Introduction
The debate on global constitutionalism differentiates between two constitutional realms, namely constitutional forms in the domestic context (that is, within polities) and in the transnational or international sphere (that is, between polities). Global constitutionalism scholars usually posit a separate constitutional evolution for each realm. On the one hand, they situate the emergence of modern domestic constitutionalism in the American and French revolutions in the late eighteenth century. On the other hand, constitutional quality in the transnational and international sphere is portrayed as a new phenomenon within international law that historically emerged as early as the twentieth century – or more precisely either in 1945 with the United Nations Charter (e.g. Fassbender Reference Fassbender2009a, 2009b) or since the 1990s as a response to globalization and the fragmentation of international law (e.g. Dunoff and Trachtman Reference Dunoff and Trachtman2009a; Peters 2012). What is more, the first editorial of this journal (implicitly) links this novelty within international law to international history more broadly by arguing that the new phenomenon comprises the potential for the next evolutionary step, namely the ‘shift from globalised towards constitutionalised relations’ (Wiener et al. 2012: 3).
A crucial consequence of this characterization of global constitutionalism as a contemporary new phenomenon is the largely missing historicization of constitutional forms in the international realm. Tellingly, if global constitutionalism scholars inquire into the historical evolution of constitutional elements in the international realm before the twentieth century, their studies usually present a history of ideas highlighting how political philosophers shaped and reflected on central elements of constitutionalism and international law (e.g. Schwöbel Reference Schwöbel2011: chapter 2; Kleinlein Reference Kleinlein2012: chapters 3–4; Havercroft Reference Havercroft2012). The insufficiency of such a limited historical perspective has been highlighted by James Tully (Reference Tully, Loughlin and Walker2007) and Hauke Brunkhorst (Reference Brunkhorst2012). Both authors criticize the conventional wisdom of two separately evolving constitutional realms as ‘misleading’ (Tully Reference Tully, Loughlin and Walker2007: 319) and emphasize instead the role of social practices in the co-evolution of the two constitutional realms. In their accounts, the history of constitutional forms in the international realm is (much) older than the twentieth century.
The missing historicization of constitutional forms in the international realm constitutes both a weakness and a puzzling surprise. On the one hand, it is a threefold weakness for the global constitutionalism debate. First, it has so far precluded global constitutionalism from conducting substantive empirical studies that situate the emergence of global constitutional quality in the long durée of social processes in international history. It has therefore not scrutinized the conditions for its emergence or the reasons for its distinct form. Second, it has misled global constitutionalism to overlook quite prominent historical precedents both of constitutionalization and constitutional forms in (some parts of) the international realm like the formation of the USA in the late eighteenth century (see Deudney Reference Deudney2007: chapter 6) or the constitutions of the Holy Roman Empire and the German Confederation. Finally, global constitutionalism cannot empirically assess or sustain the proclaimed novelty of contemporary constitutional quality without such historical comparisons for which it still lacks sophisticated conceptual and analytical tools.
On the other hand, it is a puzzling surprise insomuch as global constitutionalists (including Tully and Brunkhorst) have not yet engaged with a second body of International Relations (IR) literature that likewise uses the concept of constitutional structures in international history (see Reus-Smit Reference Reus-Smit1997, Reference Reus-Smit1999; Philpott Reference Philpott1999, Reference Philpott2001; Donnelly 2006). This literature – which will be labelled the historical-comparative approach in the following – offers refined conceptual and analytical tools, emphasizes the co-evolution of the two constitutional realms and, most importantly, makes a diametrically opposed claim about the historical existence of constitutional forms in the international realm, namely that constitutional structures have been present in all historical international societies. This historical perspective is also shared by Nicholas Onuf who argues that ‘[i]nternational society has always had a formal constitution’ (Onuf 1994: 17).
This article argues that a dialogue between global constitutionalism and the historical-comparative approach would benefit both approaches and, in particular, constitutes a first step for global constitutionalism to overcome its insufficient historicization of constitutional forms in the international realm. To help advance a complementary reading of the two approaches, the article defines constitutional structures as a set of fundamental and prioritized principles and rules that serves as a framework for the self-ordering of relations between polities. This conceptualization links the different constitutional understandings of the two approaches by differentiating between two entangled dimensions of these constitutional structures: a meta-constitutional dimension (roughly in the sense of fundamental or primary institutions) and a legal-constitutional dimension (roughly in the sense of constitutional quality employed by global constitutionalism). The article aims, first, at sketching out a dialogue between the two approaches with regard to the historicization of constitutional structures and to build on the hereby gained insights to, second, develop conceptual and analytical tools for constitutional histories in and of the international realm.
The argument proceeds as follows. In the first section, the article argues that the differences between the historical-comparative approach and global constitutionalism can be attributed to two different research objectives. The second section then develops a complementary reading of the two approaches and lays the common ground for a dialogue between the two which is sketched out in the third section. This encounter reveals shared conceptual problems of the two approaches and shows how a pooling of the respective conceptual solutions makes it possible to identify the contours of shared conceptual and analytical tools which advance the historical sensitivity of both approaches. However, the dialogue also demonstrates that such an encounter only constitutes a first – albeit important – step towards a toolbox for constitutional histories of the global realm as both approaches tend to overlook the double historicity of constitutional structures in conjunction with their inherent political dimension: constitutional structures are both a result of (past) and a framework for (future) political struggle at a particular moment of international history and at the same time advance their own historical narrative linking the past, present and future of the respective international society. Therefore, the fourth section of the article supplements the dialogue between global constitutionalism and the historical-comparative approach with a discussion of these insights in the light of the history of the English constitution to finally propose seven conceptual and analytical tools for a history of constitutional forms in the international realm.
The two approaches at first glance: Looking at two seemingly separate fields of inquiry
Global constitutionalism and the historical-comparative approach offer two seemingly contradictory constitutional histories of the global realm. In the first narrative, the larger part of international history is conceived as a ‘non-constitutional’ realm (Wiener et al. 2012: 5) with constitutional quality emerging for the first time in the (late) twentieth century. In this perspective, the contemporary processes of constitutionalization represent a unique and decisive turning point in international history. In the second narrative, all international history since at least Greek antiquity is said to be situated in a constitutionalized international realm and international history is structured as a succession of constitutional forms. In this perspective, contemporary constitutionalization processes are no more than the latest transformation in a long line of transformations within international societies and from one international society to another one – and therefore may be unique in terms of form and substance, but certainly not novel in creating a constitutional form in the international realm per se.
This section argues that these divergent historical accounts result from different research objectives. It highlights the differences between the two approaches and hereby abstracts to a certain degree from the existing differences within each approach because the former differences are more significant than the latter for explaining the de facto mutual non-dialogue. It does not claim that all International Law (IL) or IR authors who use the term ‘constitution’ fit into the two conceptual approaches or subscribe to the above described historical accounts.Footnote 1 Rather, this article focuses on the predominant depictions in the historical-comparative approach and global constitutionalism.
