically constituted world society,’ ” combining a commitment to world peace
and human rights with a prohibition on violence backed by real sanction (p. 141,
quoting Jürgen Habermas). Fassbender is candid in linking the descriptive with the
normative, explaining that if the Charter is seen as a constitution “ ‘in a descriptive
way . . . [it] will have a normative connotation, implying a commitment to managing
public affairs in accordance with fundamental values and through certain formally
legitimate procedures ’ ” (p. 147, quoting Herman Belz). So the Charter is already a
constitution embodying this commitment, and, if so viewed, it will become more so,
that is, its constitution-like character will motivate energy for reform.
For Neal Walker, however, a constitution, by definition, cannot apply to the world;
a constitution “proceeds on the assumption that politics is an activity capable of being
located within certain clearly differentiated containers of social space” (pp. 151–152).
Walker’s definition embraces a strong connection between a constitution and “politics,”
in ways quite different from Fassbinder’s. Walker also emphasizes a “broad jurisdictional scope” as part of his discussion of constitutions (p. 153). Drawing on the modern
constitutional traditions embodied in U.S. and French constitution making, Walker
suggests five different senses or “frames” in which a constitution may exist: juridical
(“the idea of a mature rule-based or legal order,” p. 153); “political institutional” (“the
presence of a set of organs of government that provide an effective instrument of rule
across a broad jurisdictional scope for a distinctive polity and seek a fair form of internal balance between interests and functions,” p. 153); authorization (“a developed
sense of self-authorization . . . in which the legal and political-institutional complex
may plausibly be attributed to some pouvoir constituant that is both original to and distinctive of that polity. . . ,” pp. 153–154); social (“a community sufficiently integrated
to be the subject of legal regulation and institutional action that is both plausibly effective in terms of collective implementation and compliance and capable of locating and
tracking some meaningful sense of that community’s common good,” p. 154); and
discursive (“the balance of existing ideological power struggle between self-interest
and the ongoing normative ‘battle of ideas’ entailed . . . under the binary logic of
constitutional/unconstitutional with all that implies in terms of the . . . worthiness of
the phenomena so framed,” p. 154).
Walker is not so much concerned with the relationships of constitutionalism to international law or organizations as he is with exploring the ways in which the European Union
has or has not developed within these five frames of reference conventionally associ Although Fassbender states that the Charter should not be equated with a national constitution (p. 145),
it would appear that for Fassbender, the member states of the UN are in the role of the substate entities
and individuals who are the more typical actors, subjects, and objects of national constitutions.
13
Paradigms of public law: A review of Ruling the World? 525
ated with national state constitutions in the U.S. and Western Europe. He situates three
strategies of a constitutional project in Europe—intensification, nominalization, and
refinement—within these frames, arguing that the most urgent need for the process of
European constitutionalization is to establish a more democratic connection between
the people and the EU level of governance, which is related, as well, to advancing a selfauthorized basis for the EU. His emphasis on the dual character of constitutions—as
constituting something that already exists while providing a framework to change what
that something is (p. 153)—provides an important potential link between what he calls
“postnational constitutionalism” and the possibilities, over the long run, for delinking
constitutionalism from that “differentiated social space” with which he opens his essay.
The next two chapters take up the World Trade Organization (WTO) and its status
as “constitutional.” Jeffrey Dunoff argues that the WTO is not a constitution in any
strong sense of the word. Although it has some law-enabling features, according to
the schematic of the introduction, it has few law-constraining features and no features of supplemental constitutionalism; thus it is “at best a very weakly constitutional order” (p. 184). Dunoff suggests that although there are several scholarly
approaches toward understanding the WTO as a constitution,14 these conceptions are
either not or very little reflected in the self-understanding manifest in the WTO’s own
practices. Scholarly attention to the WTO as constitutional, Dunoff argues, is an effort
to infuse the WTO with the “ ‘legitimacy of higher law—irreversible, irresistible and
comprehensive’ ” (p. 201, quoting Howse and Nicolaïdis), “an effort to bridge the gap
between the WTO’s perceived power, and the lack of a broad popular basis for exercise of that power” (p. 202). If, for Walker, a constitution is intimately connected with
a differentiated space for politics, for Dunoff the move to “constitution” talk in the
WTO literature is an effort to restrict the role of politics (as conducted through interstate diplomacy) and instantiate the role of law, albeit unsuccessfully. Future work,
he suggests, should explore different frames for understanding the WTO—not only
in a traditional nation-state constitutionalist frame but one grounded in postnational
constitutionalism, with its emphasis on legal pluralism, or in the somewhat less ambitious normative goals of “global administrative law.”15
In contrast to Dunoff, Trachtman argues that there is an international constitution
and that the WTO is part of it. The WTO provides law-enabling, law-constraining, and
supplemental functions (with respect to the last, by constraining rent-seeking by business interests within national states).16 Trachtman argues, however, that the introduction’s matrix of mechanisms does not identify what the best ex ante rules would be
for an international trade constitution, and suggests that tools of economic analysis,
These include one focused on its institutional character (p. 185), another focused on its substantive
norms (p. 187), and a third focused on the lawmaking capacities of its adjudicatory bodies (p. 189); see
generally pp. 185–192.
15
On the more modest ambitions and epistemological requirements of global administrative law, see Nico
Krisch, Global Administrative Law and the Constitutional Ambition, LSE Law, Society and Economy Working
Papers 10/2009, available on SSRN.
16
See also John O. McGinnis & Mark Movsavian, The World Trade Constitution, 114 Harv. L. Rev. 511
(2000).
14
526 I•CON 8 (2010), 517–562
based on the states as individual rational actors,17 could help design such rules, which
in his view are critical to constitutional legitimacy: “[L]egitimacy is no more than the
acceptance ex post of the results of a mechanism that was designed and accepted ex
ante to maximize aggregate preferences” (p. 214). Conceding the WTO’s weaknesses
on democracy and solidarity, Trachtman suggests that improved democracy within
member states is the best avenue to deepening the WTO’s democratic legitimacy
(p. 220). As an international organization moves from unanimous to majority-rule
decision making, he adds, it may need to adopt more constraints, to protect the interests
of nonconsenting member states (p. 221), a story that has been told by others in the
context of the move from unanimity to qualified majorities in the EU.18
Notwithstanding his view that international law is constitutional in character, Trachtman expresses concern over fragmentation and sectoral disputes in international
law. He argues the need for clear “tertiary” rules as to which organization or body of
international law is controlling for an “interfunctional rule of constitutional subsidiarity, allocating constitutional authority to the international organization best able to
address the relevant issue” (p. 229). Whether these rules should develop through treaty
making, decentralized adjudicatory processes, or otherwise is not explored; however, the
argument might be seen as an illustration of what I describe below as “reformist” uses of
the “constitutional” denotation. As a positive matter, finally, Trachtman suggests that
a demand for international law may create cascades of demands for other kinds of law.
Thus, international “constitutionalization,” created by demands for economic integration, or economic liberalism through “enabling constitutionalization,” as implemented
in the WTO through judicial decisions, will prompt calls for responsive “legislation,” presumably at the treaty level (p. 217), which will be at once “enabling” and “constraining”
(with constraints consisting either of jurisdictional limits or human rights) (p. 220).
1.3. Normative choices and relationships among overlapping regimes
The last several chapters all explore the relationships between different sources of
arguably “constitutional” public law. A striking theme is the highly contextualized,
If the state is now disaggregating many traditional functions (see supra note 6), a single rational state
actor model may need adjustment. Even in the domestic setting, compare Trachtman’s assumption that
a state may be regarded like an individual rational actor, with, e.g., Daryl Levinson, Empire Building
Government in Constitutional Law, 118 Harv. L. Rev. 915, 920 (2005) (arguing that personal incentives
of government officials or representatives do not necessarily coincide with institutional interests of their
office; “The behavior of government institutions depends upon some combination of the interests of
the officials who comprise them and the constituents these officials represent”). Professor Trachtman’s
definition of legitimacy as “no more than” the ex post acceptance of mechanisms relating to preference
aggregation, is also contestable. See text at note 108, below (discussing constitutions as a form of selfauthorship); cf. Walker, in Ruling the World, at 159 (discussing constitutional frame of social integration,
a “sense of common attachment or common predicament” sufficient to sustain mutual trust).
18
See, e.g., George Bermann, Taking Subsidiarity Seriously: Federalism in the European Community and the
United States, 94 Colum. L. Rev. 332, 345–346 (1994) (arguing that the move to qualified-majority
voting in the EC contributed to the importance of subsidiarity as a constraint on EC powers); cf. J.H.H.
Weiler, The Transformation of Europe, 100 Yale L. J. 2403, 2464–2474 (1991) (exploring implications of
shift to majority voting).
17
Paradigms of public law: A review of Ruling the World? 527
graduated approach that emerges in each chapter. The stated constitutional values—
whether they be democracy, rights protection, expertise, subsidiarity—imply that, in
different cases, one level of government or another, or one institution or another, will
have stronger normative claims to respect as controlling law. There is both substantial
agreement and, perhaps, some small disagreement among these chapters over what
the relevant “constitutional” values are and their weight. But with the exception of
Professor Samantha Besson’s suggestion that national systems decide, the relative
lack of attention given to concrete mechanisms to manage or resolve contests may
raise the question – Are we all institutional “pluralists,” now, content to identify normative criteria for evaluating competing claims of overlapping legal orders without
assigning final authority to resolve those claims to a particular institution(s)?19
Stephen Gardbaum’s chapter on human rights and constitutionalism suggests
another definition of what distinguishes a constitution from other law, one that focuses on questions of authorship and origin. First, he suggests, a constitution is typically made in a special moment, not as part of more routine lawmaking; it is superior
to other forms of law; and it is entrenched, difficult to amend, and must be changed
by the same method it is adopted (pp. 238–239). On these measures, it is unclear if
human rights is itself a constitutional system, he concludes. Second, he goes on to ask
if there is a process of constitutionalization of international human rights law occurring, whereby law that originates in a treaty becomes accepted as constitutional in
character, largely as a result of its being given direct effect within member states and
being subject to development though nonunanimous supranational decision procedures. Although he believes that European human rights law has become constitutionalized, he finds the answer less clear with respect to international human rights
law more generally. Third, he considers whether human rights law advances the constitutionalization of international law as a whole and finds that, while it does, especially insofar as it is premised on a direct relationship to human beings, it is not that
far along because of the continued role of consent in determining the binding force of
international law, including human rights law.
In perhaps the most important contribution of the chapter, Gardbaum asks what
functions do international human rights play alongside of domestic constitutional
rights. First, he argues, international human rights fill gaps in domestic constitutional
protection, both in states that do not protect rights and in countries that generally do,
but which do not extend constitutional protections to non-nationals or extraterritorially.
Second, they create an external source of constitutional development, an extra level of
independence in the protection of human rights; they “[give] states a cognizable legal
interest in how other populations are treated by their governments” (p. 254). Relatedly,
because human rights depend not on citizenship but on existence as a human being,
they advance the project of constitutionalism—that is, the project of limiting government powers on behalf of individual rights—to a new stage (p. 255). As Gardbaum’s
arguments suggest, the stakes that international human rights law gives states in how
Cf. Paul Schiff Berman, Global Legal Pluralism, 80 S. Cal. L. Rev. 1155 (2007).
19
528 I•CON 8 (2010), 517–562
foreign nationals in other states are treated is one of the defining characteristics of the
post–World War II period of constitutionalism, a reflection of the relationships felt to
exist among states, peoples, and courts in a legalized joint project. These felt relationships, however, may have darker as well as lighter aspects, as I discuss below.
The possibility that either international law or constitutional law, in any given setting,
may have ‘darker sides’ is also reflected in Mattias Kumm’s proposal for a reconception of constitutionalism beyond the “statist paradigm,” which he calls “cosmopolitan
constitutionalism” (p. 262). Kumm argues that the cosmopolitan constitutionalism
frame is descriptively more accurate as a jurisprudential understanding of how law is
operating, and is more normatively attractive than the “statist paradigm,” which he
associates with jurisprudential views that locate law’s authority in the sovereign will of
a particular state’s people (pp. 262–263). For Kumm, international law and constitutional law function within an “integrative basic conceptual framework for a general
theory of public law” (pp. 263–264). Under this approach, the national constitution
must “be justified to those it seeks to govern,” but that “justification has to meet a complex standard of public reason, established by the principles of cosmopolitan constitutionalism, not by the will of the demos” (p. 268).20 Moreover, “this complex standard of
public reason requires taking into account legitimate concerns of outsiders” (id).
Kumm’s ambitious project is to provide the jurisprudential and normative basis for
“opening up” domestic constitutional orders to international law, thereby denying
the sharp distinctions sometimes drawn between constitutional law and international
law. Kumm argues that there are neither special legitimacy problems nor special compliance problems that are “radically distinct” in international as compared with domestic law (p. 323).21 For both kinds of public law, he argues, four criteria constitute
the matrix of appropriate sources of normative legitimacy, derived from a bedrock
commitment to human beings as free and equal. These criteria, described in this and
Kumm’s other writings,22 are: (1) a formal principle of legality and respect for law
(see pp. 268, 274);23 (2) a jurisdictional principle of subsidiarity, which may allocate
jurisdiction either to more remote or less remote levels of governance; (3) a procedural
principle of due process, which means democracy inside the state and good governance at the international level (see p. 272); and (4) “substantive principles of respect
Public reason requires resort to principles, such as proportionality, not to democratically rooted texts,
especially when the government is acting unreasonably (p. 268).
21
For a thoughtful explication of this position, see Jack Goldsmith & Daryl Levinson, Law for States: International Law, Constitutional Law, Public Law, 122 Harv. L. Rev. 1791 (2009) (arguing that international
law and constitutional law face unappreciatedly similar challenges of legal uncertainty, enforcement,
and normative legitimacy).
22
See, e.g., Mattias Kumm, Democratic Constitutionalism Encounters International Law: Terms of Engagement,
in The Migration of Constitutional Ideas (Sujit Choudhry ed., 2006).
23
“Legality” here takes account of the legal demands of both domestic constitutions and international law.
