Constitutionalism Between Nation States and Global Law
Constitutionalism between nation states and global law
Chris Thornhill
Introduction: The global constitution and its features
It is widely diagnosed that contemporary global society is witnessing a process of legal globalization, and, as a result, the emergence of new forms of constitutionality. As yet, there is only limited agreement regarding the exact features of the global constitution. However, a diverse range of theoretical perspectives now converge around the transformation of global constitutional law as a chosen object of research. Broadly speaking, research on the constitution of global society can be divided into two quite separate lines of analysis.
On one hand, there now exists a large body of research which claims that the constitution of global society has developed through the reinforcement of international law, and it is determined, primarily, by the fact that international law constrains the abstract sovereignty of national states (see for example Fassbender 1998; Klabbers, Peters and Ulfstein 2009).[1] On this account, the constitutionality of international law is particularly manifest in the fact that certain international laws, especially those concerning human rights norms contained in powerful international conventions, have standing as jus cogens for all actors in the global domain. This is taken to mean that, in their external activities, national states position themselves as subjects within an international hierarchy of legal norms, and their sovereign acts are bound by the jurisdiction of powerful international courts. This is also taken to mean that legal norms set by international courts and organizations penetrate deeply into national legal systems, so that, in their internal functions, states are no longer able exclusively to define the basic normative structure of their own national societies, and individual agents within societies have rights that are independent of national law (see Lauterpacht 1950: 33; Peters 2014: 341). Naturally, this view is not always proposed from a sympathetic perspective, and there are many theorists who deeply lament the passing of the simple hierarchy of national constitutional order (Grimm 1991: 3; Young 2003: 536, 542; Rabkin 2007: 70; Loughlin 2009). Across a broad spectrum from affirmation to obstruction, however, the claim is now widespread that international human rights law is able, potentially, to assume direct effect within national societies, placing individual subjects in national societies in an immediate relation to legal norms promoted at the supranational level. On this construction, human rights conventions act as sources of effective global constitutional law, and, across national divides, they increasingly ensure that all acts, both vertical between persons and national states and horizontal between single agents in national society, are regulated by appealable and justiciable norms of international provenance.
On the other hand, there now also exists a body of literature which examines global patterns of constitutionality in a more pluralistic, sociological perspective, and which views the emergent constitutional order of global society as a form produced by contingent legal interactions, often occurring below the level of formal-legal international instruments. Following this interpretation, contemporary society is capable of generating constitutional norms in highly contingent, acentric fashion, and de facto constitutional norms often result from creeping, hybrid processes of legal adaption and solidification. Researchers working in this field deploy many definitions of the precise constitutional essence of global constitutional law, and they devise different ways of explaining how contingently produced law can assume constitutional force.[2] Across different lines of analysis in this field, however, the view is relatively constant that, owing to its deep intrinsic complexity, modern society generates laws to support its exchanges in unpredictable ways, often at a high level of sectoral specificity and pluralism.[3] For this reason, constitutional laws should not necessarily be seen as positioned at the pinnacle of a universally applicable hierarchy of norms, bound to a clearly identifiable political system. On this account, the constitution of global society is produced through reflexive processes within society’s different functional domains, and it is marked by deep variations across different social sectors, and by multi-focal, sometimes relatively spontaneous, processes of norm production and legal ordering.
Quite manifestly, therefore, the globalization of the law in recent decades has triggered a number of quite divergent constitutionalist reactions. These reactions range from outlooks that posit a direct analogy between the vertical constitutions of nation states and the vertical construction of international law to outlooks that associate legal globalization with a re-structuring of the basic sources and the basic obligatory force of constitutional law. Despite these divergences, however, what clearly unifies these separate lines of inquiry is that they all construct the nascent constitutionality of contemporary society by distinguishing it from classical patterns of public-legal norm formation. Notably, both dominant lines in theories of global constitutionalism gravitate around the presumption that national constitutionalism had certain invariable foundations, and it was underpinned by certain constant physical-organizational realities. In particular, national sovereignty, territorial integrity, legal uniformity, legal certainty, and systemic closure are taken as fixed underpinnings and normative insignia of classical constitutional law. On this basis, then, it is usually argued that, in the global legal order, these principles have been partly invalidated, and the founding laws of public life no longer draw support from the same norm-productive foundations as classical public law.[4] As a result, different patterns of reflection on global constitutionalism draw common substance from a particular construction of classical or national constitutionalism. In different approaches, the constitutional form of global society is most essentially defined by the fact that it collapses the classical closed hierarchy of national public law, and it diminishes the authority of institutions representing sovereign national communities (see Zumbansen 2010: 144).
