Constitutionalism beyond the State: Myth or Necessity? (A Pluralist Approach)

Abstract

Constitutionalism beyond the State: Myth or Necessity? (A Pluralist Approach) Jean L. Cohen (bio) It is an understatement to say that the contemporary international society of states is deeply divided. Despite the happy consciousness of those who proclaimed the end of history and the worldwide triumph of the liberal democracy in the early 1990s, the legitimating principles for domestic polities around the globe remain diverse. True, the sovereign state form has been globalized in the aftermath of decolonization and the collapse of the Soviet empire. Yet we still inhabit a global pluriverse of 192 sovereign states whose political cultures, organizational principles, and conceptions of justice and legitimacy are diverse and at times in conflict with one another. Superimposed on this segmentally differentiated, pluralistic international society of sovereign states are the legal and political regimes of the functionally differentiated global subsystems of world society, whose institutional structures, decision-making bodies, and binding rules have acquired an impressive autonomy with respect to their member states and one another.1 These “regimes” or “subsystems,” of which the global political system is one, engage in new forms of global governance and lawmaking that reach beyond and penetrate within states. Individuals are increasingly ascribed rights and responsibilities under globalizing international law. This expanding individuation of international law seems to mark an important difference from the pre–World War II international legal system and from stereotypes of “Westphalian” sovereignty. Although states remain the main subjects that make international law, they no longer have the monopoly of the production of that law. Indeed the international organizations they have spawned seem to be transforming into “global governance institutions” (GGIs) which, like the sorcerer’s apprentice, tend to invert the principal/agent relationship extant at the time of their creation.2 These GGIs now regulate states and individuals, including the conduct of states toward their own citizens, in the name of the “international community,” importantly redefining (some would say abolishing) the sovereignty of states. As a result, states are bound by rules and regulations that make the old images of international society and the consentbased production of international law appear anachronistic. Yet there does not seem to be any overarching metarule for regulating interactions or conflicts among or within these globalizing legal and political orders.3 The hierarchy of authority among global, international, and domestic law remains unresolved. Moreover, there is an increasing awareness that some GGIs that provide a framework for collective goal attainment and peaceful conflict resolution among sovereign states can themselves be rights-violating. Instead of fostering a global rule of law, they are in certain key domains having constitutionalism- and democracy-eviscerating effects.4 [End Page 127] Organs of international organizations now engage in unanticipated forms of legislative, quasi-judicial, and administrative “governance” that directly (and sometimes adversely) affect individuals. The new “governance” functions do not come with oversight mechanisms, avenues of redress for those directly impacted, or new rules (higher laws) that regulate the expanded autonomy and powers of trans-, infra-, or supranational bodies or globalizing international organizations.5 Unsurprisingly, it remains contested how to conceptualize the relationship among these entities and what it ought to become. The conceptual divide is between those who mobilize the discourse of constitutionalism to characterize the increased juridification and regulatory reach of regimes of international law and governance, and those who view the multiplicity of sites of rule- and lawmaking through the lens of legal pluralism and reject the language of constitutionalism. What are the stakes of this dispute? The former see the constitutionalization of public international law as the way to tame the bellicose power politics and imperialist tendencies of nation-state sovereignty by constraining actors to solve their disputes through law while protecting human rights.6 The latter insist that the heterogeneity of international society and the pluralism of the international political system (along with the proliferation of international legal regimes within it) is a desirable antidote to hegemonic imposition that too often occurs in the name of “universalist” global law.7 This latter assessment expresses sensitivity to the asymmetry among global powers and to the emergence of new types of hegemony or imperial formations, not to mention the diversity of a still deeply divided international...