1. Introduction
Religion is the opium of the people.
Karl Marx‘Fragmentation, verticalization, and constitutionalization form the holy trinity of international legal debate in the early 21st century’ – such is the opening phrase of Jan Klabbers's first chapter in his co-authored book, The Constitutionalization of International Law. Although Klabbers possibly did not intend it, by invoking the ‘holy trinity’, he is calling attention to an important aspect of the contemporary constitutionalist debate, namely what I would like to describe as the faith in constitutionalism as a secular religion. It is from this perspective – the complete and unquestioning belief in constitutionalism – that I will explore global constitutionalism and the three books that are the object of this review.
Faith in constitutionalism and its supposed precepts appears to be the continuation of Christian beliefs in constitutionalist language. Reference to the secular religion should not give the impression of the replacement of religion with other belief systems – quite the contrary: it is a reference to its continuation. In that sense, I follow the work of Karl Marx and thinkers inspired by him who argue that, rather than a clear-cut, secularism, the Enlightenment brought with it a shift in the language from religion to law and it is this continuation that now may be reflected in a ‘constitutionalist belief’. Constitutionalism beyond the nation-state is largely inspired by scholars from domestic liberal constitutional systems who thus take their bearings from Enlightenment legacies. Although it is overstated to claim that secularization shifted belief in God to belief in law, the underlying belief in the universality of the belief system itself, the individualistic orientation at the possible expense of a social orientation, and the faith that this belief system is the most progressive for a ‘civilized’ world are all central ideas to which both the religious and the constitutional remain faithful. The significance of the holy trinity in the Christian faith is that Father, Son, and Holy Spirit, although three persons, are united in one divine being (una essentia). As Klabbers noted, but without alluding to it himself, fragmentation, constitutionalization, and verticalization are also united – in one discourse, however. The three, although seemingly different currents of international legal theory, are united in the same constitutionalist discourse, which is distinctly liberal-democratic in its political ideological orientation. This is, it should be noted, not a study of direct analogies between the holy trinity of the Christian faith and the holy trinity of international law; rather, it is a study of the analogies between the faith itself that is brought towards these trinities. Indeed, what I am trying to argue is that there is not merely an analogy in the sense of a comparison between two different things; there is a continuation between the Christian faith and faith in international law. As it stands, the three books reviewed here also speak to a trichotomy. They are so far the three most significant books on constitutionalism beyond the nation-state and all bear the same, although seemingly diverse, orientation.
Before discussing what the books have in common, it should be noted at the outset that the three books also differ significantly. Transnational Constitutionalism is an edited volume on the subject of constitutionalism beyond the nation-state, largely from a lawyer's perspective. In contrast to the other books, the 2007 book has European constitutionalism as its point of departure.Footnote 1 The majority of the contributions discuss European constitutionalism, with the book being published after the rejection of the draft Constitution by the 2005 French and Dutch referenda and before the Lisbon Treaty in 2009. Although most of the contributions are cautious in regard to speculating about European constitutionalism, there still appears to be an underlying optimism, which might have been muted had the contributors known that, in the summer of 2007, the European Council was to announce its decision to ‘abandon’ the ‘constitutional concept’ it had promoted.Footnote 2 The book emerged from a forum dedicated to the need for scholarship of international and EU lawyers to stay in conversation, despite the respective specializations in the fields. This is indeed a compelling endeavour and one that, in hindsight, may not have been as successful as the organizers may have hoped. It appears that, since the publication of the book, international lawyers writing about global constitutionalism have largely branched out into international relations and political theory, finding their roots in domestic, very rarely regional, constitutional systems. Be that as it may, Transnational Constitutionalism holds an important place in the interface between European and international constitutionalism.
Ruling the World? Constitutionalism, International Law, and Global Governance is an edited book by Jeffrey L. Dunoff and Joel P. Trachtman. The outlook of this volume is one of international law and international relations, culminating largely in the debate on global constitutionalism. Although it is often claimed that global constitutionalism is an inherently German debate, the contributors to this collection are predominantly if not from, then at least based in the United States. In contrast to the 2007 edited book, whose contributors were, for the most part, from the same institution as the editor, namely the University of Bristol, the editors of this collection invited some of the leading scholars of global constitutionalism from various institutions to contribute. To be fair, Bardo Fassbender, undeniably one of the leading scholars of global constitutionalism, contributed to both volumes and it merits mentioning that, three years on, it was easier to discern who the leading scholars of the debate would be.
The third book, The Constitutionalization of International Law, is a co-authored book rather than an edited book. It is written by three eminent international lawyers, Jan Klabbers, Anne Peters, and Geir Ulfstein, all of whom had already published extensively on the subject before the publication of the book. What further sets this book apart is that the authors do not take a descriptive approach, but rather look into a possible constitutionalized future of international law. The question is not whether constitutionalization is taking place; rather, there is an assumption that it is taking place.Footnote 3 These different points of departure are relevant and I will try not to overlook them in the following.
There are many interesting themes to explore in regard to the renewed interest in constitutionalism in international law and its discovery as a vital issue in international relations. I have selected one theme, namely the continued faithfulness to the doctrines of liberalism as the continuation of a faithfulness to Christian theology. It should be said that this is not a critique of Christian theology or, for that matter, of a Christian orientation of constitutionalism; it is a critique of how the Christian precepts have been translated to become the most influential precepts that, at the same time, enable domination and/or legitimize forms of rule. The three books are rich with a variety of themes, the majority of which I will not be able to explore in the following. I have tried to understand what these books, despite their rich thematic diversity, have in common but can, given the number of contributors in the three books, only give a flavour of this commonality.
I begin by taking stock of the current debate on constitutionalism beyond the nation-state and how the three books relate to it. Using the respective polities as the distinguishing factor, I have categorized the contributions according to regional constitutionalism, international constitutionalism, and transnational constitutionalism. I then examine the political orientation assumed in the three books by placing them according to five key themes of liberal constitutionalism. In this, I will attempt to highlight the single political orientation (with some important exceptions) of the majority of the authors. The next part is dedicated to an examination of the continuation of Christian precepts as the single political orientation in constitutionalism. Finally, I briefly examine the unwavering faith placed in these precepts.