Kumm situates his cosmopolitan understanding of legality in between a “statist” view that allows too much
control to domestic constitutions and a “monist” view of international law that takes account of legality
but ignores commitments to democracy and substantive rights (p. 277). As Anne Peters and others note,
international law is increasingly nonconsensual in character. See Peters, Compensatory Constitutionalism?,
supra note 8, at 587–589. To the extent this is so, the principle of legality is likely to conflict with principles
of democracy more than in those settings where what law is binding is subject to national consent.
20
Paradigms of public law: A review of Ruling the World? 529
for human rights and reasonableness” (p. 277). Given the principle of legality, international law should presumptively be applied except where “there is a sufficiently
serious violation of countervailing constitutional principles relating to jurisdiction,
procedure, or substance”—but, interestingly, not the principle of legality of the national
constitution (p. 277).
There are two major elements to Kumm’s claim: first, that constitutions, as well
as international law, can and should be measured against an independent metric of
“constitutionalism”;24 second, that both in cases of conflict and for interpretive purposes, cosmopolitan constitutionalism requires that domestic constitutions yield to
or accommodate international law, except where certain countervailing features
are present. Kumm praises the Bosphorus decision of the European Court of Human
Rights (ECtHR) as an example of the new cognitive frame he argues for, insofar as the
Court treated European Community (EC) law (implementing a UN Security Council
directive) as presumptively supporting the domestic government’s satisfaction of its
burden to justify an intrusion on Convention protected rights (p. 280). Kumm also
praises the European Court of Justice (ECJ) for treating the UN Security Council directive on the same subject as a relevant but not presumptive factor in evaluating the
EC law, because the EC (in part through the ECJ) provides more assurance of the protection of substantive human rights and more procedural assurances of legitimacy
than does action by the UN Security Council (pp. 284–286). Although, for Kumm, it is
“doubtful” that the ECtHR would have afforded presumptive weight to a UN Security
Council directive not incorporated in EC law (p. 283), other observers have suggested
that under the ECtHR’s reasoning it is a question whether to extend a presumption to
the decision of other international organizations to which a state was party, including
the UN.25 If compliance with an international decision, regardless of that organization’s attention to human rights and fair process, is a legitimate justification, then the
potential for serious restriction of domestically guaranteed rights would exist. This
may be a potential dark side to Kumm’s presumption of legality, if not applied with
Kumm’s nuance in the context of all four factors.
Daniel Halberstam draws our attention to another, perhaps unnoticed, commonality between international and domestic constitutional law, namely, the question of interpretive and legal heterarchy. He explores competing claims to interpretive
finality as to constitutional law that exist among the three branches of the federal
government in the United States and the competing claims—of Kompetenz-Kompetenz
and of the correct hierarchy with respect to what legal order controls in cases of
See generally Vicki C. Jackson & Mark Tushnet, Comparative Constitutional Law 243–267 (2d ed. 2006) (discussing “constitutionalism without a constitution,” and constitutions that obstruct constitutionalism).
25
See Frank Hoffmeister, International Decision: Edited by Daniel Bodansky: Bosphorus Hava Yollari Turzim ve
Ticaret Anonim Sirket v. Ireland App. No. 45036/98, http://www.echr.coe.int, European Court of Human
Rights (Grand Chamber), June 30, 2005, in 100 Am. J. Int’l L. 442 (2006). The decisions Kumm discusses in the above-referenced pages are Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v.
Ireland, App. No. 45036/98 Eur. Ct. H.R. 30 (2005) and Case C-84/95, Hava Yollari Turizm ve Ticaret
Anonim Sirketi v. Minister for Transport, Energy and Communications and Others [1997] ECR I-2953.
24
530 I•CON 8 (2010), 517–562
conflict—that exist between the EU and the member-state levels in Europe. Halberstam
characterizes both situations as ones where “the final [interpretive] authority within
the system [is] fundamentally unsettled” (p. 353), although in Europe the clash over
final authority is also a clash about whether European law can control in a particular
national setting and is thus, “at its core, a manifestation of the plurality of systems”
(p. 336).26 Unlike Kumm, Halberstam offers a degree of tolerance for this kind of unsettlement, which, he says, can lead, not to “anarchy” but to “productive conflict” (pp.
353–354).
Halberstam proposes three principles that, he suggests, should help decide interpretive contests over what level or source of authority should control, whether among
authorities within a state or between states and supranational authorities: principles
of voice, expertise, and rights protection.27 “Voice,” for Halberstam, refers to “which
actor has the better claim of representing the relevant political will” (p. 337); it corresponds to the “liberty of the ancients, as participation in governance” (p. 354).
“Voice” may reflect what source best expresses the “relevant” democratic views, or,
in some instances, what source has the deepest commitment to a proposition (p. 343,
describing the Polish constitutional response to the European Arrest Warrant). Judicial actors may sometimes better protect “voice” than political actors, and considerations of subsidiarity (and externalities) may sometimes mean a central government
has a better claim to voice than more local ones (p. 341); although “voice” claims
may exist on both sides of a dispute, the European Communities Act “privileges one
voice over another on the assumption that the two are not of equal weight in representing the relevant political will” (p. 341). But what is the “relevant political will”?28
The second value, of “expertise,” embraces knowledge and efficaciousness in an instrumental sense and derives from the modern virtue of the administrative state, in
which “(social) legitimacy also depends on bureaucratic capacity, professionalism
and knowledge-based governance” (p. 354). “Expertise” may also be related to subsidiarity, to the extent that subsidarity is concerned with “engagement . . . on the issue
of expertise” (p. 347). The third principle is rights protection, related to the “liberty
of the moderns, as the freedom from coercion by community” (p. 354), a value that
may be reflected in doctrines like Solange (or what Halberstam calls “reverse Solange”)
(p. 353) involving presumptions of deference vel non, based on an evaluation of another
system’s general level of rights protections.
Halberstam does not theorize about why some issues of final authority are treated as “settled” and others
exist in a state of heterarchy; that may be a sociological fact, rather than a normative question itself, in
Halberstam’s world.
27
There is some rough correspondence or overlap between these values and Kumm’s values of process,
subsidiarity, and substantive justice.
28
See Halberstam (p. 342) (explaining that the ECA means that “other things being equal, the expression of
preference of any given Parliament with regard to a particular sectoral policy dispute subsequent to the
passage of the act is more likely the product of interest group capture than was the broad based preference for accession to the European Union”). Does this imply that the “relevant political will” (p. 341) at
one point was at the domestic level but that later parliamentary acts are then discounted as the result of
presumed interest group capture?
26
Paradigms of public law: A review of Ruling the World? 531
Halberstam’s deepest point is that legitimate arguments from “voice”—and his
other two constitutional values—may exist on both sides of the same question. And
for Halberstam, unlike for Kumm, these values do not necessarily support treating
the supranational law as presumptively having hierarchic force; the point, Halberstam
says, is that debate is over these three constitutional values29 in a “decentralized”
process involving “spontaneous, mutual accommodation” (pp. 354, 355). If, for Kumm,
“legality” implies a presumption in favor of compliance with international law, in Halberstam’s world of heterarchy, legality is more in contest, in the face of plausible claims
by multiple actors; what law controls would be determined more by voice, expertise,
and rights in “multiple points of spontaneous mutual accommodation” (p. 354), than
by presumptions in favor of one or the other level of law or legal institution.
If Kumm and Halberstam focus on which level of law, constitutional or international, should be applied, Miguel Maduro’s essay focuses, more specifically, on
constitutionalism in the hands of courts, arguing for a more self-reflective form of engagement than Kumm’s internationally oriented approach and for a more purposive
and coherent approach than Halberstam’s theory contemplates. Maduro observes
both internal sources of pluralism, which exist within a single legal order, and external
sources of pluralism, consisting of the “increased communication and interdependence among different legal orders, both state and supranational or international legal
orders” (p. 357). In the face of these dual pluralisms, Maduro argues, courts must be
institutionally and epistemically modest; they must be “open to arguments that are
sensitive to the complex economic, social and political questions” raised by pluralist
orders but must decide questions “in a legal manner,” “fit to a particular systemic
understanding of the legal order” (p. 367). To accomplish these ends, Maduro argues
for “meta-teleological” reasoning that not only focuses on the “normative preferences
that they attribute to particular rules” but also “relate[s] them to the normative preferences of the overall legal order” (p. 368).
In echoes of his work on “counterpunctual” constitutionalism,30 Maduro suggests
that the proliferation of external sources of law reinforces the need for purposive reasoning. Foreign law, he argues, can be considered in a reflexive manner, as an “argument,” but without controlling domestic decisions (p. 376-77), in a posture that
others might call “deliberative engagement.”31 Courts may need to consider external
sources either if the constitutional order commits them to doing so or if, in order to
make effective the normative commitments of the domestic order, one needs to be concerned about the effects on others, or even to defer to “a foreign or international jurisdiction” (p. 379). Courts are not, however, normatively obligated to be in dialogue
On Halberstam’s account, then, a situation of contest that is determined by other features—such as the
power of nations—would be illegitimate or inconsistent with constitutional pluralism. A difficulty is that
those with the power to be most efficacious (which counts in the “expertise” value) may or may not be
internally democratic or, even if they are, may not represent the “democratic views” of larger populations
on whose behalf they claim to act.
30
Miguel Poiares Maduro, Europe and the constitution: what if this is as good as it gets?, in European Constitutionalism Beyond The State 98 (J.H.H. Weiler, & Marlene Wind eds., 2003)
31
See generally Vicki C. Jackson, Constitutional Engagement in a Transnational Era 73–78, 103–116 (2010).
29
532 I•CON 8 (2010), 517–562
with foreign courts, as they are with courts within their own legal order; courts should
not “change their constitutional allegiance but [should] adjust their forms of reasoning and institutional role to their new constitutional context” (p. 379.) Although the
essay suggests a link between the argument for purposive reasoning and the fact of
external pluralism, the internal sources of pluralism endemic to a constitutionalist
order alone support Maduro’s argument for purposive approaches to interpretation.
Teleological reasoning is necessary to help courts decide on the institutional competence question,32 questions that are endemic to separation-of-powers constitutional
systems whether the powers are separated as in the United States or as in parliamentary systems with independent courts.
For Maduro, judicial modesty does not necessarily mean favoring legislatures, but
rather calls for a sensitive reflection of the normative commitments and ambiguities
of the overall system, including its institutional components. He observes, cogently,
that pluralism tends to increase judicial output and diminish the capacity of political
systems to respond (p. 367). In the context of ambiguous norms, he suggests, teleological reasoning imposes more constraints on the judicial decision maker than either textualism or intentionalism: “[O]bjectivity is promoted by the requirement built
into the process of justification of fitting individual judicial decisions into a systemic
understanding of the legal order (p. 365).”. Because judicial decisions need to be
internalized by other actors, courts need to be in dialogue with other sources within
their own legal order (p. 365). In some tension with his emphasis on judicial modesty,
Maduro argues that the most important role of courts is maximizing the coherence of
the legal system; this will prompt political actors to do so as well or will raise the costs
of their not doing so (p. 369).33 But to the extent that constitutions consist, in part, of
compromises between competing conceptions of the good and may include commitments to maintain an unjust status quo, the quest for coherence may be challenged:
Would Maduro agree that coherence is to be maximized only with respect to normatively desirable principles?34
The final chapter in this book, by Samantha Besson, addresses “the ambiguous
relationship between constitutionalism and democracy” in the international context
(p. 384). Like a number of other contributors, she recognizes both procedural (“formal”)
and “material” elements of constitutionalism. She argues that international law may
already include some of the material elements, such as its constraining effects on both
national and other forms of international law reflected in jus cogens norms that apply
erga omnes (p. 390), but concludes it does not meet the “procedural” or formal aspects
See Maduro, supra note 30, at 96 (noting that the “ ‘who decides who decides’ ” question is a “normal
consequence of the divided-powers system inherent in constitutionalism”).
33
While this may have weight for actors within one system, which is already seen as an overarching legal
order, its effects on actors who do not see themselves functioning within the “same” system is uncertain,
at best.
34
On “bad coherence,” see, e.g., Margaret Jane Radin, The Pragmatist and the Feminist, 63 S. Cal. L. Rev.
1699, 1710–1711 (1990); see also Catherine Pierce Wells, Pragmatism, Feminism and the Problem of
Bad Coherence, 93 Mich. L. Rev. 1645 (1995); cf. Adriane Vermeule, Many-Minds Arguments in Legal
Theory, 1 J. Legal Anaylsis 1, 22 (2009) (noting possibility of “bad coherence”).
32
Paradigms of public law: A review of Ruling the World? 533
of a “thick” constitution. Like Gardbaum, she relates constitutionalization to the existence of a constituent base, democratically binding itself in founding a constitutional order. The constituency of international law is complex, Besson suggests, but
not inconceivable; it consists of both states and a world community of individuals.35
Although it is not impossible for democratic self-constitution to take place in this
complex international order, “the subjects of [the international] legal order, whether
states or individuals, do not yet constitute together the political community that can
legitimize those legal norms” (p. 398). She suggests, however, that the process of constitutionalization can itself contribute, at the same time, to the creation of the defined
political community to be bound by the constitution (pp. 398–399).
Unlike Kumm, or even Halberstam, Besson’s essay prioritizes democracy or
“popular sovereignty.” Yet her argument on this point contemplates that the most
appropriate level from the point of view of democratic decision making will vary.
“[T]he correct exercise of state sovereignty implies looking for the best level of decision
to endow those affected by that decision with the most voice, but it also implies listening
to them” and may “even require the decoupling of popular sovereignty from state sovereignty in certain cases” (p. 399). Exploring constitutional pluralism in the absence
of a formal, thick international constitution, Besson argues that decisions concerning
what levels of law to apply should be judged in particular contexts by the metric of
which law is more democratically legitimate; this judgment would be based on a “case
by case assessment of those norms’ democratic credentials” (p. 401), including “the
degree of affectedness of those taking part in the decision-making process at each level
and on the equality of stakes of those included at those respective levels of decisionmaking” (p. 404).
