This chapter considers the challenges associated with a balance of powers approach to global constitutionalism. As its popularity in domestic constitutional contexts demonstrates, the idea of a balance of powers has potential as a source of descriptive coherence and normative legitimacy. The domestic experience also demonstrates, however, that it is not without its difficulties. References to balance naturally give rise to further far-reaching questions: who or what is being balanced? How is the balance assessed? Given the novelty and diversity of supranational structures, the flexibility of the concept may have some utility for global constitutionalists. However, experience with the European Union’s concept of institutional balance – particularly in its response to the economic crisis – suggests that the concept may carry with it the risk of an artificial and unduly formalistic approach to real-world institutional relationships.
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Against global constitutionalism’s eclipse of the notion of constituent power, I suggest that the notion is necessary, plausible and useful in its having an explanatory, a critical-restrictive and an empowering function. I first show that problems from ‘constituent usurpation’ arise for domestic as well as for supra-state constitutions. I then focus on the European Union and the candidates that have been proposed as its pouvoirs constituants in demoi-cratic, regional cosmopolitan, and pouvoir constituant mixte accounts. I argue that allocations of constituent power in global constitutionalism will be most relevant in a reconstructive and transformational, not a foundational, perspective but that in some cases dissident social movements may find it useful to adopt the notion.
The chapter maintains that different forms of democratic constitution making are susceptible to authoritarian dangers and deformation to quite different extents. Nevertheless, I argue, that because of the significantly path-determined nature of the specific methods adopted, normative preference cannot always lead to the utilization of what is deemed best or even better. I try to make the case by analysing and comparing the major assembly forms of constitution making: extra-ordinary constituent assemblies, ordinary legislatures, American-type conventions, and round tables linked either to ordinary legislatures or to limited constitutional assemblies. I next try to show that even when the political path of transformation does not favour the adoption of the best paradigms of constitution making, it is possible to learn important things from both legitimating principles and specific mechanisms of the latter. I conclude with some reflections on the role, both negative and positive, of international actors in the process of constitution making. I distinguish here between types of intervention and the levels of influence on domestic actors.
Anthony F. Lang, Jr. and Antje Wiener
This chapter provides an introduction and framework to the volume. It provides a historical overview of constitutional thought and highlights the four principles of constitutionalism: rule of law, separation of powers, constituent power, and rights. It demonstrates the ways in which this history and these principles are relevant for global constitutionalism. It argues that a practice-based approach to global constitutionalism provides space for contestation of the traditional liberal history and principles of constitutional thought, highlighting new ways in which this idea can be understood and assessed.
Constitutionalism presupposes one authoritative frame for the political domain, paradigmatically shaped as the state. Yet notions of unity, closure and hierarchy contrast with the diversity, unsettlement and heterarchical accommodation associated with political pluralism. The tensions between formal unity and material pluralism capture much that is distinctive of constitutionalism today. The chapter examines two ways that constitutional practice entertains political pluralism, namely, within a single constitutional order through ‘plural constitutionalism’, and between constitutional orders through ‘constitutional pluralism’. The chapter also addresses the (dis)continuity between these approaches. To what extent can we view these as the product of a single ‘constitutional ethic’?
The chapter introduces the diversity of epistemological and ontological perspectives within constructivist research in order to explore existing links between constructivism in international relations and scholarship on global constitutionalism as well as potentials for further research. I argue that critical constructivism offers crucial analytical value to the study of global constitutionalism since it not only allows for a broader understanding of constitutionalisation and seeks to dissect meaningful action of actors, but also problematises the production of knowledge and the processes of observation by researchers. Further, the chapter outlines how constructivism’s work on norms, normativity and order is central to understand constitutionalisation.
Garrett Wallace Brown
Global constitutionalism shares many traits with moral and institutional cosmopolitanism. Yet, there is little literature analysing the interconnections between these fields. This chapter explores the interconnections between global constitutionalism and cosmopolitan thought suggesting that global constitutionalism is a form of legal cosmopolitanism and that it would behove both cosmopolitans and global constitutionalists to make more explicit links between the traditions. In doing so, the chapter explores four interconnections between cosmopolitanism and global constitutionalism: Kantian/minimal pluralist constitutionalism; cosmopolitan democracy and a commitment a cosmopolitical order; world state cosmopolitanism and constitutional authority; and globalization, cultural cosmopolitanism and global constitutionalization.
Gavin W. Anderson
Critics of constitutional globalisation have focused on the spreading judicialisation of politics, or the entrenchment of neoliberal modes of supranational governance. Such perspectives tend to prioritise globalisation from above; introducing Southern-based grassroots resistance – globalisation from below – delineates the shared epistemological underpinnings of Western liberal and critical constitutional theory, and opens debate on prevailing understandings of constitutionalism and critique. This recovers an understanding of constitutionalism as always comprised of constitutionalism from above and below. This highlights an emerging critical methodology which interrogates Modernist ontologies of the bounded self in shaping constitutional world-views, and posits instead a paradigm of relational constitutionalism.
This chapter argues that, if viewed literally, the rise of global constitutionalism reflects a process which is diametrically opposed to the dynamic underpinning classical constitutions. If we can identify a global constitutional system, it is defined by (1) the primacy of international human rights law, (2) high authority of judicial bodies and (3) weakening of the constituent power of the nation. These features of the global constitution set it apart from the principles of classical constitutionalism, the defining components of which were formulated during the Enlightenment. However, if viewed more sociologically, global constitutionalism appears not to contradict, but to extend the ideas of constitutionalism proposed in the Enlightenment, and it refracts similar societal processes.
This chapter examines narratives of constitutionalism and the ebb and flow of constitutional ideas and practices within and across the European Union (EU) and its member states from the inception of the treaties to the present day. It seeks to establish to what extent the European Union manifests a ‘constitutional’ legal and political order. It focuses on the contribution of legal rules to developing constitutional structures, as well as the role of ideas in relation to legal rules. The original objectives of the so-called ‘founding fathers’ of European integration concerned the promotion of peace, prosperity and a form of non-nationalist supranationalism. In many respects, the EU has been remarkably successful, given the history of the European continent right through to the middle of the twentieth century. The ‘constitutionalised treaties’ have been at the heart of that success. But now we must pay attention to recent challenges, resulting from the financial crisis, the travails of the Eurozone, problems in the EU’s near abroad, and the arrival of large numbers of refugees at and beyond the external borders of the EU. In an era of national reactions against neo-liberalism and globalisation, the role of the EU and specifically of the Court of Justice of the EU is increasingly under question.