Global Constitutionalism : Some critical remarks

Constitutionalism is a timely and popular topic in the world today. Things like the rule of law, fundamental rights, separation of powers and democratic form of government are highly relevant to current events and affairs going on all around the globe. No matter how one actually feels about these things, their constitutional relevancy is virtually impossible to deny. Yet, from a comparative point of view, we can say that constitutionalism is particularly a relevant question in such systems that mix elements stemming from different constitutional traditions. This is certainly true in Hong Kong because of its sensitive status as a Special Administrative Region of China which makes constitutionalism particularly relevant matter for Hong Kong.

Obviously, constitutionalism is a theme that spans a wide range of topics, discussions and debates. Accordingly, it is impossible to deal with all dimensions of constitutionalism in a single article. Notwithstanding, global constitutionalism is an even broader topic. This is because global constitutionalism is closely related to the sweeping notion of global law. This article offers a rather general critical view of why global constitutionalism is necessarily plagued with certain innate methodological and epistemic problems and tensions.[2]

Criticisms advanced here do not necessarily capture all the subtleties of different versions of global constitutionalism, and perhaps they are drawn more sharply than warranted. However, the following criticisms concentrate on certain general tendencies and core ideas upheld by many such scholars who wish to create an overarching constitutional framework to provide uniform answers to the legal problems of today. The point of view of the following discussion will be that of comparative law. Now, what that actually means we will return to later in this article.

2. About Constitutionalism

It is widely held that constitutionalism normally refers to governance according to constitutional principles.[3] Accordingly, we speak of a constitutional system of government. No doubt, these are broad characterisations indeed. In a more detailed view, we can see that constitutionalism basically holds that principles of the rule of law, the separation of powers and the protection of fundamental rights are secured and implemented with constitutional institutions and mechanisms.

By far, the most important dimension of constitutionalism means that having a written or formal constitution does not suffice but that the government of a state must be de facto limited in its powers, ie, government’s authority depends on its observing constitutional limitations. This means, among other things, that one can have a formal constitution without constitutionalism, as the well-known expression puts it.[5] By the same token, it is, however, useful to bear in mind that constitutionalism comprises different strands of thought.[6] For that reason, constitutionalism is not a monolith.[7]

Against this background, it would appear that almost all strands of constitutionalism claim that the respective principles, institutions and mechanisms ought to be used as normative parameters when the legitimacy of a legal order is evaluated. Consequently, constitutionalism is more about legitimacy than narrow legality of a constitutional order. That, in turn, means that having a constitution act and to act accordingly to a constitution are related but different things.[8] In this context, we may refer to Roscoe Pound’s famous distinction between law in books and law in action.[9]

Along similar lines, it seems to be a reasonable observation that the notion of constitutionalism is on the move. And, this has been so for a long time. Basically, we may distinguish two main stages in the development of modern constitutionalism. First, many nation-states throughout the world adopted new constitutional acts after the Second World War. The underlying idea was to limit the powers of government, secure the adherence to the rule of law and protect the fundamental rights.[10] Second, in the late twentieth century and early twenty-first century, we saw some of the key elements of constitutionalism to spill over from traditional nation-state settings to novel transnational and to some extent global arenas.[11] Without a shadow of a doubt, this latter stage is where constitutionalism is closely connected to global law. The question that needs to be asked, however, is what do we actually mean when we talk about global law?[12]

3. “Global” in Constitutionalism

Discussing global law might possibly mean that one jumps out of the frying pan and into the fire, but for the discussion about global constitutionalism, it is a useful thing to do. The discussion on global law is a vast field covering a wide collection of themes and approaches. It has become a trendy buzzword in non-nationally oriented law, transnational legal studies and so-called global legal education.^[13] Still, it is difficult to speak of global law because nobody really seems to know exactly what it is. Open-endedness seems to be an intrinsic part of it.

Of course, there are definitions available, but these definitions are by no means exhaustive. Take, for instance, the fact that various definitions seem to form a polyphonic whole, a complex plurality. However, even though there are no clear-cut definitions available, different conceptions seem to have certain noteworthy similarities if viewed from a wide angle.