Global constitutionalism starts from the observation of a contemporary transformation within and of international law. Its research objectives are to map, explain and shape this ‘new social phenomenon’, which is broadly conceived as the emergence of an ‘enhanced constitutional quality’ in the until recently ‘non-constitutional global realm’ (Wiener et al. 2012: 8, 5). Two interrelated processes – globalization and fragmentation (that is, the decentralized character of international law production by a plurality of specialized regimes) – are usually identified as driving forces (e.g. Dunoff and Trachtman Reference Dunoff, Trachtman, Dunoff and Trachtman2009b: 5–9). The concept of constitutional structures is therefore not only an analytical framework developed prior to research (such as in the historical-comparative approach). The very conceptualization of what it means to speak about a new ‘constitutional quality’ is a central part of the global constitutionalism debate. Consequently, the debate uses a process concept – constitutionalization – rather than an order concept – constitutional structures – to account for the observed transformation. Additionally, global constitutionalism pursues a second, and normative, research object in the context of which global constitutionalism denotes the plea for the promotion of constitutional principles (such as checks and balances, democracy, human rights) in international law (e.g. Peters and Armingeon Reference Peters and Armingeon2009: 389).
In contrast, the historical-comparative approach compares different historical international societies and traces the evolution of fundamental institutions and principles within and among international societies. The concept of constitutional structures thereby serves as a ‘framework for comparative and historical analysis’ (Donnelly 2006: 1) facilitating ‘systematic comparisons across historical societies’ (Reus-Smit Reference Reus-Smit1997: 556). Drawing on Hedley Bull’s notion of international societyFootnote 2 this approach defines constitutional structures as the fundamental institutions, practices and values which are constitutive for an international society (e.g. Reus-Smit Reference Reus-Smit1997: 556; Philpott Reference Philpott1999: 567–8; Donnelly 2006: 5–6). While the definitions vary with regard to the content of the constitutional structures, they share a similar design in that they organize their concept around different levels or faces in order to provide a clear and multi-dimensional comparative framework. The English School’s more recent conceptualizations of Bull’s common institutions – as ‘primary institutions’ (Buzan Reference Buzan2004, Reference Buzan, Albert, Cederman and Wendt2010) and ‘legitimacy principles’ (Clark Reference Clark2005, Reference Clark2007) or literally the ‘constitution of international society’ (Hurrell Reference Hurrell2007) – as well as their historical studies (see besides Buzan and Clark: Watson Reference Watson1992; Osiander Reference Osiander1994; Holsti Reference Holsti2004) considerably overlap with this approach. For instance, although Clark’s two legitimacy principles, namely ‘rightful membership’ and ‘rightful conduct’, are not explicitly labelled as constitutional structures, they nevertheless are equivalent to Reus-Smit’s (1997: 556) two functions of constitutional structures: defining legitimate actorhood and ‘the basic parameters of rightful state action’.
The different historical accounts thus result more from the formulated research objectives and the derived conceptualizations – that is, a priori assumptions about constitutional structures – than from research results accumulated through historical studies (although the latter play an important role in empirically substantiating the constitutional categories of the historical-comparative approach). These different research objectives entail a number of further dissimilarities.
First, the two approaches differ in the status of international law vis-à-vis constitutional forms. In the historical-comparative approach, constitutional structures seem to be ontologically prior to international law – both in the sense that constitutional structures are more equated with informal practices and belief systems than with formal international law (in which they may nonetheless be expressed at a later stage) and in the sense of international law being a constitutionally envisaged procedure for rule-making and conflict-processing (that is, international law being only one part of the constitutional structures among others). Global constitutionalism, conversely, characterizes constitutionalization as a transformation of existing international law principles and structures – in other words, international law seems to predate constitutional structures which additionally are portrayed as a subcategory of international law.
Second, the two approaches give different answers to the question of whose constitutional form we talk about. The historical-comparative approach conceptually links constitutional structures to international societies. Constitutional structures are constitutive of international societies and changes in the former are a change of the latter (e.g. Donnelly 2006: 6). In this sense, constitutional structures are the primary characteristic of international society and define the conditions of legitimate actorhood (e.g. the principle of sovereignty) in such a way that states are the principal constitutional subjects. Global constitutionalism, on the contrary, is more sceptical about the idea of a unified constitution for the international legal order or the international community (the IL equivalent to international society) given the fragmentation and plurality of international law. The UN Charter is proposed by some authors and dismissed by others as mostly likely candidate for such a unified constitution (see Fassbender Reference Fassbender2009a; Paulus Reference Paulus, Dunoff and Trachtman2009; Doyle Reference Doyle2012). Instead of a constitution for the international community, global constitutionalism often talks of constitutions for particular international organizations like the EU or the WTO. These choices echo the deeper question whether constitutionalization is (potentially) a process transforming international law as a whole – constitutionalization of international law – or (still) a plurality of processes occurring in international law – constitutionalization in international law. Additionally, the international community is said to be composed of both states (as the still primary producers of international law) and individuals (as ‘bearers of international rights and obligations’, Paulus 2009: 76).
Third, these two dissimilarities affect the research design as they point to different sites and actors relevant to constitutional forms and constitutionalization. The historical-comparative approach looks at states and their shared beliefs, practices and rules as expression of constitutional structures on the one hand (e.g. Reus-Smit, Donnelly) and major peace settlements as sites of fundamental constitutional change on the other hand (e.g. Philpott and English School authors like Clark). Global constitutionalism tries to leave the question of relevant actors creating and/or altering constitutional structures open and therefore looks at states, international organizations and regimes as well as non-state actors (in order to both acknowledge and go beyond the role of states in international law, see also Teubner Reference Teubner, Dobner and Loughlin2010). The approach identifies three indicators of emerging constitutional quality: international treaties and decisions of international organizations; court decisions (like the Kadi case) and finally in an intellectual-history-perspective the writings of international lawyers and political philosophers.
In their entirety – and given the different academic contexts of origin – these differences seem to have nurtured the attitude that a dialogue between the approaches would be unfruitful and that the conceptualizations would be mutually exclusive. As the next section shows, such a prejudice is premature as the approaches can also be read as being complementary.
The two approaches at second glance: A complementary reading
The potential and fruitfulness of a dialogue between the two approaches lies both in an enhanced historical sensitivity and a scrutiny of the related conceptual tools identifiable in both approaches on the one hand and mutual learning about common questions and problems on the other hand. This section paves the way for a dialogue by showing, first, that the two approaches share a threefold common ground, namely in terms of conceptual base, research design and analysed empirical periods. It then advances, second, a unifying perspective on the two constitutional understandings and demonstrates how such an encompassing definition of constitutional structures facilitates a complementary reading of both approaches.
What unites both approaches conceptually is their underlying assumption that (legal) rules and principles play a significant role in international relations – and consequently that international relations should (at least partially) be explained in terms of order or community/society rather than in terms of anarchy. Building on this assumption, both approaches contribute to the same general questions: do all rules and principles share the same quality and importance – and more particularly, to what extent can these rules and principles be described as being hierarchically structured? Both approaches advance the same conceptual answer (‘constitution/constitutional structures’) and thus advocate for the existence of a hierarchy of norms and principles and a set of secondary rules in the international realm.