2. Constitutionalism beyond the nation-state
All three books are concerned with constitutionalism that transcends the domestic sphere and they all understand constitutionalism in a universal, all-encompassing way. Whether it be global constitutionalism for the world, European constitutionalism for the European Union, or a multitude of constitutional orders, the ambition of constitutionalism is absolute, or, as Andreas L. Paulus suggests, it is ‘totalizing’:Footnote 4 there is no legal or social space untouched by it. Constitutionalism operates as a legal mantle, enveloping the entire polity, and transforming it into an integrated system. There are many ways of categorizing various contributions to the debate on constitutionalism beyond the nation-state. Below, I will introduce a form of categorization focusing on normative (i.e., substantive) features of constitutionalism, but the broadest categories for constitutionalism beyond the nation-state can be made according to distinctions between the respective polities.
There are three main forms of constitutionalism beyond the state: first, regional constitutionalism, which largely refers to EU constitutionalism. This type of constitutionalism is generally understood as an inter-state constitutionalism. Second is international constitutionalism, which includes the prominent field of debate of the constitutionalization of international organizations. This constitutionalism is also largely understood as an inter-state constitutionalism. Finally, there is transnational constitutionalism, which does away with viewing the state as the central reference point for authority. This vision for constitutionalism is found, for example, in variations of civil-society constitutionalism, which view the individual as the point of departure for speaking about a polity. The latter two can both refer to forms of global constitutionalism. The three books reviewed here examine all of these types of constitutionalism beyond the nation-state, albeit to a varied extent.
While it is difficult to say whether, in the past few years, constitutionalism beyond the state has become a more defined force in realiter (and it is doubtful that it has), the literature on global constitutionalism has increased considerably and the confidence of its force has grown substantially. This ‘evolution’ is distinctly displayed in the three books reviewed here. In the introduction to his edited volume from 2007, Nicholas Tsagourias writes that ‘international constitutionalism, if not totally dormant, at best lacks momentum or confidence’.Footnote 5 The volume strongly features the European model of constitutionalism (in the chapters of Eleftheriadis, Tsagourias, Wessel, and Rivers). In the edited book by Jeffrey L. Dunoff and Joel P. Trachtman, there is only one chapter dedicated specifically to European constitutionalism (Walker), and the co-authored book by Jan Klabbers, Anne Peters, and Geir Ulfstein has international constitutionalism as its sole object of inquiry. Both momentum and confidence of international constitutionalism appear to have skyrocketed. What was previously a timid undertaking occurring mainly in the heart of constitutionalist faith (Germany) has become a belief system with an increased number of followers from across the world.
Prima facie, constitutionalism at the EU level appears more easily discernible. In contrast to the international level, the European Union ‘has its own legislative, judicial and governmental institutions which interact at different levels and enjoy a degree of autonomy’.Footnote 6 From a cultural standpoint, constitutionalism beyond the nation-state can more readily be argued in the fairly homogeneous Europe, which, although culturally diverse in many ways, shares a common constitutionalist history. However, European constitutionalism took a political blow when the Draft Treaty Establishing a Constitution for Europe, the treaty signed by the heads of state or government of the EU member states in 2004, was rejected in referenda by France and the Netherlands. Transnational Constitutionalism pre-dates the subsequent Lisbon Treaty, which came into force in December 2009. The contributions in the book are therefore understandably more enthusiastic than the current post-Lisbon constitutionalist debate. Indeed, one could claim that there has been a supplanting in enthusiasm between European and international constitutionalism, the former now possibly lacking momentum and confidence, if not being dormant.Footnote 7
As the debate on European constitutionalism has become more muted, the debate on global constitutionalism has (maybe contrary to what one may expect) become more invigorated. International constitutionalism is the most popular way of envisioning constitutionalism beyond the state, most notably from the perspective of international lawyers. It is fair to say that the vast majority of international lawyers view their discipline as including some form of verticalization; that is, the introduction of principles that, at least to a certain degree, introduce a hierarchy or multiple hierarchies into international law. Such a hierarchy can be referred to as ‘supranationality’ and is considered a conditio sine qua non of constitutionalism.Footnote 8 A hierarchy of this kind may comprise the entire discipline – that is, the constitutionalization of international law, a part of the discipline (e.g., the constitutionalization of the WTO), or develop to be a sub-discipline in its own right.Footnote 9
Transnational constitutionalism most commonly refers to post-state-monopoly constitutionalism. As globalization has taken its toll on the nation-state, the idea that a post-Westphalian order has dawned in which states, although still actors in global power arrangements, no longer hold a monopoly on power has become more prominent. This type of constitutionalism, although with significant overlaps between it and international constitutionalism, operates on the premise that the national and the international are not mutually exclusive. Types of cosmopolitan constitutionalism, for example, would be categorized as belonging to transnational constitutionalism. In his carefully crafted chapter, Mattias Kumm suggests his idea for a ‘cosmopolitan turn in constitutionalism’. National and international law are described as belonging to one holistic frame placed somewhere between monism and dualism. The outcome is transnational law – or, perhaps more accurately, an international public law.Footnote 10
3. You should have no other gods before me
In order to get a grip on the meaning of constitutionalism suggested by the various contributors to the debate, arranging the contributions according to their most notable substantive orientation is useful. Dunoff and Trachtman specifically seek to ‘avoid the definitional conundrum’ that marks the literature on international constitutionalism and thus explore a ‘functional approach’.Footnote 11 Quite sensibly, they shy away from a definition of constitutionalism of their own. However, even a functional approach does not come without its assumptions. And it is precisely these assumptions that I am interested in. Elsewhere, I have suggested that visions of global constitutionalism in the contemporary literature can be categorized as largely taking one of four orientations, which are all founded on a combination of five key themes of liberal-democratic constitutionalism. The four dimensions are Social Constitutionalism, Institutional Constitutionalism, Normative Constitutionalism, and Analogical Constitutionalism.Footnote 12 Although the emphases of the authors may straddle more than one categorization, I have attempted to undertake the categorizations based on the primary orientations of the authors.
