Global constitutionalism : positivism and international law -- International trade law : theories and practices in negotiations -- Making rules in the WTO : negotiations from Doha to Bali -- North-South controversy : developed and developing countries in the WTO -- Self-determination and minority rights under international law -- Human right : the interlocutor of global constitutionalism -- Asian approaches to international law -- The future of international law.

How is legitimacy to be secured for constitution-like legal orders operating beyond the state? Some scholars recommend connecting aspects of global law to human rights adjudication and enforcement by adopting their preferred method for resolving conflicts, namely, proportionality analysis. Adopting a frame of analysis widely embraced by apex courts might generate the requisite regime legitimacy, it is argued. This turns out to be a strategy that is difficult to pursue in the realm of international investment law, a global (...) legal order made up of over 3,300 investment and regional treaties, enforced by private systems of dispute resolution, that incorporates standards of treatment familiar to national constitutional law. By undertaking an analysis of statements made by relevant actors in the field, principally investment lawyers and arbitrators, we learn that there is not that much interest in taking up proportionality analysis, despite the legitimacy problems that continue to dog the system. Whatever the purported advantages of turning to proportionality, it turns out that investment lawyers and arbitrators are not so interested in embracing logics other than one preoccupied with owing solicitude to foreign investors. This reluctance renders investment law a less legitimate, and therefore less sustainable, form of constitution-like global law. (shrink)

This book provides insights into the viability of the idea of global constitution. Global constitutionalism has emerged as an alternative paradigm for international law. However, in view of the complex and varied structure of contemporary constitutionalism, in reality it is extremely difficult to use constitutional law to provide a new paradigm for international law. The book argues that the cultural paradigm can offer functional tools for the global constitutionalism discourse. In other words, global (...) constitutionalism could be handled in the context of a global "constitutional culture" instead of a global constitution. This would provide a more realistic basis for discussing global constitutionalization of a society as diverse as the international community, where a globalized polity and a globalized legal system have not yet been achieved. (shrink)

This illuminating book is a republican critique of the current system of global governance and its failure to address key global problems. With a republican account of international political theory which transcends prevailing forms of global governance, it develops republican forms of leadership and citizenship to inform the creation of a stronger system of formal international organisations. Republican Global Constitutionalism focuses on the current challenges facing formal international organisations such as the UN, the growing reliance (...) on opaque informal international organisations like the G20, and the inconsistent nature of transnational civil society. As a unique contribution to the field of global constitutionalism, the book provides an account of republican international political theory that emphasises the importance of extending the activity of citizens and constitutionalism beyond the state, in order to support the operation of transnational civil society and create a formal system of international organisations. Providing a concise intervention into the field of global governance, this book will appeal to scholars and students in the disciplines of international relations, political theory, transnational activism studies, international law, and public policy. It will also benefit policymakers and activists looking for alternative forms of global cooperation. (shrink)

Focusing on the case of Colombia, this article sets out a sociological examination of constitutions marked by strong, activist judiciaries, by entrenched systems of human rights protection, and by emphatic implementation of global human rights law. Contra standard critiques of this constitutional model, it argues that such constitutions need to be seen as creating a new pattern of democracy, which is often distinctively adapted to structures in societies in which the typical patterns of legitimation and subject formation required for (...) democratic government were obstructed. In polities with such constitutions, legal institutions and norm setters have at times assumed the status offunctional equivalentsfor more typical democratically mandated actors and institutions. In such polities, further, global law assumes essential importance as it creates new sources of normative authorization for legislation and stimulates new lines of articulation between government and society. The article concludes that analysis of such polities, exemplified by Colombia, shows that the common categories of democratic-constitutional analysis are no longer always adequate for understanding current tendencies in democratic formation, and they can easily undermine democracy itself. (shrink)

Much has been written about the global convergence on constitutional supremacy. Yet, a closer look suggests that while constitutional convergence trends are undoubtedly extensive and readily visible, expressions of constitutional resistance or defiance may in fact be regaining ground worldwide. This may point to a paradox embedded in global constitutionalism: the more expansive constitutional convergence trends are, the greater the likelihood of dissent and resistance are. In this article, I chart the contours of three aversive responses to (...) constitutional convergence: neo-secessionism, nullification, and deference to local authority, and draw on an array of comparative examples to illustrate the distinct logic and characteristics of each of these responses. Taken together, these increasingly common expressions of defiance provide ample evidence that global constitutionalism is not the only game in town. Neo-secessionism, nullification, and other forms of constitutional dissent and “opting out” may thus be viewed as a reaction against the centralization of authority and the decline of the local in an increasingly—constitutionally and otherwise—universalized reality. (shrink)