Characteristically, the normative and legal conception of global law defines it as the law of non-state governance systems. These are, for instance, normativities developing beyond the scope of the sovereignty of any given state. This kind of global law may develop through a formal process within an international forum (eg, the United Nations), or it may occur in a less formal manner, growing out of the common practices of a profession, for example, the work of international arbitrators.[15] Regardless, the notion of global law remains a highly imprecise and contested.[16]

Nonetheless, global constitutionalism is, as already noted, related to the broader notion of global law. Yet, it seems to be a rather special strand of it. As noted by Anne Peters, global constitutionalism consists of various strands.[17] To be sure, like global law, global constitutionalism is not a monolith. It comes as no surprise, then, that the state of current debate on global constitutionalism has been described as “a constitutional cacophony”.[18]

One strand argues that constitutionalism must necessarily move beyond the nation-state into the transnational sphere and the private sector. In practice, this strand argues that now even transnational corporations are obliged to respect human rights.[19] Another strand underlines that globalisation has placed states and their constitutions under strain. This strand basically holds that states have transferred certain previously government-held functions to non-state actors. Accordingly, it is argued that governance is now exercised beyond traditional confines of nation states.[20]

A third strand is also based on international law, and it highlights that a new international order is being developed following the principles and values of constitutionalism. In effect, this third strand holds that various scattered international legal texts form a body of international constitutional law that is a specific subset of the international legal order.[21]

4. Criticisms of Global Constitutionalism

Clearly, the above broadly sketched strands of global constitutionalism are very general as to their nature. All of these strands also show that the project of global constitutionalism is especially appealing to public international lawyers.[22] We may overstate the point, but these sketches indicate what the key elements of what we commonly refer to as global constitutionalism are. Moreover, they also provide us certain fundamental ideas about global law and global constitutionalism as a subset of global law. As such they also offer possibilities for critically discussing some of the core assumptions of global constitutionalism. Basically, we can separate two forms of criticism which are substance-related and methodological critiques. The following discussion concentrates on the substance-related critique first.

(a) Substance-Related Remarks

Now, it seems useful to regard global constitutionalism first and foremost as an academic discourse and an intellectual endeavour. It is by no means an equivalent to such established fields of law like constitutional law, contract law or public international law. And yet, here is the thing, it is not merely an academic subject, but it has an existence as a part of international law. And, if global constitutionalism is regarded to be something more than an academic discourse, then it is open to a rather obvious critique according to which there is no genuine development towards constitutionalisation of the international legal order.[23]

This critique underlines that international law is, in the end, a minimalist and fragmented body of law, which is by and large subject to the will of states still holding on to their sovereignty.[24] The criticism goes deeper and points out that international law holds no supremacy over other law, such as written national constitutions.[25] In other words, this fundamental assessment is based on the fact that formal constitutions normally sit at the apex of the hierarchy of legal norms. So, in the case of a norm conflict, ie, when two valid laws are in conflict with each other, then their mutual hierarchy decides which law must be applied.

With this in mind, one may feel obliged to ask whether global constitutionalism can actually succeed without the hierarchy and accompanying unity of legal norms of the nation-state?[26] To put it otherwise, constitutionalism does not seem to be able to mend fragmented international law and restore coherence and unity within international law.[27]

Next substance-related critical point is also based on the experience stemming from the national constitutional sphere. In essence, national constitutions are based on certain preconditions of which one of the most important is the common political community creating a base for a constitutional order.[28] This base also offers the ultimate source of political power channelled through democratic process of opinion formation. In short, the constitutional foundation which leans on the existence of a certain polity is the actual source of the governing institutions of a state. The constitutional chain of legitimacy starts from the people and is then channelled to a constitution.[29] But, in the case of substance-wise constitutionalised international law, there is no such community, no such polity or democratic way to channel the political will to the international law sphere.[30]

We can also make one additional constitutional law-related remark about the significance of constitutional scholarship which is not as innocent as it may appear at first glance. This refers to the simple fact that constitutional scholars quite clearly work for expansion of constitutional law in general as they wish to enthrone their field of law “as the supreme discipline among the ranks of legal scholarship”, as noted by Armin von Bogdandy. He also points out that constitutional scholars struggle to “develop constitutional law’s formal supremacy into a towering substantive influence of constitutional arguments in legal discourse in general”.[31]

Stretching the above argument a bit further, it does not seem too far-fetched to assume that this “seizing the crown” is one of the motivational factors behind the grown weight of non-state constitutional law discourse, or if you prefer, global constitutionalism, accumulated in recent years. In the same way, the study of constitutionalism has been dominated by legal scholars, so social scientists and political scientists have joined the debate only rather recently.[32]

In light of these substance-related criticisms, we can see that as a legal entity, the global constitutionalism seems rather unsettled and hypothetical as to its nature. Nevertheless, the critique stemming from the methodological ground may be more severe than the substance-related critique. This form of critique flows from the methodological uncertainty and indeterminacy that the comparative law view highlights. However, before we can go into the comparative law-based methodological criticism, it is useful to say something about comparative law first.