Besson offers a normative account of international law that is neither monist nor
dualist, but pluralist: “[T]he international constituent power is understood as a complex and interlocking community of communities,” such that “considerations of
democratic self-constitution explain how the respective constituted legal orders can
neither be regarded as overlapping completely and hence as constituting a single
order . . . nor be regarded as entirely disconnected orders given their increasing integration and partial overlaps in their constituency . . .” (p. 403).36 This overlapping
of constitutional orders, the normative priorities among which should be based on a
“democratic requirement in a constitutionalized international legal order,” is a form of
what Besson calls “intervalidity” (p. 403). Yet, she concludes, the “national constitutional order may remain the one allowing incorporation into national law and then
Cf. Benedict Kingsbury, Nico Krisch, & Richard B. Stewart, The Emergence of Global Administrative Law, 68
Law & Contemp. Probs. 15, 45–48 (Summer/Autumn 2005) (developing approach to global administrative law based on rights of individuals and private parties and/or on the rights of states).
36
Besson makes a distinction between “internal constitutional pluralism,” which “amounts to the coexistence within the same legal order (in this case, the international legal order) of many constitutional norms
stemming from different sources or regimes” (399–400), and “external constitutional pluralism,” which
is “the coexistence of many constitutional norms stemming from different legal orders within one legal
order” (402).
35
534 I•CON 8 (2010), 517–562
regulating potential conflicts and direct effect,” a result that she justifies in terms of
the “proximity of national law to individuals and . . . the complete system, of national
institutions implementing international law” (p. 403).
If Kumm presumes in favor of international law (whatever body is applying it), and
Besson in favor of national law (at least as regulating when international law is incorporated), the larger point is, perhaps, the way in which they, and Halberstam as well,
conceive of the new constitutionalism as making fine-grained allocations of normative priority based not on provenance alone (that is, constitutional or international
law) but on correspondence with deeper values of constitutionalism. These deeper
values, it would appear, exist apart from the particular commitments of particular
constitutional regimes.
2. Definitions and implications: What’s at stake?
Many of the chapters in the first part of the book are concerned with the characterization of constitutions and matters constitutional as applied to international law or
international organizations. What are the implications of a legal instrument being
called and understood to be a “constitution,” apart from the general association with
“gravitas” and legitimacy? In this section, I identify three (among many) possible
implications of this seriousness—interpretive, reformist/rejectionist, and hierarchic.37
2.1. Interpretive
One way in which constitutions are sometimes thought to differ from “ordinary”
statutes, or from ordinary “contracts,” or from conventional “treaties,” is in the interpretive norms associated with them. Thus, the U.S. Supreme Court in its foundational case law distinguished a constitution from a “proli[x]... legal code,” in which
every question of constitutional power would find an explicit answer in express text;
“it is a constitution we are expounding.”38 To be sure, there are justices, in the U.S.,
Australia, and elsewhere, who argue that the very purpose of constitutions is to entrench words in a fixed meaning. But the approach taken by the British Privy Council
in its “Persons Cases,” decided under the British North America Act, 1867 (a constitutional act for Canada),39 has broad support. Even though enacted as a statute and, as
a formal matter, by the legislature of an empire of which Canada was a part, it was
intended to work as an organic document for the governance of Canada over a long
period of time; it was to be interpreted as a “living tree,” not necessarily confined by
For others, see, e.g., Kumm, Beyond Golf Clubs, supra note 7, at 508–509 (identifying a “formal” meaning
to a constitution, as basic and entrenched, hard-to-amend law; a “functional” meaning to a constitution,
concerned with whether the instrument allocates and constrains the exercise of governmental power;
and a “normative” meaning about whether the instrument is a legitimate constitutional authority, not
dependent on other legal authority).
38
McCulloch v Maryland, 17 U.S. 316, 407 (1819).
39
Edwards v. Attorney-General, [1930] A.C. 124 [The Persons Case].
37
Paradigms of public law: A review of Ruling the World? 535
the particular expectations of how its terms would apply at the time of its enactment.40
The “living tree” tradition of constitutional interpretation entails, as well, a tendency
to blend the normative with the positive in the claims that interpretive theories make.
What is it about constitutions that contributes to such approaches? It is common to
attribute the need for evolutive interpretation to the special entrenchment of constitutions41 and, as in McCulloch v. Maryland, to their generality. I will also discuss their
relative comprehensiveness and, relatedly, the “potentially grave consequences” of
their becoming unworkable, as contributing factors.42
2.1.1. Entrenchment
Constitutions at the domestic level are usually, though not necessarily, entrenched
more deeply than ordinary forms of law. International law is harder to characterize
vis-à-vis entrenchment. Multilateral treaties typically cannot be amended except
with the agreement of all who are to be bound by the amendment;43 yet whether this
should be regarded as a form of entrenchment, and if so, how strong, may also depend
in part on the possibilities for withdrawal.44 Further, David Schneiderman has argued,
international investment treaties may be entrenched by the continuing financial obligations imposed on signatories even if they seek to withdraw.45 Moreover, some international norms (jus cogens) are entrenched on their own terms in that they cannot
be derogated from and bind even those who do not consent to them. Indeed, there
may be a sense in which the international legal order is itself entrenched, in that no
territorial state can withdraw from it entirely without such grave harm to its own
inhabitants that the idea is almost unthinkable.
See id. at 136–137 (“The British North America Act planted in Canada a living tree capable of growth
and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada. ‘Like
all written constitutions it has been subject to development through usage and convention’. . . Their
Lordships do not conceive it to be [their] duty . . . to cut down the provisions of the Act by a narrow and
technical construction, but rather to give it a large and liberal interpretation . . .”). The Privy Council
opinion went on to distinguish this kind of statute—one granting a constitution—from others, such as
penal statutes, tax statutes, or those “regulat[ing] the affairs of an English parish.”
41
See Jeffrey Goldsworthy, Questioning the Migration of Constitutional Ideas: Rights, Constitutionalism and the
Limits of Convergence, in The Migration of Constitutional Ideas 115, 136 (Sujit Choudhry ed., 2006)
(noting the difficulty of formal amendment as a reason for judicial creativity in constitutional interpretation while cautioning about the need for a “meaningful distinction between implication and outright amendment”).
42
See id. at 136 (describing another reason given for judicial creativity in interpretation).
43
Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 U.N.T.S. 331 (entered into force January 27, 1980), art. 40.
44
Even if treaties do not provide specifically for withdrawal, withdrawal may be possible, although both the
Vienna Convention and particular treaties may purport to limit the terms on which withdrawal can be
effected, e.g., by requiring the giving of a substantial period of notice. See, e.g., Vienna Convention on the
Law of Treaties, Art. 56 (providing, inter alia, that a “treaty which contains no provision regarding its
termination and which does not provide for denunciation or withdrawal is not subject to denunciation
or withdrawal unless: it is established that the parties intended to admit the possibility of denunciation or
withdrawal . . .” and requiring at least twelve months notice).
45
David Schneiderman, Constitutionalizing Economic Globalization: Investment Rules and Democracy’s Promise
37 (2008) (discussing “onerous . . . withdrawal” provisions).
40
536 I•CON 8 (2010), 517–562
Although the nature and degree of entrenchment thus differ, both constitutions
and some aspects of international law share a feature of binding national processes
of lawmaking into the future more deeply than other forms of law. Because of the
relative difficulty of escaping from the existing norms, there are incentives for positive
theory also to be normative. Deeply entrenched law, many would hold, must have the
flexibility to evolve and thus requires interpretive theories that permit evolution. For
this reason, as well, interpretive theories in constitutional law tend to be a blend of the
prescriptive and normative, seeking both to capture what is and has been and to advance a normative vision of what should be.
2.1.2. Generality of rights or principles
Constitutions, typically, include some very generally framed commitments or guarantees, in part, because constitutions usually embody some overarching principles
to which the polity is committed; these principles lend themselves to interpretive disagreement and elaboration to a greater extent than do the regulatory details typically conveyed by statute.46 Constitutions are, to be sure, a blend of detail and high
principle, as are many statutes. Some forms of international law, notably including
human rights law, which is one of the forms most often asserted as relevant to
constitutional interpretation, have been characterized as vague and general; yet, as
has been widely pointed out, the vagueness of terms in the International Covenant
on Civil and Political Rights (ICCPR), for example, is not on a scale different from that
of many constitutional bill-of-rights provisions. Such provisions contemplate interpretation and contest, over time, thus raising the stakes for the normative aspect of
constitutional theory.
Both entrenchment and generality, then, create a legal environment conducive
to evolutive interpretation. And once evolutive interpretation is in play, the temptation to blend the normative and positive grows, as decision makers justify their interpretation as being “of” what is already the controlling constitutional instrument or
commitment and at the same time as being the normatively preferable choice, among
plausible interpretations.
2.1.3. Comprehensiveness, multifunctionality and workability
A third characteristic of domestic constitutions (as distinct from other forms of law)
is a degree of comprehensiveness, or far-reachingness, and multifunctionality. This
multifunctionality and relative comprehensiveness, noted by Professor Paulus’s
Other forms of law may also have a distinctive character with implications for their interpretation and
application. See Jean-François Gaudreault-Desbiens, Underlying Principles and the Migration of Reasoning
Templates: A Trans-Systemic Reading of the Quebec Secession Reference, in The Migration of Constitutional
Ideas 178, 201 (Sujit Choudhry ed., 2006) (discussing the interpretive freedom of civil law judges in
interpreting the civil code, which, like a constitution, is understood as “a specific expression of broader
unwritten principles” and distinguishing the civil code from more specific kinds of statutes).
46
Paradigms of public law: A review of Ruling the World? 537
chapter (p. 75), is related to but not the same as what Doyle, building on work by
Frank Michelman, has called pervasiveness.47 For Professor Michelman, the quality of
pervasiveness means that constitutional law is relevant to and affects the possibilities
of all other forms of law in the particular system, in the sense that “ ‘all law is subject
to constitutional control’ ” or is “ ‘shaped by the Constitution.’ ”48 A legal instrument
might be “pervasive,” in this sense, without being comprehensive, in the sense I mean;
a “basic law” or “constitution” that provided only that “laws shall be clearly specified in advance of any conduct they apply to” would provide a “pervasive” norm that
would “control” or “shape” all others, but would not be comprehensive in its goals.
Constitutions, typically, are comprehensive insofar as they establish or legitimize an
entire system of governance—by which I mean not governance in one or two narrow
sectors but across a range of issues, internal and external, that citizens of a polity—
persons living in a geographically bounded space—will expect their government(s)
to take care of. The UN Charter, by contrast, as Doyle notes, “reflects . . . the ‘disaggregated and decentralized’ character of the international order” (p. 114).49 Comprehensiveness of governance relates to the necessarily physical, territorial basis of the
daily lives of most human beings. In unitary systems, a constitution might specify
responsibilities for all aspects of governance; in a federal constitution, responsibilities
are typically allocated to different levels of government in ways that implicitly or explicitly contemplate degrees of concurrent responsibility; in both, however, constitutions are typically far-reaching. Representatives in the legislature of a government
with general governance responsibility, in contrast to those engaged in rule-making
in more specialized, sectoral programs of governance, must feel some pressure to develop an approach that balances the many different competing demands for attention,
resources, regulation, and rights.
How does this relate to interpretation? My first suggestion is that the more complex and varied the functions of a single government under a constitution, the greater
the possibility of conflict among norms, the balance of which may vary over time.
Given the ambition and breadth of goals the system may experience, pressures toward
purposivist, coherence-seeking interpretive activity (or, less ambitiously, concerns
for the workability of an entire system) will in turn tend to generate demands for
either evolutionary interpretation, or regular constitutional change by amendment, in
the system.50 Second, because of the interconnectedness of these norms across broad
areas of governance, a constitution’s failure to “work” properly may have serious
and far-reaching consequences for its society, perhaps authorizing a wider range for
Doyle (114), citing Frank Michelman, What do Constitutions Do that Statutes Don’t (Legally Speaking)?, in
The Least Examined Branch: The Role of Legislatures in the Constitutional State 273 (Richard Bauman &
Tzvi Kahana eds. 2006).
48
Michelman, supra note 47, at 278 (quoting the South African Constitutional Court).
49
Quoting Laurence R. Helfer, Constitutional Analogies in the International Legal System, 37 Loy. L. Rev. 193,
207–208 (2003).
50
Cf. Planned Parenthood v. Casey, 505 U.S. 833, 855 (1992) (discussing whether a rule in a prior
constitutional case has proven “unworkable” and whether the law’s growth in other area has undermined the assumptions of the prior case, leaving it “a doctrinal anachronism,” as two of four factors going to when a prior case should be overruled).
47
538 I•CON 8 (2010), 517–562
judicial adjustment.51 A possible normative implication of the claim to be a constitution, then, is a claim for the legitimate interpretive authority of the institutions of the
constitutionalized legal order. Although issues of interpretation can arise under any
form of law, the “constitutional” claim may be a way of associating strong expansive
interpretive authority with the status of the legal instrument.
2.2. Reformist/rejectionist
Another way in which the descriptor “constitution” might be invoked is as part of either reformist, or rejectionist, projects. As discussed in section 1, to the extent that a
constitution is normatively desirable, the label may be used to argue for reforms deemed
necessary to bring the instrument or legal order more fully into the realm of the constitutional. The implicit structure of the argument is that because an instrument functions
in some respects as a constitution, it ought to more generally include elements common
to constitutions—whether these be a more fully developed and independent judicial interpretive authority (as in the discussions of WTO adjudication), a grounding in democratic consent or authority (Walker), or a reallocation of lawmaking structures to better
correspond with either democratic interests or shifting power alignments (for example,
in the UN Security Council). Constitutional regimes may have more or less of these elements, and the question whether one missing element would be normatively valuable
to a particular regime, at a particular time, cannot be well resolved simply by unreasoning analogy to some ideal type of the idea of a constitution.52 My argument is not that
such reformist arguments are necessarily analytically well-founded, but that they may
help motivate some of the “project” of the constitutionalization of international law.
