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On the one hand, there are parts of the world where that is not true today, where failing states do not hold the trust or affiliation of a sufficient number of their nominal citizens. I would hesitate to speculate on the kinds of imagined communities in which human beings will find emotional affiliation and an effective sense of participation in control of their own lives and needs a century hence.
But today, for many people, territorial states—like Canada, the United States, Japan—provide a meaningful sense of belonging and identity, linked to capacities for self-governance across a wide range of life's activities, in ways that the cosmopolitan matrix proposed by Kumm might not adequately accommodate.
Thus, a question: Could one construct a cosmopolitan argument to favor a presumption for the priority of constitutional over international law, when the two are in conflict and the constitutional law is that of a constitutional democracy, while, at the same time, engaging in interpretive practices that seek to minimize those conflicts? Such a presumption is arguably consistent with cosmopolitan commitments to the good of self-governance; to the epistemic value of deliberative discourse and regular voting, as the basis for democratic decision making; and to understandings of constitutions as finding their legitimacy in multiple strands of commitments, worked out in ongoing inquiry, one of which strands—but only one—is the relationship to other states in the world community.
To the extent, moreover, that it is states that are best situated to generate and sustain the trust, the sense of involvement in a common endeavor necessary to play the role of legitimate general governments—effectively governing and protecting human rights at once—then the presumption might also favor national state law in the event of conflict. Whether human communities can be governed according to cosmopolitan norms remains a substantial question; but if they can be, there are at least some cosmopolitan arguments for giving priority to distinctive state communities, interests that are not fully captured by the idea of jurisdictional subsidiarity.
However, given jurisdictional spillovers—and the resulting inequities, in which the voters of powerful countries like the United States do not fully internalize the costs they impose on others who cannot vote—any presumption in favor of state law would be difficult to justify within Kumm's version of cosmopolitanism. It might be thought that conflicts between binding international treaty norms and national constitutions are likely to be rare in constitutional democracies, because of the opportunity for normative alignment at the time of ratification.
Yet ratification procedures vary widely in their involvement of parliaments; moreover, as international agreements establish supranational nonunanimous delegated decisional mechanisms, whether by adjudication or qualified-majority voting, the possibility of future conflicts might arise. Under Halberstam's model of heterarchy, if conflicts do arise, rather than being resolved by a presumption in favor of international law, perhaps they must simply be tolerated at least in many instances until democratic support is obtained for eliminating the conflict.
National decision makers may need to be persuaded of the application of jurisdictional allocations to supranational levels, for example, in order to also fulfill the processual demands of a constitutional democracy. The theoretical accounts offered by Halberstam, Kumm, and Besson are valuable explications of what substantive normative values of transnational constitutionalism entail, both for national constitutions and for international law.
Professor Kumm's argument includes an effort to begin to impose some order and coherence on a rapidly shifting set of understandings about the relationships of different public laws to each other, but in a graduated and contextually sensitive way. There is understandable appeal in his effort to establish a presumption based on one factor—legality—that may be reinforced, or overcome, by others.
However, section 3. In this section I argue more generally that efforts to develop definitive normative frameworks or particular constitutional rules at the transnational level are premature. The range of settings in the world ought to caution against premature efforts to formulate a directive and global cosmopolitan version of constitutionalism.
Consider the idea of jurisdictional subsidiarity. Where there is a rich framework, grounded in democratic consent with multiple iterations, of the binding force of a supranational regime, as in the EU, the principle of subsidarity is one reasonable way to organize the exercise of governmental power—either in the allocation or interpretation of competencies. Indeed, Professor Maduro's argument about metateleological reasoning has particular force in a constellation of legal orders like those in Europe. But in Europe, there is a stronger basis than in most other parts of the world for jurists and citizens to understand that the legal order of each member state has a fundamental relationship with that of the other member states, a relationship imposing, per Maduro, obligations to consider and explain how national law and national interpretations of the law of the whole will affect and be affected by those of others.
It may be simply too ambitious to attempt, on a global scale, an inquiry into what level of government is best able to address a particular challenge. For wide swathes of international law and for a number of national governments, process and democracy concerns are substantial; yet, as noted above, inquiries by actual decision makers in national or international courts pose far more delicate questions than they do for those writing from the academy. Application of these values will vary considerably not only from one international or supranational regime to another but from one country to another, considerably reducing the value of a presumption that may be overcome more often than it is observed.
Moreover, except in very extreme cases, the application of these values is sure to be highly contested; and, in the event of a conflict in the directions in which different values pull, the different values may prove to be incommensurable, or the intensity of their pulls may be too hard to predict ex ante. Reasonable disagreements will persist concerning the meaning of rights and the meaning of reasonable disagreement and justice.
