International constitutionalism and the state: A rejoinder to Vlad Perju

Abstract

The transplantation of a legal governance form from one order to another is always fraught with difficulty. Perju’s Reply asks critical questions regarding the characterization of future global governance and most particularly the use of constitutionalism beyond the state presented in my article. Perju argues that an a priori matter, whether constitutionalism is suitable beyond the state, is of critical import. My original article centered upon a “what if” question, what would the impact of an international constitutionalization process be upon the state and whether this would be an advantageous process, what Perju portrays as “the very option” of constitutionalism. The sense of urgency which Perju finds apparent in my article is also perceptible in other recent attempts to offer options for the future of the global legal order. Alongside constitutionalization, other narratives ranging from global legal pluralism to global administrative law form part of a much broader narrative of “what if” questions within international governance debates seeking to consider what exists beyond the classical state consent tropes discussed in the article. This rejoinder focuses upon several questions raised by Perju: transplantation, multiple constitutional orders, and the link between normative and structural constitutionalism.1 First, transplantation and the applicability of constitutionalism, as part of a process of constitutionalization, beyond the state. Walker considers that the opposition to constitutionalism beyond the state relies upon four interrelated categories: inappropriateness, inconceivability, improbability, and illegitimacy.2 Inappropriateness is linked to what Perju states as taking “for granted the existence of an international legal order.” Indeed, the constitutionalization debate and my article assume that a legal order exists beyond the state. Whilst not embracing Peters’s claim that constitutionalization acts as a bulwark against assertions of international law’s limitations as a legitimate legal order nor wishing to dismiss outright those that do question international law’s legitimacy, …