Proponents of Social Constitutionalism give priority to concerns for coexistence in international society. An example of this vision is that of a global constitutionalism of civil society. Gunter Teubner, for example, disassociates constitutionalism entirely from the nation-state.Footnote 13 The contribution of Achilles Skordas is situated within this Teubner/Luhmann tradition of social or societal constitutionalism. He argues that self-determination of peoples is assuming the rank of a foundational constitutional principle, being a principle for the allocation and organization of territorial authority in global society.Footnote 14 In his view, self-determination is no longer a claim to statehood, but rather about internal political processes and democratic governance. The emphasis of this vision is on participation of individuals in a global society.Footnote 15 This is also the idea of transnational constitutionalism referred to earlier.
Institutional Constitutionalism looks to where power is situated in the international sphere and seeks to legitimize this power through its institutionalization. The most common vision of this dimension – possibly the most common of the debate on global constitutionalism as a whole – is that which describes the UN Charter as the global constitution, or, in a more moderated version, the UN system as global constitutionalism. Bardo Fassbender is among the most assertive proponents of this view, first evidenced by the title of his article from 1998: ‘The United Nations Charter as Constitution of the International Community’.Footnote 16 Almost a decade later, Fassbender revisits some of the themes in Transnational Constitutionalism and then again in Ruling the World?.Footnote 17
Other authors of international law identify specific norms that they believe provide the framework for a global constitutional order. Such visions are described here as Normative Constitutionalism. The defining feature of what it is that is ‘constitutional’ is supposedly an inherent (moral) value. This category should not be understood in regard to the binary descriptive/normative. Normative here refers to the foregrounding of particular norms. Stephen Gardbaum's contribution could be categorized here: he discusses the possible constitutional character of human-rights law, referring to human rights as fundamental norms within a legal regime.Footnote 18
Finally, visions that suggest analogies between domestic or regional constitutionalism and the international sphere and base their vision of constitutionalism on such parallels can be described as visions of Analogical Constitutionalism. Andreas L. Paulus uses an analogical approach in his contribution to Ruling the World?. In order to evaluate the constitutionalization of international law, he compares processes in the international legal order with what he views as established principles of domestic constitutions.Footnote 19 In the above, I have not emphasized a distinction in regard to whether the categories are descriptive (‘this is the global constitution’) or whether they are prescriptive (‘this is what the global constitution should look like’). It would be fair to say that the majority of the reviewed literature on global constitutionalism combines both descriptive and prescriptive elements.
The five key themes that emerge from these categories are the limitation of power, the institutionalization of power, social idealism (meaning an idea for the future based on societal values), the standard-setting capacity of constitutions (systematization of law), and the recognition of individual rights. The first two concern democratic processes (participation, representation, accountability). The last three are paradigms of the liberal tradition (individualism, abstraction, systematization). It must be noted here that the democratic, liberal, and liberal-democratic traditions are themselves shifting and diverse, with some precepts being emphasized more and others less. Yet, the global constitutional debate appears to take particular precepts – defined here as the key themes of constitutionalism – at face value, utilizing them in an uncritical fashion. The combination of these five key themes as comprising the entire debate on constitutionalism is most evident in International Constitutionalism and European Constitutionalism but can also be found in most visions of Transnational Constitutionalism.
In the edited book Transnational Constitutionalism, the ideas of constitutionalism put forward still seem more in flux than in the later books. The comparator is – inevitably – domestic constitutionalism, yet the ideas for Transnational Constitutionalism seem more open. Although sometimes at the expense of clarity, it is one of the undoubted strengths of the book that constitutionalism is not pre-defined. The varied perspectives on constitutionalism highlight the debatable aspects of constitutionalism.Footnote 20 If, therefore, one is in search of a ‘model’ of constitutionalism beyond the nation-state with a clearly defined set of prerequisites – or even a crafted global constitution itself – the contributions would be disappointing. Wouter Werner's contribution is particularly insightful in its discussion of the debate of constitutionalism and international law. He directs attention to the discipline of international law and what constitutionalism may mean for it. Crucially, rather than viewing constitutionalism as a problem-solving mechanism, he looks to the root causes of the debate in the first place.Footnote 21 He views global constitutionalism, and I agree with him, as ‘an attempt to explain existing developments in international law in terms borrowed from domestic constitutionalism, with the aim of furthering a normative agenda of internationalism, integration and legal control of politics’.Footnote 22
Having said that, the distinct impression the reader gets of the book is that the predominant sites of constitutionalism beyond the nation-state are EU constitutionalism and constitutionalization of the United Nations. While innovation itself is missing from the contributions, one may say there is at least a laudable call for innovation. In the final paragraph of ‘The Rejection of the Universal State’, Patrick Capps suggests that analogy to the nation-state ‘confines’ and ‘constrains’ the possibilities of international legal regulation beyond the state. He suggests that decision-making procedures on a global scale may lead to ‘revolutionizing’ thinking on international law beyond this confinement and constraint of the sovereign state.Footnote 23 Although this may appear as a glimmer of hope for a radical rethinking of constitutionalism beyond the state, it is clear that Capps firmly places his notions of international law within a Kantian, thus liberal-democratic, tradition.Footnote 24 Rethinking, even revolutionizing, therefore takes place within the trajectories of a liberal ideology. Capps elaborates his vision of ‘more appropriate’ institutional mechanisms for the international sphere in his recent book, Human Dignity. Here, he reveals the extent of these trajectories, particularly when voicing concerns over the ‘effectiveness’ and ‘legitimacy’ of international institutions – every liberal international lawyer's primary sites of agony.Footnote 25
A similar call for openings and simultaneous closing off to any other alternatives than the liberal-democratic understanding of constitutionalism is provided as regards EU constitutionalism. In the chapter entitled ‘The Standing of States in the European Union’, Pavlos Eleftheriadis reminds the readers that the distinctions between the domestic legal system and the European require ‘new principles, uniquely appropriate to the European Union’.Footnote 26 However, it quickly becomes apparent that he is not in fact speaking of ‘new’ principles at all. His examination of decision-making at the EU and international level, which he compares to the domestic level, leads him to the conclusion that formal equality, due to the member- state system, is more relevant on the transnational than on the national level of constitutionalism. This finding – which, truth be told, does not sound particularly insightful or innovative – prompts the statement that ‘[T]his is why the tools of constitutional law alone must be insufficient to explain the institutional nature of the EU. They cannot capture the equal standing of states within the structure of the Union’.Footnote 27 Formal equality – the principle that, according to Eleftheriadis, is missing from ideas of constitutionalism beyond the state – is, of course, a familiar precept of the liberal ideology and scarcely a ‘new’ constitutional principle.