There are two dominant schools of thought addressing problems of cosmopolitanism and conflict: democratic national sovereigntism, inspired by Hegel, and global constitutionalism, inspired by Kant and reformulated by Habermas. This paper develops a third position by reading Adorno's critique of both theoretical traditions. Rather than compromising between these camps, Adorno triangulates between them. Critically illuminating their respective deficiencies in view of the changing conditions of a globalized modern world has critical implications for cosmopolitics. Although largely negative, Adorno's critique (...) provides an important framework for a contestatory reformulation of cosmopolitanism, one that is better equipped to confront societal and political global conflicts insufficiently reflected in sovereigntist and global constitutionalist models. (shrink)

Recent setbacks to international institutions and projects of global governance have been viewed as marking a resurgence of nation-state sovereignty. In fact, however, many of the major controversies and developments in contemporary international law and geopolitics concern the administration, autonomy, and internal hierarchy not of states, but of supra-state regions. The spatial logic of a world divided into such regions is best articulated in Carl Schmitt’s theory of the Großraum, which in various respects describes and explains key features of (...) modern world order. Taking regional systems as self-constituting political units characterized by internal forms of dominance and legitimation aids in identifying the operation of hegemony in contemporary international law and institutions. It also makes possible a reinterpretation of global constitutionalist discourse as a democratizing project that finds its most important expressions in counter-hegemonic movements within the various “great spaces” constituting today’s world. (shrink)

The article reflects on the possibility of conceptualising the complex problem of the normativity of international legal rules, including in particular the phenomenon of “relative normativity.” The author utilises the critical potential of Ronald Dworkin's proposal for a new philosophy of international law to reflect on the classical accounts explaining normativity of international law. By building on Dworkin's argument, the author argues for a constitutional account of international law. The far-reaching constitutional proposals may provide a more complex and coherent set (...) of possible rationalisations of international legal rules. International law is in great need of a comprehensive theory that could better explain its normative character as well as its sources, and it is argued that international constitutionalism has the potential to serve this purpose. (shrink)

Most of the world’s constitutions contain clauses guaranteeing sex equality, and many also extend the special protection of the state to mothers. The constitutional protection of motherhood is undertheorized and neglected in global constitutional discourse, perhaps because jurisdictions like the United States view the special protection of women as contrary to gender equality. This Essay explores the feminist meanings and possibilities of constitutional motherhood clauses, by focusing on Germany, where they originated in 1919. While motherhood clauses have had complex (...) relationships with a range of feminist agendas, they solidified the notion that social reproduction was a subject for constitutional lawmaking. Addressing twenty-first century gender inequalities requires a more robust engagement of women’s disproportionate burdens in social reproduction. Having opened up a constitutional discourse around the challenges of social reproduction, motherhood clauses and gender equality guarantees can drive the search for new solutions. (shrink)

Constitutionalism offers a governance order a set of normative values including, amongst others, the rule of law, divisions of power and democratic legitimacy. These normative values regulate the relationship between constituent and constituted power holders. Such normative constitutional legal orders are commonplace in domestic systems but the global constitutionalisation debate seeks to identify a constitutional narrative beyond the state. This book considers the manner in which the global constitutionalisation debate has neglected constitutionalism within its proposals. It (...) examines the role normative constitutionalism plays within a constitutionalisation process, and considers the use of community at both the domestic and global governance levels to identify the holders of constituent and constituted power within a constitutional order. In doing so this analysis offers an alternative narrative for global constitutionalisation based within normative constitutionalism. (shrink)

Constitutions around the world have overwhelmingly been the creation of men, but this book asks how far constitutions have affirmed the equal citizenship status of women or failed to do so. Using a wealth of examples from around the world, Ruth Rubio-Marín considers constitutionalism from its inception to the present day and places current debates in their vital historical context. Rubio-Marín adopts an inclusive concept of gender and sexuality, and discusses the constitutional gender order as it has been shaped (...) by debates such those around same-sex marriage and the rights of trans persons. Covering a wide range of themes, from reproductive rights to political gender quotas and violence against women, this book offers a comprehensive feminist account of constitutional law. Truly international in scope and ambitious in subject matter, this is an invaluable resource for students and scholars working on gender within multiple disciplines. (shrink)