Some publications even employ very similar research designs, insomuch as they choose a functional approach to constitutional structures (rather than a definitional one) and use this analytical framework for comparative analysis – diachronic in the case of the historical-comparative approach and synchronic in the case of global constitutionalism (e.g. Donnelly 2006; Clark Reference Clark2005 for the former and Dunoff and Trachtman Reference Dunoff, Trachtman, Dunoff and Trachtman2009b for the latter take; for a diachronic comparison of two constitutional moments within global constitutionalism, see Slaughter and Burke-White Reference Slaughter and Burke-White2002). Additionally, global constitutionalism’s argument of a shift from globalized to constitutionalized international relations implicitly rests on a diachronic comparison between different historical periods.
Empirically, the evolution of this hierarchy of rules and principles since 1945 is a common subject of both approaches. While this period constitutes just one period among others for the historical-comparative approach, it is the sole period studied by global constitutionalism. Nevertheless, both approaches point to fundamental constitutional change in this period, especially regarding the reallocation of authority to inter- and supranational organizations like the EU and UN and the rebalancing of moral primacy between rights of states (e.g. non-intervention) and rights of individuals (e.g. human rights) in the debate on interventions (e.g. for the historical-comparative approach: Philpott Reference Philpott1999: 585–8; Reus-Smit Reference Reus-Smit2011; for global constitutionalism: Fischer-Lescano Reference Fischer-Lescano2005; Doyle Reference Doyle2012). And both approaches inquire into the nature of the new ‘constitutional moment’ of the post-cold war era (see Clark Reference Clark2005: chapter 8; Slaughter and Burke-White Reference Slaughter and Burke-White2002).
To initiate a dialogue between the two approaches, this article proposes to unify the two constitutional understandings in a single, encompassing definition of constitutional structures: constitutional structures are conceived as a set of fundamental and prioritized principles and rules that serves as a framework for the self-ordering of international societies, or more abstractly relations between polities. The different constitutional understandings of the two approaches are linked by differentiating between two entangled dimensions of these constitutional structures: a meta-constitutional dimension (roughly in the sense of fundamental or primary institutions) and a legal-constitutional dimension (roughly in the sense of constitutional quality employed by global constitutionalism, that is, legal rules and principles which are attributed a ‘higher’ or ‘more fundamental’ status within the respective legal system). This distinction is inspired by Jeffrey Dunoff and Joel Trachtman’s (2009b: 18) discussion of global constitutionalism in relation to John Rawls’ (Reference Rawls1971) A Theory of Justice in which the two authors argue that ‘the basic decisions about the fundamental structure of society precede and determine the structuring of legal constitutions. We can understand legal constitutions as efforts to effectuate or instantiate the chosen fundamental societal structures’. Dunoff and Trachtman label those fundamental decisions ‘meta-constitutional’ and equate global constitutionalism’s constitutional understanding with legal, written constitutions.
Whereas the latter qualification seems undisputed, the depiction of the historical-comparative approach as talking about social contracts merits further discussion. While this interpretation is clearly part of the recent reconceptualization of the English School’s common institutions – for instance, Clark (2005: 2, emphasis added) defines his legitimacy principles as ‘rudimentary social agreement about who is entitled to participate in international relations, and also about appropriate forms in their conduct’ – it likewise informs the conceptualizations of the historical-comparative approach: Reus-Smit distinguishes between ‘fundamental institutions’ (like multilateralism, international law) and the hierarchically more important ‘constitutional structures’ defined as shared ‘metavalues defining legitimate statehood and rightful state action’ (Reus-Smit Reference Reus-Smit1997: 559, emphasis added) while both are said to be grounded in the ‘normative foundations of international society’ (Reus-Smit Reference Reus-Smit1997: 556). Donnelly, in turn, speaks of constitutional structures as an ‘ensemble of fundamental, society-wide rules, practices, and roles’ (Donnelly 2006: 6) lacking a rigorous logic and thus being a ‘complex web of loosely interlocking elements held together by vague ideas of coherence and appropriateness’ (Donnelly 2006: 1). In Donnelly’s conceptualization, these constitutional structures include fundamental institutions (in contrast to Reus-Smit). In sum, the notion of constitutional structures employed by the historical-comparative approach is distinct and in some respect prior to legal constitutional structures – even if the authors refer to peace settlements and legal documents in their analysis – and can therefore be equated with a meta-constitutional (or social contract) level.
Equating the constitutional understanding of the historical-comparative approach with a meta-constitutional level and that of global constitutionalism with a legal-constitutional level opens the way for a complementary reading of the two approaches as two sides of the same coin. First, the emphasis on different constitutional levels explains the different forms the two approaches ascribe to constitutional structures (constitutive, informal practices and principles vs. formalized legal norms). At the same time it links the two constitutional dimensions together. Building on Dunoff and Trachtman’s quotation constitutionalization can be conceived as the interplay between the two constitutional levels, that is, the processes whereby legal constitutions codify and renegotiate meta-constitutional decisions. In this perspective, constitutionalization denotes not only the process whereby a meta- or legal-constitutional level emerges but also (and more interestingly) the process of interaction between the two constitutional levels. The two constitutional levels are therefore entangled in an encompassing constitutional discourse.
Second, such a complementary reading also accounts for the different historical perspectives. If we perceive constitutional structures as consisting of a meta-constitutional level and a legal-constitutional level, then the two levels can have two different – and not necessarily always parallel – histories. The two approaches’ historical accounts thus become compatible: each international society could have been based on meta-constitutional decisions specifying the legitimate actors and basic rules of interaction while only some international societies translated these decisions into legally-codified constitutional structures. Consequently, a history of constitutional structures in international relations needs to be multi-dimensional with at least three elements and related tasks: (1) identifying and tracing a meta-constitutional level (a ‘social contract’), (2) identifying and tracing legal-constitutional structures and (3) identifying constitutional moments and processes of constitutionalization which create as well as link these two constitutional levels. These tasks cannot be fulfilled by any of the two approaches alone.
Third, if all three elements are conceived as historically contingent, then the process of constitutionalization itself can take different forms at different sites involving different constellations of actors. This historical contingency also implies that both the historical-comparative approach with its focus on states and major peace settlements and global constitutionalism with its focus on a plurality of actors and sites may be able to empirically justify their focus – that is, major peace settlements may have been the primary constitutional moments in early modern Europe and up to the end of the Second World War while since then constitutional processes may have been more diversified and more incrementally evolving at different sites (partly due to the fact that a ‘traditional’ constitutional amendment via a major peace settlement did not occur at the end of the cold war). Nevertheless, further research needs to substantiate which types of constitutionalization occurred at which historical moments rather than assuming a distinct type for a specific international society or historical period. For example, the conferences of the nineteenth-century congress system were not only shaped by the participating states but also by transnational non-state actors (see Clark Reference Clark2007). It is therefore misleading to simply (and a priori) equate constitutionalization up to the mid-twentieth century with state- and conference-centric ‘big bang’ constitutionalization (emphasizing major peace settlements) and the period thereafter solely with global constitutionalism’s account.
Engaging the two approaches in a dialogue on constitutional histories
This third section builds on the outlined complementary reading to engage global constitutionalism and the historical-comparative approach in a dialogue. This encounter centres on questions relevant for the further historicization of constitutional forms in the international realm: (1) How to apply concepts that originated in a distinct time and space to other settings? (2) How to transfer concepts from a domestic constitutional realm to a international one? and, (3) How to account for consciousness and intentionality in the constitutionalization processes? The dialogue demonstrates that both approaches tackle these issues and in doing so give a variety of sometimes overlapping conceptual answers. This section concludes with a scrutiny of the dialogue hinting at further questions equally relevant for constitutional histories of the international realm but not so explicitly addressed by both approaches as the three problems discussed in the following.