Finally, Fassbender warns that constitutionalism beyond national constitutional law must be understood as an ‘autonomous concept’ and not as an extrapolation of national constitutional law.Footnote 28 At the same time, his understanding of the UN Charter as the global constitution is exclusively inspired by the named liberal-democratic key themes of (domestic) constitutionalism: he describes the UN Charter as setting out how and by whom the law is made and applied and how and by whom legal claims are adjudicated (the key themes of institutionalization and limitation of power). Fassbender goes on to invoke Article 103 of the UN Charter as establishing a hierarchy of norms in international law and that understanding the Charter as a constitution provides us with a standard by which general international law is measured (the key liberal theme of standard-setting). He also argues that the Charter would act as an authoritative statement of the values that the international community is committed to (the key theme of idealism). And, lastly, Fassbender's critique of the Charter as a constitution – the shortcoming – is that it does not include an international bill of rights (the liberal key theme of individual rights).Footnote 29 So, although he called for constitutionalism beyond the nation-state to be an autonomous concept, he is in fact clearly employing domestic constitutionalism as the strict comparator for measuring the attributes and limitations of the UN Charter as a global constitution.
Other contributions in the book, particularly the chapter by Julian Rivers on proportionality and discretion, discuss principles of international and European law without highlighting what it is about these principles that makes them constitutional. One can therefore only assume that they, in turn, assume that such principles are part of the constitutional debate without need for further analysis. Should not the paradigms of constitutionalism beyond the nation-state be discussed before one looks at the specific principles? Such paradigm questions would include whether global or European constitutionalism should take an institutional form and, if so, what kind? Would it include a constitution, as a written document, or would it take the form of an unwritten constitutionalism? These are all threshold questions, themselves deeply controversial, which seem necessary to discuss before one turns to specific principles.
Ruling the World? has the benefit of having been written three years later; at this stage, questions of the above nature were already being posed. By virtue of a greater wealth of literature to refer to, the contributions appear more sophisticated than the earlier volume. The debates of global administrative law and legal pluralism – and the continued reference to global governance – are now firmly part and parcel of the debate on constitutionalism beyond the nation-state. At the same time, it appears that more of the debate is set in stone than it was in Transnational Constitutionalism. The institutional setting for global constitutionalism is the United Nations and the WTO, as evidenced in the Preface by Thomas Franck and the contributions by Michael W. Doyle, Fassbender, and Trachtman. It is no longer the UN Charter that is at the heart of the matter, but the ‘UN system’, including the International Court of Justice as ‘an independent expert legal body’.Footnote 30
Picking the debate up from where Werner left his contribution in Transnational Constitutionalism (the never-ending closure), Dunoff and Trachtman introduce the topic of constitutionalism beyond the nation-state by inquiring why there may be a ‘demand’ for the topic. Usefully, and somewhat unsurprisingly, they focus on globalization and fragmentation as the two developments in the international sphere driving the demand.Footnote 31 It is worth highlighting in this regard that they understand globalization as having a mutually reinforcing relationship with certain types of international law, ‘including prominently those types that advance market liberalization’.Footnote 32 This includes specifically international economic law. This is a crucial moment in the book and maybe of the entire constitutional debate. For, it is, of course, certain liberal values that enable market liberalization. But, rather than seeking a response to market liberalization outside of liberal values, constitutionalism is one inside the pattern – a conception that shares the same legacy. It is this observation that reveals that the demand for global constitutionalism is founded on liberal values. This is not to say that a more adequate form of constitutionalism would necessarily be outside the liberal tradition, for this tradition is itself diverse and contested. However, the emphasis on certain liberal precepts as the only available means of speaking about constitutionalism leaves a wider view obstructed. Dunoff and Trachtman note that globalization and constitutionalism are in a ‘dialectical relationship’. If they are talking in Hegelian terms here, then this is an inaccurate description of the relationship between globalization and constitutionalism, since they are not thesis and antithesis, but rather both part of the same thesis: that of a liberal tradition. The co-authors are incredibly careful, and rightly so, to indicate that the debate is still ongoing, that the contributions raise questions, and that debates are intended to be provoked. But one cannot help but think that the debate is still already set within the liberal-democratic trajectories outlined above.
The second chapter, written by David Kennedy, throws – momentarily – such suspicions of stasis, presumption of ideology, and even hubris out of the window. In his usual style, he exquisitely contextualizes the debate on constitutionalism in the chapter ‘The Mystery of Global Governance’. Kennedy reminds us that, among all the doctrine and detail, we know very little about global governance or, for that matter, the structure of global society.Footnote 33 Despite all the competing claims, we only have partial answers to the question of how we are governed at the global level. What we do know, however, is that global governance (and global constitutionalism with it) are part of a long history of reinvention and reform. Reminding us of what we know and what we do not know enables a shift away from a faith in the answers to ‘big questions’ towards a more modest approach. It also makes us conscious of the potential that constitutionalization could remove existing governance structures from contestation and revision at the expense of other projects, players, and possibilities.Footnote 34 However, Kennedy observes that the global-governance debate also signifies a moment of disciplinary reinvention – a moment therefore that brings with it some potential. But what David Kennedy threw out of the window re-emerges via the back door – or rather via the next chapter.
