Academic writing

V. Political Theory and Global Constitutionalism

As is to be expected, there is no lack of political theories that have attempted, through their academic and scholarly representatives, to wrangle with the relatively novel phenomenon that is global constitutionalism. Some approaches will naturally lend themselves more to the discussion around global constitutionalism whereas others may appear, prima facie, to be more at odds with the concept of an increasingly constitutionalised global power system. Cosmopolitanism, to take an easy example, has its global view of humankind as being comprised of citizens of the world.[1] Critical theory and, even more so, realism will doubtless have a thing or two to say about the real and conceptual hurdles to be dealt with.

Cosmopolitanism

The starting point for a cosmopolitan approach to global constitutionalism is the potential common ground in a concept that could best be described as the universality of humankind.[2] While a realist would argue, rather convincingly, that relative power will be the ultimate decider of any global constitutionalist order, this does not preclude us from laying down the principles that, over time, may contain within them the capacity for the rectification of the results of realpolitik. While short-term great power structures may be the battlegrounds of great power politics, it seems self-evident that only a truly democratic bottom-up reorganisation thereof may have a hope of rectifying this, lest any attempts at supranational organisation go the way of the aforementioned Achaean League.

Cosmopolitanism also offers one of the more cogent answers to the growing populist rhetoric that revolves around national and, by extension, cultural identity. As Brown and others have argued, and despite any belief to the contrary, cultures are not uniquely organic creations of their own corner of the world, but already amalgamations and cosmopolitan constructions.[3] Put simply, no culture is an independent and static entity. Like almost everything related to human organisation, it borrows and lends in equal measure. Europe is a fine example of a continent that culturally, linguistically, and historically is a patchwork of overlaps and to-and-fro exchange. As we will see later on, the failure (such as it is) of the European Union to legitimise itself stems from economic, in addition to cultural, concerns. This, too, may be the gap in the cosmopolitan contribution.

If global constitutionalism is to seek a universalising legal framework, we must look further to find and address future causes for concern that are not the primary focus of cosmopolitan thinking.

Liberal Theory

Perhaps the most natural of bedfellows for global constitutionalism is liberal theory, at least in terms of normative compatibility. A great number of the most prominent scholars on global constitutionalism can themselves be described as liberal theorists.[4] But liberalism is more akin to a broad church than a unified group. As Iain Ferguson describes it, liberal theory falls on a spectrum between two poles. On the one end we have the ‘liberalism of fear’, and on the other a more utopian liberalism. The former seeks the least unpalatable form of government, while the latter ‘pulls in the opposite direction’.[5]

Indeed, Ferguson observes that liberal theory is the dominant idea in a globalised world.[6] However, it may be an understatement to claim that liberalism carries a lot of baggage with it, imperialist or otherwise. Notwithstanding the increasing rejection of (neo)liberalism evident in the literature on both global constitutionalism and contributions to international political economy (more on that later), it is too broad a church to single out for effective contributions. The contributions of liberal theorists as individuals, perhaps, could provide food for thought. And presumably this is how they would prefer it.

Moreover, to hark back to the previous discussion of a legal versus political governing system or constitution, it may be prudent to rethink the liberal ideal of a government of laws rather than politics.[7] As outlined earlier when discussing the WTO’s contributory role, a more integrated global system carries with it the necessity for more legislation to carry it through. The risk herein lies in the governance of any future international system falling into the hands of legal experts, scholars, and professionals, as opposed to an informed and enlightened global citizenry. It is, of course, necessary that any attempts at supranational constitutionalism involve not only the passive, but also the active, consent of those that live under it. Therefore, active political and democratic engagement by any future “citizens of the world” must be the starting point, lest we risk a democratic deficit that ultimately undermines the entire system. Indeed, it could be argued that active democratic participation on a supranational scale is too great an ambition, and that any move in that direction is doomed to failure.

