W

World Constitutionalism (d) A proclamation of the specific identity of the

Sergio Dellavalle
University of Turin, Turin, Italy
Max Planck Institute for Comparative Public Law
and International Law, Heidelberg, Germany
community.
(e) The specification of the procedures for issuing
statutory laws and administrative acts.
(f) The self-definition of the constitution as the
highest law within the hierarchy of norms that
govern the community.

The contents of the constitutions have taken

Introduction: National Constitutions and
quite different forms in the highly various polities
Global Constitutionalism
from which they emerged. Yet, they are realized,
on the whole, in those legal documents that have
A constitution can be defined as the legal docu-
been established – starting with the revolutions of
ment in which the fundamental principles and
the late eighteenth century and then spreading
rules of the social and political interactions within
over almost the entire globe – as the basic laws
a community are laid down. On this basis, consti-
of the nation-states. Given these premises, the
tutionalism is the theoretical approach and politi-
very idea of world constitutionalism seems to
cal praxis that maintains that every human
verge on an oxymoron since it aims at expanding
community, to be well ordered and to avoid tyr-
a notion which was conceived – and not by
anny, has to be grounded on a foundational legal
chance – for the limited range of specific commu-
document. Only this kind of document, in fact,
nities to the global scale. Indeed, the application
guarantees that the rule of the powerful can be
of the concept of constitution beyond the borders
substituted by the rule of law. More concretely, a
of the nation-state was triggered in the last couple
constitution contains, in general, the following
of decades by the process of globalization. Nev-
elements:
ertheless, it needed a much longer preliminary
work in the history of ideas, without which no
(a) A definition of public power and of the insti-
proposal of world constitutionalism could even be
tutions rightfully entrusted with its exercise.
conceivable. Two steps, in particular, were neces-
(b) A list of fundamental rights which are pro-
sary to understand constitutional order as some-
claimed to belong to every member of the
thing not just suitable for the individual polity but
community.
applicable to the worldwide interactions between
(c) The criteria for public power and its exercise
human beings and states. The first idea that had to
to be regarded as legitimate.
be developed was that order is possible also
# Springer Science+Business Media B.V. 2017
M. Sellers, S. Kirste (eds.), Encyclopedia of the Philosophy of Law and Social Philosophy,
https://doi.org/10.1007/978-94-007-6730-0_177-1
2 World Constitutionalism
beyond the borders of the single polities; in other
words, that the well-ordered society can be cos-
mopolitan. The second step was to conceive of
this order in legal terms, i.e., as an order based on
legal documents and practices.
Once the essential concepts on whose basis
order can be assumed to take on a cosmopolitan
range were established, different variants of world
constitutionalism have been developed,
depending on what kind of worldwide integration
was envisaged. None of these variants, however,
contains all six elements of national constitution-
alism or accomplishes all traditional tasks of a
national basic law. As a result, the question arises
whether we should regard the application of the
concept of constitution to the project of a world-
wide order as simply improper and therefore give
up the very idea of world constitutionalism. As an
alternative, we can revise the concept of constitu-
tion itself, maintaining its essential normative
tenets but making it, at the same time, more flex-
ible and suitable for contexts beyond the national
borders.
The Idea of a Cosmopolitan Legal Order
Even just the idea of a global community includ-
ing all human beings is anything but obvious.
Rather, it took quite a long time for human think-
ing to overcome the long-lasting predominant
conviction that only limited societies can be
well-ordered, while between them only a restric-
tion of disorder is possible, and to develop the
perspective of some kind of worldwide order. The
first glimmer of a universal idea of order can be
found in Buddhism. In Buddhist tradition, indeed,
the dharma can be interpreted – among other
possible understandings – as the “natural order
of the universe” (French and Nathan 2014, at 4).
However, the universal range of the dharma goes,
first, far beyond the boundaries of the human
community, including at least all sentient beings
and, possibly, even the non-sentient world. Sec-
ondly, to be recognized, the dharma requires to
complete a path of spiritual enlightenment which,
in principle, is open to all members of the human
community but – like all religious experiences –
can hardly be expected from everyone of them.
