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The Inevitable Globalization of Constitutional Law

Mark Tushnet

Harvard Law School

December 18, 2008

Hague Institute for the Internationalization of Law
Harvard Public Law Working Paper No. 09-06

This Essay examines the forces pushing the presently varying forms of domestic constitutional law toward each other, and the sources of and forms of resistance to that globalization (or convergence, or harmonization). After a brief introduction sketching claims for the existence of a "post-war paradigm" of domestic constitutional law and competing claims about national exceptionalism, the Essay sketches the "top down" pressures for convergence - judicial networks and actions by transnational institutions, including transnational courts, international financial institutions, and transnational NGOs. It then turns to "bottom up" pressures, from domestic interests supporting local investments by foreign investment and high-level human capital and from lawyers engaged in transnational practice. A discussion of counterpressures from the supply side follows. These counterpressures include resistance from local interests, including authoritarian or semi-authoritarian political elites, and subtle but perhaps deliberate misunderstandings that can arise when superficially similar legal arrangements take on distinctive local meanings. The Essay discusses whether the mechanisms it identifies lead to a race to the "top," to the "bottom," or to some more variegated location. It concludes with a brief treatment of how the globalization of domestic constitutional law can be accommodated to local notions of separation of powers.

Number of Pages in PDF File: 23

Keywords: Globalization, constitutional law

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Date posted: December 18, 2008 ; Last revised: January 18, 2009

Suggested Citation

Tushnet, Mark, The Inevitable Globalization of Constitutional Law (December 18, 2008). Hague Institute for the Internationalization of Law; Harvard Public Law Working Paper No. 09-06. Available at SSRN: https://ssrn.com/abstract=1317766 or http://dx.doi.org/10.2139/ssrn.1317766

Contact Information

Mark V. Tushnet (Contact Author)
Harvard Law School ( email )
1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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