Although several chapters offer proposals in a reformist mode, there are rejectionist
uses of the constitutional description as well. As was also noted above, legal instruments might be described as “constitutional” in the context of an argument that the
instruments are normatively undesirable or otherwise should not be entrenched,
as constitutions often are, or treated as unchangeable, as constitutions sometimes
are. That is, if regimes in the international order have normatively undesirable but
entrenched effects, for example, unduly constraining national or local self-governance,
the constitutional character of the regime —its entrenchment or valorization—may
itself be a ground for objection.53
Cf. Richard Posner, Florida 2000: A Legal and Statistical Analysis of the Election Deadlock and the Ensuing Litigation, 2000 Sup. Ct. Rev. 1, 50, 56 (2000) (supporting the decision in Bush v Gore, 531 U.S. 98
(2000) and arguing that the Court’s intervention spared the country the prospect of deadlock and “a
miserable denouement”). I do not disagree that concerns for workability of the overall system can be legitimately considered; I do not agree with Judge Posner’s assessment in that case. For a different perspective on pragmatic or moral arguments, see Goldsworthy, supra note 41, at 140 (judicial power to change
constitution through interpretation should be limited to “exceptional circumstances”).
52
Cf. supra note 1 (Weiler and Wind’s description of the attractions of “constitutions” as apparently “ready
made” templates).
53
See supra, notes 11, 45 (discussing David Kennedy’s essay and David Schneiderman on the “constitutional” effects of investment regimes to the detriment of local self-governance); Jackson, supra note 12, at
319, 321-326 (noting feminist as well as critical-legal-studies critiques of the value of entrenched legal
structures and rights for subordinated groups).
51
Paradigms of public law: A review of Ruling the World? 539
2.3. Hierarchic
Still a third use of the term “constitutional” has to do with the position of the legal instrument or order in a broader constellation of legal orders. A claim that international
law, or a particular institution, is “constitutional” may be a claim that within some
legal order of international law that law in question should be treated as more fundamental than others; or it may be claim that as “constitutional” law it trumps—or is of
an equal or indeterminate priority vis-à-vis—domestic constitutional law. Arguments
about whether some international law norms are more basic than others, or should
control in the event of a conflict, are important; but it is not clear that resolving those
issues is aided by denoting the more basic as “constitutional” in character. I discuss
claims about the relationships of international and constitutional law below.
3. Cosmopolitan constitutionalism and the democratic
challenge: Toward transnational constitutional values
The essays in this valuable book provide a high-level introduction to a set of important
debates in public law: about the nature and status of international law and particular
international legal institutions; about their relationships to domestic law; and about the
appropriate paradigms, or disciplines, through which to view the increasingly transnational legal environment. This section identifies two sets of values that are somewhat
underplayed in this collection, and that shed light on several of the proposed theoretical
approaches to understanding the relationships between international law and national
constitutional law. It goes on to suggest that, despite the appeal of “cosmopolitan constitutionalism” within the European legal order, there are a wider range of normative
commitments and state capacities elsewhere in the world that ought to inform theorization. A focus on transnational constitutionalism as a set of values to be considered,
rather than as a presumptive matrix for resolving conflicts between international and
national law, may strike a better balance between the demands of local authorship,
legitimacy, and efficaciousness, on the one hand, and more universal reasoning and
principle, on the other, necessarily present in working constitutional democracies.
3.1. What’s missing? Constitutions as democracy-enabling and
self-expressive
Constitutions might be concerned not just with lawmaking authority but with the function of enabling democracy, a function that has received relatively less attention in this
volume. Moreover, the function of constitutions as self-expressive is close to absent.
Below, I briefly discuss these functions and comment on their relative low visibility.
3.1.1. Democracy-enabling constitutionalism
Most, though not all, documents denoted “constitutions” today create at least the
appearance of establishing mechanisms for self-government through democracy-
540 I•CON 8 (2010), 517–562
enabling forms of authorized lawmaking.54 Rather than begin, as the editors of this
volume do, with a “neutral” definition of constitutions as “law authorizing” and “law
constraining,”55 one might alternatively begin with the idea of a constitution, in the
liberal tradition, as “democracy-enabling” and “democracy-constraining.”
By democracy enabling, I am referring to the goal of many domestic national constitutions to sustain the preconditions for and/or organize the structures and forms of
democratic politics, by which I mean the idea of a politics based on the equal participation of all competent adults, expressed through regular voting either as to the content
of the laws or the identity of representatives authorized to make and execute laws or
both. It encompasses both the idea of participation in the direction of public policy and
the capacity to act as a check on tyrannous governance.56 To be sure, it is very difficult
in any sizable polity to design democratic voting systems that avoid both “the fear of
the many and [the] fear of the few.”57 Moreover, there are methods other than democratic voting and decision making by democratically elected representatives that can
promote the “voices” of different segments of the polity.58 However, in my view, these
methods are not necessarily equivalent to those acts of self-government embodied in
the public’s voting on the selection or retention of representatives or executives in the
making and execution of its laws or in plebiscitary forms of legislation, in which the
formal public process accords an apparently equal weight to each individual’s vote.
In several of the essays in this collection, democracy is, at best, a factor, not a central
concern. For Dunoff and Trachtman, “democracy/accountability” is only one of seven
“mechanisms” by which the law-authorizing, law-constraining, and law-supplementing
functions of constitutions are carried out. For Paulus, democracy is one of five substantive elements of a constitution; for Fassbinder, like the editors, “democracy/
accountability” is one among several elements of constitutionalism. Still, “accountability” is not necessarily the same as “democracy,” in the sense of self-governance; accountability mechanisms may be very removed from the mechanisms of self-government
Some of these constitutional commitments to “democracy” may be “sham,” in the sense that they are
not intended to describe the actual processes by which lawmaking representative are chosen. And not
all “constitutions” are necessarily designed to enable democratic self-governance. See, e.g., Basic Law
of Government of Saudi Arabia art. 1 (1992) (the Constitution of the Saudi state is the Koran and the
prophet’s sunnah); id. art. 5 (providing that the state is a monarchy); id, art. 7 (providing that rule in the
kingdom derives power from the Koran and the traditions of the Prophet), as translated in Constitutions
of the Countries of the World Online, available at http://www.oceanalaw.com (2010).
55
Fassbinder, at 139–140 (noting “neutrality” of such criteria for identifying constitutions, which would
embrace Marxist as well as capitalist, etc.).
56
Cf. Rebecca Brown, Accountability, Liberty, and the Constitution, 98 Colum. L. Rev. 531 (1998) (focusing
on the Constitution’s provisions for the people’s power to select, and remove, government officials,
arguing that democracy in the U.S. Constitution was less about participation in and more about checking
government).
57
Maduro, supra note 30, at 86 (citing Neil Komesar’s work).
58
These may include the “petitions” of past centuries to influence public officials views and more modern
forms of activity organized toward expressing the multiple voices of large groups of like-minded persons.
Mechanisms of transparency and accountability also include making publicly available information in
the hands of government officials or committees, and allowing participation in decision-making processes by concerned citizens.
54
Paradigms of public law: A review of Ruling the World? 541
and may depend on epistemic measures not directly linked to self-governing decisions.
For Walker, concerns about democracy are embodied in one of his five frames for
understanding what a constitution means; however, the emphasis in this essay is on
the authorizing power behind the constitution, rather than the constitution’s work
of enabling democratic self-governance to go forward.59 Only in Besson’s essay
is democratic self-government the foundational, normative aspect of evaluating
public law.
The inclusion—or omission—of democracy facilitation as a foundational element
of a constitution is, of course, not neutral. To the extent that the goal is to expand
the possibilities for seeing international law as “constitutional,” a broader definition,
which deemphasizes particular political forms, is consistent with the still-powerful
Westphalian traditions of presuming that internal organization (as democracy, monarchy, and so forth) is not of international concern. There is, though, arguably some
intellectual sleight of hand, in this context, in defining the idea of a “constitution” as
grounded in a positive authorization and rule of recognition for lawmaking, while
relegating democratic self-governance to one of several elements or mechanisms. For
the association of constitutions with successful forms of representative democracies
is an important part of their gravitas. There may be reasonable normative disagreement over whether democratic self-government is primarily an instrument toward
some other understanding of the good life in a well-functioning society—for example,
toward the protection of equal rights to enjoy human liberty—or, rather, is an inextricable element of that good life, in some ways a good in and of itself, that merits separate recognition.60 On either account, however, creating and sustaining an ongoing
structure of self-governing democratic decision making in public matters is central to
the political legitimacy of national state constitutions and to the constitutional aspirations of supranational institutions. Yet beginning with a core idea of a constitution as
democracy-facilitating might disable large swathes of international law from being
able to be considered as a constitution.
Constitutions, of course, are not only about facilitating democratic self-government;
they are also about constraining it, through commitments to checks and balances to
prevent tyranny and promote wise, effective governance and specific rights to protect
the capacities of human beings to lead good and, in the liberal conception of constitutionalism, to a significant extent self-chosen lives. Constitutional democracies are,
by definition, caught in a set of tensions that elude easy or stable answers: a balance
See also Gardbaum, in Ruling the World (pp. 238–239). In other work, Walker has described the “ethic”
of “self-government” as central to constitutionalism. Neil Walker, Constitutionalism and the Problem of
Translation, in European Constitutionalism Beyond the State 27, 32 (J.H.H. Weiler & Marlene Wind eds.,
2003) (describing “the ethic of responsible self-government” as “at the heart of all publicly defensible
constitutional discourse”).
60
There may be those who conclude that democracy, in its representative, electorally based forms, has failed
as a basis for government, and who seek new (or older) forms of legitimating institutions and discourses.
Cf. Goldsworthy, supra note 41, at 121–122 (discussing, and disagreeing with those who have lost faith in
democratic ideal and yearn for “mixed” government). But for the most part these efforts are to supplement
and add to the legitimacy of democratically grounded self-government, not to serve as a total substitute.
59
542 I•CON 8 (2010), 517–562
between self-governance and constraint; between democratic, participatory lawmaking
supported by popular opinion or democratic voting, on the one hand, and the demands
of principles, some universal, some not, that reflect both collective commitments of
the people, the need to protect individuals’ capacities to live self-chosen lives, and a
connection to more universal understandings within a broader community of principle
in the world.61 The reach for the universal is as much a part of domestic constitutionalism as is its grounding in some form of claimed initial democratic consent and its
ongoing commitment to enable democratic self-governance: without an aspiration
to good principle, a constitution is unlikely to evoke sufficient attachment and loyalty
from its people. And the constitutional aspiration to achieve universal values may be
becoming part of a territorial state’s claim to international legitimacy, which it is one
of the functions of domestic constitutions to advance.
To treat democratic self-governance as only one among many mechanisms by
which constitutions function may detract from one of the most important sources of a
constitution’s political legitimacy— its capacity to promote democratic self-governance
while at the same time sustaining effective governance and protecting the rights
and liberties of its people.62 Commitments to democratic self-governance, like commitments to the protection of individual rights, are linked by a commitment to the
equality of human beings that law—informed by understandings of human equality
and human rights that cross national boundaries—should entail.63 There is, to be
sure, an important cosmopolitan challenge, on this basis, to the assumptions of national constitutions that existing territorial borders are, in fact, the correct units in
which self-governance should be exercised. However, in the face of conceptual barriers to the solution of this problem entirely within the logic of self-governance, working within existing boundaries is, as a general matter, the best hope for promoting
self-governance (unless or until mechanisms for democratic self-government were to
develop that could be sufficiently extended to a larger polity).64
3.1.2. Self-expressive constitutionalism
As Mark Tushnet discusses in a seminal paper on “The Possibilities of Comparative
Constitutional Law,”65 constitutions and constitutional law may be entailed in a
Cf. Neal Walker, Out of Place and Out of Time: Law’s Fading Co-ordinates, University of Edinburgh Working
Paper Series 2009/01, at 29, available on SSRN (describing how national constitutions “often involve
reference to universal values,” tying themselves to [and, in my view, staking their legitimacy in part on]
a connection to more universal conceptions, claiming a “privileged local access to or insight into the condition of the universal in all its holistic complexity”).
62
These rights and liberties must not only be deduced from general principles, or “laid down” in formal
acts of constitution making, but at least in some instances must evolve and be given meaning over time
through iterations of democratic as well as judicial processes.
63
See also Walter F. Murphy, Consent and Constitutional Change, in Human Rights and Constitutional Law
(James O’Reilly, ed., 1992).
64
For a thoughtful argument that as the scale of society becomes more global the importance of constitutional states as the basic unit of political organization has increased, see Anna Yeatman, The Idea of the
Constitutional State and Global Society, 8 Law Text Culture 1 (2004).
65
Mark Tushnet, The Possibilities of Comparative Constitutional Law, 108 Yale L. J. 1225 (1999).
61
Paradigms of public law: A review of Ruling the World? 543
project of self-expression of particular political communities. The large polities of
many, indeed, almost all modern territorial states are necessarily “imagined communities,” in Benedict Anderson’s term, held together by a cognitive or psychological
sense of connection to those who are bounded within a particular set of limits and that
have self-governing (or Anderson’s phrase, “sovereign”) capacities. Tushnet notes the
possibility that “constitutions help constitute the nation, to varying degrees in different nations, offering to each nation’s people a way of understanding themselves as
political beings.”66 As he observes, a formal written constitution may or may not conform to an existing, expressivist understanding of a nation; “the constitutions of some
nations tell clearer stories about who those nations are, [and] vary in the extent to
which they shape the cultures in which they are located.”67
The notion of a constitution as a form of self-expression need not suggest that what
is being expressed is or should be unchanged, oriented only to a past frozen in a particular moment of constitutional time. The notion of a national story is, inevitably, a
complex one, made up of strands of experience of different groups, seen differently over
time through different prisms of new historical experiences. Yet the capacity of constitutions both to express and to channel these narratives, to focus contests and understandings of identities of particular political communities, has been an important
aspect of their role.68 Professor Paulus’s inclusion of “solidarity” as an element in domestic constitutions may be seen as an effort to capture the sense of connection that
an “imagined [but often contested] community” must have. Professor Walker’s “discursive” frame captures the contests over what constitutional stories are told, while
his “authorization” frame embodies the idea of an “original and distinctive” pouvoir
constituant. Yet the constitution’s capacity to serve as a site of self-expression does not
necessarily end with the moment of adoption but may be understood as a continuous,
ongoing process of self-expressive contestation and agreement about its meaning. To
the extent that a constitution emblematizes, constructs, or expresses such an attachment to a particular political community, its translation to the realm of international
law is deeply problematic. This point does not depend on an association of territorial
states with a particular ethnonational group but can apply as well to states understood as political communities that are themselves multiethnic or multicultural.69
These two underplayed themes—of constitutions and constitutional law, first, as
facilitating democracy and, second, as expressing or constituting a particular political community—bear on the questions of heterarchy, hierarchy, and transnational
constitutional values, to be addressed below.