Therefore, to develop a perspective of cosmopol-
itan order in the sense of the word which is most
common to us, two further steps had to be under-
taken: order had to be centered on the human
community, and had to be based on a faculty
arguably inherent to all humans, regardless of
which spiritual experiences they may have gone
through. Both elements were introduced into the
history of ideas by the Stoic philosophy. In Stoi-
cism the foundation of universal order is the
logos, i.e., the reason which is shared by all
human beings, and, as a result, the cosmopolis is
explicitly tailored to include all of them – and only
them (von Arnim 1905).
Stoicism was, in general, rather alien to the
world and so was also its cosmopolitan proposal.
But many elements of its conception were passed
on to the nascent Christian philosophy: signifi-
cantly, both the cosmopolitan idea of order and
the concept of a universal natural reason – as well
as of a natural law which is assumed to be based
on it – were among them. Although the Christian
message was addressed, in principle, to all
humans, in fact the Christian conception of uni-
versality ended up struggling with the limits that
inevitably affect all cosmopolitan perspectives
based on religious assumptions: religious beliefs
can hardly be universalized, not even by force. As
a result, on the one hand, the would-be universal-
ism of the Christian community never came to
include more than a minority of humankind, and
on the other hand, it was generally biased against
non-Christians (Vitoria 1964). Nevertheless, the
link that Christian thinking maintained between
the lex aeterna, as the God-given universal order,
and the natural reason shared by all human beings
provided an alternative path beyond particularistic
biases. In fact, if the sense of God-given order
contained in the divine law could be recognized
only by those who embraced the Christian faith,
natural reason was regarded as an endowment of
all humans, with the consequence that an order
grounded on pure natural reason was actually able
to include the whole humankind. Here lies the
basis of the modern jus gentium as the expression
of an all-embracing humanity (Suarez 1944, 348).
When Protestant thinkers, then, cut the Thomist
World Constitutionalism
connection between rationality and revelation, the
way was eventually clear for a universalistic jus
gentium grounded only on pure natural reason
(Gentili 1933, 10; Grotius 2005, 150).
Medieval and early modern Christendom was
characterized by the rather unrealistic vision of a
concretization of God’s universalistic order in the
form either of the worldwide authority of the
emperor (Dante 1986) or of the unrestricted
supremacy of the pope (Henricus Hostiensis
1556). As both conceptions collapsed due to the
lack of feasible perspectives and were definitively
abandoned, the only foundation for a worldwide
order was located, then, in the assumption of a
universal validity of human reason (Pufendorf
1995). This passage was positive, on the one
hand, because the idea of cosmopolitan order
was made independent of the intrinsically dis-
criminatory pretension of a worldwide authority
under Christian rule. On the other hand, it marked
also a step backward insofar as it gave up the
perspective of a political and legal formulation
of the cosmopolis. Being conceived only in
terms of general principles of natural law, the
idea of world order remained a matter for “com-
forters” (Kant 1977a, 210), while world constitu-
tionalism, if properly understood, necessarily
needs a clearly identifiable legal framework.
The transition from the conception of world
order as the result of an unwritten jus gentium
based on natural law to an explicitly legal under-
standing of cosmopolitanism was Immanuel
Kant’s outstanding contribution. In particular,
Kant introduced for the first time a tripartition of
public law, in which the third part – going from the
most specific to the most general and inclusive – is
what he unequivocally defined as “cosmopolitan
law” (jus cosmopoliticum) (Kant 1977a,
203, 1977b, 475). Beside the law of the state, as
the first part of his system of public law, and the
law between states – or international law as the
second part of it – cosmopolitan law included
principles and rules that govern the interaction
between human beings as such, regardless of
their national belongings and citizenships.