(b) Methodological Remarks

Turning now to consider what a comparative law dimension might add in to our discussion about global constitutionalism. Above all, it should go without saying that comparative law is not a field of law because it has no subject matter of its own; it is a discipline, not a distinct body of rules. Essentially, the intellectual history of comparative law is alien to such phenomena as global law and transnational law. In contrast to global law, comparative law as a discipline was born and grew up in the nineteenth and twentieth centuries as a by-product of private international law.^[33] This is demonstrated by the fact that almost all classical comparatists were in one way or another interested in the issues of conflict of laws.

Concurrently, comparative law was essentially an auxiliary method with the underlying idea that private international law was a path that led to comparing different legal orders.^[34] Much has changed since then.[35] That is to say, contemporary comparative law is interested in comparing legal cultures in an interdisciplinary manner by studying both legal and non-legal norms and normative societal practices.[36]And, it is this contemporary form of comparative law that offers critical insights for our discussion on global constitutionalism.

A comparative law approach can be useful when discussing global law, and since global constitutionalism is a substrand of global law, the comparative approach is surely helpful in our assessment of it. Thus, by way of a short excursion, let us assess next what the comparative law approach can bring to the discussion about global law.

The relation between global law and comparative law is a curious one. Here, if anywhere, initial assumptions are but misleading. One would assume that comparative law and global law make the perfect couple. However, comparative law and global law do not seem to conjoin merrily together.^[37] But on the whole, different comparative and global approaches seem to share something quintessential in common; they appear universalist in contrast to state-bound approaches and discourses about law in general and constitutionalism in specific. This is a significant difference to traditional state-bound doctrinal study of law and is a key commonality between global law and comparative law. But the question boils down to this: how far does this commonality actually carry?

Undoubtedly, the prevailing mindset of today’s comparative law is rather well described by epistemic universalism and a conscious attempt to break loose from the limits set by nation-states. However, global law seems distinctly more universalist because it appears to be more interested in protecting the common interest of humanity.^[38]

5. Global Constitutionalism and Universalism

Altogether, the kind of universalism behind the idea of global law goes a step further than the epistemological universalism of comparative law. Comparative law’s epistemological universalism assumes the existence of non-nation state-based legal knowledge in the sense that borders of legal systems are not the borders of knowledge acquisition. To put it bluntly, comparative law simply holds that lawyers are able to learn and understand over the borders.[39]

Obviously, this is far from the whole picture but we may see that the stringent version of universalism struggles for a universalist harmonisation, meaning that the goal of law would be to spread legal uniformity across state borders and, furthermore, move towards a truly global law. As we can see, this is an overarching and normative manner to understand universalism.[40] Hence, I agree with Cheryl Saunders when she says that there is a need to “bridge the gap between the universalist assumptions of international law and the realities of constitutional difference”.[41]

(a) Different Versions of Universalism

Genuinely, universalist harmonisation view emphasises that, at the very least, we should seek regulatory uniformity across all kinds of borders. Basically, this type of global law universalism embodies essentially a Kantian idea of cosmopolitan law. In essence, if we generalise greatly, this is what basically is underlying the idea of global constitutionalism: somewhat uniform constitutional ideas ought to be applied to different systems and different cultures in a rather similar fashion.[44]

Nevertheless, in essence, both the convergence-promoting and divergence-promoting approaches importantly reject parochialism, and in this sense, they are indeed universalist in their defiance of the epistemic dominance of the state law. Both global law and comparative law critique national parochialism, which is typically accompanied by legal positivism and legal centralism. For all these reasons, they both accommodate legal pluralism as an important part of their intellectual endeavour.^[45] In short, they have abandoned what we call “legal centralism”.^[46] But there is more to it than this.

Although what was said above may be true, another comparative law-related bottom line is that even while the political and legal sovereignty of the state would be declining, there still are geographical, cultural, religious, ideological, linguistic and philosophical differences.[47] In short, comparative view reminds us that there are alternative approaches to the political, social and legal organisation of a society. Beyond any doubt, the key lesson of today’s comparative law is plurality rather than uniformity and complexity rather than simplicity.[49]

Where does our discussion exactly leave us with global constitutionalism? Ralf Michaels seems to have a fair point when he concludes that we need comparative law because it is a useful academic practice mediating between legal parochialism, totalising legal uniformism and legal centralism.^[50] No doubt, as we saw earlier, global constitutionalism contains an inherent component of normative universalism, ie, the belief that Western type liberal constitutional law has universal application and is not culturally limited in scope. Rather than making this far-reaching assumption concerning the one-size-fits-for-all liberal constitutionalism, it seems more reasonable to assume that there are different local adaptions of constitutionalism. And yet, none of this is to suggest that constitutionalism would not be “a theory and practice of government and law”, which is “a product of modern Western civilisation” as pointed out by Albert Chen.[51]