Critical Theory

The democratically engaged citizen leads us neatly on to critical theory, which engages in a lot more ideological finger-wagging when it comes to global constitutionalism. Critical theory looks at a much more engaging ‘globalisation from below’.[8] Rather than drawing upon the traditions of the “west”, or global north, critical theorists draw much inspiration from the global south to find alternatives to what is called neoliberal globalisation.[9] This has led to the emergence of New Constitutionalism, which can be broadly categorised into two traditions, both of which are relevant to what has already been covered and for the following pages. The first addresses, from a different angle perhaps, the argument around the legal versus political constitutional system. It sees the proliferation of treaties and the increased codification outlined earlier as heralding the advent of a “juristocracy”, whereby elites shore up and insure their interests, power, and influence in the years to come in the form of the increasing body of international and supranational treaties and agreements.[10] This would answer the questions posed earlier: What would happen to the international political order if it was left entirely in the hands of international lawyers?

The second tradition of New Constitutionalism is of even greater relevance for this paper. Its primary focus is economic globalisation seen through constitutional terms, seen as ‘higher norms’ in the international arena than nation-state policy making.[11]

While each of these two traditions is distinct from the other, they are undoubtedly mutually complementary. Both address the very real risk that globalisation, on its current neoliberal trajectory, would seek to undermine the authority and effectiveness of majoritarian institutions.[12] The supremacy of the law over politics would entail, in a democratic system universally advocated-for, the subjugation of democracy by the aforementioned legal insurance schemes of global elites. A system proceeding along these lines would prove to be doomed to fail from the start. Critical theory, in the form of New Constitutionalism, provides the most compelling mode of address for the concerns of a legal international order raised earlier.

The oft-neglected question of political economy is raised here, notably the neoliberal assumption and pressure to see the political and economic as distinct from each other; the so-called ‘public-private dichotomy’.[13] From the standpoint of critical theorists, this purported divide constrains the ability of majoritarian democratic institutions to act as a check on economic practices. The relevant economic practices here revolve around the privatisation and marketisation of more and more aspects of social life.[14] It naturally follows that once drawn into the “separate” economic sphere, such practices come into the orbit of the pre-arranged insurance policies outlined above, and then the juristocracy ensures that everything proceeds smoothly.

Critical theory’s attempts to refocus the debate on issues of political and, especially, economic power are sorely needed if we are to jump the divide between politics and economics for a more comprehensive view of the potential pitfalls and limitations of global constitutionalism. The call to heed the significance of trade and investment treaties as tools of a potential future juristocracy, and the assertion that globalisation will not, as many might claim, by definition entail the spread of democracy.[15] Far from it, there is a very real risk of the opposite happening. Should this happen, we will once again see a system whose initial makeup undermines its legitimacy and ultimately constrains its longevity.

Realism

The topic of power and the struggle therefor relates directly to realism and its contribution to the debate on global constitutionalism. While the realist lens, applied to this field, may be a veritable baptism by fire, its critical approach may well be an antidote to the overwhelmingly liberal discourse observed by Ferguson, as realism often stands as a counter-theory to liberalism, among others.[16]

As Jütersonke points out, the political realist draws upon the lessons of history to point out to those more optimistic about the functionality a nascent global order that things rarely go according to plan. Rather, they proceed as ‘a much more haphazard and reactive affair’.[17] The increase in literature on the subject of global constitutionalisation is not, therefore, indicative of its growing traction as a field or observable phenomenon. Conversely, as these attempts slowly succumb to the realities of power politics, the production of continued literature on the subject of global constitutionalisation could merely be the frantic efforts of international legal scholars to resist the breakdown of their field.[18]

In an interesting overlap with critical theory, realism might also assert that arranging political life at the nation-state level is complex and difficult enough. Whereas any attempts to pursue this at an even higher level would merely leave affairs in the hands of concerned elites. More to the point, states are seen to be willing to enter into international arrangements, but a supranational world state, constituted as many law scholars outline is, to the political realist, ‘unattainable in this world’.[19] The European Union, to take a telling example, failed to pass its Constitutional Treaty and fails to present itself as an example of the self-determination of its member states or their peoples.[20] Given that this failure took place at the regional level, the challenge of a further attempt on an even larger scale appears even more insurmountable.