These disagreements may be grounded in deep norms of local democratic deliberation; or they may be unjustified relics of an abandoned past, and, if so, subject to change through a combination of reasoned argument and progressive democratic decision making. Yet efforts to impose international over national law in the face of such disagreements may result in illiberal nationalist backlashes that will be detrimental to constitutionalism in many ways.
Thus, absent the most egregious of basic rights violations or actions seriously, imminently, and existentially threatening others, there are real risks in a legal doctrine that would readily override national constitutional law in the name of cosmopolitan constitutionalism. This is especially so when the multiple functions of national constitutions are kept in mind. Indeed, given those multiple functions, any presumptive priority to be yielded by considerations of democracy, effective governance, legality, and rights may well be for the application of domestic constitutional law over conflicting international law.
Absent a closely integrated framework like that in EU, the case for a general presumption in favor international legality over constitutional legality seems lacking. Domestic constitutions serve multiple functions—they enable and facilitate and respect democratic decision-making within the polity, importantly. They name and protect individual rights consistent with equal respect for human beings and the value of a realm of individual freedom.
They enable their countries to make and enforce international agreements. They also provide a degree of stable respect for political compromises over different claims of justice reflected in constitutional negotiations, the stability of which, at least for some, may be important for the long run success in protecting democracy and rights. Some constitutions themselves prioritize international law at the constitutional level, and, in such cases, that would presumptively be a sufficient basis in democratic decision making to warrant thicker forms of cosmopolitan constitutionalism.
Where constitutions do not permit a country to join a treaty or to implement it through certain methods, domestic amendment procedures or other rules of law may well be available to resolve legality issues. It is thus important to sustain those national levels of government as we work our way into better understandings of the increasingly complex relationships between legal orders in this transnational environment.
The pace of legal change is quite rapid in many parts of the world's constellations of legal orders; in some ways, constitutional systems are converging on some common elements; but divergences among legal systems may also be growing rather than diminishing as the legal work of decolonization enters into a new generation.
Differences—for example, between more communal and more liberal understandings of a good life, or concerning the role of religion and religious law as informing constitutional development—may become more palpable, even as convergence develops on other norms or institutions like judicial review.
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It may also complicate dialogue with other parts of the world that view the international with a degree of suspicion that is an understandable reflection of colonialism and the normative power, exercised by the major powers over time, in the formation of international law. Professor Gardbaum's essay seems to envision the effects of international human rights regimes in a more epistemically modest way.
Their existence, he suggests, provides a new form of constitutional legitimacy, an additional source of checking or monitoring the justness of internal practices. While the existence of such norms gives a stake to others in the internal conditions of one country, this does not necessarily imply their normative superiority to domestic norms.
A checking or monitoring function envisions a discussion, a form of engagement and consideration, rather than a presumptive need to conform with international over national constitutional law. These reciprocal processes allow room for choice, they operate over time, and are, at least in outward form, noncoercive. They are in form more respectful of democratic self-governance in existing national states. In these respects, they are quite different in kind from the nonreciprocal imposition of norms on domestic entities by transnational or international legal regimes, which risk domestic backlashes that, in the long run, may harm receptivity to transnational legal values.
For the constitutional states of the world themselves need to work together, to increase their mutual engagements with each other, lest the pressures of perceived transnational global threats overshadow commitments to reasoned limitations on state power. Efforts to extend the binding force of international law as against fundamental constitutional commitments is problematic from the point of view of both enabling democracy and enabling meaningful community affiliations.
Although the existing borders within which self-governance occurs are difficult to justify from a moral theory based on the free and equal capacities of human beings, nonetheless, democratic self-governance at the international level is widely thought to be unworkably utopian—at least in present time horizons. Even if institutional mechanisms for voting could be developed, the senses of loyalty, affiliation, and investment in a common project that contributes toward election losers accepting their losses are very far from being established.
Moreover, the self-expressive or self-constituting roles of national law including constitutions might be thought to be deeply at variance with a universalist understanding of human rights, freedoms, and entitlements.
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However, theorists of liberal nationalism suggest that the self-expressive, self-constituting roles of constitutions are not necessarily entirely incompatible with cosmopolitan commitments to human beings as free and equal. If one of the attributes of the free-and-equal human being is a desire to be affiliated with a group, to develop communal attachments based, in part, on a lived—albeit often contested—history together, as a part of a meaningful matrix of constructed choices of individual identity, even these expressive functions may be regarded as legitimate within a more universalist or cosmopolitan orientation.
But if so, prioritizing between international and constitutional law is an even more complex project. Even in the absence of the more integrated general frame for constitutional pluralism, as exists in Europe, these values, understood as an invitation to serious normative considerations rather than as binding legal norms, may be important both as a description and as a normatively attractive account of the changing paradigms of public law in much of the world.
Ruling the World is a major contribution to that understanding and is necessary reading for all concerned with these issues.
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