Up-to-date comparative law, on the other hand, reminds us that there are legal cultural differences and that societal as well as political contexts around the globe are not identical.[52] That is to say, in the words of TRS Allan, “the content of law is always a question of moral or political principle, adapted to a specific legal context”.[53] Most likely, what Allan claims applies also to non-state-oriented constitutional law in general. We may not need to go as far as to claim that global constitutionalism has no future; however, there is merit in the view claiming that the growth of the global legal universe does not mean that there would be a unified constitutional space.[54]

In more practical terms, pluralistic comparative law can act as an antidote against overtly uniformistic ideas about global law; it reminds of the differences, complexities and divergences between legal cultures. Hence, modern pluralist comparative point of view has a valuable function of reminding what is different and, hence, resists overarching uniformity.^[56] Genuinely, comparative approach has specific value because it enables one to “appreciate the diverse capacities of human societies in the domain of constitutionalism” as Harding and Bui put it.[57] This comparative appreciation may require that we need to unlearn what we have learned from our domestic constitutions and domestic forms of constitutionalism.[58]

As a result, our overarching normative desires may not be fulfilled even while we would dearly hope so.[59] In my mind, comparative approach injects necessary realism into debates on global law and global constitutionalism. If and when one approaches constitutionalism as a comparative law scholar, then one most likely ends up thinking that “successful constitutionalism must be rooted in cultural tradition”.[60] Accordingly, it becomes difficult to regard global constitutionalism as a tidy narrative.[61]

What has been said above seems to lead into a situation where global constitutionalism appears like a non-plausible thing — something that is wide open to various forms of critique. But this does not appear like a satisfactory conclusion. Moreover, there is a certain unavoidable conundrum for comparative constitutional law here. On the one hand, the ideas and ideals of constitutionalism are valuable and they should not be undermined. As constitutional law scholars we should hold such constitutional principles and doctrines as the rule of law, separation of powers, fundamental rights protection and democratic way of government important and valuable.[62]

(b) Walking on a Tightrope?

On the other hand, we need to be clear and tread carefully here. Criticism launched in this article is not criticism of these principles and doctrines as such. However, as a comparative law scholar, who is unavoidably aware of the differences between legal cultures and traditions, it is not simply possible to leave the critical remarks of global constitutionalism aside. The normative universalist assumption underlying various forms of global constitutionalism is too simplified to survive the critical review of culturally sensitive comparative law.[63] This seems like a grim conclusion. Is there no way out of this conundrum?

One possible way to dismantle the key elements of this conundrum is the separation of descriptive and prescriptive dimensions of global constitutionalism. Prescriptive, in this context, refers to normative international law-based global constitutionalism holding an internal point of view. Descriptive, on the other hand, means comparative law-based view on global constitutionalism holding an external non-normative point of view.[64]

Basically, international law-oriented views about global constitutionalism are normative as to their nature, ie, the point of view of global constitutionalism is epistemologically internal.[65] This view is characterised by a strong commitment to the institutional view of the authority applying the law. The internal point of view refers to the perspective of the participant in the system; it is paradigmatically the point of view of legal officials like judges. In essence, the point of view of global constitutionalism is mostly internal and normative in pretty much the same manner, although its internal view is not genuinely internal but rather an assumed epistemic position.

Perhaps a balancing comment is needed here in the end of this article. Even though global constitutionalism has been criticised above, it has also become clear that a dialogue with global constitutionalism is well worth having. And, culturally sensitive comparative law provides a much needed reality check, but it does not necessarily impair constitutionalism or prove that its global version would be purely utopian.[66]

In many ways, to discuss global law or global constitutionalism is rather like walking on a tightrope, a very careful balancing act. Looking down on one side, we may underline normatively the liberal values and ideas of the Western-style constitutionalism. As a result, everything seems plausible and almost reassuring; which Western legal scholar would not want the rule of law, respect for fundamental rights, separation of powers and mechanisms securing a democratic form of governance.

