by Jeffrey L. Dunoff and Joel P. Trachtman (eds). Cambridge, UK and New York, NY: Cambridge University Press, 2009. 430pp. Hardback. $95.00/£60.00. ISBN: 9780521514392. Paper. $36.99/£19.99. ISBN: 9780521735490. eBook format. $30.00. ISBN: 9780511590559.Reviewed by Ming-Sung Kuo, Yale Law School. Email: KUO [at] aya.yale.edu.
pp.73-77
Riding the wave of globalization, a global version of constitutional ordering transcending nation-states is being jubilantly envisioned. Echoing these institutional aspirations for constitutional ordering on a global scale, the normative ideals of constitutionalism such as human rights and rule of law are projected onto the world. Apparently a new era of constitutionalism is arriving. However, the transnational parallel between institutions and norms poses more questions than answers. Does it simply suggest a global expansion of constitutional democracy as we know it? Does the new era of constitutionalism herald a paradigm shift in thinking constitutionalism? These are the central concerns not only to policy makers but also to political scientists and legal scholars in the talks of global constitutionalism. RULING THE WORLD? CONSTITUTIONALISM, INTERNATIONAL LAW, AND GLOBAL GOVERNANCE, edited by Jeffrey L. Dunoff and Joel P. Trachtman, is a timely intervention in attempts to throw illuminating light on the landscape of constitutionalism in the unruly world that we have inhabited and inherited since the dawn of the modern system of international law.
This book consists of three parts, including thirteen chapters and a preface. Each chapter, as well as the preface, deals with practical and theoretical edgy issues of global governance in relation to constitutionalism. There are many ways to characterize global constitutionalism. As reflected in the structure and organization of this book, global constitutionalism opens up three new frontiers for theories of constitutionalism. In the first place is the new frontier of traditional international organizations and other legal regimes, which constitutes the theme of Part II. International organizations and other international legal regimes such as the United Nations (UN) human rights system are traditionally regarded as established and operating under the framework of international law. However, paralleling the pursuit of legalizing international relations (Goldstein, et al. 2001), traditional international organizations and other legal regimes are argued to have undergone or to be undergoing the process of constitutionalization. The foremost example of those that take the path of constitutionalization is the European Union (EU). However, the EU itself is in the process of constitutional transformation (Kuo 2009). Taking up the issue, Chapter 6, “Reframing EU Constitutionalism,” written by Neil Walker, illuminates whether the EU stands as the example or the exception to the current move toward global constitutionalism. [*74]
In addition to the EU regional body, the UN and the World Trade Organization (WTO) are showcases of how constitutional talks spread into traditional international organizations. These two examples are representative. The one has long been taken as a seminal world government; the other is emerging as the most powerful global regulatory regime and which includes a mandatory judicial type of dispute resolution mechanism. Reading these two international bodies through a constitutional lens is not beyond dispute, as reflected in the distinct attitudes toward them in the book. Raising the question whether the UN Charter is a global constitution in Chapter 4, Michael W. Doyle rests the constitutional reading of the UN Charter on the practice of “supranationality” in the UN operations. Defined as the institutional feature that “permits authoritative decisions without continuous [state] consent” (p.115), according to Doyle, supranationality suggests moving the UN regime beyond the definition of traditional international organizations. In contrast to Doyle’s cautious identification of supranationality in the UN practices, Bardo Fassbender (Chapter 5) unambiguously defends a constitutional rendering of the UN Charter by a comparative examination of the Charter and existing state constitutions.
Echoing the duo on the constitutional character of the UN, the collection editors, Dunoff and Trachtman, sing their duet on the WTO. While Trachtman sounds a positive note on the constitutionalization of the WTO in Chapter 8, Dunoff’s focus in Chapter 7 is on the politics behind the move to rethink the WTO as on the path of constitutionalization. Dunoff’s skepticism about various theories to characterize the WTO as a constitutionalized body stands in contrast to Trachtman’s embracing the WTO in constitutional terms. Still, both are concerned with the role of politics in the constitutional discourse regarding the WTO, although Dunoff adopts a critical stance, whereas Trachtman argues from the rationalist perspective of constitutional economics.
In addition to the regional and global organizations as noted above, international human rights regimes stand at the center of global constitutional talks. Less institutionalized and centralized than formal international organizations, such as the UN, the WTO, and the EU, international human rights regimes play an equally pivotal role in the development of international constitutionalism because of their normative importance. This theme runs through Chapter 9, “Human Rights and International Constitutionalism.” In addition to its exemplification of another dimension to the constitutionalization of traditional international legal regimes and organizations, Stephen Gardbaum in this chapter sheds light on the meaning of constitutionalizing international human rights law. With its acquiring higher law status among international treaties, direct effect in municipal legal systems, and the prescriptive role in relation to individuals, Gardbaum attributes constitutional character to international human rights law.
As a point of departure for Part III, the theme of the constitutionalization of international human rights regimes points to the second new frontier opened up by global constitutionalism: the crisscrossing of constitutional systems. [*75] While a constitutionalized international human rights regime seems to attain a higher status vis-à-vis national constitutions, the landscape of global constitutionalism is much more complex than the foregoing hierarchical relationship suggests. As Mattias Kumm notes in Chapter 10, what underlies global constitutionalism is a new “cognitive frame,” within which the nature of constitution is understood. By taking the cosmopolitan turn, Kumm reconceptualizes the relationship between international and municipal legal systems as one involving different constitutional domains, which is to be governed according to constitutional pluralism without being trapped in the monism vs. dualism debate in traditional international law. As a rule of engagement for distinct constitutional domains, constitutional pluralism rests its legitimacy on a complex procedural legitimacy, comprising jurisdictional legitimacy and due process. Notably, the former is embedded in the departure from the idea of sovereignty to the principle of subsidiarity. Kumm emphatically includes electoral accountability and standards of good governance derived from domestic administrative law due process under his twofold conception of due process.