Id. at 1228.
Id. at 1271. On the connection between constitutions and narratives, see Cover, supra note 2.
68
Although constitutions in the modern era seem particularly likely to play this role—or to be drafted by
those who hope it will—this is not to deny that other forms of law might not capture a national selfunderstanding in different ways, whether it is the French civil code or the family laws of many nations,
which are understood to embody often highly contested cultural understandings and traditions.
69
Cf. Will Kymlicka, Liberalism, Community and Culture 135 (1985) (noting “political communities” as well
as cultural [ethnic or nationalist] ones).
66
67
544 I•CON 8 (2010), 517–562
3.2. Questioning cosmopolitan constitutionalism
As noted above, one possible normative implication of treating international law as
constitutional has to do with its relationship to national constitutional orders; if only
the national can be regarded as ‘truly’ constitutional, then it may be sensible to treat
the national constitution as regulating the degree to which supranational or international law is given domestic effect. If international law is itself constitutional in
character, it may have a stronger claim for priority. Professors Kumm, Halberstam,
and Besson all reject such absolutist claims, arguing for more nuanced or graduated
approaches. Each offers a substantive framework for decision making about what
law to apply, when two different sources of law, each presumptively binding, are
or may be in conflict. Professor Kumm’s essay seeks to overcome traditional formulations of monism and dualism in identifying the priority of international over domestic constitutional law, through analysis of four different criteria at the center of
cosmopolitan constitutionalism and a presumption in favor of international law.
Halberstam’s essay also might be seen as an effort, through a comparable matrix, to
overcome classical notions either of the necessary supremacy of domestic constitutional
law or the necessary priority of formally binding international obligations. Besson,
as well, strives to provide a normative framework for resolving the logical priority
of different levels of law on a case-by-case basis, based on the foundational question
of democratic legitimacy.70
It bears noting that these scholars have focused in much of their writings on the
European Union, whose development over the last half century has involved multiple
acts of political and legal acquiescence to and affirmation and expansion of the legally
binding and complex apparatus of the EC, as it is enforced through the ECJ, and which
develops as well under the influence of the ECtHR, whose judgments, albeit without
necessarily having the direct effect and supremacy of the ECJ’s, are nonetheless
increasingly significant. The strength of the legally binding character of this overall
regime may be different in kind and intensity from the force of ratified treaties in other
countries, like the United States, where treaty ratifications have not resulted in the
same sort of institutional legal infrastructure involving regular interactions between
national legal institutions, individuals and private businesses, and supranational
organs. Both the repeated authorizations of expansion, agreed to by governments
and, increasingly, by popular referenda, and the continued membership in the face
of repeated and well-publicized interactions, adjudications, and controversies may
reinforce the binding call of the legal commitments of EU members in ways that differ from the experiences of other countries with respect to treaty obligations or customary international law. Not only is there more reason to attribute some degree of
democratic legitimacy (albeit remote) to the ongoing EU regime than to many other
international regimes, but also the regional character of the EU may result in a closer
correspondence between the legal norms being applied at the supranational
See also Maduro, supra note 30, at 82–86 (contesting presumed superiority, from point of view of democratic self-governance, of either national constitutions or EU-level governance).
70
Paradigms of public law: A review of Ruling the World? 545
and national levels than is the case, for example, with international covenants
designed to attract ratifications from all or most countries in the world. Yet, while
claims of the supremacy of EU law are well accepted with respect to ordinary national
law, in many countries the supremacy of EU law is still resisted at the level of national
constitutional law.
In this section, I raise some questions, especially about Professor Kumm’s approach,
and offer an alternative, one that may be less satisfying in terms of a coherent normative framework but that may be more appropriate to the early and uncertain development of transnational constitutional values and that may better accommodate
the multiple and, at times, conflicting needs and demands of constitutionalism at all
levels of governance. In this alternative paradigm, the implications of understanding
individuals as “free and equal”—within an environment of sociolegal pluralism
and powerful nonstate forces competing with civil law for regulatory control—
supports a range of forms of engagement by national constitutional systems with
international and foreign law, but without giving presumptive priority to international over constitutional law.
Professor Kumm, whose ambition is to produce a “Copernican turn” in normative
understandings of public law (p. 263), argues for a cosmopolitan paradigm of constitutionalism, one that provides the best measures for the (comparative) legitimacy of
all forms of public law, domestic and international. Rather than assuming national
constitutions to be unproblematically legitimate, Kumm argues that all forms of
public law should be evaluated according to the constitutional values of formal
legality, jurisdictional subsidiarity, processual and substantive justice (rights and
reasonableness). On this account, national constitutions may, in some cases, be less
legitimate a source of law than international law.
Challenges to the assumed legitimacy of national constitutions, in the context of
discussions about the relationship of the national to the international, are a creative
and important effort to provide a new basis for common ground in the scholarship of
public lawyers, whether interested in constitutional, international, or administrative
law. Many states, their constitutions, and their associated constitutional law are, in a
sense, the product of historically contingent and amoral (or, in some cases, immoral)
acts of exploration, conquest, and subjugation, followed by deeply political and deeply
compromised negotiations over the governing basic law. The very boundaries within
which national constitutions are made have a degree of artificiality to them and, in
most cases, a degree of injustice and sheer violence associated with the establishment
and maintenance of those borders. And yet, at present, in much of the world these
territorial borders provide a geopolitical container or structure for enabling democratic politics and communal identities in ways that work toward the security and
self-governing freedom of their peoples.
International law—perhaps especially customary international law—is more
removed from the possibilities of self-governing democratic decision making; its development has been informed by a history of control by the more powerful states and
by an often contested relationship to the range of states in the world. Moreover, to
the extent that international law—both customary and treaty law—reflects the prac-
546 I•CON 8 (2010), 517–562
tices of states that are both more and less democratic, both more and less respectful
of civil or social human rights, it will necessarily operate at some distance from the
combined normative commitments of any individual national state. Thus, the
project of envisioning a normative framework to evaluate both of these sources of
law—international law and constitutional law—when some reconciliation or choice
is required, is of great potential significance.
At the same time, there are elements in these approaches that raise concerns.
Kumm’s analysis places democratic decision making, in the sense of self-government,
relatively low in the scale of cosmopolitan constitutional values, as only one of several alternative sets of process values. The idea of jurisdictional subsidiarity asserts a
trumping normative hierarchy for deciding at what level democratic decision making
has legitimacy, as does Halberstam’s emphasis on the “relevant” political will or Besson’s
desire that decision making reflect the interests of all who are affected and have an
equivalent stake in the subject. Their work raises several questions for theorizing this
new transnational framework of legitimacy.
3.2.1. Formal legality
For Kumm, the “principle of legality” means that “wherever public authority is exercised it should respect the law” (p. 274). Although, on a “statist” view, the national
constitution is controlling on the force to be given international law, Kumm questions
why national law should be so privileged. Indeed, he suggests, a presumption that
international law should control is more plausible from the point of view of legality
(p. 277) (albeit a presumption that could be overcome).71 Under a dualist (or statist)
model, it is possible for there to be a breach of international obligations that is
lawful under the domestic constitution—that is, to have both law compliance and
lawbreaking at the same time. International legal monism, he argues, helps dissolve
the idea of having to break a law to comply with another, since monism itself
provides a “clear conflict rule—the primacy of international law,” which implies that
“[n]ational constitutional law can never legally be used to set aside provisions of international law” (p. 276).
In cases of a conflict, however, it might be tempting to say that, since both legal
norms apply, the legality factor favors neither. Given the ambitions of international
law to apply as a coherent legal system for multiple countries, however, considerations of systemic legality—or, perhaps better put, the coherence and consistency of
international law as a legal system—arguably favor the application of international
law, as Yuval Shany has argued with respect to ratified treaties.72 Kumm’s work
See Kumm, supra note 22, at 263 (“The presumption in favour of compliance with international law can
be overridden by reasons of sufficient weight relating to jurisdiction, procedure or outcome”).
72
See Yuval Shany, How Supreme is the Supreme Law of the Land? Comparative Analysis of the Influence
of International Human Rights Treaties upon the Interpretation of Constitutional Texts by Domestic Courts,
31 Brook. J. Int’l L. 341 (2006). For related reasons, Shany has likewise argued for a presumption that
constitutions should be interpreted in light of ratified treaty law, rather than, for example, that treaty
provisions should be interpreted to conform with national constitutions. Id. at 399–400.
71
Paradigms of public law: A review of Ruling the World? 547
suggests, more generally, that cosmopolitan constitutionalism will presumptively
apply international law over domestic law through the principle of legality, except in
the presence of countervailing pressures from one of his three other factors.73
However, while arguments from consistency and coherence arguably support such
a presumption, a different perspective on the application of the principle of legality
might well support the opposite presumption. The argument turns on the still-dominant
consensual and practice-based understandings of international law. International
law requires that governments have capacity to have international relations, but
does not itself confer that capacity; the capacity to treat or deal with other nations
derives (at least, primarily) from domestic constitutional frameworks. If customary
international law is derived primarily from the practices and felt obligations of states
within the world community, it is likewise their status as states that endows their
actions with legal effects; likewise, treaty law rests, at least initially, on the consent of
state parties.74 If domestic constitutional frameworks are needed to give rise to the capacity to exist as a government and to treat with other governments, perhaps domestic
constitutional law has a strong claim of legality in outright conflicts between national
constitutional and international law.75 The more remote patterns of accountability
that characterize the formation of international legal norms—as well as their formal
legal dependency on the domestically authorized actions of states in creating international law—might reinforce this contrary conclusion as to the presumptive direction in which “legality” flows.
3.2.2. Jurisdictional subsidiarity and expertise
Professors Kumm, Halberstam, and Besson seek to extend principles of “voice” or democracy beyond national borders but without proposing a significantly changed institutional structure to accommodate this effort.76 By giving weight to their version of
See also Kumm, supra note 22, at 273–274.
But see Matthias Kumm, The Legitimacy of International Law: A Constitutionalist Framework of Analysis,
15 Eur. J. Int’l L. 907, 914 (2004) (commenting on the degree to which international law is developing
nonconsensual aspects, especially in the identification of jus cogens norms). A norm cannot be recognized
as jus cogens without the at least formal support of the great majority of states in the world although, in
theory, it binds nonconsenting states. On the nature of jus cogens as a norm “so fundamental that it even
invalidates rules drawn from treaty or custom,” see Mark W. Janis, An Introduction to International Law
62–63 (4th ed. 2003); see also 1 Oppenheim’s International Law 512–13 (Robert Jennings & Arthur Watts
eds., 9th ed. 1992).
75
But cf. Kumm, Beyond Golf Club, supra note 7, at 513–515 (denying the importance of consensual origin
in establishing constitutional legitimacy). Legitimacy is, at best, only partially determined by origins, to
be sure. And Kumm’s point may become more true over time under particular regimes; but the discussion
above is of legality, not legitimacy, and on the legality point, my aim is, at least, to raise countervailing
arguments to Kumm’s argument that considerations of legality favor international over constitutional
law in cases of conflict.
76
To be sure, there are differences among these authors: Halberstam embraces “subsidiarity” both in his
categories of “voice” and “expertise” (pp. 338-48); Kumm treats subsidiarity as both a measure of effectivity and as related to the appropriate level at which “process” must be evaluated (pp. 290–301); Besson
is less concerned with technical expertise and more with democratic legitimacy (see, e.g., p. 406).
73
74
548 I•CON 8 (2010), 517–562
subsidiarity and to the concept of the most relevant level to give voice to the interests of
all affected, these authors are embarked on building the normative legal infrastucture
required for a fundamental change away from reliance on existing national borders as
presumptively defining the “unit” for constitutionalism and democratic self-governance. For while the idea of subsidiarity is more conventionally associated with a presumption in favor of allotting governance authority to the government in the smallest
area, closest to the people it acts for, these authors treat the inquiry, instead, as one
designed to allocate jurisdiction so as to assure that the interests of all who are affected
by a decision are represented in it. Because of the increasingly obvious interconnections between actions taken by even the most local of governing units, a very wide
range indeed of government decisions may be deemed to have external effects.
Depending on how broadly externalities or spillovers are defined, the criterion of
jurisdictional subsidiarity has significant potential for reinforcing the primacy of international law. There are expansive but plausible arguments—based on a concern for
action at the appropriate level of “voice”—that could be deployed to justify international
or supranational priority in regulation across a very wide range of areas. In arguing for
a “complementary constitutionalization” of international law, Anne Peters suggests that
three phenomena justify international law’s assumption of the constraining functions of
constitutional law: the increased externalities of democratic decisions taken within polities; an increase in problems seen to require a transnational solution, including environmental concerns (for example, global warming, international crime, or terrorism); and
an increase in executive branch power (resulting from the transnationalization of problems), which is difficult for national law to constrain and, thus, requires constraint at the
international level.77 On Professor Kumm’s approach to subsidiarity, any of these circumstances could be a factor favoring resort to international over domestic law. Much would
depend on how jurisdictional spillovers are identified.78 In order to avoid diminishing
the space for effective self-governance in relatively smaller national communities, constraints of directness, substantiality, and clarity in identifying externalities or spillovers
might need to be developed to cabin the force of the jurisdictional subsidiarity value.
See Peters, Compensatory Constitutionalism, supra note 8, at 580.