Despite its exceptionally innovative character,
Kant’s proposal was affected, nevertheless, by at
least two significant deficiencies. The first
3
problem is the surprising thinness of the rights
which are guaranteed by the jus cosmopoliticum:
in fact, this is restricted to nothing more than pure
“hospitality,” i.e., to the entitlement not to be
treated as an enemy while being – by choice or
necessity – in a foreign country (Kant 1977a,
213, 1977b, 475). Surely, Kant’s time was not
ripe for an exhaustive catalogue of human rights,
which were generally included, at the end of the
eighteenth century, under citizens’ rights – and he
cannot be made responsible for this. Nevertheless,
other authors before him, like Vitoria (1964,
Section III, 1), went further in the recognition of
what is due to every human being. This can be
partially explained by the fact that Catholic
authors were more prone to limit the authority of
the state in front of the rights of the members of
the communitas christiana, while Kant tried to
find a more equilibrate balance between the iden-
tity of the individual state and cosmopolitan order.
Yet, precisely the thinness of Kant’s jus
cosmopoliticum is a proof of how difficult it is to
find an equilibrium between state law and cosmo-
politan law – a problem which haunts political and
legal theory until today.
The second shortcoming of Kant’s conception
concerns his institutional proposal for world
order. On this point, he fluctuated rather inconsis-
tently between the idea of a “world republic”
(Weltrepublik) and that of a “federation of peo-
ples” (Völkerbund) (Kant 1977a, 208, 1977b,
474). In fact, while Kant regarded the first concept
as the more suitable for the safeguard of peace, yet
hardly feasible and, to some extent, even undesir-
able, the second was considered easier to realize,
although rather unable to implement its task – i.e.,
world peace – because of its incapacity to curb
steadily the selfishness of individual states. As for
the narrow content of the jus cosmopoliticum, so
is Kant’s difficulty in proposing a clear-cut solu-
tion for the institutional shape of world constitu-
tionalism just another example of the complexity
of holding together the achievements of national
constitutionalism and the project of a supra-state
order. Little more than a century after Kant, Hans
Kelsen suggested resolving the conflict by cutting
the Gordian knot. More specifically, he developed
the uncompromising idea of a radically monist
4 World Constitutionalism
legal system, in which international law – in the
sense of a supra-state law – was put, for the first
time in the history of legal theory, at the apex of
the hierarchy of norms. As a result, state law –
even constitutional law – was authorized to gov-
ern social interaction only within the framework
established by international law (Kelsen 1934,
149). In doing so, Kelsen prevented any kind of
conflict between national and international norms
since supremacy was always recognized to the
latter. In this sense, his legal philosophy can be
regarded as the apotheosis of world constitution-
alism. Nonetheless, his ambitious goal was
achieved at high cost. First, Kelsen’s monism
firmly rejected any kind of legal pluralism as it
was based on the assumption that conflicting
norms grounded in different legal systems can
never justifiably claim validity if contemporarily
applied to the same matter. In his view, only the
establishment and acknowledgement of
hierarchy – and not dialogue or “inter-legality”
(Fischer-Lescano and Teubner 2007, 42) – can
put an end to the conflict. Secondly, Kelsen’s
world order has explicitly and exclusively a
legal dimension, without any significant involve-
ment of political institutions (Kelsen 1944). Thus,
the interpretation of norms by the international
courts seems to be more important, to guarantee
global order and peace, than democratic legiti-
macy and political dialogue.
At the point of its most courageous affirmation,
world constitutionalism was therefore affected by
a twofold problem: the incapacity to cope with
pluralism, on the one hand, and the one-sided
concentration on the legal dimension of order on
the other. Starting with a growing awareness of
these shortcomings, the more recent theories of
world constitutionalism have concentrated their
efforts largely on the attempt to conciliate the
idea of world order with pluralism and legitimacy
(Dellavalle 2015).
Variants of World Constitutionalism
Different variants of world constitutionalism have
been developed in the last decades. They gener-
ally deal with the difficult application of the
concept of constitution to a domain for which it
has not been originally conceived either by reduc-
ing or by reformulating its content. Thus, if the
goal has been quite homogeneous, the ways in
which the goal has been achieved differ
significantly.
The Global Economic Constitution
A first strand of world constitutionalism limits the
application of the concept of constitution to the
legal framework that gives rules to the worldwide
transactions carried out by economic agents. The
reason for this limitation is that – according to the
view of the supporters of this theory – no other
field of interaction would have developed a global
range as well as shared rules at a comparable level.
Two distinct approaches emerge from the general
theory of the global economic constitution (GEC).