On the other side, if we abandon universalism, global constitutionalism seems to stand on a rather shaky ground. That means not only just the overarching methodological tendency to universalise and uniformise but also the harsh reality of recent illiberal developments in such European Union Member States as Hungary and Poland.[67] In addition, the Brexit and the fact that there are forces in the United Kingdom that not only wish to scrap the HRA but also seek to take the United Kingdom out of the European Court of Human Rights altogether.[68] And, recently we have seen African countries pulling out or planning to pull out of the International Criminal Court which is an elemental part of the project of global constitutionalism.[69] We can also suspect that in the United States, constitutionalism will be challenged one way or another under President Trump’s administration.[70] Moreover, the recent happenings in Turkey have been characterised as “de-constitutionalism”.[71] These developments seem to suggest that there are bumps in the road towards global constitutionalism.

6. Conclusion

In the end, how we choose to view global constitutionalism depends much on whether we choose to be prescriptive or descriptive. A point often overlooked, but crucial to grasp, is that constitutional ideas are not only normative rules and doctrines but are also the object of political and societal conflicts having different legal cultural contexts.[72] Following this, it should be rather clear that there are different forms of constitutionalism.[73] It might also be a fruitful idea to recognise that global constitutionalism can be influenced also by other political models than what is the case in Western constitutional orders.[74]

Finally, from the point view of this article, the question boils down to this: Why should we not forget the critical and non-normative comparative dimension while discussing about global law? The answer is rather simple. Sometimes the discourse on global constitutionalism seems to disregard the obvious facts about political, societal and legal cultural differences although, admittedly, it may do so out of benign and innocent reasons.

[1] See, eg, Michael C Davis, “Constitutionalism and the Politics of Democracy in Hong Kong” (2006) 30 Fletcher Forum of World Affairs 165 and Albert HY Chen, “A Tale of Two Islands: Comparative Reflections on Constitutionalism in Hong Kong and Taiwan” (2007) 37(2) HKLJ 647. For an up-to-date overview of Hong Kong’s constitutional law, see Danny Gittings, Introduction to the Hong Kong Basic Law (Hong Kong: Hong Kong University Press, 2nd ed., 2016) chs 3–4.

[2] For a different view, see, eg, Antje Wiener, Anthony F Lang Jr, James Tully, Miguel Poiares Maduro and Mattias Kumm, “Global Constitutionalism: Human Rights, Democracy, and the Rule of Law” (2012) 1 Global Constitutionalism 1 (first editorial for the journal).

[3] See Dieter Grimm, Constitutionalism — Past, Present, and Future (Oxford: Oxford University Press, 2016). Grimm’s views are based on European and especially German debates, but they make illuminating read about modern constitutionalism.

[4] For example, in the study of Asian constitutionalism, Chen points out that East Asian constitutions are characterised not only by ethnic, cultural, religious and linguistic diversities but also by different levels of economic development and significant variations in the types of political regimes. Chen also points out that as a field of law constitutional law is immersed with history and politics. Accordingly, the nature, purposes and functions of East Asian constitutions vary depending on the political regimes in which these constitutions exist. Albert HY Chen, “Constitutions, Constitutional Practice and Constitutionalism in East Asia” University of Hong Kong Faculty of Law (Research Paper No 2014/041), available at https://ssrn.com/abstract=2542528 or http://dx.doi.org/10.2139/ssrn.2542528.

[5] For a broader discussion in Chinese context, see Qianfan Zhang, “A Constitution without Constitutionalism? The Paths of Constitutional Development in China” (2010) 8 International Journal of Constitutional Law 950.

[6] See, eg, Jeremy Waldron, “Constitutionalism — A Skeptical View” in Thomas Christiano and John Christman (eds), Contemporary Debates in Political Philosophy (Oxford: Wiley-Blackwell, 2009).

[7] There may even be a possibility of unconstitutional constitution having democratic foundation as suggested by Richard Albert, “Four Unconstitutional Constitutions and Their Democratic Foundations” 50 Cornell International Law Journal (forthcoming), available at https://ssrn.com/abstract=286044.

[8] This issue is actually rather nuanced and not without complications. In some cases, there are elements of constitutionalism growing bottom-up, ie, popular constitutionalism may take place in a constitutional framework that otherwise may not fulfill the typical criteria attached to constitutionalism. See Eric C Ip, “The High Court of the People: Popular Constitutionalism under Chinese Sovereignty” (2014) 36 Law & Policy 314. The case of Hong Kong seems to underline that formal constitutional framework and the actual political behaviour are not the same thing.

[9] Roscoe Pound, “Law in Books and Law in Action” (1910) 44 American Law Review 12.

[10] This is commonly coined as the new constitutionalism. For a critical discussion on new constitutionalism, see Tamar Gyorfi, Against the New Constitutionalism (Cheltenham: Edward Elgar, 2016).