How to apply the concept of constitution to different historical settings
The first problem concerns the embeddedness of constitutional concepts in a particular historical context. Constitution, constitutionalism and constitutionalization are concepts whose modern meaning developed in the late eighteenth century in the context of the American and French Revolutions and the following establishment of written constitutions in a number of European states in the nineteenth century (see Loughlin 2010). Hence, these concepts – but likewise social contract theory – are intertwined with other important political concepts and processes of the time, notably democracy and human rights. Constitutionalism and constitutionalization, for instance, connote the (successful) historical movements to rework the fabric of early-modern absolutist states into a democratic structure with effective limits on the exercise of government. They are a political project to limit public authority and reorient its legitimacy to a new sovereign: the people. This historical embeddedness of the concepts prompts questions regarding their applicability to other historical settings and the potentially Western-centric perspective of both approaches.
The two approaches devise three broad strategies to tackle these issues. First, the Western origin of these concepts and political processes is acknowledged not only for the domestic but also for the international sphere. The historical research then focuses on the emergence of the distinct Western form of international constitutionalization – namely ‘liberal-legal constitutionalization’ (e.g. Loughlin 2010: 59–68) – and traces its diffusion and contestation (see also Tully Reference Tully, Loughlin and Walker2007). This strategy parallels most histories of international law which are predominantly Euro-centric and structured along hegemonic cycles (e.g. Grewe Reference Grewe1988). Second, the context-embeddedness is circumvented by moving up the ladder of abstraction in order to transform the concepts into analytical tools applicable to a larger number of historical circumstances. For instance, Donnelly (2006: 1–2) abandons the notion of ‘state’ and instead turns to the more neutral term ‘terminal polity’. Other authors distinguish a broad and neutral understanding of constitutions from its particular democratic form (e.g. Fassbender 2009b: 139–40). Likewise, several authors in both approaches go beyond a definitional take on constitutional structures and use functional conceptualizations – that is, they analyse which functions constitutionalization performs (e.g. Dunoff and Trachtman Reference Dunoff, Trachtman, Dunoff and Trachtman2009b: 10–18) or advance an interpretation of fundamental institutions as functional categories of international societies (e.g. Reus-Smit Reference Reus-Smit1997: 566; Donnelly 2006: 11). The focus on general constitutional elements or functions thereby serves as an abstraction both from the form (e.g. written or not) and content (e.g. specific rules, principles and values, including their relative ranking) of constitutional structures and aims at ‘fundamental analytical neutrality’ (Donnelly 2006: 7). Third, in line with the use of the term ‘constitution’ as an analytical tool, the historical-comparative approach does not deny the unequal influence which different actors or regions exercised in bringing about the form and content of constitutional structures but nevertheless emphasizes their character as a common and shared ‘Grundnorm’ by using notions like shared beliefs (e.g. Reus-Smit Reference Reus-Smit1997: 556) and mutual agreement (e.g. Philpott Reference Philpott1999: 567). This strategy is similar to attempts in global constitutionalism that point to the consensus of all states to the UN Charter as a fundamental international document (e.g. Fassbender 2009b).
Nevertheless, both approaches do not fully escape their specific embeddedness and Western-centrism and thus offer incomplete accounts of the history of international constitutional forms. The focus on the modern understanding of ‘constitution’ seems to blind global constitutionalism for international examples of the ancient understanding like the Holy Roman Empire. Similarly, the historical-comparative approach consciously opts for tracing the evolution of Western international societies (e.g. Philpott Reference Philpott1999: 577, 2001: chapter 3). It thereby forfeits the chance to compare (modern) Western international society with other non-Western international constitutional forms and to trace the encounter with other co-existing constitutional forms like the Chinese Qing dynasty in East Asia with which several European states interacted (see Ringmar Reference Ringmar2012). Inspired by global history approaches, a focus on the processes of interaction and adaptation between these constitutional forms would offer a more nuanced and richer account of the encounter between international constitutional forms than the expansion approach of the historical-comparative approach (which de facto limits its analysis to the inside of the expanding European international society; for a critique, see Keene Reference Keene2002).
How to conceptualize the nature and interrelatedness of different constitutional realms
The second problem concerns the nature and interrelatedness of the domestic and international constitutional realms. The problem can be stated as follows. Are the realms similar (enough) or do they differ to such an extent that conceptual adjustments are necessary for the conceptual translation and historical analysis? Both the historical-comparative approach and global constitutionalism assume a decisive difference between the two constitutional realms. While at the domestic level constitutions are closely linked to the nation states whose political system they outline and whose citizens’ rights and duties they define, such a link does not exist at the international level – that is, there is neither a world state nor a centralized monopoly of legitimate force nor a political system similar to states. A second important difference lies in the quality of actors because the global realm is populated by already constitutionalized actors (i.e. polities) which adds further complexity to the international level and prompts questions relating to the constitutional substance of each level and constitutional hierarchy between the levels.Footnote 3
Again, the two approaches develop several (partially compatible) strategies: First, constitutional quality is portrayed as a puzzling new phenomenon given its emergence despite the unlikely conditions of the international level (e.g. the plurality and fragmentation of international law and the absence of a common ‘Grundnorm’; see Wiener Reference Wiener2011). The research then centres on the conditions and processes that nevertheless make the emergence of constitutional quality possible and the extent to which constitutional structures similar to those in domestic contexts can be found at the international level. This perspective is pursued by global constitutionalism. The historical-comparative approach advances a second strategy. The (meta-) constitutional level of international society is said to be prior and thus superior to the domestic level – or in other words, the (meta-) constitutional structures of international society provide for the possibility of domestic constitutions in that they constitute and define legitimate actorhood, that is, which entities have the right to construct themselves as constitutionalized realms. In this perspective, not the conditions of the international level require explanation but rather the conditions of possibility for distinct domestic constitutions become historically contingent circumstances which need to be explained. Consequently, the conceptualizations of constitutional structures either centre on the definition of legitimate statehood (Philpott’s three ‘faces of authority’) or treat it as one central constitutional element (Reus-Smit’s (Reference Reus-Smit1999) ‘morale purpose of the state’; Donnelly’s (2006) ‘domestic legitimacy’ and ‘international legitimacy’). This entanglement of the constitutional realms leads to a third strategy which emphasizes the interconnectedness of the realms instead of their differences. On the one hand, such works point to the idea of ‘multi-level constitutionalism’ (e.g. Walker 2009a), the ‘compensatory’ function of international constitutionalization in the face of a domestic constitutional realm increasingly being deconstitutionalized by globalization (Peters Reference Peters2006) and inquire into constitutional subsidiarity and the ‘vertical allocation of authority’ (that is, the distribution of competences between different constitutional levels, e.g. Dunoff and Trachtman Reference Dunoff, Trachtman, Dunoff and Trachtman2009b: 14–8). On the other hand, such works focus on the co-constitution of the two constitutional realms and trace their entangled evolution without privileging the international constitutional realm to the same extent as the second strategy (e.g. Tully Reference Tully, Loughlin and Walker2007; Brunkhorst Reference Brunkhorst2012).
