Introduction—Global Constitutionalism from an Interdisciplinary Perspective

This issue discusses the process and substance of global constitutionalism from an interdisciplinary perspective.¹ The contributions look at international law and governance through constitutionalist spectacles. These spectacles have normative and empirical-analytical lenses. Seen through the normative lens of lawyers, a constitutionalist reading of current international law is, to some extent, an academic artifact. It has a creative moment, even if it only emphasizes certain characteristics of international law. From a legal perspective, such an intellectual construct is nothing unusual. If we accept the hermeneutic premise that a naked meaning of a text, independent of the reader, does not exist, then the reconstruction of some portions of international law as international constitutional law is just an ordinary hermeneutic exercise. It is a legitimate form of interpretation, not a distortion of norms that are "objectively" something else.

Seen through the empirical-analytical lens, the major question is whether there is strong empirical evidence for the emergence of an effective constitution beyond the nation-state. The term "effective constitution" denotes the idea that these constitutional rules make a difference for individuals and are not just cheap talk by politicians.

Most analyses of constitutionalism are written by legal scholars. Only recently, social scientists, and in particular political scientists, have joined the debate. Constitutionalism is an important theme for political scientists in various respects. In contrast to legal scholars, social scientists tend to put emphasis on empirical rather than normative aspects of constitutionalism; they try to explain variations in constitutionalization or to identify the empirical impacts of constitutions beyond the nation-state. In theoretical terms, their analyses are framed by at least three major controversies. The first of these controversies arises in the research on international relations; the second debate relates to democratic theory; and the third dispute concerns research of comparative politics and analysis of multilevel governance.

The realist, liberal, and constructivist schools in international relations disagree as to whether international rules and their effects can be explained by the pursuit of national interests of states or whether internal dynamics of international organizations and regimes limit and even hurt national interests.

Researchers in the field of democratic theory disagree about the chances for a democratic international order. One school of thought argues that requirements for democracy are not met beyond the level of nation-states and in all likelihood will not be met in the near future. Others either deny the necessity of democratic international rule, which is more than governance through intergovernmental deals between (democratically elected) national governments, or they see chances for cosmopolitan democracy.

Multilevel governance is not a theory; rather, it is a label for the joint and interconnected governance of subnational, national, regional, and global political actors. From the perspective of researchers in comparative politics, one of the most controversial questions concerns the extent to which national politics and policies are influenced by other layers of governance. In addition, explaining interaction effects of the various layers is one of the most important research fields.

I. The Constitutionalization of International Law: From Constitution to Constitutionalism

As the debate on global constitutionalism suffers from conceptual confusion, we need to clarify the key terms "constitution," "constitutionalism," and "constitutionalization" in advance.² All these terms are "evaluative-descriptive terms" that inevitably evaluate whatever they are employed to describe.³

Writing in 1758, Emer de Vattel explained: "The fundamental law which determines the manner in which the public authority is to be exercised is what forms the constitution of the State."⁴ Extrapolating this concept to the international political process, the bulk of the most important norms which regulate political activity and relationships in the global polity could be called an international constitution. Indeed, there is a longstanding tradition in international legal scholarship of doing so.⁵ However, an international or global constitution cannot be gained by simply scaling up a typical state constitution. We must be aware of the problems of translation. This is one reason why we prefer the term "constitutional law" to "constitution." We seek to highlight that this body of law is not codified in one single document, but...