Expansive views of externalities could include not only material effects (which will increasingly be felt in
other countries given the thicker sets of international trade connections in the world) but also attitudinal
influences (consider, here, the stake that the EU has felt in arguing for abolition of capital punishment in
the United States). On “mental externalities” within economic reasoning, see Richard A. Posner, Overcoming Law 23 (1995) (arguing that including such externalities would make economic analysis a “potential
menace to basic liberties”); Gerard V. Bradley, Overcoming Posner, 94 Mich. L. Rev. 1898, 1901-1902,
1913 (1996). Although Posner, among others, rejects “mental externalities” because of their potential
intrusion on liberty, in the debate over foreign and international law in constitutional interpretation the
influence of other countries’ practices on U.S. law seems to be treated as a negative “mental externality”
on the United States. Whether intellectual disagreement over how another nation treats its own citizens
or residents should count as an externality is itself a subject on which there may be substantive disagreement, especially given the decreased capacities for national insulation from events elsewhere as a result
of internet and related technologies. For thoughtful discussion of the possibility of the “co-evolution” of
norms, see Rosalind Dixon, A Democratic Theory of Constitutional Comparison, 56 Am. J. Comp. L. 950 (2008).
77
78
Paradigms of public law: A review of Ruling the World? 549
In cases of competing jurisdictional claims, moreover, who would decide—and who
would decide who would decide?79 Halberstam is prepared to live with uncertainty
over the outcome of the contests and, indeed, without any identified decision maker
but simply rounds of contests, as arguments are had around these values of voice (and
at what level), expertise, and rights. But for both Kumm and Besson, it appears that
there will be correct answers, however difficult to arrive at, to the question of jurisdictional subsidiarity. As Neil Walker has suggested, who should and who can decide
in the event of normative conflicts is critical to any effort to resolve what he calls the
“paradox of contested authority.”80 In situations of (deep and reasonable) disagreement, democracies rely on representative democratic processes, conducted within a
(hopefully) deliberative set of discourses, to provide both political legitimacy and epistemic validity to their outcomes.81 Yet who is to decide who decides the question of
jurisdictional subsidiarity when there are competing claimants?
This “who decides” question is central to the goals of constitutional design.
As Halberstam points out, in the United States it is settled that, on federalism
disputes, the federal level, through the Supreme Court, ultimately has final
decisional authority. And while authority over other issues is somewhat more contested, a strong norm treats the Court’s decisions on separation-of-powers issues
as presumptively final; the U.S. Supreme Court is able, most of the time, to provide
definitive settlement—for the medium term—on issues of public controversy.
Without such presumptive (if not absolute) settlement authority in place, might the
system’s heterarchal features overwhelm the legal system’s capacity for legal ordering? In Europe, the authority of the ECJ on most issues of conflict between national
and supranational law is accepted, and even where there are apparent conflicts between national and supranational law there is a spirit of cooperation born of the
member states’ commitment to the EU as, on the whole, beneficial to their countries.
Outside the EU, at this time, there is no plausible international decision maker with
comparable authority. Heterarchy, then, may be compatible with good legal order
only in the presence of a presumptive decision maker, even if the finality of its decisions is contestable.
The “who decides who decides” question is further complicated by issues of democracy and process, discussed next.
3.2.3. Democracy and process
Kumm argues that the theory of democracy within a “statist” paradigm of
constitutionalism—that all the members of the polity are free and equal—in principle,
See Maduro, supra note 30, at 96 (discussing the “question of ‘who decides who decides’”).
Neal Walker, Beyond Boundary Disputes: and basic grids: Mapping the global disorder of normative orders,
6 Int’l J. Const. L. (I·CON) 373, 392, 393 (2008).
81
See generally Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and
Democracy 465 (tr. William Rehg, 1996) (developing a discourse theory of constitutional democracy);
William E. Forbath, Habermas’s Constitution: A History, Guide and Critique, 1998 Law & Soc. Inquiry
969.
79
80
550 I•CON 8 (2010), 517–562
better supports cosmopolitanism (pp. 263, 276). Perhaps this would be true if one
could conceive of a world demos with democratic processes at shifting, but including
the global, levels.82 But Kumm agrees that this is not realistic. Kumm’s account treats
democracy as a legitimating process at the national level83 but argues that it is not
possible or appropriate at the international level; rather, transparency, participation,
and reason giving can function at the international level as procedurally legitimating
factors, he suggests. Participation in self-governance is thus not seen as a good
in of itself, or is viewed as having a broad range of substitutes, perhaps entailing
theories of virtual representation by national government actors and by self-organized
public and private interest groups. Yet reason giving and transparency do not afford
the individual access to participate in decisional processes characterized by the formal
equality of voting; furthermore, as some ‘new-governance’ or ‘global administrative
law’ scholars recognize, “distance matters” in the degree to which various mechanisms of democratic accountability can function well.84
Better procedures may well improve the deliberative quality of international decision making and its legitimacy in some important sense; but how will this affect
democratic decision making either in member states or at the international level? Is
“deliberative” democracy reducible to the idea of reasoned public justification following transparent and inclusive discussion, without the validation of democratic decisions?85 Is good deliberation about public reason, based on open participation and fair
process, sufficient? Is a “sense of identity” with supranational or international decision makers an adequate substitute for democratic involvement in their selection or
retention?86
Cf. Ian Shapiro, The Moral Foundations of Politics 222 (2003) (arguing for “defining the demos decision
by decision rather than people by people”); see also Rainer Bauböck, Expansive Citizenship: Voting beyond
Territory and Membership, 38 Political Science and Politics 683, 686 (2005) (noting Shapiro’s argument).
83
Compare Kumm (p. 270) (“Of course, political decision making connected to electoral accountability
should play a central role given the fact of reasonable disagreement on questions of rights and public
policy. But not all disagreements are reasonable. . . . The real issue is the legitimacy of a decision by public
authorities that imposes burdens on individuals when that decision is not susceptible to a plausible justification within a framework of public reason”) with id. (p. 273) (“Questions of democratic legitimacy
of transnational governance practices . . . are widely overstated. Once freed from statist assumptions
of what makes democracy legitimate, these concerns translate into the important but relatively mundane demand to ensure that appropriate forms of transparency, participation, representativeness and
accountability become an integral part of government practice”).
84
Dan Esty, Good Governance at the Supranational Scale: Globalizing Administrative Law, 115 Yale L. J. 1490,
1502–1503 (2006). But cf. Goldsmith & Levinson, supra note 21, at 1860 (arguing that, in principle, the
normative foundation of domestic constitutional law in consent is as problematic as it is in international law).
85
See Esty, supra note 84, at 1515–1516 (treating democratic legitimacy as distinct from deliberative legitimacy but suggesting that at the international level deliberative process can help substitute for the
absence of democratic ones); but cf., e.g., Ian Johnstone, Legislation and Adjudication in the Security Council:
Bringing Down the Deliberative Deficit, 102 Am. J. Int’l L. 275 (arguing that an improved deliberative process would add democratic legitimacy to the Security Council’s adjudicatory and lawmaking functions
by making it easier for others—NGOs and national states included—to participate and seek to influence
outcomes).
86
Esty, supra note 84, at 1516.
82
Paradigms of public law: A review of Ruling the World? 551
The substitution of administrative for democratic process raises concerns that cut
across other criteria, notably subsidiarity. If processes of transparency, NGO participation,
and public reason at the international level are viewed as fungible with democratic
decisional processes,87 will elite and privileged decision makers—the representatives
of national governments at the international bargaining table and those with access
to effective informal methods of participation—be able to act with less restraint and
accountability than publicly elected officials in democratic states? Although international processes that protect democracy are not inconceivable, they are surely not
widely in place.88 And while democratic decision making within national polities raises
many very difficult problems—of corrupt influence, of how to aggregate votes to best
represent the public, 89 of whether and how to measure intensity of preferences—these
problems are more difficult to resolve in the much larger collectivity of supranational
or international institutions. At the supranational or international level, there is an
intensification of the tensions that arise in domestic territorial states over the desires to
have democratic processes that enable the participation of all affected—a group that
will frequently transcend the national boundaries within which voting takes place—
and to avoid concentrating decisional power in expert or governmental elites, who,
however well intentioned, are more remote from and less accountable to a democratic
polity.
Moreover, it is governments that are still the primary actors in international law.
Because governments are not, in fact, ”free and equal” in their power to influence and
construct international law, the claims that can be made for international law’s legitimacy on procedural/democratic grounds may well be generally weaker than those
that can be made on behalf of well functioning democracies. That is, the absence of
democratically legitimating sources of domestic authority might be thought to weaken
the democratic authority of international law to the extent it rests on agreements
For an argument that they are not fungible, see Christian Tomuschat, International Law: Ensuring the Survival of Mankind on the Eve of a New Century, General Course on Public International law, in 281 Recueil des
Courts 10, 155 (1999); see also Armin von Bogdandy, Comparative Visions of Global Public Order (Part 2):
Constitutionalism in International Law: Comment on a Proposal from Germany, 47 Harv. Int’l L. J. 223, 236
(2006).
88
See, e.g., Eyal Benveniste, Reclaiming Democracy: The Strategic Use of National and International Law, 102
Am. J. Int’l L. 241, 247 n. 23 (2008). For proposals to develop global or regional institutions of democratic decision making, see, e.g., David Held, Democracy and the Global Order (1995); Kennedy, (p. 67)
(three votes per person in world).
89
For a description of Arrow’s theorem and its negative implications for viewing enacted laws as representing the democratic will, see Daniel A. Farber & Philip P. Frickey, Law and Public Choice: a Critical Introduction
38–42 (1991); W. Riker, Liberalism Against Populism: A Confrontation Between the Theory of Democracy
and the Theory of Social Change, 115-36 (1982); see also Frank H. Easterbrook, Statutes’ Domains, 50
U. Chi. L. Rev. 533, 547–548 (1983). But see Farber & Frickey, supra, at 47-62 (suggesting that actual
legislative behavior involves institutional features that promote stability and coherence and mitigate the
effects of the cycling predicted by Arrow’s theorem); Richard H. Pildes & Elizabeth S. Anderson, Slinging Arrows At Democracy: Social Choice Theory, Value Pluralism, And Democratic Politics, 90 Colum. L. Rev.
2121 (1990) (critiquing public choice theories’ attacks on democratic decision making and arguing that
“social choice theory . . . pose[s] no significant challenge to the general legitimacy and meaningfulness
of democratic decision making”).
87
552 I•CON 8 (2010), 517–562
negotiated with non- or less democratic governments. In this respect, the EU is in a different position, since it has succeeded in requiring its member states to adhere to basic
norms of democracy, and in ways that go well beyond the state of democracy in some
other parts of the world. There may be an ideal sense in which, applying subsidiarity
principles, jurisdiction would lie at the international or regional level for a number of
serious problems. However, the absence of effective and functioning internal democracy among some parties at the regional or international level may weaken the force
of this jurisdictional analysis to the extent that action at the international level cannot
effectively give voice—in a free and democratic way—to the interests of all the human
beings involved.90 Opining on the status of the internal democracy of the parties that
have produced an international agreement may be beyond the competence of courts,
and certainly will place them (and perhaps other government actors) in an uncomfortable position; yet, it is hard to see how to escape such determinations, if evaluating
the democratic or processual bona fides of international law—outside the EU—were
to become an accepted part of cosmopolitan constitutionalism.
3.2.4. Substantive justice, rights, and belonging
Kumm’s criteria are cosmopolitan. But it is not clear that they are sufficiently responsive to the role of substantive justice, on the one hand, or, on the other, that they allow
sufficient room for expressive conceptions of law related to human desires to belong to
particular communities.
For Kumm, considerations of substantive justice and rights protection appear to
function, primarily, as checks on the more general presumption that international
law should control.91 One might argue that rights protection should be at the core of
the new cosmopolitan constitutionalism; 92 that protection of equal rights and human
dignity lies at the core of that concept; and that whatever level gives greater protection to normatively valuable rights should generally apply, whether it be domestic or
international law. Although there are important arguments for international human
rights law to serve as a “backstop” to domestic law in providing minimal levels of
rights protection,93 even this is a controversial proposition for those who ground the
There are mechanisms that seek to give “voice” to the unheard living in less-than-free situations, as in
the “shadow” reports by NGOs that may be made to UN human rights monitoring committees; however,
it is very difficult to consider those reports commensurate with how people would decide. In democracies it is not unheard of for people to vote against what others regard as their apparent material
interests, for example. See, e.g., Thomas Frank, What’s the Matter with Kansas (2004); Larry M. Bartels, Unenlightened Self-Interest: The Strange Appeal of Estate Tax Repeal, The American Prospect, June 7,
2004, at A17, available at http://www.prospect.org/cs/articles?article=unenlightened_selfinterest.
See also supra note 87.
91
See Kumm, supra note 22, at 273.
92
See Lorraine Weinrib, Constitutional Conceptions and Constitutional Comparativism, in Defining the Field of
Comparative Constitutional Law (V. Jackson & M. Tushnet eds. 2002); Lorraine Weinrib, The Postwar Paradigm and American Exceptionalism, in The Migration of Constitutional Ideas (Sujit Choudhry ed., 2006).
93
See Slaughter & Burke-White, supra note 8 at 339.
90
Paradigms of public law: A review of Ruling the World? 553
existence of rights entirely in the self-governing and particular decisions of a particular polity, as many scholars in the U.S. do.94
But if it is controversial to suggest to ‘democratic sovereigntists’ that international
law should trump when it provides a higher level of rights protection, it may be even
more so to argue the priority of international law when it justifies restrictions of rights
that would not otherwise be permissible. Yet Professor Kumm’s Bosphorus example
arguably illustrates how the presumptive force of international law could result in justifying intrusions on otherwise protected rights. On the one hand, the Bosphorus cases
might be understood, simply, as treating the fulfillment of legitimate international
obligations as a domestic governmental purpose or interest that justifies limitations
on rights in the same way that other legitimate governmental purposes do, within
the matrix of existing constitutional doctrine.95 On the other hand, to the extent that
the Bosphorus cases treat the international source of the obligation as having special,
additional weight, beyond that which would inhere in a national government’s interests, they would tend to require a greater degree compliance with the international
norm.96 For Kumm, the jurisdictional legitimacy of the international level’s regulation
offers a greater justification to intrude on otherwise protected rights and, thus, within
proportionality analysis, justifiably allows constraint; but the presumptive prioritization of international law remains contestable from a rights protection perspective.
