Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures

Leiden Journal of International Law, Vol. 19, pp. 579–610, 2006

32 Pages Posted: 4 Mar 2010

See all articles by Anne Peters

Anne Peters

Max Planck Institute for Comparative Public Law and International Law

Date Written: January 1, 2006

Abstract

The article conceives international (or global) constitutionalism as a legal argument which recommends and strengthens efforts (legal and political ones) to compensate for ongoing de-constitutionalization on the domestic level. Although the notions ‘international constitution’ and ‘international constitutionalism’ have in the recent years served as buzz-words in various discourses, the many meanings of those concepts have not yet been fully explored and disentangled. The paper suggests a specific understanding of those concepts. It highlights various aspects and elements of micro- and macro-constitutionalization in international law, and identifies anti-constitutionalist trends. On this basis, the paper finds that, although no international constitution in a formal sense exists, fundamental norms in the international legal order do fulfill constitutional functions. Because those norms can reasonably be qualified as having a constitutional quality, they may not be summarily discarded in the event of a conflict with domestic constitutional law. Because the relevant norms form a transnational constitutional network, and cannot be aligned in an abstract hierarchy, conflict-solution requires a balancing of interests in the concrete case. Finally, because constitutionalism historically and prescriptively means to ask for a legitimate constitution, a constitutionalist reading of the international legal order provokes the question of its legitimacy. This question is pressing, because state sovereignty and consent are – on good grounds – no longer accepted as the sole source of legitimacy of international law. International constitutionalism – as understood in this paper – does not ask for state-like forms of legitimacy of a world government, but stimulates the search for new mechanisms to strengthen the legitimacy of global governance.

Keywords: constitution, constitutionalism, legitimacy, global governance, democracy, rule of law

JEL Classification: K33

Suggested Citation

Peters, Anne, Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures (January 1, 2006). Leiden Journal of International Law, Vol. 19, pp. 579–610, 2006, Available at SSRN: https://ssrn.com/abstract=1564125

Anne Peters (Contact Author)

Max Planck Institute for Comparative Public Law and International Law ( email )

Im Neuenheimer Feld 535
69120 Heidelberg, 69120
Germany

HOME PAGE: http://www.mpil.de

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