The purpose of this Chapter is to contribute in a distinctively sociological manner to debates about the substance of global constitutionalism. In particular, this Chapter adopts a critical attitude towards the tendency, shared by many theorists in different lines of constitutionalist inquiry, to posit a strict caesura between national and global constitutionalism. In fact, it observes this assumption as reflecting certain general weaknesses in analysis of global constitutionalism. Inquiry into global constitutionalism, notably, tends to account for the bundle of processes grouped together as globalization as a historical finality, or as a deep structural rupture, which externally transforms the legal-political order of national societies, and brings into life patterns of legal ordering which are radically different from those that existed in national societies. A primary consequence imputed to globalization, in particular, is that it weakens, or at least deeply disrupts, the system of public law, and the institutions framed by public law, produced through the longer historical development of national societies. To be sure, most observers of global constitutional law are avowedly hostile to classical principles of positivism, which assert a strict dichotomy between national and international law.[5] Despite this, however, the common perception of globalization as legal rupture means that many accounts of global constitutional law construct such law in categories that are residually indebted to positivism, and they define national and global law as pertaining to two quite distinct spheres of causality and validity.[6] Above all, theorists of global constitutionalism often view global law as law that is produced externally to national societies, and which interrupts the more stable legal processes typical of national society.[7] Owing to this dichotomous construction of globalization, analysis of global constitutionalism generally omits to evaluate the social foundations of processes of constitutional norm production in national societies, and, in consequence, it avoids contemplation of the complex, historically embedded continuities between national and global law. On both counts, although global constitutionalism has clearly attracted legal theorists who work in the sociological margins of legal science, this field remains sustained by a rather historically simplified paradigm of global law, which, in closing itself to analysis of the interactions between national and international law, has at times impeded adequate interpretation of the deep-lying social origins of global constitutional norms.
Against this background, it is argued in this Chapter that, if we wish to comprehend global constitutional law, we need to recalibrate our understanding of national constitutions, and we need to probe, sociologically, at the underlying historical fabrics of classical constitutionalism – that is, of constitutions that defined the public-legal order of national societies. In fact, the sociological reconstruction of classical constitution norms is a precondition for sociologically refined examination of global constitutional norms: a sociology of national constitutional law is a prerequisite for a sociology of global constitutional law. In promoting a sociological inquiry into global constitutional law, therefore, this Chapter advocates a sociological or inner-societal re-orientation in the analysis of globalization: the globalization of law is seen here as a process that occurs simultaneously inside and outside national societies, and the origins of global constitutional norms need to be identified, in part, in the deep recesses of national legal structures.[8] On this basis, we need to avoid the suggestion that the globalization of law, and globalization more generally, are phenomena that intrude externally on national trajectories of legal formation. On the contrary, the emergence of constitutional norms with global reach and global authority can be interpreted through a sociological description of national societies, and the rise of global law, accordingly, can be attributed to legal practices and formative processes that are deeply embedded in national society. Global constitutional law, in fact, can be most accurately examined through a perspective derived from historical political sociology, and classical sociological methodologies used traditionally to interpret national patterns of institutional formation can be very productively applied to analysis of global law.
To make these claims, this Chapter proceeds by setting out a sociological analysis of classical constitutionalism, explaining the basic sociological functions and foundations of classical constitutional law. It outlines a sociological theory of global constitutional norms by examining social processes linked to classical constitutions, which are re-articulated in the formation of global constitutional law. Global constitutional norms are construed as norms that reproduce, in new social and spatial dimensions, the adaptive-evolutionary functions of performed national constitutions in national societal environments.
Classical constitutionalism observed sociologically 1: Foundations and social differentiation
- Foundations: State formation
From a sociological perspective, classical constitutions, and the distinctive norms that they contain, can be observed as institutions that acquired quite distinctive functions for national political systems, and they reflected a wider process of social transformation, which shaped the emergent form of modern national societies. First, for example, constitutionalism began to gain purchase as a doctrine for the administration of national political systems at a time, the eighteenth century, in which many societies, at least in Europe and some European colonies, were beginning to concentrate their political resources in a relatively delineated set of central institutions. Above all, this meant that in many societies the traditional vesting of political functions (i.e. collective decision making, establishment of common normative rules, organization of fundamental social relationships, implementation of judicial and fiscal arrangements) in actors whose authority was circumscribed by local/familial authority or corporate/sectoral position was in the process of being scaled back. In this setting, constitutions first evolved as instruments that facilitated the centralized organization of political power, and they played a key role in the process of state formation. Prior to the growth of states, of course, the corporations and other social orders in which social life was commonly regulated had possessed their own constitutions, and they had imprinted a pluralistic system of public/private law on society.[9] Ultimately, however, the sectoral constitutions of corporations were replaced by, or integrated within, the central constitutions of national states, and, through their development, states gradually supplanted the pluralistic legal reality of early modern society. Liberal notions of constitutional formation typically claim that political constitutions were first created to reduce the power held in national states, and especially in the monarchies around which many European nation states first developed.[10] In fact, however, most modern societies established states, not before, but through a process of constitutional construction, and the rise of statehood and the rise of constitutions were two sides of the same process of institutional centralization.