Second, the apparently cosmopolitan character of the rights Kumm has in mind and
the relatively small role played by considerations of self-governing democratic government leave little room for the assertion of distinctively national self-conceptions
that would trump international ones as a matter of normatively tolerable reasonable
disagreements. Yet human beings have a tendency to differentiate their own group
from others. This tendency has an obvious and very dark side, one that constitutional
law must help contain, namely, the tendency to see the “other” as not human, not
worthy, not sharing a basic humanity, which, in turn, may lead to indifference, violence, war, genocide. At the same time, the tendency to feel a sense of belonging—or to
want to belong—to one or more distinctive communities offers much that can be
For discussion of this vein of thinking, see, e.g., Jed Rubenfeld, Unilateralism and Constitutionalism, 79
N.Y.U. L. Rev. 1971 (2004); Paul W. Kahn, Comparative Constitutionalism in a New Key, 101 Mich. L. Rev.
2677 (2003).
95
See discussion above, text at notes 24–25. In the U.S. context, compare, e.g., Boos v. Barry , 485 U.S.
312, 323–339 (1988) (assuming, but not deciding, that protecting the peace and dignity of diplomats
and embassies pursuant to the requirements of international law, would be a sufficiently “compelling”
interest under U.S. First Amendment doctrine to warrant some restriction on speech rights, but concluding that the challenged federal statute failed other First Amendment tests requiring narrow tailoring for
content-based regulation) with Eldred v. Ashcroft, 537 U.S. 186, 205–206 (2003) (upholding extension
of the term of U.S. copyrights under a “rational basis” review of Congress’s exercise of its constitutional
authority, noting in particular Congress’s effort to respond to an EU directive on copyright terms by providing U.S-based authors a comparable term on their works).
96
Cf. Boos v. Barry, 485 U.S. at 324 (“[I]t is well-established that ‘no agreement with a foreign nation can
confer power on the Congress, or on any other branch of Government, which is free from the restraints of
the Constitution.’ . . . [T]he fact that an interest is recognized in international law does not automatically
render that interest ‘compelling’ for purposes of First Amendment analysis”).
94
554 I•CON 8 (2010), 517–562
understood as normatively valuable, even within a liberal framework. Whether
understood through the lens of liberal nationalism,97 or of constitutional patriotism,98
or of communitarianism,99 people are born as social beings, and, for most people,
group affiliations and communities of belonging are an important part of their lives,
offering meaning while structuring and creating (as well as constraining) choices. Indeed, as some political theorists suggest, it might be understood as part of a liberal,
cosmopolitan commitment to enable people to be able to live in particular communities insofar as doing so helps them structure and make their life choices.100
Communities may exist at many different levels, substate and interstate, as well
as those political communities defined by territorial states.101 Nonterritorial forms of
“community” attachment, including those sometimes embraced within the term
“nationalism” when used to identify a sense of identity to a group based on ethnic,
religious, or linguistic common histories even if the community is in a diaspora, may
also serve this function; they have potent risks of promoting abuse against outsiders, especially if those who have not shared the history or ascriptive characteristic are
excluded. Territorial states also are exclusionary—that is, they distinguish between
citizens and “others”; they may be fiercely and aggressively nationalist. But they may
also offer the possibility of enabling the development of civic communities, based not
on past ethno-linguistic-religious-cultural affiliations but on shared commitments,
perhaps reinforced by attachments to a common national history, to working on living together in a corporeal, territorial space with very different people. The governance of everyday life in a geographically defined territorial community that is pluralist
is facilitated by principles of equal treatment, tolerance of difference and respect for
See, e.g., Yael Tamir, Liberal Nationalism (2003) (focusing on compatibility of nationalism, understood
as a form of ethnic or ascriptive identity, with liberalism); Kymlicka, supra, note 69 (arguing that culture
provides a needed context for the exercise of individual choices and that liberal states can accommodate
minority cultures and rights associated therewith); F. H. Buckley, Liberal Nationalism, 48 Ucla L. Rev. 221
(2000) (focusing on a form of nationalism based on common commitments to a liberal legal tradition).
On categories of nationalism (focusing on two large categories, “statist” and “cultural” nationalisms), see
Chaim Gans, The Limits of Nationalism 7-8 (2003).
98
See, e.g., Habermas, supra note 81, at 465 (describing a universalist form of attachment to democracy and
human rights as “constitutional patriotism”); see also Jürgen Habermas, On Law and Disagreement: Some
Comments on “Interpretive Pluralism,” 16 Ratio Juris 187, 192–193 (2003) (suggesting that a fairly thin
notion of citizens seeing themselves as “heirs to a founding generation, carrying on a common project,”
can bridge gaps in “mutual recognition of membership” that may provide a “stable point of reference”
allowing co-citizens to battle over and critique interpretive positions); Frank Michelman, Morality, Identity and “Constitutional Patriotism,” 76 Denv. U. L. Rev. 1009, 1010, 1027 (1999) (discussing a somewhat
thicker sense of common identity through a “community’s concrete ethical character,” embedded in a
“historically specific political culture . . . an intersubjective cognitive convergence experienced by the
people of a particular country”); Mark Tushnet, Thinking about the Constitution at the Cusp, 34 Akron
L. Rev. 21, 35 n. 35 (2000) (arguing for a form of constitutional patriotism that “emphasizes the historically distinct commitments of the American people to our own (multiculturalist) constitutionalism,
thereby uniting a universalist constitutionalism with a parochial one”).
99
See, e.g., Michael Walzer, Spheres of Justice (1983); Michael Sandel, Liberalism and Limits of Justice (2d. ed.
1998). (Sandel does not necessarily embrace the “communitarian” label insofar as it connotes majoritarianism, see id. at ix.)
100
See Kymlicka, supra note 69, at 162–181.
101
See Gans, supra note 97, at 24; Kymlicka, supra note 69.
97
Paradigms of public law: A review of Ruling the World? 555
human freedom on which much of contemporary constitutionalism rests. Thus, in
a way, enabling the continued existence of particular states with particular commitments may be necessary to fulfillment of the more universal concepts of human rights.
A matrix for cosmopolitan constitutionalism that is appreciative of the human need
(right?) to belong to a particular place may not be one that would generally prioritize
the international over conflicting state law.
I do not mean to suggest that everywhere today, or into the indefinite future, territorial geographic states will remain the most, or even a, reasonable place for linking
affiliative or solidarity needs with governance. On the one hand, there are parts of the
world where that is not true today, where failing states do not hold the trust or affiliation of a sufficient number of their nominal citizens.102 On the other hand, it may be
in Europe that a sense of attachment to and affiliation with Europe is growing, as—
over time—the sense of “Virginians” and “New Yorkers” came to include a primary
national identity as “Americans.”103 But being a “European” is still something quite
particular, rooted in the shared histories of a discrete region of the world. I would hesitate to speculate on the kinds of imagined communities in which human beings will
find emotional affiliation and an effective sense of participation in control of their own
lives and needs a century hence. But today, for many people, territorial states—like
Canada, the United States, Japan—provide a meaningful sense of belonging and identity, linked to capacities for self-governance across a wide range of life’s activities, in
ways that the cosmopolitan matrix proposed by Kumm might not adequately accommodate.
Thus, a question: Could one construct a cosmopolitan argument to favor a presumption for the priority of constitutional over international law, when the two are
in conflict and the constitutional law is that of a constitutional democracy, while, at
the same time, engaging in interpretive practices that seek to minimize those conflicts?
Such a presumption is arguably consistent with cosmopolitan commitments to the
good of self-governance; to the epistemic value of deliberative discourse and regular
voting, as the basis for democratic decision making; and to understandings of constitutions as finding their legitimacy in multiple strands of commitments, worked out
in ongoing inquiry, one of which strands—but only one—is the relationship to other
states in the world community. To the extent, moreover, that it is states that are best
situated to generate and sustain the trust, the sense of involvement in a common endeavor necessary to play the role of legitimate general governments—effectively governing and protecting human rights at once—then the presumption might also favor
national state law in the event of conflict. Whether human communities can be governed according to cosmopolitan norms remains a substantial question; but if they can
Cf. Sabrina Tavernise, Survey of Pakistan’s Young Predicts “Disaster” if Their Needs Aren’t Addressed,
N.Y. Times, Sec 1, Nov. 22, 2009 (reporting survey results showing only one-third of Pakistani youth
surveyed favored democracy as basis for government; with only 10 percent expressing trust in the
government and 60 percent expressing trust in the military).
103
Indeed, Mark Tushnet has suggested in comments on this review that “international constitutionalism”
in Europe today might look quite similar to constitutionalism in the United States in the period 1809–
1854.
102
556 I•CON 8 (2010), 517–562
be, there are at least some cosmopolitan arguments for giving priority to distinctive
state communities, interests that are not fully captured by the idea of jurisdictional
subsidiarity. However, given jurisdictional spillovers—and the resulting inequities, in
which the voters of powerful countries like the United States do not fully internalize
the costs they impose on others who cannot vote—any presumption in favor of state
law would be difficult to justify within Kumm’s version of cosmopolitanism.
*****
It might be thought that conflicts between binding international treaty norms and
national constitutions are likely to be rare in constitutional democracies, because
of the opportunity for normative alignment at the time of ratification. Yet ratification procedures vary widely in their involvement of parliaments; moreover, as international agreements establish supranational nonunanimous delegated decisional
mechanisms, whether by adjudication or qualified-majority voting, the possibility of
future conflicts might arise. Under Halberstam’s model of heterarchy, if conflicts do
arise, rather than being resolved by a presumption in favor of international law, perhaps they must simply be tolerated (at least in many instances) until democratic support is obtained for eliminating the conflict. National decision makers may need to be
persuaded of the application of jurisdictional allocations to supranational levels, for
example, in order to also fulfill the processual demands of a constitutional democracy.
As Walker has suggested, any “agenda-setting initiative” to “frame global authority
relations” “must be pursued with a view to persuading the other constituencies—
judicial and political, with their indispensable roles to play in the meta-authoritative
process—to consider, accept, and act on the new conceptualizations in ways that
transform their meaning and broaden their legitimacy.”104 If democratic self-governance
were given a stronger value in the developing matrix of transnational constitutionalism, it might support either a presumption in favor of the national, in cases of conflict,
or, perhaps, the absence of a presumption, given the competing claims on both sides
that Halberstam has illustrated.
3.3. Toward transnational constitutional values
The theoretical accounts offered by Halberstam, Kumm, and Besson are valuable
explications of what substantive normative values of transnational constitutionalism
entail, both for national constitutions and for international law. Professor Kumm’s
argument includes an effort to begin to impose some order and coherence on a rapidly shifting set of understandings about the relationships of different public laws to
each other, but in a graduated and contextually sensitive way. There is understand-
Walker, supra note 80, at 395–396; cf. Jürgen Habermas, The Postnational Constellation, at 111 (transl. Max
Pensky, 2001) (suggesting that NGO participation in international negotiations “strengthen[s] the legitimacy of the procedure insofar as mid-level transnational decision-making processes could then be rendered
transparent for national public spheres, and thus be reconnected with decision-making procedures at the
grassroots level.”) On this account, improved international process is significant, in part, because it increases the capacity for informed democratic decision making in existing states or postnational federations.
104
Paradigms of public law: A review of Ruling the World? 557
able appeal in his effort to establish a presumption based on one factor—legality—that
may be reinforced, or overcome, by others. However, section 3.2 above questioned
whether the principles of legality, subsidiarity, voice/democracy/process, or substantive justice support a presumption in favor of any level of government in cases of conflict. In this section I argue more generally that efforts to develop definitive normative
frameworks or particular constitutional rules at the transnational level are premature.105 Rather, efforts should focus on the explication of transnational constitutional
values, recognizing that their priority inter se and their implementation will differ in
different polities.
The range of settings in the world ought to caution against premature efforts to
formulate a directive and global cosmopolitan version of constitutionalism. Consider
the idea of jurisdictional subsidiarity. Where there is a rich framework, grounded in
democratic consent with multiple iterations, of the binding force of a supranational
regime, as in the EU, the principle of subsidarity is one reasonable way to organize the
exercise of governmental power—either in the allocation or interpretation of competencies. But subsidiarity is not the only relevant jurisdictional value or approach, as
theorists of jurisdictional redundancy teach us,106 and it may have a stronger attraction
as a constitutional value in systems (like the EU) that have, through legal/political
means, committed to it.
Indeed, Professor Maduro’s argument about metateleological reasoning has particular force in a constellation of legal orders like those in Europe. But in Europe,
there is a stronger basis than in most other parts of the world for jurists and citizens to
understand that the legal order of each member state has a fundamental relationship
with that of the other member states, a relationship imposing, per Maduro, obligations
to consider and explain how national law and national interpretations of the law of
See also Yeatman, supra note 64, at 11 (suggesting that the task of rethinking “the idea of right in relation
to the universal conception of human rights” is a “process that is both ongoing and in its early stages”).
Cf. Bob Dylan, For the Times they are a Changing (1964) (“And don’t speak too soon/For the wheel’s still
in spin”).
106
See Judith Resnik, Tiers, 57 S. Cal. L. Rev. 837, 1028–1030 (1984); Robert Cover & T. Alexander Aleinikoff,
Dialectical Federalism: Habeas Corpus and the Court, 86 Yale L. J. 1035 (1977). Redundancy of some sort
may be an epistemic check, as is now appearing as a strand in the “new governance” literature’s
concerns for checks and multiple iterations and takes on solutions to the same problem. Cf., e.g., Michael
C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 Colum. L. Rev. 267, 314-323
(1998) (explaining democratic experimentalism and deliberative polyarchy); Orly Lobel, The Renew Deal:
The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, 89 Minn. L. Rev. 342, 379387 (2004) (discussing diversity, competition and decentralization). Redundant or codecisional procedures may also be a useful way of reflecting varying degrees of legitimate interest. Subsidiarity, moreover,
has a kind of capaciousness—is it about externalities? about expertise? about effectiveness? about the
normative stake outsiders have in the treatment of insiders? And how easy is it to define the “best level”
or the “affected” or “interested” stakeholders? Given this capaciousness, subsidiarity also carries a substantial risk of packaging other normative concerns behind a façade of legal science. A different way to
conceptualize some of the concerns behind subsidiarity would be to think in terms of at least minimally
effective government, which I believe is a requirement of constitutionalism; without order and a basic
standard of meeting human needs, it is very difficult either for democracy to function or for other rights
to be protected.