Besides addressing other issues regarding global constitutionalism in putting forward his ambitious cosmopolitan “cognitive frame for imagining public law” (p.262), Kumm’s foregrounding the idea of constitutional pluralism sets the stage for the next two interventions in this collection in how to manage the crisscross constitutional landscape in the global era. In Chapter 11, Daniel Halberstam identifies constitutional pluralism as characteristic of the European legal order and the separation of power in the United States constitutional system. Despite differences, what is common between these two examples of constitutional pluralism is: “the unsettled nature of final legal authority is an enduring and essential characteristic of each system” (p.336). Taking constitutional pluralism seriously, Halberstam proposes constitutional heterarchy as the form of the organization of potential constitutional conflicts among different actors. Instead of grounding the organization of conflict in any hierarchy outside the system, the management of constitutional pluralism is conducted through the values of voice, expertise, and rights within the spontaneous, decentralized, and immanent ordering of constitutional heterarchy. Following this line of thinking, Miguel Poiares Maduro focuses attention on the changing role of the judiciary in the face of constitutional pluralism in Chapter 12. In addition to the required changes of the modalities of judicial reasoning in response to constitutional pluralism, Maduro brings to the fore the role of judicial dialogues in institutional choice. However, Maduro distinguishes between the teloi of the judiciary in the face of internal and external constitutional pluralism. In the context of internal constitutional pluralism where a certain legal order supported by its own political community is supposed, the telos of courts is to maintain the integrity and coherence of that legal order. In contrast, faced with external constitutional pluralism, courts are concerned with minimizing potential jurisdictional conflicts.
Concluding Part III on the crisscrossing of constitutional systems, Samantha [*76] Besson revisits the idea of constituent power in global constitutionalism in Chapter 13, suggesting the blurring of the boundary between international and municipal law. Framing her revised concept of constituent power on the model of the society of states, Besson argues for what she calls demoi-cratic legitimacy in the place of traditional democratic legitimacy. In showing the way out of the democracy deficit facing global constitutionalism, Besson also brings up a fundamental issue: the translation of constitutional ideas into global constitutionalism.
Together with the issue of translation, the causes and effects of the constitutionalization of global governance, which are framed as the question “what is constitutionalization beyond the state?” as the title of Part I indicates, constitute the third new theoretical frontier. In Chapter 1, Dunoff and Trachtman point out the three functional dimensions of global constitutionalism: enabling, constraining, and supplemental. The first two functions correspond to those tied to national constitutions; the third emerges in response to the changing relationship between international and municipal law. Also addressing the changes in the relationship between international and municipal law, Andreas L. Paulus examines the efforts of conceptualizing the international legal system as a constitution in Chapter 3. Departing the formalist position, Paulus urges a constitutionalist understanding of the international legal system under the substantial paradigm of constitutionalism.
Apart from the effects of global constitutionalism, both Paulus’s and Dunoff and Trachtman’s contributions identify the causes of global constitutionalism in the fragmentation of the international legal order. In other words, bringing order to the fragmented international legal system figures as the central concern to global constitutionalism. Echoing the current talks of global governance, Dunoff and Trachtman in their introductory chapter locate the aspiration to global constitutionalism in the context of economic globalization. Taking a different approach, David Kennedy provides critical perspectives on global constitutionalism. In Chapter 2, “The Mystery of Global Governance,” Kennedy recasts global constitutionalism as one among various efforts such as the project of global administrative law and the ideas surrounding new governance in the latest wave to bring the international system under the rule of law. Instead of taking the functional approach, Kennedy relates the emergence of global constitutionalism to the systems of knowledge production. In this train of thought, Kennedy’s intellectual history of global governance raises the same question as the late Thomas M. Franck asks in the Preface, “why constitutionalize?”
Underneath this sixty-four-thousand-dollar question lie more crucial issues fundamental to global constitutionalism: What is the added value for the international legal system to be called a constitution? What exactly is constitutional about current global governance? Is comprehensiveness characteristic of constitutional orders? The exploration of global constitutionalism in this book comes full circle here: Is global constitutionalism different from national [*77] constitutionalism? Are we entering a new era of constitutionalism, or instead are we facing the end of constitutionalism as we know it? These substantive issues regarding global constitutionalism run through the various essays, linking individual chapters to the general discussion on global governance beyond the collection itself. To be sure, none of these issues can be easily settled by a short essay because each of them touches the core of constitutional theories. To address these questions may need thirteen books rather than thirteen chapters in a collection. Still, both the structure of the book and the substantive discussion by each author reflect the width and depth of theoretical exploration that is required to address the diversity and complexity of challenges posed by global constitutionalism.
REFERENCES:
Goldstein, Judith L., Miles Kahler, Robert O. Keohane, and Anne-Marie Slaughter (eds). 2001. LEGALIZATION AND WORLD POLITICS. Cambridge, MA: MIT Press.
Kuo, Ming-Sung. 2009. “From Myth to Fiction: Why a Legalist-Constructivist Rescue of European Constitutional Ordering Fails.” OXFORD JOURNAL OF LEGAL STUDIES 29: 579-602.
© Copyright 2010 by the author, Ming-Sung Kuo.