How to conceive of the role of consciousness and intentionality in constitutional histories
The link between the third problem – the question of consciousness and intentionality – and the nature of constitutionalization is nicely captured by the following assessment of Adam Watson’s history of the evolution of international society:
Watson at times suggests an implausible intentionality. “A set of rules and institutions devised by statesmen for an international society is a superstructure, consciously put in place to modify the mechanical workings of the system.” (Watson Reference Watson1992: 311) In fact, however, the set of rules need not have been devised by anyone, let alone consciously put into place. An international constitution is just as likely to arise incrementally and unintentionally – think about what actually happened at Westphalia – with conscious design a rather late and secondary part of the process (Donnelly 2006: 18, emphasis by JD).
The question of consciousness and intentionality in constitutionalization processes is closely related to the meaning attached to the term ‘constitution’: First, Donnelly’s statement implicitly restates the differences between the ancient and the modern concept of constitution. In ancient understanding, constitution means a ‘political way of being’ (Loughlin 2010: 49) that is not made (in the sense of being designed) but evolves around a shared we-understanding of a certain group (e.g. an international society). In modern understanding, a constitution is a written document consciously designed to comprehensively structure and organize the political life of a community. Second, the historical-comparative approach seems to collapse the double meaning of the term ‘constitution’: first, the meaning of something being constitutional, that is, being part of – or in accordance with – the fundamental document of a modern political community (the meaning emphasized so far in the article); and second, the meaning of something being constitutive of a phenomenon, that is, making the phenomenon possible in the first place (accounting for its possibility/existence) and making it what it is in the second place (accounting for its properties) (see for constitutive theories in IR: Wendt Reference Wendt1998). For example, for Donnelly an international society is constituted by its constitutional structure (Donnelly 2006: 6). While constitutional provisions may or may not be constitutional and constitutive at the same time, the interesting point for this article is to which degree the two attributes describe different logics of constitutionalization.
The question of consciousness vis-à-vis constitutional structures is at first glance answered in the affirmative by both the historical-comparative approach and global constitutionalism (see, for example, notions like shared beliefs and consent). At second glance, however, things become more complicated. While the historical-comparative approach treats constitutional structures primarily in terms of an analytical framework, the definitional notions of ‘shared beliefs’ and ‘common institutions’ imply that the actors are consciously aware of these constitutional structures. But do the actors conceive of these constitutional structures as ‘constitutional structures’ – and if not, how and in what sense do the actors then conceive of these structures? And, if the set of rules may emerge unconsciously (and unintentionally), as Donnelly argues, what about individual rules, institutions and principles? Similarly, global constitutionalism observes ‘constitutional discourse’ (Dunoff and Trachtman Reference Dunoff, Trachtman, Dunoff and Trachtman2009b: 3; see also Walker Reference Walker, Dunoff and Trachtman2009b: 161–2) at different sites of global governance, that is, it attests a certain consciousness of the actors for the constitutionalization process. At the same time, global constitutionalism describes itself as an ‘academic and political agenda’ (Peters and Armingeon Reference Peters and Armingeon2009: 389) or as a ‘mindset’ (Koskenniemi Reference Koskenniemi2007) – in other words, a re-reading or new interpretation for existing international law structures and principles – which prompts the question of whether constitutionalization is (a) the observation of changing legal structures and/or (b) a constitutional interpretation of existing international law. The literature – and, for example, the case of the EU – so far suggest that both (a) and (b) contribute to the new constitutional quality. Nevertheless, Wiener et al. (2012: 5) contend that global constitutionalism is still more an ‘academic artefact’ than an ‘actual constitution’ (see also Peters 2012: 118). From a historical perspective, the question of consciousness then urges us to scrutinize the historical constellations of actors consciously participating in the constitutionalization processes including shifts in these constellations as well as the alternative discourses of non-participating actors.
The question of intentionality also touches upon the origin of constitutional structures and the nature of their development. Donnelly’s above statement suggests that constitutional structures may evolve unintentionally for some time before they are consciously and intentionally acknowledged and/or amended. This proposal is fruitful for historical analysis as it allows conceptualizing major peace conferences not as transition from one international constitution to another (like Ikenberry Reference Ikenberry2001) but as successive moments of intentional (re-)interpretation and (partial) amendment of enduring and evolving constitutional structures (compare Osiander Reference Osiander1994; Clark Reference Clark2005). Such a conceptualization accommodates both for (a) a more or less unintentional evolution of constitutional structures as a whole – that is, as a set of rules – through practices between the actors and (b) intentional revision of this set of rules as well as the promotion of individual rules at specific constitutional moments. Additionally, it allows for making the relative significance of both modes of constitutionalization an open empirical question. Both modes operate to varying degrees on both the meta-constitutional level and the legal-constitutional level. While this seems undisputed for the meta-constitutional level (see Donnelly 2006), it requires some explanations for the legal-constitutional level as the international legal order is normally portrayed as a sphere of intentional production of international law (as states have to consent to international law). But as rational choice and game theory demonstrate, the intentions of individual actors at the micro-level do not automatically translate into intended outcomes at the macro-level (e.g. the phenomenon of unintended consequences). In spite of intentional constitutionalization at different sites (e.g. the EU), the legal constitutionalization of international relations is ‘frequently documented as occurring in a relatively spontaneous, little coordinated and even elusive manner’ (Wiener et al. 2012: 5). Tellingly, global constitutionalism considers the task of providing a conscious and comprehensive revision and reading of the more or less fragmented contemporary constitutional quality more to be a scholarly task (‘shaping’ global constitutional quality) than an intentional product of international political practices.
The double historical dimension of constitutional structures
While both global constitutionalism and the historical-comparative approach widely reflect these three conceptual problems, they largely ignore the related insights for a historicization of constitutional forms in the international realm. In particular, constitutional structures have a double historical dimension: they are embedded in international history – hence the need to identify their conditions and driving forces – and, at the same time, they discursively construct a link between the past, present and future, that is, a narrative of international history.
