Constitutionalism beyond the state: myth or necessity?
Constitutionalism beyond the state is a deeply contested project. The emergence of global governance and global laws that directly affect individuals and regulate the conduct of states toward their own citizens raise questions about the basic hierarchy of authority among states, regional bodies and global institutions. States no longer have a monopoly of the production of international or global law. Thus questions about the legitimacy of global law and governance arise particularly, but not only, when they have constitutionalism- and democracy eviscerating effects. The discourse of global constitutionalism as a possible characterization of or response to the expanded juridification and exercise of coercive public power on the supra state level follows from these developments. But what kind of constitutionalism is appropriate beyond the state and what should be the relation among distinct and at times competing legal orders? This article addresses these questions focusing on the global political system and using the lens of the recent ECJ decision in the Kadi case to formulate the appropriate conceptual issues. I argue for a constitutional pluralist approach but I also argue that this requires reform of the global political system. I claim that a human rights-oriented constitutionalism is compatible with state sovereignty, appropriately understood. We should drop unhelpful dichotomous frameworks such as cosmopolitanism versus sovereignty, monism versus dualism and think creatively with respect to changing sovereignty regimes, federal unions of states that are not themselves states but which are constitutional and potentially constitutionalist legal orders. In this way we can try to preserve the best of what the older sovereignty regime of international law had to offer – constitutionalism, democracy, self determination of states, sovereign equality – while conceptualizing and (re-)designing the new, especially in light of international human rights concerns, in ways compatible with these and other, individual-oriented normative principles.
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