The Mutation of International Law in Contemporary Constitutions: Thinking Sociologically about Political Constitutionalism
| Author | Chris Thornhill |
| Published date | 01 March 2016 |
| Date | 01 March 2016 |
| DOI | http://doi.org/10.1111/1468-2230.12177 |
bs_bs_banner
THE
MODERN LAW REVIEW
Volume 79 March 2016 No. 2
The Mutation of International Law in Contemporary
Constitutions: Thinking Sociologically about
Political Constitutionalism
Chris Thornhill∗
This article proposes a sociological critique of theories of political constitutionalism, which
distinguish sharply between political and judicial constitutionalism and express hostility towards
constitutions allowing extensive judicial control of legislation. It argues that such theories are
usually undermined by a sociologically deficient account of politics. As an alternative, this article
proposes a theory of politics based in a model of systemic inclusion. Using this perspective, it
claims that constitutions with a strong judicial emphasis, especially where judicial functions are
supported by international norms, have served, in many societies, as an effective precondition
for the emergence and persistence of a relatively secure, differentiated political domain. These
claims are exemplified through analysis of recent constitution-making experiments in Russia,
Kenya and Bolivia.
JUDICIAL CONSTITUTIONALISM AND ITS CRITICS
The contemporary democratic state has widely assumed a constitutional form
which is very different from that envisaged by the or iginal theorists and ar-
chitects of democratic constitutional law. We can in fact identify a distinctive
model of constitutional order, which is now characteristic of contemporary
society, and which has little in common with classical patter ns of constitutional
legislation. Some features of this model are traceable to constitution arrange-
ments created in Central Europe during and in the years after the dissolution
of the Habsburg Empire.1More broadly, however, the currently dominant
model of constitutionalism has been defined through processes of democratic
transition and systemic transformation, conducted in societies with a recent
∗School of Law, University of Manchester. Research for this article was funded by the European
Research Council (Advanced Grant: 323656-STC). A very preliminary version of this article was
presented at a Modern Law Review workshop on ‘Constitutionalism(s) post 2008’, held at the
University of Warwick in June 2014.
1 See T. Olechowski, ‘The Beginnings of Constitutional Justice in Europe’ in M. Rask Madsen
and C. Thornhill (eds), Law and the Formation of Modern Europe. Perspectives from the Historical
Sociology of Law (Cambridge: CUP, 2014) 77.
C2016 The Author.The Moder n Law Review C2016 The Modern Law Review Limited. (2016) 79(2) MLR 207–247
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
The Mutation of International Law in Contemporary Constitutions
history of political authoritar ianism.2This model was initially elaborated in
the post-authoritarian democracies established after 1945. Then it was repro-
duced in the Iberian and Latin American transitions of 1970s and 1980s, and
it was further fleshed out in the Eastern European transitions and processes of
transformation in the late 1980s and early 1990s. It was eventually transplanted
into many states that underwent regime transformation in Sub-Saharan Africa
through the 1990s and beyond. Although mainly forged in states undergoing
systemic restructuring, though, this model is not restricted to states that have
recently experienced democratic or quasi-democratic re-foundation. In fact,
the general pattern of contemporary constitutionalism has clearly begun to
penetrate and transform more established democratic polities, such as the UK
and France.3
Across quite different lines of constitutional formation and construction,
consequently, we can observe that contemporary constitutions are usually de-
fined, either fundamentally or by incremental tendency, by the following char-
acteristics: (1) greater power is accorded to courts and to the judicial branch in
general than was the case in classical constitutionalism; (2) high courts, armed
with strong powers of judicial review, are permitted to pre-define the content
of the law, and to place constraints on the decisions of actors with legisla-
tive authority; (3) national courts usually derive their authority in part from
the salience accorded to international law, and courts acquire the power to
shape legislation because they scrutinise national laws in light of internation-
ally defined norms, especially norms protecting human r ights, within domestic
polities; (4) the interaction between national and international judicial bodies
stands at the origin of, and par tly defines the scope of, legitimate legislative
power, and pr imary norms in domestic law are constructed, at least in part, on
the foundation of international law.
Overall, in short, contemporary constitutions are marked, almost generi-
cally, by a rise in judicial power, and, closely linked to this, by the intensified
penetration of international law into domestic legal systems.4In general terms,
most contemporary societies, albeit with important outliers, promote a system
2 In most cases of recent political restructuring, systemic transformation seems a more accurate
description than the more usual term: transition. For related claims see T. Carothers, ‘The End
of the Transition Paradigm’ (2002) 13 Journal of Democracy 5, 13.
3 See, for select comment, F. Fabbrini, ‘Kelsen in Paris: French Constitutional Reform and the
Introduction of a posteriori Constitutional Review of Legislation’ (2008) 9 German Law Journal
1297; A. L. Young, ‘Judicial Sovereignty and the Human Rights Act 1998’ (2001) 61 Cambridge
Law Journal 53, 65; N. Bamforth and P. Leyland, ‘Public Law in a Multi-Layered Constitution’
(2003) 8 Judicial Review 157, 161; M. Sunkin, ‘Judicialization of Politics in the United Kingdom’
(1994) 15 International Political Science Review 125; A. Stone Sweet, ‘The Constitutional Council
and the Transformation of the Republic’ (2008) 79 Yale Law School Faculty Scholarship Series;
A. Kavanagh, Constitutional Review under the UK Human Rights Act (Cambridge: CUP, 2009)
275.
