Democratic Erosion and Constitution-Making Moments: The Role of International Law
2 University of California Irvine Journal of International, Transnational, and Comparative Law 87 (2017)
27 Pages Posted: 28 Jan 2017 Last revised: 6 Apr 2020
Date Written: 2017
This article, written for a symposium at UC-Irvine School of Law on Constitution-Making as a Transnational Practice in September 2016, considers the role of international law in guarding against democratic erosion or abusive constitutionalism. Recent experience has highlighted the risks that some constitution-making processes can pose to democracy. Both the context in which constitution-making is often undertaken, and the prevailing theory of constitution-making itself, tend to heighten these risks and may make it difficult for effective restraints to emerge at the domestic level. The normative case for international norms governing the constitution-making process is therefore strong. This article surveys a range of possible or emerging international responses: regional democracy clauses requiring that a domestic legal order follow its own rules, direct substantive or procedural norms, best practices from international civil society, and advisory bodies like the Venice Commission. It concludes that all of these responses suffers from significant and theoretical problems. Thus the best path forward is likely to be one that seeks incremental progress across a range of approaches.
Keywords: constitution-making, constituent power theory, Venice Commission, public participation, democracy clause, constitutional moment
JEL Classification: K33
Suggested Citation: Suggested Citation