First, both approaches need to reflect more critically on the conditions for constitutional structures in the international realm – or, formulated from a historical perspective, since when have these conditions been sufficiently developed at the international level to allow for constitutional structures (a) in the meta-constitutional sense and (b) in the legal-constitutional sense. Such an analysis should bear in mind that different conditions may be pertinent for the two dimensions and that the conditions themselves may change over time. By applying the concept of constitutional structures to all historic international societies, the historical-comparative approach runs the risk of naturalizing constitutional structures instead of emphasizing their historical contingency and scrutinizing their conditions for emergence and change. Tellingly, the only condition for meta-constitutional structures mentioned by this literature is the existence of an international society. English School writers, in turn, claim that the functioning of the common institutions of international society is threatened by extreme inequalities in the distribution of power – in the sense of capabilities to influence others – and therefore consider the balance of powers to be ‘the first article in the “constitution” of international society’ (Dunne Reference Dunne1998: 106). This argument touches upon the deeper question of how constitutional structures relate to hierarchy, that is, if constitutional structures evolve and operate under conditions of hierarchy or hegemony (e.g. Grewe Reference Grewe1988) or if they depend for their functioning on a principle of equality between at least the most powerful polities (e.g. the balance of power; see also Hurrell Reference Hurrell2007). Global constitutionalism usually discusses the condition of hierarchy in terms of the possible return of an imperial context – namely ‘empire’ in the form of US hegemonyFootnote 4 – and its consequences for international constitutional structures (see critically: Cohen Reference Cohen2004, Reference Cohen2012). From a historical perspective, it seems, however, more appropriate to speak not of an imperial context in the singular but rather of a plurality and mélange of both imperial and non-imperial constitutional structures. For instance, nineteenth-century global politics were shaped by a differentiated constitutional form that comprised a European order based on equality and a non-European order based on the ‘standard of civilization’ and the co-existence of several colonial hierarchies (see Keene Reference Keene2002). A connected problematique concerns the question of what role inequalities in power play in constitutionalization processes. While the historical-comparative approach talks about a normative consensus and shared norms and thereby often sidelines issues of power (but see Philpott Reference Philpott1999: 576; Clark Reference Clark2005: chapter 1), global constitutionalism mostly associates the origins of global constitutional quality with the consensual signing of treaties and statutes or with (authoritative) decisions of courts and seems to conceive of constitutionalized international relations as having moved beyond ‘power politics’ (in the IR sense). It thereby posits constitutional structures as a sphere of institutionalized power. The debate about a US empire and its effects on international law brings this dual perspective on power – as a potential impediment to the rule of law (power politics) or as the institutionalization of political authority (as the specific forms ‘constituent power’ takes, see Tully Reference Tully, Loughlin and Walker2007: 320) – back to the fore. The interplay between these two senses of power can also be witnessed in the unequal and hierarchical ways in which political power is institutionalized in favour of the most powerful states, for instance in the WTO and the UN (see Hurrell Reference Hurrell2007).
The global constitutionalism literature, additionally, singles out two factors that are partly described as conditions and partly as driving forces (for legal-constitutional structures): (a) a certain degree of institutionalization of the international legal and political system which is said to have been arrived with either the Hague Peace Conferences 1899 and 1907 (Paulus Reference Paulus, Dunoff and Trachtman2009: 76), the establishment of the League of Nations 1919/20 (Reisman 2000: 11–6) or the UN Charter 1945; and (b) globalization which is chronicled mostly as a post-1990 phenomenon (Dunoff and Trachtman Reference Dunoff, Trachtman, Dunoff and Trachtman2009b; Wiener et al. 2012). Global constitutionalism scholars have, however, so far not systematically probed into these conditions and often employ mono-causal narratives instead of multi-causal analyses focusing on the interaction of different conditions. Is globalization, for example, the condition sine qua non for all constitutional forms in the international realm or is it only one of the conditions for global constitutional quality? And can globalization be reduced to a post-1990 phenomenon or wouldn’t a historically informed perspective treat it as a much longer process (e.g. Osterhammel and Petersson Reference Osterhammel and Petersson2007)? All in all, a constitutional perspective on international history should more intensively inquire into the conditions and driving forces of constitutionalization and constitutional forms than the two approaches currently do.
Second, both approaches have not sufficiently considered the role of constitutional discourses as historical narratives of the respective community. Constitutional structures are not merely phenomena in international history, but are themselves historical narratives which link the past, present and future to an encompassing narrative of the respective community or society. These historical narratives provide both for a ‘we’-identity and legitimize certain forms of behaviour (including ‘necessary’ constraints, that is, the reasons for self-restraint; see Hurrell Reference Hurrell2007: 17). As Edmund Burke put it: a constitution is ‘a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born’ (Burke Reference Burke1967: 93). A constitution contains a memory of the past (usually a myth about the constitution’s and community’s origin) and symbolizes a promise both for the present and the future. The consent to the constitution is a promise to acknowledge and observe the constitutional rules and principles in all future interactions (and thus an act of self-restraint for the future). At the same time, constitutions often spell out common goals for the future. This aspect is (at best) only hinted at by the two approaches. For example, Dunoff and Trachtman’s (2009b: 22) seventh mechanism of constitutionalization – ‘accountability’ – links constitutions to the promotion of certain goals but limits the further discussion to questions of (democratic) legitimacy. A good approximation is, however, provided by Neil Walker’s (2009b: 159–62) discussion of the ‘social’ and ‘discursive’ frames of constitutional structures. Walker emphasizes the ‘self-reflexive’ nature of these structures and their function as a unifying symbol providing a common ‘viable ethical threshold of political community’ and invoking a common fate.
Conceptual and analytical tools for constitutional histories of the international realm
As the dialogue between the two approaches has shown global constitutionalism and the historical-comparative approach would benefit from pooling their conceptual and analytical elements in order to develop a more sophisticated toolbox for international constitutional histories. This last section brings together the conceptual propositions and insights of the previous sections in order to further develop a toolbox for studying and narrating constitutional histories in and of the international realm. It thereby draws on the history of the English constitutionFootnote 5 which arguably constitutes a better analogy for historicizing constitutional forms in the international realm than its written, single-document counterparts normally referred to by global constitutionalism. Constitutional provisions are not merged into a single document but woven together by a constitutional practice and tradition that recognize a plurality of constitutional sources (e.g. statute law, evolved principles of law, conventions, works of authority) and draw on a web of constitutional documents and constitutional provisions which in turn are ranked and structured by the constitutional discourse.Footnote 6 Histories of the English constitution thus emphasize the continuing interaction between the meta- and legal-constitutional dimensions of constitutional structures as well as the historical self-consciousness of the constitutional discourse. Besides, as Great Britain played a leading role in the expansion of European international society in the long nineteenth century – that is, in the shift from several co-existing international constitutional orders to one global constitutional order – its legal and constitutional discourse has been influential in the development of universal international law (e.g. Grewe Reference Grewe1988: 516–20; Bell Reference Bell2007).Footnote 7
The salient aspects of the dialogue between the two approaches can be elaborated to seven conceptual and analytical tools. First, the constitutional understandings of global constitutionalism and the historical-comparative approach are combined to a complementary, more sophisticated understanding of constitutional forms/structures. This analytical framework emphasizes four elements: (a) constitutional forms as the higher level of a (more or less coherent) hierarchy of norms and principles and a set of secondary rules; which (b) embodies principles and rules for the self-reflective organization of the (political) life and interaction of an international society; and the differentiation between (c) a meta-constitutional dimension of this constitutional form consisting of fundamental institutions and basic decisions about the social and political order and (d) a legal-constitutional dimension consisting of the legal codification and assessment of (some of) these basic decisions. The constitutional provisions are not expected to neatly fit together to a coherent, harmonious set. Indeed, as English School authors stress, tensions within the constitutional structures are ‘an important dynamic of change’ (Buzan Reference Buzan, Albert, Cederman and Wendt2010: 208). Following Donnelly (2006: 4), ‘international’ is understood broadly, encompassing relations between polities – which may or may not regard themselves as equals (see the ‘standard of civilization’) – and non-polities (including individuals) while stressing the role of polities (in the sense of terminal, constitutionalized political communities) as arguably the pre-eminent constitutional actors in the international constitutional realm (see also Cohen Reference Cohen2004: 13).Footnote 8 It is this pre-eminent role of polities that provides for the co-existence and co-evolution of domestic and international constitutional forms (which would, for instance, collapse in the case of a world state) and thus the peculiarity of international constitutional structures as being negotiated between already constitutionalized actors. As a last note of clarification, different constitutional structures may not only follow each other diachronically but also co-exist synchronically – both as (a) more constitutionalized sub-group(s) within one international society (e.g. the Holy Roman Empire in early modern European international society, the EU in contemporary international society) and as different coexisting international societies (e.g. the European international society and the Chinese Qing dynasty in the early modern era).