This essay analyzes neo-liberal economic agreements and legal and political frameworks or what has been called the “new constitutionalism,” a governance framework that empowers market forces to reshape economic and social development worldwide. The article highlights some consequences of new constitutionalism for caring institutions specifically, and for what feminists call social reproduction more generally: the biological reproduction of the species; the reproduction of labor power; and the reproduction of social institutions and processes associated with the creation and maintenance (...) of communities. New constitutional governance frameworks fundamentally reshape conditions under which the care of human beings takes place. Caring institutions once governed by enabling professions geared to universal care are now determined increasingly by market values and private forces, and driven directly by the profit motive. This is one of the reasons why neo-liberalism is increasingly contested in both the North and the global South. (shrink)

This essay is a contribution to a symposium on Madhav Khosla’s important book, India’s Founding Moment. It uses the book to reflect on the relevance of the story of the Indian founding to constitution making around the world in the twenty-first century. It explores this question through three themes that run through the book: people and process; the substance of constitutions; and global influences. In conclusion, I suggest that the principal value of the Indian example lies in its emphasis (...) on the development of a democratic people through the principles and processes for which a democratic constitution provides. The direct applicability of the Indian example should not be overstated, however. In matters of important detail, it was necessarily anchored in the particularities of the Indian case, including the nature of the societal divisions as they had evolved under colonial rule, attracting substantive constitutional solutions that would not necessarily be applicable elsewhere. The world of constitution making has moved in in 70 years, moreover, as might be expected. Many of the challenges for constitution making now reflect both the possibilities and the pathologies of post-modernity, to which the Indian founding provides at best a general guide. (shrink)

We know that law is a major enabler of the human activities that cause climate change, biodiversity destruction, and related ecosocial crises. We also turn to the law to regulate, mitigate, and attempt to transform these unsustainable human activities and systems. Yet, these regulatory regimes are often “recaptured” or “overridden” in turn by the very anthropogenic processes causing the crises. The resulting vicious cycles constitute the global trilemma of the twenty-first century that is rapidly rendering the living earth uninhabitable (...) for humans, in radically unequal ways, and for thousands of other species. Integral, non-violent, sustainable democratic constitutionalism is one modest, experimental, trial-and-error response to this trilemma. (shrink)

Sovereignty and the sovereign state are often seen as anachronisms; Globalization and Sovereignty challenges this view. Jean L. Cohen analyzes the new sovereignty regime emergent since the 1990s evidenced by the discourses and practice of human rights, humanitarian intervention, transformative occupation, and the UN targeted sanctions regime that blacklists alleged terrorists. Presenting a systematic theory of sovereignty and its transformation in international law and politics, Cohen argues for the continued importance of sovereign equality. She offers a theory of a dualistic (...) world order comprised of an international society of states, and a global political community in which human rights and global governance institutions affect the law, policies, and political culture of sovereign states. She advocates the constitutionalization of these institutions, within the framework of constitutional pluralism. This book will appeal to students of international political theory and law, political scientists, sociologists, legal historians, and theorists of constitutionalism. (shrink)

Critical analyses of current food systems underline the need to respond to important challenges in questions of nutritional health, environmental sustainability, socio-economic development and protection of the cultural wealth. A wide range of perspectives and methodologies were used to carry out those analyses yielding a significant variety of proposals to undertake the challenges. In most of those analyses, the need to transform our current food systems both from the local to the global level is emphasized, paying attention to food (...) chain processes as well as to decision-makers. The analysis presented in this paper reflects specifically on those proposals based on a common aspect: the need to transform the governance of the EU present-day food system, that is, who makes decisions, how are those decisions made, and which changes need to be made to empower food consumers. The introduction of reforms to change these models is proposed. The focus of these proposals, including those that argue in favour of food sovereignty, the human right to food or the acknowledgement of a food citizenship, share, I believe, a common key. All of them advocate transformations in models of food governance on the basis of a series of mechanisms and principles which for centuries have been employed to control power and grant the governed a status digno vis-à-vis those who govern. Within those proposals we may identify an incipient food constitutionalism, which I will address along with the opportunities and obstacles inherent in the current EU Legal Framework. (shrink)

The essay responds to a challenge posed by Vanessa MacDonnell and examines the question of stability and change under the global model of constitutional rights. Constitutionalism offers the promise of both stability and justice, but it may seem that there will often be a tension between these values. While some have accused the global model, and in particular proportionality, of overemphasizing justice at the cost of stability, MacDonnell claims that it underemphasizes the necessity of social change. In (...) this response, I argue that in the long run the push for social change and towards justice can be realized only when there is also a certain stability, namely the stubborn democratic insistence that any state action must be reasonably justifiable to those affected by it in terms of their freedom and equality. This conviction lies at the core and will be reinforced by the endorsement of the global model of constitutional rights. (shrink)