Andreas L. Paulus, attempting to move away from institutional perspectives on international constitutionalism, in fact adds strength to it. His primary occupation is the legitimacy of decision-making, stating that limitations to any exercise of public power for the sake of individual rights are the ‘basic conditions for legitimate rule in the constitutional tradition’.Footnote 35 As mentioned above, he uses an analogical approach, comparing the principles from domestic constitutional law with international legal developments. His vision is the clearest as regards liberal-democratic features, stating that ‘The principles this contribution thereby derives from the Western constitutional tradition are democracy, separation of powers, rule of law and Rechtsstaat, as well as states’ rights and human rights’.Footnote 36
The cosmopolitan, or Social Constitutionalism, contributions in the volume merit separate analysis. Overall, I agree that Social Constitutionalism, with its view to a global coexistence, is the preferable initiation for speaking about global constitutionalism and addressing a strictly liberal-democratic understanding of constitutionalism.Footnote 37 Kumm's essay is in that sense difficult to place ideologically. His ambitious idea of cosmopolitan constitutionalism is placed as opposed to ‘statist constitutionalism’, which indicates a willingness to openness.Footnote 38 However, his reference point is clearly liberal democracies. In that sense, it is not clear whether in fact he has crafted an all-encompassing liberal-democratic public law that swallows all other alternatives in both the national and the international sphere or whether he uses these as demonstrations of one of a number of possible constitutional understandings. I fear it is the former. Daniel Halberstam suggests a form of constitutional pluralism, which he terms ‘constitutional heterarchy’, since it incorporates competing and divergent claims of constitutional authority. This idea sounds very promising in terms of finding openings for constitutionalism. Yet, again, the openings are all along the lines of liberal constitutionalism, giving the impression of pluralism, but in fact limiting the space for a true pluralism. The thoughts here are nevertheless valuable and can be extended to a notion of ‘true pluralism’. Halberstam invokes the European Union as displaying an ‘unsettled nature of hierarchy’ and US constitutionalism as a ‘terrain of contestation’ and lacking finality.Footnote 39 Such notions of openness should be extrapolated to international law – it is, after all, the much more accurate description of the international sphere. While the volume therefore reveals much bias towards liberal constitutionalism, the question mark at the end of the title Ruling the World? indicates that some issues are still to be answered.
It is along these lines – the lines of leaving that unquestioned that is still contentious – that the co-authored book by Jan Klabbers, Anne Peters, and Geir Ulfstein is written. In The Constitutionalization of International Law, the authors work on the assumption that the process of constitutionalization in international law is under way; they ‘take the idea of constitutionalization and run with it, so to speak’.Footnote 40 There is, in that sense, no ontological uncertainty in the book. In some respects, this makes a refreshing read, since the majority of the literature on global constitutionalism is primarily concerned with whether a process of constitutionalization is taking place and, if so, in which form. Klabbers et al. refer to constitutionalism as they know it from their respective home constitutions. They refer to constitutionalism in terms of substance as including democratic control, the rule of law, and human rights; in terms of constitutional procedure (according to Klabbers, ‘forms and techniques’Footnote 41), they refer to the margin of appreciation, proportionality, and subsidiarity. It should be noted that, although co-authored, the book has varied outlooks on a constitutionalized legal order. Klabbers's account is very careful in not falling into the trap of a limited liberal-democratic outlook on constitutionalism but rather speaks of the necessity for pluralism (true pluralism in terms of both the political tendencies and the actors involved). Despite the frequent references to pluralism, Klabbers is undoubtedly drawn to the idea of universalism to be found in a type of Habermasian common denominator. Yet, possibly in order not to be tempted into a fantasized common-denominator rhetoric, he suggests ‘presumptive law’ as a mechanism with which to come to terms with pluralism in a constitutionalized international legal order. To explain presumptive law, he refers to Brian Z. Tamanaha's summary of law as ‘whatever people recognize and treat as law through their social practices’.Footnote 42 It is this that, according to him, distinguishes law from non-law.
Geir Ulfstein can be squarely placed within a liberal constitutional tradition. He highlights above all the need for political accountability and for the rule of law when it comes to the constitutionalization of international institutions. For him, the main function of constitutionalism is control.Footnote 43 His argument is that international institutions have gained an increasing power, which must be limited. This faith in the constitutional function of the limitation of power, however, overlooks a crucial aspect: the limitation of power in one place is always connected to the granting of power in another. As a site for such limitation, he suggests the plenary organs of institutions on the one hand and human-rights standards on the other. Plenary organs are not independent, but are rather stakeholders in the institution, meaning that control is – at best – a farce. Accountability via human-rights standards raises the by now almost trite questions of: Whose standards? Which rights are excluded and which rights are included? And who decides? Considering that his earlier work explores the possibility of a world human-rights court – the true manifestation of any biases that may be inherent in the human-rights system – it appears we know at least part of his answer.Footnote 44
Anne Peters has written extensively on global constitutionalism and has come to represent the debate on the side of international lawyers. Peters has what could be termed an institutional cosmopolitan vision of global constitutionalism. She foregrounds international institutions as shaping and being the reference points for constitutionalism but also believes that individuals are the ultimate source of international law, not sovereign states.Footnote 45 She incorporates all the key themes of liberal constitutionalism, from the institutionalization of power to the importance of human rights. According to her, global constitutionalism should be shaped to become a multi-unit democracy, or ‘dual democracy’, composed of democracy within nation-states on the one hand and democratic governance ‘above’ states on the other.Footnote 46 This completes the liberal-democratic theme.
Why is the exclusively liberal-democratic understanding of constitutionalism beyond the nation-state a problem? Surely, democratic control, the rule of law, and human rights are a good thing? If not a good thing in themselves then certainly better than autocratic control, the rule of the most powerful, and disrespect of people's rights? The liberal-democratic understanding of constitutionalism becomes problematic if the ideas constituting constitutionalism are too limited and are, in this limited form, advocated as the only way of understanding constitutionalism. Could Klabbers's co-authored book be understood as the attempt to advocate the true end of history in the sense that the ideological conflict has now been decided in favour of liberal constitutionalism? If constitutionalism is understood in exclusively liberal-democratic terms, the danger of hegemony becomes imminent. Hegemony is enabled through the universalization of certain standards by hegemonic powers that are then applied to the disadvantaged without their consent. International law is, of course, predicated on the idea of consensuality: state sovereignty and non-intervention are the strongholds of consensus-made law. However, there is an increasing seepage of non-consensual law. Human-rights law was probably the first type of law that gained legitimacy and, at the same time, enabled the disregard of sovereignty and non-intervention. Global constitutionalism, by means of introducing a hierarchy into a previously non-hierarchical system, enables the same: if an entity with imperial aspirations (whatever nature they may have, they will have an element of domination) invokes a norm as being constitutional, the other norms must be measured by this standard. This can lead to those with different views being placed in the position of dissenters. It is, of course, true that there has come a formal end to the antagonism to the two ideologies between East and West since the end of the Cold War. But this is precisely the reason not to formalize the dominant ideology in terms of a standard-setting ideology.