[11] Cf Michael Rosenfeld, “Is Global Constitutionalism Meaningful or Desirable?” (2014) 25 European Journal of International Law 177, 178.

[12] One possible way is to define global law as a subset of transnational law; however, transnational law is not discussed here. See Neil Walker, “Epilogue — Rethinking Aloud” in Miguel P Maduro, Kaarlo Tuori and Suvi Sankari (eds), Transnational Law (Cambridge: Cambridge University Press, 2014) pp 381–388, 386.

[13] See Neil Walker, Intimations of Global Law (Cambridge: Cambridge University Press, 2015) pp 2–3 (discussing the umbrella term “global law” and Twining’s critique of it).

[14] This part of the article is based on my earlier paper “Comparative Law and Global Law: A Pluralist Discussion” presented in a Panel in ICON-S Conference, Berlin, 19 June 2016.

[15] See, eg, Michael W Doyle, “The UN Charter — A Global Constitution?” in Jeffrey L Dunoff and Joel P Trachtman (eds), Ruling the World? Constitutionalism, International Law, and Global Governance (Cambridge: Cambridge University Press, 2009) pp 113–132.

[16] Global law is closely connected to the notion of transnational law, and they are difficult to tell apart. For more detailed discussion about transnational law, see, eg, Craig Scott, “Transnational Law as a Proto-Concept: Three Conceptions” (2009) 10 German Law Journal 859.

[17] Anne Peters, “Global Constitutionalism” in Michael T Gibbons (ed), The Encyclopedia of Political Thought (Oxford: Wiley-Blackwell, 2015).

[18] Cormac Mac Amhlaigh, “Harmonising Global Constitutionalism” (2016) 5 Global Constitutionalism 173, 176–177.

[19] Peters (n 17 above).

[20] Ibid.

[21] Ibid.

[22] See Christine Schwöbel, “The Appeal of the Project of Global Constitutionalism to Public International Lawyers” (2012) 13 German Law Journal 1.

[23] However, for an argument speaking for the constitutionalisation of international law, see Jan Klabbers, Anne Peters, Geir Ulfstein, The Constitutionalization of International Law (Oxford: Oxford University Press, 2009).

[24] About fragmentation in international law, see Martti Koskenniemi and Päivi Leino, “Fragmentation of International Law? Postmodern Anxieties” (2002) 15 Leiden Journal of International Law 553.

[25] Peters (n 17 above).

[26] Same question is made by Rosenfeld (n 11 above, p 191) in relation to transnational constitutionalism.

[27] Rossana Deplano, “Fragmentation and Constitutionalisation of International Law: A Theoretical Inquiry” (2013) 6 European Journal of Legal Studies 67.

[28] Basically this is the same critique which is known in Europe as “no demos thesis” in connection to the question on the so-called European constitution. See JHH Weiler, “Does Europe Need a Constitution? Demos, Telos and the German Maastricht Decision” (1995) 1 European Law Journal 219.

[29] Mac Amhlaigh (n 18 above) interprets constitutionalism as a specific form of constitutional legitimacy.

[30] Notwithstanding, there are some interesting contributions relating to the possibility of international democracy. See, eg, Jürgen Habermas, The Postnational Constellation — Political Essays (Cambridge, MA: MIT Press, 2001).

[31] Armin von Bogdandy, “Comparative Constitutional Law: A Contested Domain” in Michael Rosenfeld and András Sajó (eds) The Oxford Handbook of Comparative Constitutional Law (Oxford: Oxford University Press, 2012) pp 25–36, 30.

[32] Cf Anne Peters and Klaus Armingeon, “Introduction — Global Constitutionalism from an Interdisciplinary Perspective” (2009) 16 Indiana Journal of Global Legal Studies 385, 385–386. It might also be added that, by and large, global constitutionalism is a creature of the Law Faculty/School, ie, something that academic constitutional lawyers construct when they conceive the world of law today through their constitutional law lenses. On the other hand, we may criticize social and political scientists and claim that they, in turn, do not really grasp the role of doctrinal legal point of view.

[33] What is said here about comparative law is based on Jaakko Husa, A New Introduction to Comparative Law (Oxford: Oxford University Press, 2015).

[34] This idea was a relevant component of Rabels’ notion of private international law. See Ernst Rabel, The Conflict of Laws (Ann Arbor: University of Michigan Press, 1945) pp 56–59 (underlining comprehensive and systematic comparison as a part of interpretation).

[35] For an overall view, see Mathias Reimann, “The Progress and Failure of Comparative Law in the Second Half of the Twentieth Century” (2002) 50 AJCL 671.