The first identifies the constitutional quality
mainly in the legal system and in the praxis of
the World Trade Organization (WTO) (Dunoff
and Trachtmann 2009, 206); the second is the
lex mercatoria as the system of rules created by
private economic agents in order to guarantee the
validity of their transactions (Teubner 1997).
Thus, while in the first case GEC is based on
agreements between states, in the second it
grows, almost spontaneously, as a private law
regime from the self-organization of private eco-
nomic agents.
Despite this difference, both approaches of
GEC share some fundamental assumptions. In
particular, they rely on an understanding of con-
temporary law as a deeply fragmented system in
which single legal regimes – here, the regime that
governs economic transactions – have become
increasingly independent and self-referent. Fur-
thermore, they restrict the use of the concept of
world constitutionalism with regard not only to
the kind of interactions that are regarded as con-
stitutionalized but also to the contents of what is
assumed to be the global constitution. In fact, only
one of the contents of the concept of constitution
outlined before (see supra) is considered essential
for the application of the concept to the global
scale, namely, the idea that the constitution must
contain the rules for the production of secondary
norms. As a result, the constitution is understood
World Constitutionalism
exclusively in its functional dimension or, more
concretely, as the legal document that (a) enables
the production of norms by specifying the pro-
cedures which govern the issuing of valid rules,
(b) restrains this production by clarifying in which
fields no rule-making should take place, and
(c) fills the gaps, in the contexts where rule-
making is allowed, which may arise from dispa-
rate norm-issuing actions at the transnational
level, thus guaranteeing sufficient homogeneity
to the legal regime (Dunoff and Trachtmann
2009, 9).
Besides the conceptual problems which origi-
nate from the reduction of the notion of constitu-
tion to just one element (see infra), even if we
assume the point of view of the supporters of
GEC, some questions remain unresolved. Starting
with the allegedly constitutional regime of the
WTO, even its most fundamental assumption –
namely, that the legal documents that lie at the
basis of the WTO regime take on the role of a
functional constitution insofar as they govern the
making of secondary rules – is highly contestable.
Indeed, it is not by chance that in many circum-
stances, due to the lack of norms regulating rule-
making in the WTO agreements, the tasks of a
functional constitutionalization – i.e., enabling,
constraining, and homogenizing rule-making –
have been assumed by the Appellate Body
(AB) (Dunoff and Trachtmann 2009, 189, 216).
However, while on the one hand the intervention
of the AB covered only singular cases, missing
therefore the inherently general scope of constitu-
tional rule-making, on the other hand it is ques-
tionable whether this kind of intervention does not
prove rather the absence of a truly constitutional
framework.
Even more deepgoing are the problems associ-
ated with the GEC as a spontaneous private law
regime. Indeed, the authors who make the case for
this interpretation of world constitutionalism face
an old and almost inescapable dilemma, namely,
the necessity that private law, in order to be an
effective legal regime, must be validated by public
law. In other words, without a public power which
guarantees that private contracts are respected,
these depend necessarily on the arbitrary will of
the contractors and are doomed, thus, to be little
5
more than words. The question has been
addressed by claiming that the legal system of
the lex mercatoria guarantees for the self-
validation of private law through the establish-
ment of a hierarchy of norms, i.e., of primary
norms which regulate the creation of secondary
norms, of iteration processes in formulating and
concluding private contracts, as well as of arbitra-
tion courts to settle the disputes (Teubner 1997,
16). Nonetheless, it remains controversial whether
these mechanisms are really suitable for the task.
Furthermore, insofar as the lex mercatoria is
undergoing a process of codification, elements
are necessarily introduced into its corpus which
are derived from national codes of private law and
through these, due to the usual interconnection of
private and public law at national level, also from
the national systems of public law (von Bogdandy
and Dellavalle 2013).