4 To be clear, the rising constitutional standing of courts was not or iginally directly and expressly
linked to the authority of international norms within national legal systems. From the outset,
however, there was always a strong implied connection between constitutional review and the
openness of domestic legal systems to international law.After 1918, Kelsen’sAustr ian constitution
of 1920 was in part shaped by the idea that one system of norms could pervade society in its
entirety, with inter national law as the highest source of such norms. See H. Kelsen, Das Problem
der Souver¨
anit¨
at und die Theorie des V¨
olkerrechts: Ein Beitrag zu einer reinen Rechtslehre (T¨
ubingen:
208 C2016 The Author. The Modern Law Review C2016 The Modern Law Review Limited.
(2016) 79(2) MLR 207–247
Chris Thornhill
of public-legal order, which can be classified as judicial constitutionalism or even
transnational judicial constitutionalism.
At the centre of this new model of constitutionalism are two distinctive prin-
ciples, which set it apart from classical constitutional ideals. Most obviously,
constitutions close to this model are not sustained, in the classical sense implied
by Georg Jellinek, by reference to a single unified national people. Many nor-
mative elements of judicial constitutionalism are reproduced from a nationally
overarching legal system, and they are moved from one polity to another, often
without declared national-popular authorisation. As a result, secondly, constitu-
tions close to this model cannot be seen to channel a clear political will through
state institutions, and they do not derive founding legitimacy for legal acts from
primary expressions of popular volition or constituent power.5In its distinction
from classical constitutionalism, unsurprisingly, the contemporary pattern of
judicial constitutionalism has been widely criticised. In particular, it has been
condemned as anti-democratic: it has been derided both as a legal order that uses
judicial norms illegitimately to constrain acts of national self-deter mination,6
and as a legal order that holds democratic agents in national societies in thrall
to the interests of international hegemonic actors.7In addition, it has been
criticised for its allegedly anti-political character.8The fact that in the judicial
constitutional model some authority is transferred from elected legislatures to
unelected courts, and that strong entrenchment is provided for supranational
Mohr, 1920) 215. After 1945, constitutional review, the rise of constitutional courts, and the
commitment to direct domestic application of international law were common features of new
democracies. In WestGer many, tellingly, the Constitutional Court was defined as a transformer
of international human rights law, see H. Mosler, Das V¨
olkerrecht in der Praxis der deutschen
Gerichte (Karlsruhe: M ¨
uller, 1957) 25. In more recent examples, the growth of judicial power
in domestic constitutions is almost invariably linked to increasingly monistic constructions of
constitutional law. Even in the UK, the rising audacity of judicial actors in reviewing public
acts is usually bolstered by the rising authority accorded to international conventions. See for
example Ahmed and others vHer Majesty’sTreasury (JUSTICE intervening) (Nos 1 and 2); al-Ghabra
some of the earliest justifications of judicial review of primary laws, set out in the first decades
of the American Republic, were closely flanked by a domestic incorporation of international
norms. See J. P. Paust, International Law as Law of the United States (Durham, NC: Carolina
Academic Press, 2nd ed, 2003) 7.
5 P. Dobner, Konstitutionalismus als Politikform. Zu den Effekten staatlicher Transformation auf die
Verfassung als Institution (Baden-Baden: Nomos, 2002) 212.
6 D. Grimm, Die Zukunft der Verfassung (Frankfurt am Main: Suhrkamp, 1991) 31.
7 See R. Hirschl, ‘The New Constitutionalism and the Judicialization of Pure PoliticsWorldwide’
(2007) 75 Fordham Law Review 721, 723. More generally, see, R. Hirschl, Towards Juristocracy. The
Origins and the Consequences of the New Constitutionalism (Cambridge, Mass: Harvard University
Press, 2004); J. Ferejohn, ‘Judicializing Politics, Politicizing Law’ (2002) 65 Law and Contempo-
rary Proble ms 41, 41, 44; D. Schneiderman, Constitutionalizing Economic Globalization. Investment
Rules and Democracy’s Promise (Cambr idge: CUP, 2008); D. Nicol, The Constitutional Protection of
Capitalism (Oxford and Portland, Or: Hart, 2010) ch 4; B. S. Chimni, ‘Third World Approaches
to International Law: A Manifesto’ (2006) 8 International Community Law Review 3, 8-11.
8 This claim arises partly because judicial constitutionalism is associated with international eco-
nomic interests, subjecting national polities to irresistible override. But it also rephrases the
classical critique of judicial control of statutes as an unmandated ex ante constraining of the
popular will. For this view, legitimate law is only ‘a set of norms that have been formulated and
thus willed by the people’, M. Troper, ‘The Logic of Justification of Judicial Review’ (2003) 1
International Journal of Constitutional Law 99, 116.
C2016 The Author. The Modern Law Review C2016 The Modern Law Review Limited.
(2016) 79(2) MLR 207–247 209
To continue reading
Request your trial