In this Article I argue that the reductionism of global models of constitutional rights is problematic. Despite how they are labelled, these theories are typically modelled on the domestic constitutional law of an exclusive group of Western countries. The criteria for selecting these countries are not usually clearly or satisfactorily articulated. They then go on to present a simplistic version of the domestic constitutional law of the countries they are describing. The combined effect of these analytic moves raises questions (...) about what is lost in the process, and in particular, whether these frameworks allow for adequate recognition of the claims of those seeking – and achieving – social change within a constitutional democracy. Drawing on insights from critical legal studies, and in particular scholars who seek the decolonization of constitutional law, I argue that the utility of global theories of constitutional rights depends on their ability to recognize and give voice to the forces of social change. Otherwise, they risk being descriptively inaccurate and even damaging to the broader causes they seek to advance. (shrink)

Glocal environmental governance lags behind the science regarding the seriousness of the combined environmental and developmental challenges. Governance regimes have developed differently in different issue areas and are often inconsistent and contradictory; furthermore governance innovations in each area lead to new challenges. The combined effect of issue-based, plural, and fragmented governance raises key normative questions in environmental governance. Hence, this overview paper aims to address the following questions: How can the global community move towards a more normatively consistent (...) class='Hi'>global architecture for sustainable development? In order to address this question, I first examine the key normative issues and the nature of governance in the area of climate change, water and forests. In doing so I also look at the implications of each for food production, safety and security. The paper concludes that there are strong normative and architectural inconsistencies between the fragmented and plural issue-specific regimes; that such inconsistencies are inevitable in an ‘anarchic’ international order; that some degree of normative coherence can be strived at through the adoption of global constitutionalism and rule of law; and that the present discussion on global sustainable development goals is a first step towards creating a normatively consistent global architecture for sustainable development. (shrink)

Over the last 30 years, scholarship has produced countless books, essays, and articles on populism by investigating it from various perspectives and angles. This article seeks to contribute to this ongoing debate by offering a political-philosophical reconstruction of populism to define such a phenomenon from a multilateral perspective. The essay will proceed as follows: The first section will investigate populism from a purely political-philosophical position, while the second will discuss the constitutional effects of such a phenomenon, to define it mainly (...) as a form of anti-liberal and anti-judicial redefinition of democracy. Moreover, the first section will expose the dichotomy between the so-called left- and right-forms of the populist model and the populist threat to democracy, where the second will address populist constitutionalism and its antithetic relation to liberal constitutionalism.Footnote11 This article is the result of a period of research spent at the CAS-SEE UNIRI – Center for Advanced Studies of the University of Rijeka, Croatia. I wish to thank the Institute and its members for the opportunity to develop this research. Part of this research has been presented at the doctoral seminar of the Doctoral School of History and Philosophical-Social Sciences, University of Rome Tor Vergata. I wish to thank my colleagues Alessandro Ferrara, Matteo Bianchin, Tonino Griffero, Claudia Gina Hassan as well as the doctoral students of our programme, for comments and suggestions. (shrink)

Within the current debates about Euro‐constitutionalism, the conventional options are either to defend a vision of the European Union (EU) which separates global economic law from national sovereignty, and thus relies on the legitimizing powers of free markets, or to regard the legitimation problem (at least under current conditions) as beyond solution: This view argues that any further progress towards an ever closer Union would inevitably increase the legitimation deficit and that therefore the capacity for political action of (...) the nation state should be protected or restored. This paper seeks to break the stranglehold of the, as is argued, false dichotomy (global markets vs. national democracy), and it argues that an extension of democracy beyond the nation state is possible. (shrink)

This article recounts the backlash against the neoliberal constitutionalism that locked in free trade and capital rights through the multilateral treaty organizations of the 1990s. It argues that we can find important forces in the disruption of the status quo among the elite losers of the 1990s settlement. Undercut by competition from China, the US steel industry, in particular, became a vocal opponent of unconditional free trade and a red thread linking all of Trump’s primary advisers on matters of (...) trade. Steel lobbyists themselves helped frame a critique of actually existing neoliberal globalism, which Trump both adopted and acted on as part of his trade war. By searching for the contemporary attack on neoliberal constitutionalism among the disgruntled corporate elite, we find that our current crisis must be framed as a backlash from above as well as one from below. (shrink)