The danger is all the more imminent if the liberal-democratic understanding is left uncontested. The lack of contestation is what makes the drawing of the parallels between religion and constitutionalism so compelling. The manifestation of these limited interpretations is particularly evident in The Constitutionalization of International Law, since the co-authors ‘take the idea and run with it’. This is the true act of faith: to stop questioning and start believing.
According to Thomas Kleinlein, ‘most defenders of the viability of a post-national constitutionalism prefer a modest, pluralist model’.Footnote 47 It appears that this pluralist model in fact refers to a pluralism of liberal-democratic precepts, which are taken for granted, rather than a truly pluralist model. With a truly pluralist model, I mean one that does not only view the liberal ideology based on the above key themes as the only available mechanism by which to understand constitutionalism. The ideas in the three books subject to this review largely reinforce existing power mechanisms and existing inequalities by subscribing to a strictly liberal-democratic understanding of constitutionalism.
4. Liberal-democratic constitutionalism and the Christian faith
The said liberal-democratic precepts could be viewed as a continuation of the Christian understanding of the self in relation to God and it is this legacy that could then impair visions of global constitutionalism with blind spots and biases. For an examination of the link between the liberal-democratic tradition and the Christian faith as entrenched in modern constitutions, the most appropriate point of departure is the age of Enlightenment, the age today associated with secularism. The modern understanding of constitutionalism is predominantly thought to find its origin in Enlightenment rationalism and who better to turn to than Immanuel Kant? Much has been written about the Kantian tradition in international law, which is seen as culminating in global constitutionalism. The debate was particularly (re)sparked by Jürgen Habermas's essay ‘The Kantian Project and the Divided West: Does the Constitutionalization of International Law Still Have a Chance?’, originally published in German in 2004 and published in English in 2006.Footnote 48 In this essay, Habermas refers to Kant's concept of cosmopolitan citizenship and world legal order discussed in Perpetual Peace.Footnote 49
Kant is mostly invoked by visionaries of constitutionalism beyond the state for two reasons: (i) the rejection of a universal state and (ii) his republican thesis. Kant's idea of international law is one that ‘presupposes the separate existence of many independent but neighbouring states’ and rejects a ‘universal monarchy’ that would both compromise the vigour of laws and ultimately lead to anarchy.Footnote 50 International lawyers often invoke this passage as a means to confirm the rejection of a universal state, which, in any case, no one is really advocating (at least not in an outright fashion).Footnote 51 Kant's republican thesis and its extrapolation to international law are more interesting. His thesis supports the assumption – in a strongly simplified manner – that republican constitutionalism leads to peace and this is extended to international relations for perpetual peace. His theory is that the acceptance of three definitive articles (the first of which holds that the civil constitution of the state must be republican) will lead to said perpetual peace.Footnote 52 Essentially, Kant underlines the necessity for republican authorities to be held accountable for decisions to go to war.Footnote 53 Kant's vision is one that argues in favour of a universalization of liberalism (or rather republicanism, which shares more or less the same political commitments). Liberalism is a tradition that is oriented towards the individual and specifically the individual's liberty. A possible translation occurred in the move to the rational in that the individual takes the place of God, with the features previously reserved for God, including autonomy, potential almightiness, potential omniscience, etc.Footnote 54 It is paramount to historically contextualize these thoughts: Kant was writing in a time of colonialism in which law (and religion) were, in part, mechanisms employed to ‘civilize’ the non-Western world. He was also writing against the background of the French Revolution in which the absolute monarchy was forced to renounce its previously absolute power in favour of republicanism. Yet, it appears that the constitutionalist legacy is not only defined by the Kantian tradition.
It is possible that the visions of constitutionalism beyond the nation-state are not only Kantian, but also Hegelian. Kant's liberalism coupled with Georg Wilhelm Friedrich Hegel's return to religion could therefore mark our understanding of constitutionalism today. Hegel is often invoked for his dialectics in international law, but rarely for his metaphysics. Hegel's philosophy is viewed as a ‘return to a more religiously driven conception of philosophy to which Kant had been opposed’.Footnote 55 It should be said that this is contentious, others viewing Hegel as as much a leading figure of secularism as Kant, or even more so, given that his work was the precursor to Marx's historical materialism.Footnote 56 In the Philosophy of Mind, Hegel explores the idea of the Spirit (Geist) and it is the understanding of this that divides and divided his followers into left- and right-Hegelians. For his idea of Spirit, Hegel begins with religion, noting that religion is burdened by its method, its imagery, and must be transcended through spiritual consciousness, through philosophy. Such spiritual consciousness is an invisible reality, subjective but also objective (since shared by many). To become aware of Spirit and at the same time to want to serve it is ‘absolute consciousness’. This absoluteness is understood in religion through imagery and in philosophy as principles. Principles transcend imagery but cannot be independent of them – thus the inherent link between philosophy and religion. Absolute consciousness (der Absolute Geist) can only be experienced at the End of Time – the consciousness with which one may approach heaven.Footnote 57
It is this notion of unilinear history, the development of humankind to a better future through the aspiration to the absolute, the universal, which can be argued to have been continued in constitutionalism beyond the state. Hegel in fact viewed the end of history as evidenced in the Prussian state. Could the vision of the sovereign state have been replaced by the vision of the sovereign individual in constitutionalism? Such an understanding of unilinear history, the progressive and purposive path in human development, also seems to have prompted Francis Fukuyama when he spoke of the ‘end of history’. In his essay from 1989, Fukuyama wrote of the ‘unabashed victory of economic and political liberalism’ as the ‘end point of mankind's ideological evolution and the universalization of Western liberal democracy as the final form of human government’.Footnote 58 Crucially, he refers explicitly to Hegel, for he believes that the victory has primarily occurred in the realm of ideas or consciousness and is yet incomplete in the real or material world. Fukuyama employs religious language, speaking of the ‘power of the liberal idea’, the requirement of the Soviet system ‘to heal itself’ and the ‘death’ of fascism and communism, ‘true believers’, and the ‘inevitability’ of the end of history.Footnote 59 The predominant visions for constitutionalism appear to be strongly influenced by this Christian-liberal belief. Just as Jesus and his followers believed they were living in an age of the end of history, and as Fukuyama famously proclaimed, do visionaries of global constitutionalism view the global constitution entrenched in liberal-democratic precepts as the end of the struggle for humankind?
