Global Constitutionalism without Global Democracy?
By Dimitri Van den Meerssche, PhD candidate, European University Institute
On January 14-15th, Giovanni Sartor from the European University Institute (EUI) and Claudio Corradetti from PluriCourts (University of Oslo) organized a workshop in Florence on the topic of global constitutionalism and its conceptual relationship to global democracy. The workshop combined tools of political theory, constitutional legal theory and different fields of international law (e.g. human rights, trade, investment and data privacy law) to conceptualize, shape or criticize the identification of global constitutionalism as a suitable heuristic for describing and normatively guiding the contemporary features of global governance. Specifically, the workshop inquired into the interrelationship between the constitutional paradigm and the demand for democracy and input-legitimacy in the realm of transnational law. During the two conference days, several recurrent research questions intersected with a variety of panels (giving a platform to almost twenty speakers, including both distinguished voices and young scholars entering the debate): can the proliferation and integration of transnational legal sources be understood in ‘constitutional terms’? Is the constitutional paradigm mainly a descriptive device, an adjudicative model or does it formulate a global, cosmopolitan theory of justice? What role do the different strands of global constitutionalism give to the constituent power, and how do they relate to the notion of democracy as a political ideal? Is the constituent power a socially embedded or a normative concept, and how does it translate beyond the state?
The global constitutional paradigm
In the introduction to the workshop, Claudio Corradetti (PluriCourts, University of Oslo) summarized these central research questions: how can we conceive of a global constitutional paradigm that stands independently from any specific demos or constituent power? And how can we derive its substantive tenets without recourse to any specific constitutional document? Addressing these questions, Mattias Kumm’s (NYU-WZB) opening speech conceptualized global constitutionalism as a cognitive framework. This framework, Kumm argued, combines the concept of legality – i.e. the constitution as ultimate source of public authority – with notions of substantive and procedural justice. Global constitutionalism and its reliance on moral justice and universality, Kumm argued, provides an alternative cognitive framework from both the legalist (Hartian) and the statist accounts of ultimate legal authority. In his presentation, Kumm defended this cognitive framework from both the critical claim that constitutionalism serves as a new device for Western imperialism, and the argument that the waning power of the West signals a demise of the global constitutional project.
Kumm’s argument contained both an empirical claim (the constitutional heuristic accurately captures the current reality of international law) and a normative component (constitutionalism’s criteria of legitimacy are normatively desirable). While the normative argument figured centrally in the workshop (as described below), also the empirical claim was partially contested. In the sixth session, Maria Adele Carrai (EUI) explored China’s rejection of the global constitutional model and urged for a more pluralist understanding of recent constitutionalist trends in light of this Chinese exceptionalism. This sparked a debate between Carrai and Kumm, which largely reflected the traditional debate between socio-culturally embedded narratives of justice and universalist moral accounts.
Constitutionalism as a revisit of Kant and Hobbes
In the second session, Corradetti and Pavlos Eleftheriadis (Oxford) explored the philosophical underpinnings of the constitutional paradigm. Both presentations linked the latter to Kant’s cosmopolitan understanding of civil justice. In his presentation, Corradetti underlined the contemporary conceptual relevance of Kant’s cosmopolitan constitution regarding the constitutionalization of international law, thereby also defending a unitarian view of Kant’s cosmopolitan right. Eleftheriadis argued that Kant’s concept of the egalitarian civil condition – based on the recognition of the equal status of free individuals – can also figure as the first cosmopolitan principle of international law. From this claim, Eleftheriadis derived the argument that prior to any theory of global substantive or distributive justice, there needs to be a theory on the legitimacy of global institutions that safeguards the principles of reciprocity and mutual respect. This implies a step back from the direct assimilation between constitutionalism and distributive or substantive justice.
In the final session of the workshop, Richard Bellamy (EUI) argued that many contemporary cosmopolitan theorists misinterpret Kant, who like Rousseau developed his argument within a Hobbesian paradigm of the sovereign state. On Kant’s account, rights and justice entail a political community, Bellamy claimed. Cosmopolitan law, therefore, applies not to individuals as such but to states and their citizens. This view sparked a lively debate, in which Ernst-Ulrich Petersmann (EUI) criticized the Hobbesian view of Kant, arguing that the concept of constitutionalism is intrinsically intertwined with universalist notions of morality and substantive justice. Ultimately, the debate went all the way back to the normative origins of the American Declaration of Independence, with Bellamy noting that the USA is not the United State of America but the United States, plural – because its people were already members of constituted juridical orders. The global constitutional paradigm clearly revives classic philosophical debates regarding the theory of the state and the legitimacy of public authority.