Law's Ethical, Global and Theoretical Contexts examines William Twining's principal contributions to law and jurisprudence in the context of three issues which will receive significant scholarly attention over the coming decades. Part I explores human rights, including torture, the role of evidence in human rights cases, the emerging discourse on 'traditional values', the relevance of 'Southern voices' to human rights debates, and the relationship between human rights and peace agreements. Part II assesses the impact of globalization through the lenses (...) of sociology and comparative constitutionalism, and features an analysis of the development of pluralistic ideas of law in the context of privatization. Finally, Part III addresses issues of legal theory, including whether global legal pluralism needs a concept of law, the importance of context in legal interpretation, the effect of increasing digitalization on legal theory, and the utility of feminist and postmodern approaches to globalization and legal theory. (shrink)

This book focuses on Andrew Arato’s democratic theory and its relevance to contemporary issues such as processes of democratization, civil society, constitution-making, and the modern Executive. Andrew Arato is -both globally and disciplinarily- a prominent thinker in the fields of democratic theory, constitutional law, and comparative politics, influencing several generations of scholars. This is the first volume to systematically address his democratic theory. Including contributions from leading scholars such as Dick Howard, Ulrich Preuss, Hubertus Buchstein, Janos Kis, Uri Ram, Leonardo (...) Avritzer, Carlos de la Torre, and Nicolás Lynch, this book is organized around three major areas of Arato´s influence on contemporary political and social thought. The first section offers a comprehensive view of Arato’s scholarship from his early work on critical theory and Western Marxism to his current research on constitution-making and its application. The second section shifts its focus from the previous, comprehensive approach, to a much more specific one: Arato´s widespread influence on the study of civil society in democratization processes in Latin America. The third section includes a previously unpublished work, ‘A conceptual history of dictatorship (and its rivals,)’ one of the few systematic interrogations on the meaning of a political form of fundamental relevance in the contemporary world. Critical Theory and Democracy will be of interest to critical and social theorists, and all Arato scholars. (shrink)

The scholarship and legal products of the Global South, argued Daniel Bonilla Maldonado,1 occupy ‘a low level’. Their constitutions and attendant jurisprudential theories were seen as mere transpla...

The scholarship and legal products of the Global South, argued Daniel Bonilla Maldonado,1 occupy ‘a low level’. Their constitutions and attendant jurisprudential theories were seen as mere transpla...

This two-volume book, published open access, brings together leading scholars of constitutional law from twenty-nine European countries to revisit the role of national constitutions at a time when decision-making has increasingly shifted to the European and transnational level. It offers important insights into three areas. First, it explores how constitutions reflect the transfer of powers from domestic to European and global institutions. Secondly, it revisits substantive constitutional values, such as the protection of constitutional rights, the rule of law, democratic (...) participation and constitutional review, along with constitutional court judgments that tackle the protection of these rights and values in the transnational context, e.g. with regard to the Data Retention Directive, the European Arrest Warrant, the ESM Treaty, and EU and IMF austerity measures. The responsiveness of the ECJ regarding the above rights and values, along with the standard of protection, is also assessed. Thirdly, challenges in the context of global governance in relation to judicial review, democratic control and accountability are examined. On a broader level, the contributors were also invited to reflect on what has increasingly been described as the erosion or 'twilight' of constitutionalism, or a shift to a thin version of the rule of law, democracy and judicial review in the context of Europeanisation and globalisation processes. The national reports are complemented by a separately published comparative study, which identifies a number of broader trends and challenges that are shared across several Member States and warrant wider discussion. The research for this publication and the comparative study were carried out within the framework of the ERC-funded project 'The Role and Future of National Constitutions in European and Global Governance'. The book is aimed at scholars, researchers, judges and legal advisors working on the interface between national constitutional law and EU and transnational law. The extradition cases are also of interest to scholars and practitioners in the field of criminal law. Anneli Albi is Professor of European Law at the University of Kent, United Kingdom. Samo Bardutzky is Assistant Professor of Constitutional Law at the University of Ljubljana, Slovenia. (shrink)

The article examines recent theories of legal and constitutional pluralism, especially their adoption of sociological perspectives and criticisms of the concept of sovereignty. The author argues that John Griffiths's original dichotomy of “weak” and “strong” pluralism has to be reassessed because “weak” jurisprudential theories contain useful sociological analyses of the internal differentiation and operations of specific legal orders, their overlapping, parallel validity and collisions in global society. Using the sociological methodology of legal pluralism theories and critically elaborating on Teubner's (...) societal constitutionalism, the author subsequently reformulates the question of sovereignty as a sociological problem of complex power operations communicated through the constitutional state's organization and reconfigured within the global legal and political framework. (shrink)

We live in a time of human paradoxes. Scientific knowledge has reached a level of sophistication that permits understanding of the most arcane phenomena and yet religious fundamentalism dominates in many parts of the world. We witness the emergence of a civil, liberal constitutionalism in many regions of the world and yet ethnic violence threatens.