‘All significant concepts of the modern theory of the state are secularized theological conceptions’, Carl Schmitt once wrote.Footnote 60 Schmitt is describing a replacement of the role of God (God's absoluteness) with the state (the absoluteness of the sovereign). While a post-Westphalian order does not necessarily place the source of authority in the state, there is nevertheless a demand for the single and ultimate source of authority. In the monotheistic religions, this is God and, in constitutionalism, it is the pre-political constitution (or its constituting precepts). The focus on the individual is a further legacy of Christianity, which can be argued to have been continued in liberal thought. In Christianity, the holy trinity points to the singular essence (tres personae) – an individualistic and liberalist understanding of the self. The individual is considered sovereign (which was particularly advanced by Martin Luther): the only relationship of importance is that between the individual and God. In the Christian faith, individuals require the mediation of the Church to relate to fellow human beings. It is not just these conceptions that carry this continuation; it is also the language employed by visionaries of constitutionalism beyond the state. One brief example is that Fassbender describes jus cogens norms within international constitutional law as the ‘Decalogue of a secularised world, a minimal code of behaviour that can be condensed into one rule: “Thou shalt not do other human beings terrible wrongs!”.’Footnote 61 Such continuation, rather than replacement, of beliefs is much more in line with the centrality of both religion and constitutionalism apparent in some liberal-democratic constitutional states, most notably the United States. Liberal democracy is therefore not the new God, the secular religion of our time; it is a continuation of the belief in Christian precepts.
In order to see beyond this legacy, we can learn from Marx. Marx, strongly influenced by Ludwig Andreas von Feuerbach, claimed that humans cannot simply be reduced to Hegel's idea of Spirit (Geist); humans are sensual beings, made of mind and body. The body part of humans means that all humans are dependent on others. From this, Feuerbach (and later Marx) takes that humans are communal beings. He furthermore is concerned that the religious perspective of the Spirit can only be imagined with view to heaven. Marx argued that such individualism alienates us from our fellow human beings (just as the Church in Christianity is required to mediate between individuals). Recognizing the pattern is only the beginning; breaking it requires some further thought – and action. In order to depart from this understanding of liberalism, it is helpful to recall Marx's critique of the French Revolution. Marx considered the French Revolution as having failed, given that it did not provide the necessary breaking of the pattern.Footnote 62 It was the moment that is often referred to as his own breaking with the left-Hegelians with whom he had previously associated and been associated with. Martti Koskenniemi, reflecting on what lawyers can learn from Marx, invokes this struggle: ‘These politics, Marx claimed, had remained imprisoned within what remained a religious pattern of thinking. It was thus necessary to attack that pattern itself – the “idealism” it manifested – so as to produce an effective critique of liberal modernity.’Footnote 63
5. Faith in constitutionalism
The faith in constitutionalism, and its liberal-democratic underpinning, can be illustrated through (i) its critique; related to this, (ii) its naturalization; and (iii) the occupation with legitimacy. Critique and scepticism of constitutionalism beyond the state largely (with important exceptions) occur on their own terms. By this, I mean that the parameter is liberal constitutionalism in national jurisdictions, as evidenced in the five key themes mentioned above. The critique is therefore fundamentally directed towards the question of when and how the European, international, or transnational orders lack the same features as domestic (liberal-democratic) constitutions. In Ruling the World, Andreas Paulus questions the constitutionality of the international legal system due to the lack of ‘superior unity’.Footnote 64 He further notes that the institutional weakness, to be found in the ineffectiveness of international institutions in enforcing international law in comparison with the domestic constitutional model, compromises the constitutional character of the international legal system.Footnote 65 Similarly, in Transnational Constitutionalism, Pavlos Eleftheriadis states that one cannot speak of constitutionalism at the EU level, given that the ‘Union's institutions . . . still do not enjoy the comprehensive role of their domestic counterparts’.Footnote 66
A fixation on the terms of liberal constitutionalism occurs if constitutional terms are naturalized. There appears to be an understanding that any problems in the world should lead to more constitutionalism, as understood in a liberal-democratic tradition, rather than thinking about alternative means of speaking about power arrangements. Peters, for example, speaks of the democratic-deficit problem of international law and global governance, reassuring the reader that there is a ‘constitutionalist response to this problem’.Footnote 67 The eyes are purely directed towards the ‘problem-solving’ potential of global constitutionalism rather than looking at the root causes of the democratic deficit. Such root causes are important to unveil in order to ascertain whether they have themselves been manifested in international institutions due to the liberal-democratic set-up. As Werner states in his chapter, if the facts do not match the constitutional ideas, the facts are changed, rather than the constitutional ideas questioned.Footnote 68 Another recurring critique of constitutionalism is that there can be no overarching framework so long as there are clear indications of fragmentation. So, as long as there are specialized and self-sufficient areas of international law such as international criminal law or international economic law, there is no common system. Fragmentation as a possible ‘deal-breaker’ features heavily in contributions by authors including Peters and Paulus. Paulus explains that the systemic character of international law is ‘threatened’ by fragmentation.Footnote 69 It was suggested above that constitutionalization, fragmentation, and verticalization form a unit of constitutionalism. These three features of the globalized world could be considered as being mutually dependent. Channelling the questions pertaining to constitutionalization exclusively into the debate on fragmentation can obstruct a discussion on reconceptualizing constitutionalism in a meaningful way, since the object of the tension will then simply be between the vision of a federalist type of constitutionalism and a unitary type of constitutionalism.
Such efforts are symptomatic of a belief in the neutrality of constitutional ideas. Constitutionalism and its key themes are seemingly placed within a neutral non-political (and non-religious) language. The centrality of power, for example, is often placed within a neutral language of accountability and restriction. Does this not obscure the fact that the centrality of power also includes the granting of power? The need for human rights within a constitutional system is often viewed as a non-political or pre-political question, but is it not highly political (and rightly so)? It appears, then, that the paradigms put forward are not neutral; rather, they are full of meaning and should include a politicization of the debate. As Werner states in his chapter: ‘constitutionalism . . . should take the political seriously.’Footnote 70 Such neutrality is partly the story of secularization: it was claimed that the previous values of society could no longer be found in God (the non-neutral entity) but instead in the neutral reason of humankind. Kennedy observes in his contribution in Ruling the World? that the use of constitutional ideas for the world can seem like a project ‘of the utmost seriousness and urgency’ if you believe that constitutionalism works well at home.Footnote 71 In a way, this is reminiscent of the urgency with which missionaries go into the world to spread the word.