[36] See Husa (n 33 above). This kind of new approach to comparative is well presented also by Patrick H Glenn, Legal Traditions of the World (Oxford: Oxford University Press, 4th ed., 2014). See also Mathias Siems, Comparative Law (Cambridge: Cambridge University Press, 2014) and Geoffrey Samuel, An Introduction to Comparative Law Theory and Method (Oxford: Hart Publishing, 2014).

[37] Typically scholars see tensions and perceive globalisation as a challenge to comparative law as a discipline, see, eg, Maurice Adams, “Comparative Law in a Globalizing World: Three Challenges” (2012) 17 Tilburg Law Review 263.

[38] See Elisa Morgera, “Global Environmental Law and Comparative Legal Method” (2015) 24 Review European Community & International Environmental Law 254, 256.

[39] See Husa (n 33 above) pp 21–22.

[40] Perhaps it should be noted that this is certainly not the only way to grasp global law. For example, Walker (n 13 above, p 26) underlines epistemic manifestations and effects rather than normative universalism.

[41] Cheryl Saunders, “Towards a Global Constitutional Gene Pool” (2009) 4 National Taiwan University Law Review 1, 38.

[42] Cf Roger Cotterrell, “What Is Transnational Law” (2012) 37 Law & Social Inquiry 500, 501.

[43] See for more detailed discussion, Pauline Kleingeld, “Kant’s Cosmopolitan Law: World Citizenship for a Global Order” (1998) 2 Kantian Review 72, 79.

[44] Basically the underlying idea in the above critique is that there can be different versions of constitutionalism, ie, the Western liberal model is not necessarily the only one. For example, Backer speaks of constitutionalism with Chinese characteristics (state-party constitutionalism), see Larry Cata Backer, “The Party as Polity, the Communist Party, and the Chinese Constitutional State: A Theory of State-Party Constitutionalism” (2009) 16 Journal of Chinese and Comparative Law 101.

[45] I have discussed legal pluralism in more detail elsewhere. See Jaakko Husa, “The Method Is Dead, Long Live the Methods” (2011) 5 Legisprudence 249.

[46] See John Griffiths, “What Is Legal Pluralism” (1986) 18(24) Journal of Legal Pluralism 1, 3–5.

[47] What is argued above in the text is based on an assumption according to which today’s cultural and religious conflicts may not be overcome with overarching non-national constitutionalism which is based so heavily on the Western tradition of political philosophy. Moreover, we can see that even in one legal culture, there may be significant ideological divisions within legal academia in relation to such basic element of constitutionalism as the rule of law. See, eg, Samuli Seppänen, Ideological Conflict and the Rule of Law in Contemporary China (Cambridge: Cambridge University Press, 2016).

[48] It is normally pointed out that constitutions exist in order to justify the existence and organisation of the state, see for wider analysis David S Law, “Constitutional Archetypes” (2016) 95 Texas Law Review (forthcoming).

[49] In a more general sense, it seems to be a typically Western way to conceive law through certain kind of legal cultural prism constituted by Christianity. Shah describes the Western scholarly view as “the hubristic cacophony created by Western legal theorists’ assumed by the Western model jurisprudence”. Prakash Shah, “The Difference that Religion Makes: Transplanting Legal Ideas from the West to Japan and India” (2015) 10 Asian Journal of Comparative Law 81, 81–82.

[50] Ralf Michaels, “Transnationalizing Comparative Law” (2016) 23 Maastricht Journal of European and Comparative Law 352, 358. Michaels notes that this is certainly not making comparative law any easier but on the contrary.

[51] Albert Chen (n 1 above) p 650.

[52] As pointed out by Cotterrell, modern comparative law may seek similarities, but it should also appreciate differences. See Roger Cotterrell, “Seeking Similarity, Appreciating Difference: Comparative Law and Communities” in Andrew Harding and Esin Örücü (eds), Comparative Law in the 21st Century (The Hague: Kluwer, 2002) pp 35–54.

[53] TRS Allan, “Questions of Legality and Legitimacy: Form and Substance in British Constitutionalism” (2011) 9 International Journal of Constitutional Law 155, 162.

[54] For more in-depth discussion, see Ming-Sung Kuo, “The End of Constitutionalism as We Know It? Boundaries and the State of Global Constitutional (Dis)Ordering” (2010) 1 Transnational Legal Theory 329.