Back to the global level, and the ‘bitter truth’, then, ‘is that neither the WTO Charter or the UN Charter comes even close to embodying the basic elements of “constitutionalism” with which we are familiar, namely the separation of powers, checks and balances, democratic representation and participation, an emphasis on individual rights, and governmental restraint in the exercise of power’.[21]

Reinforcing the claims of others on the topic, Jütersonke points out that constitutionalism as it currently stands still carries imperialist or colonialist baggage, whether in its terminology or the fact that it evolved during the colonialist era. This would mean that the system on its current trajectory simply reflects the desires of the American global hegemon.[22] Once again we see echoes of similar sentiments expressed in critical theory.

[1] G W Brown, ‘Cosmopolitanism and global constitutionalism’, in A F Lang, Jr & A Wiener (eds), Handbook on Global Constitutionalism, Cheltenham, Edward Elgar Publishing, 2017, p. 94.

[2] Brown, ‘Cosmopolitanism and global constitutionalism’, p. 94.

[3] Brown, ‘Cosmopolitanism and global constitutionalism’, p. 102.

[4] I Ferguson, ‘Liberal theory’, in A F Lang, Jr & A Wiener (eds), Handbook on Global Constitutionalism, Cheltenham, Edward Elgar Publishing, 2017, p. 106.

[5]Ferguson, ‘Liberal theory’, p. 106.

[6] Ferguson, ‘Liberal theory’, p. 107.

[7] Ferguson, ‘Liberal theory’, p. 108.

[8] Santos B de S and C A Rodríguez-Garavito (eds), Law and Globalisation from Below: Towards a Cosmopolitan Reality, Cambridge, Cambridge University Press, 2005, cited in G W Anderson, ‘Critical theory’, in A F Lang, Jr & A Wiener (eds), Handbook on Global Constitutionalism, Cheltenham, Edward Elgar Publishing, 2017, p. 140.

[9] Anderson, ‘Critical theory’, p. 140.

[10] Anderson, ‘Critical theory’, pp. 141-142.

[11] Anderson, ‘Critical theory’, p. 142.

[12] Anderson, ‘Critical theory’, p. 142.

[13] C Schwöbel-Patel, ‘The political economy of global constitutionalism’, in A F Lang, Jr & A Wiener (eds), Handbook on Global Constitutionalism, Cheltenham, Edward Elgar Publishing, 2017, p. 407, and Anderson, ‘Critical theory’, p. 143.

[14] Anderson, ‘Critical theory’, p. 143.

[15] Anderson, ‘Critical theory’, p. 144.

[16] O Jütersonke, ‘Realist perspectives on global constitutionalism’, in A. F. Lang, Jr & A. Wiener (eds), Handbook on Global Constitutionalism, Cheltenham, Edward Elgar Publishing, 2017, p. 129.

[17] Jütersonke, ‘Realist perspectives on global constitutionalism’, p. 133.

[18] Jütersonke, ‘Realist perspectives on global constitutionalism’, p. 133.

[19] H J Morgenthau, Politics Among Nations: The Struggle for Power and Peace, New York, Alfred A Knopf, 1948, cited in Jütersonke, ‘Realist perspectives on global constitutionalism’, p. 134.

[20] Jütersonke, ‘Realist perspectives on global constitutionalism’, p. 135.

[21] F Kratochwil, The Status of Law in World Society: Meditations on the Role and Rule of Law, Cambridge, Cambridge University Press, 2014, cited in Jütersonke, ‘Realist perspectives on global constitutionalism’, p. 135.

[22] Jütersonke, ‘Realist perspectives on global constitutionalism’, p. 135-136.