This formative function of classical constitutions is clearly observable in the first wave of classical constitution making. The 1789 Constitution of the USA is paradigmatic in this regard. Although it provided for an awkwardly integrated political system, in which political power (sovereignty) was to be exercised concurrently by federal and state-level institutions, the Federal Constitution projected a basic formulation of governmental legitimacy to support and centrally to integrate the diffusely connected organs of the new American Republic (see Kahn 1997). Even more indicative in this respect were the first constitutions created in revolutionary France. In key respects, these constitutions acted to transform the pluralistic construction of French society under the ancien régime, whose power structures had been based in multiple localities and corporations, into a more compactly organized socio-political order, in which directive authority was attached to identifiably mandated central institutions (Church 1981). In both these classical constitutional settings, in fact, the state- or system-building role of constitutions was clearly expressed in the basic vocabulary of constitutional discourse. Although the constitutions of revolutionary America and revolutionary France showed great variation in the techniques they used for allocating powers in the state, these constitutions were all shaped by a strong doctrine of national sovereignty, often configured as a theory of constituent power.[11] As a result, the normative core of these constitutions resided in the principle that governments obtained legitimacy solely to the extent that their institutions were founded in the sovereign will of the people, and that imperatives derived from this will were enacted through organs of state. In each case, the task of the constitution was to anchor the state in the national will, and to ensure, as far as possible, that the momentary exercise of governmental power did not deviate from the content of this will. Notably, the assumption that the political system extracted its authority from a general construction of the people or nation meant that the political system was able to explain its laws across widening social spaces by reference an abstract overarching source of authority, and it claimed legitimacy for its use of power on easily generalizable normative premises. In practical terms, this provided a basis for the formation of a political system which could separate its power from the local/corporate structures of early European modernity, which could justify power through simplified and reproducible normative ideas, and which could distribute power across society, relatively inclusively, from fixed, centralized institutions.[12] Overall, the core constitutional norm of national sovereignty evolved in the early era of classical constitutionalism as a central part of a conceptual apparatus in which society as a whole could rationalize, and react to, deep-lying changes in its functional structure, and through which it could extricate its political system from the condition of regional, familial and corporate dispersal in which it had previously operated. The normative vocabulary of classical constitutionalism formed a reservoir of functional meanings, which adaptively simplified the evolution of a relatively centralized political system in early national societies.
- Foundations: Abstraction and circulation of political power
In promoting the basic centralization of the national political system, early classical constitutions also had implications which extended beyond the sphere of objective institutional design. In fact, one consequence of early constitutions was that they transformed the basic shape of political power, defined as an abstracted medium of exchange, and they reconfigured the conditions for power’s distribution across society. As mentioned, it is not accurate, as is so often suggested, to assume that in Europe of the ancien régime society was dominated by fully formed powerful states, whose monarchical executives were able to impose personal directives on their subjects with limited social constraint. On the contrary, in early modern Europe, political authority was diffusely organized, and it was mainly condensed in different corporations: professions, families, towns, manufacturing units, courts, guilds etc. In such contexts, on one hand, political power was constructed in highly localized, sectorally determined fashion, and the extent to which political or legal decisions could be generalized, to overarch different corporations, and different societal locations, was limited. Even core members of monarchical dynasties could only rarely articulate commands that prevailed over the vested practices and customs of corporations.[13] This is amply exemplified by evidence from pre-revolutionary France, in which the corporate design of society was widely recognized as obstructing the emergence of a strongly articulated political system.[14] In such contexts, on the other hand, political power was highly personalized, and it was integrally attached to the status of single persons and families: authority to perform coercive ordering of social relations was usually linked to a person’s position in a given hierarchy (a court, a profession, a guild, a family, etc.), and the entitlement to exercise power was not easily formalized in general terms, which could be replicated across society’s structural partitions. Indeed, constructions of political authority could not be straightforwardly transplanted from one corporation or from social location to another.
This status-determined diffusion of political power was transformed, however, by the emergence of constitutional law as a dominant explanation of legitimate governance in the eighteenth century. First, the growth of the concept of national sovereignty in early classical constitutionalism meant that the political system could explain its power as an abstractly authorized phenomenon. In fact, as the political system defined its power as derived from the constituents of the people or nation, the political system established the legitimational principle that its power was internally constructed by the same persons to whom it was applied, across all parts of society: that the people, acting collectively, authorized the power of the state, which was then applied, singularly, to its members.[15] To this degree, the conceptual apparatus of constitutionalism distilled political power into a relatively abstracted, simplified, recursive form, whose authority could be intuitively explained to its addressees. As political power began to presume general constitutional authorization, consequently, it was projected as a medium of exchange that was clearly distinguishable from the persons factually exercising it, and which could be applied, in constantly self-identical fashion, in all social locations and to all social persons. In fact, in referring to the will of the national sovereign people as the source of its legitimacy, political power evolved, rapidly, to a high level of internal self-reproducibility, and the political system was increasingly able to circulate political power, in easily iterable form, across the multiple domains in society, each of which had traditionally possessed a distinct status-defined power structure.[16] From this time onwards, therefore, the constitutional reference to national sovereignty formed a primary inner-medial formula for the iteration and simplified circulation of political power. Using this formula, national political systems were able quickly to assume an abstract monopoly of power within their societies, which had previously proved impossible for monarchical executives which had not been able to sustain their authority with constitutional norms.