Second, constitutionalization is conceived of as a selection process generating and legitimizing such hierarchies of rules and principles in interpolity relations. These selection processes may occur in the normative practices between these polities (constitutionalization in the wider sense) as well as in their legal practices (constitutionalization in the narrow sense). These two senses of constitutionalization correspond to the differentiation between a meta-constitutional and a legal-constitutional dimension of constitutional forms and denote not only the process of emergence of the two constitutional dimensions but also the interaction between the meta-constitutional and the legal-constitutional dimension, that is, the process of (re-)interpreting and (re-)negotiating the basic decisions during their legal codification. With regard to these selection processes, John Rawls’ ‘original position’ provides a useful analogy for constitutionalization (Rawls Reference Rawls1971). It describes the act of establishing a social contract as a process of deliberation about the selection and ranking of rules and principles for the normative and legal foundations of a thereby constituted society (that is, the respective society emerges through the very act of constitutionalization) and highlights how different conditions shape these deliberations. Contrary to Rawls’ idealist conditions (like the veil of ignorance), constitutionalization in the international realm takes place in distinct and usually unequal social and political settings (see the fifth conceptual element below) and may occur in the form of intentional constitutional amendments (e.g. deliberations at peace conferences) as well as evolve more or less unintentionally through practices between the actors – although the latter constitutional amendments are usually likewise discursively acknowledged or contested at the following constitutional moments.
Third, with regard to the so far insufficient inquiry into the conditions for international constitutional forms, a constitutional perspective on international history requires a comparative historical analysis scrutinizing the conditions, driving forces and diverse forms of these phenomena. This historical investigation needs to be aware that although the meta-constitutional and the legal-constitutional dimension are entangled, they embody different constitutional provisions that might emerge and evolve at different historical moments. For example, human rights were incorporated into international law by the Universal Declaration on Human Rights 1948, but already played a role in the normative discourse of nineteenth-century international society – for instance, in arguments referring to principles of humanity to call for the abolition of the slave trade (e.g. Clark Reference Clark2007: 37–60). Additionally, at a given historical moment, several constitutional structures and constitutionalization processes might coexist and interact. Therefore, the historical analysis should strive to delineate both the diversity and the interaction of constitutional forms and constitutionalization processes. Here it is fruitful to point to the history of the English constitution which displays aspects of incremental evolution through practices (e.g. the non-use of the monarch’s veto power) as well as moments of intentional design and constitutional ‘settlement’ (e.g. the Bill of Rights, the Act of Settlement). Likewise, the evolution of international society can only be understood through the entangled and yet chronologically legged evolution of the meta-constitutional and legal-constitutional dimension. The transformation from a natural-law based international society to a positivist international law based one – a transformation at the meta-constitutional level during the nineteenth century – constitutes both the prerequisite and the ongoing condition of possibility for arguably the main political procedure of twentieth-century international community: multilateralism and the associated principle of equality/consent (which are enshrined at the legal-constitutional level, for example, in the UN Charter). While historically this transformation occurred in the context of the imperial expansion of European international society with the questions and consequences of empire and (de-)colonization fuelling the debates on international law (see Simpson Reference Simpson2004; Tully Reference Tully, Loughlin and Walker2007; Mazower Reference Mazower2009), a historically sensitive perspective on constitutional forms and constitutionalization in the international realm has to treat an imperial context as one contingent (background) condition among and interacting with others (witness its absence in the case of the constitutionalization of the EU; see also Cohen Reference Cohen2012).
Fourth, given the discursive form of constitutionalization processes and the self-reflective nature of constitutional forms, such a historical analysis also has to incorporate a discourse analytical perspective which studies how and in what terms the different constitutional forms and constitutionalization processes were articulated and framed by the respective historical actors. This element is also concerned with the characteristics of the actors taking part or even dominating the constitutional discourse, that is, the different ways the respective actors are (not) able to participate in the constitutional discourse. The necessity of such a discourse analytical perspective is emphasized by Neil Walker (Reference Walker, Dunoff and Trachtman2009b). Walker conceives of ‘constitutionalism [as] a series of separable but mutually reinforcing frames through which political community is both recognized and constructed’ whereby the different frames are intertwined into a meta-frame, namely the constitutional frame (Walker Reference Walker, Dunoff and Trachtman2009b: 151). As the English constitutional discourse illustrates, such a constitutional discourse also includes a relative weighting of different constitutional sources and provisions and embeds the constitutional rules and principles in a continuing tradition of interpretation.
Fifth, a constitutional history cannot inquire into constitutional forms and constitutionalization processes without paying attention to agency and power for three reasons: (a) The normative and legal selection processes are shaped by political practices and deliberations of actors who in turn are embedded in social and political settings, that is, (shifting) power differentials, identity- and interest-constructions as well as conflict constellations (see Clark Reference Clark2005: 30; Hurrell Reference Hurrell2007). Constitutionalization processes and the resulting constitutional forms are as much the result of (past) political practices as they serve as a framework for organizing (present and future) political practices. In this perspective, power should not be understood narrowly as constituent power. It should be conceptualized and analysed in its variety of forms – including, but not limited to, power as capabilities to influence others (compulsory power) and power in the sense of political authority and competences (institutionalized power) – and with an emphasis on how the interplay between different forms of power shapes constitutionalization processes (see Barnett and Duvall Reference Barnett and Duvall2005). (b) In this perspective, the creation of – and compliance with – constitutional structures is an act of self-restraint and mutual promise that serves to provide rules and practices for future political interactions, that is, self-chosen boundaries and templates for how to perform future political struggles (compare Elster Reference Elster2000; Ikenberry Reference Ikenberry2001). Importantly, these rules and practices comprise templates for how to cope with unequal distributions of (coercive) power and regulate the institutionalization and limitation of political power (Deudney Reference Deudney2007; Thornhill Reference Thornhill2011: 10–11). (c) The durability and stability of this promise hinges on the ongoing assessment of these constitutional structures by the diverse constitutional actors in light of shifting social and political settings. Constitutional structures mediate between stability and change both in the political and social spheres (see also Dunoff and Trachtman Reference Dunoff, Trachtman, Dunoff and Trachtman2009b: 24), that is, they are an agreed framework for coping with change and, at the same time, themselves subject to amendments if social and political changes induce sufficient demands for constitutional change in the constellation of constitutional actors.Footnote 9 The history of the English constitution underscores the importance of agency. Decisive historical constitutional documents like the Bill of Rights stem from a political and sometimes violent struggle between the monarch and the Parliament and are thus products of political bargaining and negotiation. This sustains Halberstam’s (Reference Halberstam, Dunoff and Trachtman2009) argument, that constitutional development and interpretation advance through political struggle between the relevant constitutional actors. What is more, both the identity and role of the monarch and Parliament (as well as the internal differentiation into House of Lords and House of Commons) evolved and were constituted through successive constitutional settlements. To sum up, a historically sensitive study of constitutional structures in international relations needs to study to what extent constitutionalization reflects changes in and of international society and how these changes impact on actorhoodFootnote 10 – for example, the influence of struggles for individual rights on membership in international society (Reus-Smit Reference Reus-Smit2011), the transformation from international to world society (Buzan Reference Buzan2004) and the ongoing functional differentiation of world society (Buzan and Albert Reference Buzan and Albert2010; Donnelly Reference Donnelly2012; Cohen Reference Cohen2012: 5).