The question of faith can also be explored in the vast literature on legitimacy and constitutionalism beyond the nation-state. Tonia Novitz will echo the sentiments of a number of lawyers with her observation that the aim of the design of a constitutional framework is to ‘enhance the legitimacy of international and European legal orders’.Footnote 72 Paulus speaks of legitimacy enabling a ‘better quality to international law’.Footnote 73 The anxiety about legitimacy is something troubling international and European lawyers alike. It is attached to an existentialist fear that, if there is no legitimacy, then there is no international law. One could hardly imagine an economist, a journalist, a scientist, or a philosopher constantly worrying about the irrelevance of his or her field, but international lawyers seemingly constantly live in fear of the field becoming irrelevant.Footnote 74 This existentialist fear is often said to be the cause of religions in the first place: it is the question of where we come from and where we go. Legitimacy is, if viewed in contrast to the more objective notion of legality, a subjective notion. Klabbers's examination of legitimacy is, in his usual style, illuminating. He explains that there may be both the subjective element to legitimacy in international law, namely belief, and an objective element, regarding who it is that bestows legitimacy. According to Klabbers, legitimacy is most likely to be found in international organizations – he suggests the General Assembly as ‘among the most legitimacy-generating institutions’.Footnote 75 This is, however, circular: one needs to have faith in the institutions to recognize them as bestowing legitimacy. Such is the nature of religious faith: there is a need for answers and no entity that can provide the answers, only faith that such an entity would be the correct entity. Constitutionalism helps to provide some answers to grapple with some of the anxiety; by declaring the existence of constitutionalism, structures are removed from contestation and revision and the primary actors are confirmed in their status.Footnote 76
6. Conclusion
Is this, then, an appeal to agnosticism? Should there be neither faith nor belief in constitutionalism in order to avoid a liberal-democratic/religious understanding of the term? No. An attempt at agnosticism may lead to projects of functionalism, but such an approach would again try to make natural that which cannot be natural. A commitment to purpose and functions of governance (such as those suggested by Dunoff and Trachtman, for example)Footnote 77 includes values, too, but veiled in a seemingly non-ideological and secular fashion. Rather, it becomes necessary to accept the purpose and functions of governance as including meaning. The displacement of religious ideas that have occurred in the liberal-democratic tradition should be viewed as such: a displacement of a partial tradition. It would not be possible, or desirable, to empty constitutionalism of its meaning, for it is meaning and content that we all seek. As Marx stated: ‘this state and this society produce religion.’Footnote 78 Thus, the liberal-democratic understanding of governance or of constitutionalism should be viewed as one of a number of interpretations. This is, then, an appeal for a pluralistic understanding of constitutionalism that is not only limited to a liberal-democratic and therefore individualistic vision of constitutionalism.
Thomas Kleinlein wrote recently that the ‘debate on constitutionalization seems to have reached certain conclusions which may not be seriously challenged anymore’.Footnote 79 I very much hope that this is not the case, that the debate is still seen as ongoing, with the paradigms still being up for debate. I do not believe that constitutionalism beyond the state is (yet?) a lost cause. It is a sufficiently open conception to incorporate a more social understanding of constitutionalism. Constitutionalism beyond the state is still in the phase of formation and any literature that today helps to reorient the debate from its current exclusively liberal-democratic status is useful. At the same time, I sympathize with Bardo Fassbender's concern that the term ‘constitution’ or ‘constitutionalism’ may be employed in an inflationary manner, causing danger of its devaluation.Footnote 80 So, while additional visions of global constitutionalism are necessary to reconceptualize the use of the term ‘constitutionalism’, it should not lose its progressive potential.
Another of Fassbender's warnings should also be taken seriously. He reminds the reader that the term ‘constitution’ has a long history and is confined to certain associations; it is not, therefore, inexhaustibly malleable. What would such a reorientation encompass? Certainly, some creativity is required. I suggest various directions for constitutionalism; elsewhere, I have termed this ‘organic global constitutionalism’Footnote 81 but, here, I would like to briefly highlight the importance of the ‘political’ in the constitutionalist debate. I strongly agree with the observation made by Dunoff and Trachtman in their opening and tone-setting chapter, namely that constitutions offer the unique opportunity of mediating between stability and change.Footnote 82 ‘Political’, in this sense, does not mean institutionalized politics as we see it in governments, but rather it means a more spontaneous type of the political, possibly as we have seen in Tahrir Square in Egypt and other Middle Eastern states since early 2011. It can mean democratic, but a democratic that does not prioritize liberalism over democracy.Footnote 83 In his contribution, Dunoff calls for opening up spaces for political dialogue and contestation for the constitutional debate.Footnote 84 He also perceptively observes that the closing-off that is occurring through the constitutional debate is also (paradoxically) bringing about the sort of politics that it seeks to pre-empt.Footnote 85 Much of what Dunoff argues in regard to the WTO also applies to the other areas of constitutionalism beyond the state.
In my view, proponents of international constitutionalism can learn from the experience in the European Union as regards institutionalized forms of politics. In terms of a lessons-learned approach, Neil Walker claims that any prospect for constitutionalism must be ‘as constructive as it is critical’ and must take seriously the ‘inadequacies of all present candidate solutions’.Footnote 86 Constitutionalism should also be viewed as an ongoing process, including various competing and contradictory visions of constitutionalism, as suggested by the pluralist constitutional proponents such as Halberstam. Another valuable feature of such constitutionalism, which will never culminate to become ‘a constitution’, that we learn from pluralism is that order cannot be the product of central command and control.Footnote 87 This applies as much to EU constitutionalism as it does to international and transnational constitutionalism. There is much work to be done to reorient the debate to a truly pluralist approach. Unfortunately, the three books under review do not suggest such possible reorientations. But, within their limited scope (and with important exceptions noted above), namely within a liberal-democratic understanding of constitutionalism beyond the state, they are very useful signposts for the development of the debate to date.