[55] However, pluralism is not a very orderly state of affairs. Basically, it does not see such a thing as state-based constitutionalism practically possible or normatively desirable. In fact, pluralism challenges the Western notion that politics can be contained through the rule of law. Cf Nico Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (Oxford: Oxford University Press, 2010) p 23. Perhaps even more importantly pluralist attitude may help Western scholars to conceive that our legal categories, notions and concepts are not universal even when they might be globalised as a result of the legal imperialism of Western law as pointed out by Teemu Ruskola, Legal Orientalism: China, the United States, and Modern Law (Cambridge, MA: Harvard University Press, 2013) p 15.

[56] This argument is presented in writings of Legrand, who underlines the importance of difference. See, eg, Pierre Legrand, “Foreign Law in the Third Space” (2012) 4 Juridikum 32.

[57] Andrew Harding and Ngoc Son Bui “Recent Work in Asian Constitutional Studies: A Review Essay” (2016) 11 Asian Journal of Comparative Law 163, 170.

[58] Cf Schwöbel (n 22 above) p 21.

[59] However, constitutionalism may be conceived as universalist in a softer manner. For example, Albert Chen (n 1 above, p 688) says that “Constitutionalism is a human invention for peaceful co-existence and the peaceful resolution of political conflict”.

[60] Harding and Bui (n 57 above) p 170.

[61] Famously, after the Cold War had ended, American historian Fukuyama sketched the end of history claiming that we had reached the end point of mankind’s ideological evolution and that the universalisation of Western liberal democracy was the final form of human government. Today we know that the fanciful prediction of Fukuyama was all but premature. Francis Fukuyama, The End of History and the Last Man (New York: Free Press, 1992).

[62] See, eg, Jaakko Husa, Constitution of Finland — A Contextual Analysis (Oxford: Hart Publishing, 2011).

[63] However, this is not to claim that constitutionalism would not work outside the Western legal cultural sphere. For example, Chen concludes that “Constitutionalism, albeit originating in the Western world, seems to have a universal appeal and to address the fundamental problems of governance, government, and political power in many modern societies in Asia”, Albert HY Chen, “Pathways of Western Liberal Constitutional Development in Asia: A Comparative Study of Five Major Nations” (2010) 8 International Journal of Constitutional Law 849, 884.

[64] Cf Harding and Bui (n 57 above) p 169 (separating critique “from the outside” and “to go native”, ie, to see foreign constitution only from the inside).

[65] See also HLA Hart, The Concept of Law (Oxford: Oxford University Press, 1961) p 89. Basically Hart argued that we cannot truly understand the workings of a legal system from the external point of view. According to Hart, understanding of normative meanings requires an internal aspect.

[66] See also Rosenfeld (n 11 above) p 179.

[67] See, eg, Dimitry Kochenov and Laurent Pech, “Better Late than Never? On the European Commission’s Rule of Law Framework and Its First Activation” (2016) 54 Journal of Common Market Studies 1062.

[68] I have dealt with the HRA-related issues from comparative law viewpoint elsewhere; see Jaakko Husa, “Human Rights? No Thanks We’re English! Anti-Convergence Thesis Revisited” (2016) 4 European Journal of Comparative Law and Governance 229.

[69] For a constitutional background of these developments, see Theresa Reinold, “Constitutionalization? Whose Constitutionalization? Africa’s Ambivalent Engagement with the International Criminal Court” (2012) 10 International Journal of Constitutional Law 1076. However, Reinold speaks of “states from the periphery” challenging the project of global constitutionalism, but today the challenges comes also from not peripheral states.

[70] See, eg, Tom Ginsburg, “Analysis: Constitutional Implications of the Trump Administration” Blog of the International Association of Constitutional Law, available at https://iacl-aidc-blog.org/2016/11/26/analysis-constitutional-implications-of-the-trump-administration/.

[71] See Ali Acar, “‘De-constitutionalism’ in Turkey?” Verfassungsblog (19 May 2016), available at http://verfassungsblog.de/de-constitutionalism-in-turkey.

[72] As Reynold (n 69 above, p 1077) puts it, in an African context, “constitutionalization is an ongoing struggle over the allocation of authority, the interpretation of norms, and the balancing of conflicting interests”.

[73] For example, in the case of East Asian constitutionalism, we may speak of genuine constitutionalism, communist constitutionalism and hybrid constitutionalism. See Albert HY Chen, “The Achievement of Constitutionalism in Asia: Moving Beyond ‘Constitutions without Constitutionalism’” in Albert HY Chen (ed), Constitutionalism in Asia in the Early Twenty-First Century (Cambridge: Cambridge University Press, 2014) pp 1–31.

[74] Cf Schwöbel (n 22 above) p 22.