Sixth, the historical analysis has to investigate the sources of legitimacy as well as the ongoing production of consent and compliance to these constitutional structures. This legitimacy does not originate from the constitutional documents itself but has to be grounded in something extra-constitutional (Dunoff and Trachtman Reference Dunoff, Trachtman, Dunoff and Trachtman2009b: 22–3). Which values, interests and benefits did/do the actors associate with the constitutional structures and let them view self-restraint and constitutional provisions as a desirable way of framing their present and future interaction? Did/do these constitutional structures and their legitimacy require a common set of values and a shared culture (see Donnelly’s analytical element ‘hegemonic values’) or can they also emerge and be sustained in pluralistic settings (see Rawls Reference Rawls1999; Wiener et al. 2012)? This sixth analytical element is closely related to the fifth one via the question of how social and political changes affect the legitimacy, values and vested interests associated with constitutional structures and consequently how variations in the legitimacy and desirability of constitutional structures affect constitutional change (or the non-compliance with these constitutional structures). Social contract theory (and political philosophy in general) provide inspirations not only for the legitimacy criteria emphasized by the global constitutionalism debate – namely the greatest possible access to constitutional deliberations – but also for a historical perspective on this specific notion of legitimacy. For instance, David Hume (1953: 43–63) criticized social contracts for having never been actually concluded in the first place and therefore not being founded on the expressed consent of the individuals they are supposed to bind. This critique becomes especially salient in light of the largely exclusive and unequal conditions of international constitutional moments (e.g. great power conferences). Why did non-participants and future generations conceive themselves to be bound to these constitutional settlements? Translated to the international constitutional realm: for what reasons did (and do) later governments – as well as individuals who have arguably not participated in their capacity as constituent power – attach legitimacy to past constitutional settlements negotiated by former governments (like the UN Charter)? And what extra-constitutional sources and discursive strategies were and are mobilized to expand the reach of the constitutional structures beyond the initial contracting parties – or in other words: to justify their (coercive) imposition and to promote compliance by the new constitutional subjects (for example, the ‘civilizing mission’ of European colonization)?
Seventh, the historical analysis needs to include a discourse analytical perspective on the historical narrative(s) constructed by the actors in the processes of constitutionalization and in which the constitutional structures are embedded.Footnote 11 This aspect tackles the double historicity of constitutional forms and in particular the ways in which constitutional discourses link the past, present and future of the respective constitutional communities. This focus generates not only additional insights into how the actors construct their group identity (e.g. through a temporal othering as in the case of the German ‘Grundgesetz’ and the UN Charter) but also into how the actors themselves assess and judge the importance and role of distinct historic constitutional moments and constitutionalization processes. The interesting point for a constitutional history is that the constitutional discourse itself structures the different constitutional elements and evolutions to a historical self-narrative that distinguishes between more and less important constitutional moments. The English constitutional discourse, for instance, often appraises the Bill of Rights as a cornerstone of the modern constitutional setting (e.g. Wicks Reference Wicks2006). While IR as a discipline advances ‘big bangs’ like the Peace Treaties of Westphalia 1648 for its historical narrative and its references to fundamental institutions (see critically de Carvalho, Leira and Hobson 2011), the legal discourse of international community – and the present constitutional discourse studied by global constitutionalism – seem to operate with a shorter constitutional memory. If this constitutional discourse refers to fundamental legal documents, it rarely goes back beyond 1945 (a possible exception being the Geneva Conventions).
Conclusion
This article started with the seemingly contradictory historical accounts offered by the two approaches concerned with constitutional structures in international history: the historical-comparative approach and global constitutionalism. It demonstrated that this disparity stems from different research purposes – comparing international societies in the former case, scrutinizing contemporary constitutional quality and constitutionalization as a new phenomenon in the latter case – and can be fruitfully overcome by a complementary reading of the constitutional understandings of the two approaches. This complementary reading provided the common ground for sketching out a dialogue between global constitutionalism and the historical-comparative approach which revealed shared conceptual problems and the insufficient way in which both approaches have so far reflected on their conceptual tools for a historical perspective on constitutional structures in the international realm. Consequently, the last section of the article built on these insights to further develop the conceptual tools by drawing on the history of the English constitution.
To sum up, this article proposes the following seven conceptual and analytical tools for constitutional histories of the international realm: (1) a differentiated definition of constitutional structures between polities (as already constitutionalized agents) emphasizing the interaction between a meta-constitutional and a legal-constitutional dimension (which may evolve differently); (2) a distinction between constitutionalization as a normative selection process in international society (constitutionalization in the wider sense) which, under certain conditions, takes the form of legal constitutionalization (constitutionalization in the narrower sense); (3) a comparative historical analysis of the conditions, driving forces and diverse forms of these constitutionalization processes; (4) a discourse analytical perspective on how the actors frame and elaborate on these constitutional structures and selection processes (and which actors take part in the constitutional discourse and which not); (5) an analysis of these constitutional structures and choices as practices of self-ordering and, in particular, organization of the political life of the actors involved (including a special focus on the role of different forms of power in these practices); (6) an inquiry into the extra-constitutional sources of legitimacy and the (production of) ongoing consent to these constitutional structures; and finally (7) a discourse analytical perspective on the self-reflective historical narratives woven around these constitutional structures to link the past, present and future of the thereby associated actors.
Taken together, these elements help to historicize more sensitively the forms and substances of constitutional structures in the international realm. They likewise offer the possibility to move beyond traditional ways of narrating and structuring international history (e.g. the rise-and-fall-of-great-powers-narrative) to a constitutional perspective on international history. Given the variety of historical international constitutional forms, such a history will be multifaceted. Like the histories of domestic constitutions (and all historical interpretations), it can and will be constructed and narrated in diverse ways. For instance, different constitutional histories will pursue different perspectives – by emphasizing for example (a) the evolution of one specific constitutional form, (b) the passage from one constitutional form to another, (c) the comparison or (d) the interaction of different constitutional forms. The next step, however, should be the same for all approaches: to engage more intensively and more reflectively in empirical historical research. An interesting historical period for both global constitutionalism and the historical-comparative approach would be the long nineteenth century because it witnessed an albeit still informal institutionalization of international politics (the Congress System), the expansion of European politics (colonization) and – with the advent of positivist international law, the sources doctrine and multilateral law-making – the emergence of the conditions of possibility of contemporary constitutional quality and constitutionalization processes.
Acknowledgements
For their valuable comments and constructive criticism, I would like to thank Mathias Albert, Luis Blanco, Bernd Bucher, Ralf Rapior as well as the two anonymous reviewers and the editors of Global Constitutionalism.