Constitutionalism, democracy and the pivotal question of legitimacy
Global constitutionalism and the supremacy of value-based adjudication
In the third session, Andreas Føllesdal (PluriCourts, University of Oslo) turned to the tension between democratic input-legitimacy and value-based international adjudication. His core argument was that the constitutional considerations of global justice – and not the political ideal of democracy – should be conceived as ultimate standard for legitimacy in the global legal space. Focusing on international adjudication, Føllesdal dismissed the prevalence of citizen-driven accountability and democracy over the validity of normative constitutional values and considerations of global justice, thereby arguing in favor of a principle-based international adjudication without democratic constraints.
These conceptual linkages, between global constitutionalism and the processes and hermeneutics of international adjudication, were touched upon by several other speakers. In the sixth session, Anna Sledzinska-Simon (University of Wroclaw) also tied the constitutional nature of international law to the features of international adjudication, and more specifically the ‘culture of justification’ that results from the prevalent principle of proportionality. Petersmann, in the third session, also stressed the embeddedness of cosmopolitan constitutionalism in international adjudication. In line with Føllesdal’s argument, Petersmann argued that the constitutionalization of the international legal order requires the legal empowerment of citizens on the global stage. From this basis, Petersmann formulated a strong critique on the EU trade and investment system, which favors ‘executive dominance’ over legal empowerment of citizens in the provision of global public goods.
Global constitutionalism without constituent power
Føllesdal’s implicit argument that democracy is intrinsically limited by the human rights corpus – as a translation of justice on the global stage –, was echoed by Martin Scheinin (EUI) in the fifth session of the workshop. Alain Zysset (EUI), in the meantime, provided a subtle variation of these accounts, demonstrating that democracy does figure in the adjudication of the European Court of Human Rights, but more as a normative principle than as a procedural prerequisite for legitimate exercises of public authority. These different arguments demonstrate how global constitutionalism, as a normative ideal and hermeneutic, relativizes the importance of democratic participation in favor of a principle-based model of international adjudication. In the final session of the workshop, Kumm provided a conceptual summary for these positions, arguing that the very concept of constituent power, or ‘We the People’, is in essence a normative ideal that functions as the deontological origin of a wide range of legal and political entitlements. In this reasoning, the act of ‘constituent power’ is not a matter of socio-political inquiry, but an abstract evaluation of moral validity. This proposition sparked a debate in which Dennis Patterson (EUI) argued that any act of constituent power requires an agent, and that, therefore, the notion of ‘We the People’ cannot be reduced to an abstract or doctrinal moral argument.
The argument that constitutionalization through principle-based adjudication immunizes the international legal order from democratic deficit concerns, was contested on several levels. Departing from a theory on global public goods, Samuel Cogolati (Leuven Center for Global Governance Studies), in session four, argued that democratic participation is essential for the legitimacy of international law and policy-making. Cogolati pointed to the tools provided by GAL to ameliorate these democratic concerns. In the sixth session, Dimitri Van den Meerssche (EUI) accounted for the democratic deficiency of the constitutional paradigm by exploring its jurisprudential underpinnings, and specifically the reliance on Dworkin’s conceptual connection of legality to doctrinally deduced principles of moral legitimacy. Constitutionalism, as a normative ideal for global governance and a hermeneutic for international adjudication, Van den Meerssche argued, risks to jeopardize the chain of validity between norms and the demos they purport to affect. Anna Kocharov (EUI), in session four, underlined that the legitimacy of international law-makers or adjudicators in essence remains derived from the national level, which is itself legitimized through democratic processes. Attempts to transpose the national democratic process to the transnational level, Kocharov argued, risk to deepen legitimacy concerns rather than resolving them.
These different arguments relate to Scheinin’s claim that transnational processes of law-making require new models of democratic participation, which go beyond direct representation. In this context, Maria Panezi (Center for International Governance Innovation), on the second day of the workshop, underlined the importance of transparency for democratic accountability. Panezi built this argument with reference to the transparency reforms in the regulatory structure of the WTO.
