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.
Anthony F. Lang, Jr. and Antje Wiener
The ancients (for example, Marcus Aurelius) conceptualized the ‘universal’ through ideas of the ‘world as a city’, ‘Constitutions’, usually unwritten, evolved over time; ideas were shared between cities through a process of borrowing and imitation. The Romans’ ‘just war’ was defined by the proper observation of a legal process, the ‘fetial law’. Leagues between ancient states provide models for cooperation and reasons for failure. Polybius’ account of the ‘democratic’ Achaean League analyses the abuse of hegemony; the Romans’ handling of alliances proved more durable. The success of legal pluralism in the multi-ethnic Roman Empire suggests that a more pluralistic model of international governance has advantages.
Only after the age-old pattern of sacral kingship had been frontally challenged by church reformers in the eleventh century was it possible for the lineaments of constitutionalist forms to emerge in Western Europe during the Middle Ages. After that, it was to be between the anvil of competing governmental structures, temporal and spiritual, that Western political freedoms were to be formed. Central to that process were the subjection of kings to the rule of law, both civil and natural, the contractual nature of the feudal relationship between lord and vassal which helped promote that subjection, and the subsequent development of representative assemblies which introduced the further possibility of eliciting and requiring a broader measure of quasi-popular consent to governmental policies even in large territorial states and in the transnational Church itself.
Martine Julia van Ittersum
This chapter critiques the fetishism of treaties in modern international law. It explores the relationship between European expansion overseas, treaty making and natural law in the early modern period, focusing in particular on the Dutch jurist Hugo Grotius (1583–1645). A steadfast supporter of the Dutch East India Company, he defended the ‘unequal treaties’ which the company concluded with Asian rulers in De Jure Belli ac Pacis/On the Law of War and Peace (1625). The history of treaty making is closely connected with that of Western imperialism and colonialism. It is no panacea for the protection of indigenous rights in the modern world.
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.
Modern constitutionalism is grounded in the ideal of the Enlightenment combining the rule of reason with equal liberty for all. From a theoretical standpoint, constitutionalism revolves around three major strands that have not been easy to reconcile: a positivist strand; a contractarian strand; and an identitarian strand. At the national level, a sufficient confluence between these three strands is achievable and the hierarchy and unity of the constitutional order guaranteed. At the global and transnational level, however, several challenges arise, as the positivist and identitarian dimensions become much more problematic. Nevertheless, with appropriate adjustments, global constitutionalism looms as entirely plausible.
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.
Liberal political and legal theory has enjoyed a remarkable resurgence since the mid-twentieth century. The emergence of global constitutional thought is closely coupled with its rise to prominence. Yet many theorists of global constitutionalism are wary of acknowledging their ‘liberal’ commitments. This chapter makes the case that at the deepest level of interpretation, prominent theorists of global constitutionalism are ‘liberals’ in all but name. Through a double critique of the liberal foundations of their thought, an argument is advanced that there are unanswered questions about the best way of understanding and grounding a global constitutional order beyond liberal theory.
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.
This chapter offers a series of thought experiments about what it might mean to adopt a realist perspective on global constitutionalism. On the one hand, it is through an approach that seeks to relate the law to concrete social processes, as originally advocated by the legal realists, that one can begin to make a case for an observed constitutionalization on the supranational level. On the other, however, political realists will point to the ‘ism’ in global constitutionalism that ultimately entails an apology for state interests, systemic inequalities, ‘untamed’ sovereignty, and the occlusion of particularist ideologies behind highly instrumentalized appeals to a universally accepted normative order.