105
558 I•CON 8 (2010), 517–562
the whole will affect and be affected by those of others. Although it could be argued
that this form of “relational engagement” may be justified, more generally, given the
increasing networks of legal and other relationships among the countries of the world,
there is no denying that the legal relationships in Europe are of an unusual density.107
But there is an epistemological objection to the ambitions of applying this standard
across the world. It may be simply too ambitious to attempt, on a global scale, an inquiry into what level of government is best able to address a particular challenge.
For wide swathes of international law and for a number of national governments,
process and democracy concerns are substantial; yet, as noted above, inquiries by actual decision makers in national or international courts pose far more delicate questions than they do for those writing from the academy. Application of these values
will vary considerably not only from one international or supranational regime to
another but from one country to another, considerably reducing the value of a presumption that may be overcome more often than it is observed. Moreover, except in
very extreme cases, the application of these values is sure to be highly contested; and,
in the event of a conflict in the directions in which different values pull, the different
values may prove to be incommensurable, or the intensity of their pulls may be too
hard to predict ex ante. Reasonable disagreements will persist concerning the meaning of rights (and the meaning of reasonable disagreement) and justice. These disagreements may be grounded in deep norms of local democratic deliberation; or they
may be unjustified relics of an abandoned past, and, if so, subject to change through
a combination of reasoned argument and progressive democratic decision making.
Yet efforts to impose international over national law in the face of such disagreements
may result in illiberal nationalist backlashes that will be detrimental to constitutionalism in many ways.
On relational engagement, see Jackson, Constitutional Engagement, supra note 31, at 73, 78–80. Even
Habermas, it would appear, believes that at least for now there are limits on the possibilities of cosmopolitanism, arguing for the development of supranational instruments of civil society and democracy at
the regional level in Europe but not at the level of the entire international community. See Habermas, The
Postnational Constellation, supra note 104, at 105, 108 (stating that “competence for political action of
a world government and a corresponding basis of legitimation are lacking”; distinguishing the “active
solidarity” possible among citizens of states from “cosmopolitan solidarity,” which is largely “reactive”
and arguing that while “postnational federation[s]” are possible, “the “political culture of a world society lacks the common ethical-political dimension that would be necessary for a correspondingly global
community”). For a later iteration of his proposal, suggesting a “global three-level system” with truly
international superintendence of peace, security and human rights issues, with regional authorities over
certain economic, environmental, and energy issues, see Jűrgen Hagermas, The Constitutionalization of
International Law and the Legitimation Problems of a Constitution for a World Society, 15 Constellations
444 (2008). For those working from a different conception of constitutional democracy than Habermas’s,
the tensions between democratic decision making within a national state and a conception of democracy that would entail redistributive or “cosmopolitan duties” vis-à-vis the rest of the world are even
more doubtful. Cf. Jack Goldsmith, Liberal Democracy and Cosmopolitan Duty, 55 Stan. L. Rev. 1667, 1675
(2003) (describing deep tension between liberal democracy’s preference-aggregating capacities for its
polity and the assumptions of cosmopolitan duty and arguing that “theoretical, practical and moral factors limit the duty of liberal democracies to engage in cosmopolitan action”).
107
Paradigms of public law: A review of Ruling the World? 559
Moreover, both a sense of affiliation with or even authorship/ownership of law and
a commitment to the universal principles of human rights law are important aspects of
working democratic constitutionalism.108 Good administrative process is not a substitute for but an adjunct to democratic decision making.109 Abandoning efforts to hold
in equitable tension the dual commitments of local authorship and universal reason in
the aspirations of constitutionalism, through a presumption in favor of international
law, would have serious costs to the capacity of domestic legal systems, needed to
implement almost all of the aspirations for law to enable a good life. Thus, absent the
most egregious of basic rights violations or actions seriously, imminently, and existentially threatening others, there are real risks in a legal doctrine that would readily
override national constitutional law in the name of cosmopolitan constitutionalism.
This is especially so when the multiple functions of national constitutions are kept
in mind. Indeed, given those multiple functions, any presumptive priority to be yielded
by considerations of democracy, effective governance, legality, and rights may well
be for the application of domestic constitutional law over conflicting international
law. Absent a closely integrated framework like that in EU, the case for a general presumption in favor international legality over constitutional legality seems lacking.
Domestic constitutions serve multiple functions—they enable and facilitate and respect
democratic decision-making within the polity, importantly. They name and protect individual rights consistent with equal respect for human beings and the value of a realm
of individual freedom. They enable their countries to make and enforce international
agreements. They also provide a degree of stable respect for political compromises
over different claims of justice reflected in constitutional negotiations, the stability
of which, at least for some, may be important for the long run success in protecting
democracy and rights.
Some constitutions themselves prioritize international law at the constitutional
level, and, in such cases, that would presumptively be a sufficient basis in democratic
decision making to warrant thicker forms of cosmopolitan constitutionalism. Where
constitutions do not permit a country to join a treaty or to implement it through certain methods, domestic amendment procedures or other rules of law may well be
See Jürgen Habermas, Constitutional Democracy: A Paradoxical Union of Contradictory Principles? 29 Pol.
Theory 766, 766–769 (2001) (suggesting that both will—“democratic will-formation”—and reason–
“human rights”—legitimize constitutions, that they are “co-original” and interdependent on each other). For Habermas, these two ideas are made compatible by the limitation that “citizens are accorded autonomy” only “in the sense of reasonable will-formation,” that there exists an “internal relation between
will and reason,” a connection that “can develop only in the dimension of time—as a self-correcting historical process.” Id. at 767–768. A democratic constitutions, then, is a “tradition-building project with
a clearly marked beginning in time,” id. at 774, subject to ongoing process of law interpretation and improvement over time, a “self-correcting learning process,” Id. See also Jackson, Constitutional Engagement,
supra note 31, at 155–156 (arguing that both “local authorship” and “universal reason” are aspects of
working constitutionalism).
109
See supra notes 90, 104. Cf. David Luban, Intervention and Civilization: Some Unhappy Lessons of the Kosovo
War, in Global Justice and Transnational Politics: Essays on the Moral and Political Challenges of Globalization 79, 85–86 (Pablo de Greiff & Claran Cronin eds. 2002), quoted in Goldsmith & Levinson, supra note
21, at 1851–1852 (stating that “[i]n a democracy, the political support of citizens is a morally necessary
condition” for action [there, speaking of humanitarian interventions]).
108
560 I•CON 8 (2010), 517–562
available to resolve legality issues.110 However, national constitutions may need both
the solidarity of affiliative identity and respect for democratic decision making to be at
work in order to provide the necessary popular support for enforcing laws—including
laws that implement or enforce laws that protect human rights.111 The complex balance between democracy and rights, or the rights of the many and the rights of the
few, is one that, for the foreseeable future in much of the world, will take place, if at all,
at national levels of governance. It is thus important to sustain those national levels of
government as we work our way into better understandings of the increasingly complex relationships between legal orders in this transnational environment.
Thus, in contrast to efforts to theorize a “Copernican turn” in public law, appropriate metaphors, for now, need to be more fluid and less scientific. Although the
cover art of the book, reproducing part of a UN mural “Mankind’s Struggle for Lasting
Peace,”112 is evocative of the disciplines of geometry and physics. normative values in
public law are not capable of the procedures of scientific verification and falsifiability
that exist in the sciences. The pace of legal change is quite rapid in many parts of the
world’s constellations of legal orders; in some ways, constitutional systems are converging on some common elements; but divergences among legal systems may also
be growing rather than diminishing as the legal work of decolonization enters into a
new generation. Differences—for example, between more communal and more liberal
understandings of a good life, or concerning the role of religion and religious law as
informing constitutional development—may become more palpable, even as convergence develops on other norms or institutions (like judicial review).
Premature grand theory, especially universalist or “cosmopolitan” efforts to appropriate the language and definition of constitutionalism, may complicate efforts to develop very basic elements of constitutional order in severely unorganized parts of the
world. It may also complicate dialogue with other parts of the world that view the
international with a degree of suspicion that is an understandable reflection of colonialism and the normative power, exercised by the major powers over time, in the formation of international law. Professor Gardbaum’s essay seems to envision the effects
of international human rights regimes in a more epistemically modest way. Their existence, he suggests, provides a new form of constitutional legitimacy, an additional
source of checking or monitoring the justness of internal practices. While the existence of such norms gives a stake to others in the internal conditions of one country,
See, e.g., Amnesty International, The Death Penalty Worldwide Developments in 2007, AI
Index ACT 50/002/2008 (2008), available at http://www.amnestyusa.org/document.php?id=E
NGACT500022008#10.2.10.1%20France%20|outline (describing amendment of Constitution in
France after its Conseil Constitutionnel decision indicating that amendment would be required before
France could ratify certain international treaties prohibiting the death penalty).
111
Cf. Judith Resnik, Law as Affiliation, 6 Int’l J. Const. L. (I·CON) 33, 65 (2008) (expressing preference for
U.S. law itself to vindicate individual rights, rather than needing to rely on foreign or international law,
while, at the same time, rejecting strong versions of “exclusivist sovereigntism”).
112
Painted by José Vela-Zanetti. The portion of the mural pictured on the book cover (its center), also shows
exclusively male creators of the hoped-for world of peace, although women are pictured in less active
roles on the outer sides of the larger mural itself.
110
Paradigms of public law: A review of Ruling the World? 561
this does not necessarily imply their normative superiority to domestic norms. More
modest approaches, such as Gardbaum’s, have considerable normative appeal at this
time, given both epistemic limitations and widespread, reasonable disagreement on
some aspects of what is fundamental about fundamental human rights. A checking
or monitoring function envisions a discussion, a form of engagement and consideration, rather than a presumptive need to conform with international over national
constitutional law.
From this perspective, Dunoff and Trachtman’s two examples of international law
as “supplement[ing]” domestic constitutional law are rather different. That international systems may respond to domestic constitutional concerns and domestic
constitutions, likewise, may be interpreted to permit conformance with international
standards are reciprocal (or “supplemental”) processes of influence in which recognitional incentives operate to induce countries, or international regimes, to incorporate
attention to fundamental rights or values in order to be recognized by the other. These
reciprocal processes allow room for choice, they operate over time, and are, at least
in outward form, noncoercive. They are in form more respectful of democratic selfgovernance in existing national states. In these respects, they are quite different in
kind from the nonreciprocal imposition of norms on domestic entities by transnational
or international legal regimes, which risk domestic backlashes that, in the long run,
may harm receptivity to transnational legal values. For the constitutional states of the
world themselves need to work together, to increase their mutual engagements with
each other, lest the pressures of perceived transnational global threats overshadow
commitments to reasoned limitations on state power.113 Doing so, as it were, by legal
force may, in the medium run, be less legitimate and less effective than by gentler,
more reciprocal, decentralized, and less definitive methods.
Efforts to extend the binding force of international law as against fundamental
constitutional commitments is problematic from the point of view of both enabling
democracy and enabling meaningful community affiliations. Although the existing borders within which self-governance occurs are difficult to justify from a moral
theory based on the free and equal capacities of human beings, nonetheless, democratic self-governance at the international level is widely thought to be unworkably
utopian—at least in present time horizons. Even if institutional mechanisms for voting
could be developed,114 the senses of loyalty, affiliation, and investment in a common
project that contributes toward election losers accepting their losses are very far from
being established. Moreover, the self-expressive or self-constituting roles of national
law (including constitutions) might be thought to be deeply at variance with a universalist understanding of human rights, freedoms, and entitlements. However, theorists
Cf. Yeatman supra note 64, at 19, 14 (cautioning about dangers of “existing states . . . subvert[ing] their
own constitutionalist foundations and procedures in the name of security and counter-terrorism,” while,
at the same time, emphasizing the need to “deprovincialize the self-consciousness of the particular state
as a constitutional state and bring it into a wider interstate and global community of thought” about
constitutionalism and rights).
114
On proposals toward world democratic governance, see supra note 88.
113
562 I•CON 8 (2010), 517–562
of liberal nationalism suggest that the self-expressive, self-constituting roles of constitutions are not necessarily entirely incompatible with cosmopolitan commitments to
human beings as free and equal. If one of the attributes of the free-and-equal human
being is a desire to be affiliated with a group, to develop communal attachments based,
in part, on a lived—albeit often contested—history together, as a part of a meaningful
matrix of constructed choices of individual identity,115 even these expressive functions
may be regarded as legitimate within a more universalist or cosmopolitan orientation.
But if so, prioritizing between international and constitutional law is an even more
complex project.
Instead of designing a matrix for a cosmopolitan constitutionalism intended, in
part, to prioritize such norms, we might instead think of constitutionalism more as
“a mindset,” in Martti Koskenniemi’s phrase, open at the domestic level to what Neal
Walker has called “sympathetic consideration” of or engagement with the practices
and views of other constitutional democracies.116 Rather than claiming a “cosmopolitan constitutionalism” as the new paradigm, perhaps constitutionalism should be
viewed as a set of transnational, not necessarily global, values. Even in the absence of
the more integrated general frame for constitutional pluralism, as exists in Europe,
these values, understood as an invitation to serious normative considerations rather
than as binding legal norms, may be important both as a description and as a normatively attractive account of the changing paradigms of public law in much of the
world. Ruling the World is a major contribution to that understanding and is necessary
reading for all concerned with these issues.
See supra notes 69, 97, 100.
Cf. Walker, supra note 80, at 383 (identifying a frame of “sympathetic consideration” of external normative orders even in the absence of institutional integration).
115
116