Harmonising Global Constitutionalism

29 Pages Posted: 3 Jun 2016

Date Written: June 2, 2016

Abstract

The explosion in the literature on global constitutionalism in recent times has come at the cost of ever more, and more diverse, definitions of the concept of constitutionalism. The state of the current debate can therefore be characterised, conceptually speaking, as a ‘constitutional cacophony’. This cacophony is arguably the inevitable result of the ‘problems of translation’ in importing the state-based concept of constitutionalism to the global level. This article attempts to counter suprastate constitutional scepticism borne of these problems of translation and resulting cacophony by revisiting the concept of constitutionalism itself through the lens of legitimacy. Arguing that legitimacy provides both a key element of the concept of constitutionalism as well as a common denominator for the application of constitutionalism both at the state and suprastate levels, it develops a conception of ‘constitutionalism as legitimacy’ as a way of vindicating the role of constitutionalism in the context of global governance. It presents constitutionalism as a discursive ‘mixed’ form of legitimacy entailing both factual and normative components involving a series of contestable reasons for the legitimacy of an authority based on a blend of liberalism and republicanism. These theories are then reworked into a framework of reasons for the legitimacy of an authority centring around its origins, its aims and its methods. Tracing the relationship between constitutionalism and legitimacy in this way brings harmony to the global constitutional cacophony and allows for a plausible ‘translation’ of the concept of constitutionalism between the state and suprastate levels allowing for an effective ‘mapping’ and ‘shaping’ of legitimacy in global governance which is illustrated by reference to the legitimacy crisis surrounding the United Nations Security Council’s ‘war on terror’.

Keywords: Constitutionalism, Beyond the State, Political Legitimacy, Global Governance, Liberalism, Republicanism

Suggested Citation

Mac Amhlaigh, Cormac S., Harmonising Global Constitutionalism (June 2, 2016). Global Constitutionalism, 2016; Edinburgh School of Law Research Paper No. 2016/17. Available at SSRN: https://ssrn.com/abstract=2788524 or http://dx.doi.org/10.2139/ssrn.2788524

Cormac S. Mac Amhlaigh (Contact Author)

University of Edinburgh - School of Law ( email )

Old College
South Bridge
Edinburgh, EH8 9YL
United Kingdom

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