Different origins and meanings of the constitutional heuristic
The aforementioned understanding of constitutionalism – providing cosmopolitan, value-based boundaries for public authority and complimentary legal tools for international adjudication in the transnational era – was recurrent throughout the workshop. Several authors, however, provided different understandings of the constitutional paradigm and rooted the rise of constitutional discourse in different legal or political rationales.
Patterson did not conceptualize the constitutional paradigm as a normative ideal, a holistic frame of public authority or a hermeneutic for international adjudication, but brought forward the concept of ‘economic constitutionalism’. Shifting register from the human rights corpus to international trade and investment law, Patterson identified three different eras of economic constitutionalism, each reflecting a different configuration of economic rationalities, regulatory schemes and legal hierarchies. The current ‘economic constitution’ (3.0), Patterson argued, questions the premises of cosmopolitan constitutionalism, i.e. the moral, value-based understanding of legal hierarchy and substance in the transnational era. This hierarchical, human rights-based understanding of the dialectic between transnational and national law, Patterson argued, fails to grasp the material features of economic constitutionalism 3.0. The latter, it was concluded, urges us to reconsider the traditional constitutional premises of legal hierarchy and to widen our conceptual scope to new processes of law-making and new sources of normativity.
Legal and political constitutionalism
In the fifth panel of the workshop, Bellamy conceptually unpacked the different notions of political and legal constitutionalism. It is often assumed that whereas legal constitutionalism has a natural affinity with global constitutionalism, that is not the case with political constitutionalism due to its emphasis on the role of domestic democratic legislatures as the legitimate sources of constitutional law. In his discussion of Lord Sumption’s critique of the jurisprudence of the European Court of Human Rights, Bellamy argued this was not necessarily so. In fact, for Bellamy, Lord Sumption’s criticisms of the ECHR reflect a limited form of legal constitutionalism of the kind political constitutionalists attack. Political constitutionalists do view global constitutionalism different to legal constitutionalists, as a law of republican states in the sense of Kant, but in many ways they are more rather than less predisposed to the regulation of interstate relations through law. However, they regard such law as the product neither of global democracy or of a global court or law, but of the democratically authorized and accountable agreements between the already constituted self-governing peoples of the globe.
Curtailing tyrannical power
Aoife O'Donoghue (Durham Law School) offers yet a different account for the proliferation of constitutional discourse among international legal scholars. Rather than rooting the international constitutional frame in the notion of fundamental rights and the need to holistically define public authority, O’Donoghue argued that the move to constitutionalism reflects the attempt by international legal scholars to curtail the tyrannical potential of law beyond the state.
Constitutionalism and current issues in global governance
On the final day of the conference, Jan Wouters (KU Leuven) elaborated on a concrete issue in contemporary global governance: the uncurtailed law-making powers of the UN Security Council. Wouters pointed to the ever-increasing expansion of the Security Council’s normative reach and exposed the absence of formal institutional constraints. Wouters concluded with the troubling statement that only the Security Council can control the Security Council.
Bilyana Petkova (EUI) and Magdalena Jozwiak (Vrije Universiteit Amsterdam), in the final session of presentations, turned to the contemporary issues in data privacy law. Jozwiak focused specifically on the role of the judiciary in shaping global internet privacy norms, thereby providing an example of the role for international adjudicators in the proliferation and legitimization of international law. Petkova focused on the convergence of data privacy law between the United States and the European Union, and exposed several positive spillover effects.
Global constitutionalism is increasingly employed by international legal scholars and the public law professorate as a heuristic to conceptually frame and normatively steer the shifting landscape of global governance. The workshop deepened insight into the various aspects of this global constitutional paradigm: its origins in political philosophy and theory; its materialization in contemporary processes of international adjudication; its normative reliance on universalist moral narratives; its conceptual multiplicity and ambiguity; and – foremost – its complex relationship with the political ideal of (global) democracy. Regarding the latter point, the workshop problematized the straightforward model of international cosmopolitan democracy (formulated by, inter alia, Held, Archibugi, Morrison), by embedding the cosmopolitan constitutional paradigm in different models of legitimacy – some of which take explicit distance from the absolute connection between democracy and the legitimate exercise of public authority –, and by sketching the contours for innovative schemes of democratic accountability that do not resemble the representational features of sovereign democracy. In sum, the workshop voiced and scrutinized innovative conceptual building blocks for a post-national, constitutional paradigm of international law.