The Global Constitution of Governance
Just like GEC, also the second variant of world
constitutionalism is built on the assumption of the
fragmentation of global law. Yet, unlike GEC, it
does not concentrate – at least not only – on the
private dimension of global constitutionalization
but (also) on its “publicness.” The starting point of
the idea of a global constitution of governance
(GCG) is the acknowledgement of the necessity
to meet the growing request for governance of
global processes like labor and financial markets,
migration, ecological crises, terrorism, organized
crime, technological and scientific innovation,
exploitation of natural resources, etc., by
establishing executive networks composed of
members of national governments and of interna-
tional organizations. Although most authors who
can be led back to GCG are explicitly reluctant to
apply the concept of “constitution” to their under-
standing of global order, their interpretation of
postnational governance recalls, on a broader
scale, what has been labeled as “material consti-
tution” in the theory of national constitutionalism.
Beyond the legal framework of a formal basic law,
the notion of “material constitution” includes also
the nonformal rules and practices of interaction
that characterize the social and political life of a
community (Goldoni and Wilkinson 2016).
6 World Constitutionalism
Therefore, even if GCG lacks a fundamental legal
document – or set of legal documents – on which
to be based, the assemblage of sometimes dispa-
rate rules and practices of rule-making constitutes,
nonetheless, a clearly identifiable idea of global
order.
Some authors see the GCG as a mixture of
regulations issued by public agents – such as
representatives of national governments – acting
within the context of international organizations,
and rules emerging from agreements taken by
private actors, like those at the basis of the lex
mercatoria, whereas the line that should separate
the two dimensions is not always clear-cut
(Slaughter 2004). Other exponents of GCG,
instead, focus unequivocally on the public dimen-
sion of global governance, which is expressed, in
particular, by international public authorities
(IPA). In this second case, the “publicness” of
the policies that lie at the basis of GCG is assumed
to be guaranteed by the fact that IPAs are expected
to pursue shared interests and the common good
(von Bogdandy et al. 2016). Here, however, the
question arises about the definition of the common
good and the ways of its realization. Although the
theorists of IPA also refer to substantial criteria
like freedom or the rule of law, the most relevant
feature to ensure the “publicness” of the IPA pol-
icies is lastly just formal, namely, the very fact that
IPAs are endowed with a public mandate, derived
from public power, to act for the common good.
Insofar as they do so, the acceptance of their
policies by at least the majority of individuals
and populations involved leads to a sort of output
legitimacy. Hardly any attention is paid, instead,
to deliberative and democratic procedures of legit-
imation of international organizations.
The Constitution of Humankind
The word “constitution” was applied for the first
time to the organization of the international com-
munity in the 1920s (Verdross 1926). The concep-
tual foundation of this historical turning point was
twofold. First, their proposers claimed that a part
of international law, regardless whether it was
treaty law or customary law, was expected to be
valid not only for the parties involved vis-à-vis but
for the whole humankind. Secondly, they
assumed – according to the old tradition of natural
law – that the ontological basis for the worldwide
constitution is a humanity which shares common
fundamental values and interests. This conception
of world constitutionalism, unlike the former var-
iants, maintains a largely unitary conception of the
legal system – now extended to make the whole
community of humankind well ordered – while
being still skeptic toward the emerging legal
pluralism.
After World War II, the legal dimension of the
constitution of humankind (CHK) was established
in particular through the discipline of the obliga-
tions erga omnes, on the basis either of the UN
Charter or of the theory of jus cogens. More
concretely, supra-state international law is consid-
ered to be “constitutional,” in accordance with this
interpretation, insofar as it takes on three main
features of historical constitutionalism
(Tomuschat 1999). The first aspect is the central-
ity of the individuals and of their rights; although
states are still the most significant actors in the
international arena, their actions are to be
regarded as justified and legitimate only insofar
as they aim at the best possible realization of
individual rights, both at home and abroad. The
second feature is the increasing inclusion into
international law treaties of references to values,
like democracy and the rule of law, which should
serve as a foundation for a well-ordered interna-
tional community. The third element is the estab-
lishment of a germinal division of powers within
the system of international organization, whereas
the focus is concentrated in particular on the cre-
ation of an ever more powerful international judi-
cial power. A more formal approach to CHK
underlines rather the function of the UN Charter
at the top of the hierarchy of the legal instruments
of international law – which would correspond to
the sixth and last content of the concept of consti-
tution among those outlined in the introduction
(Fassbender 2009).
Serious criticism has been raised against CHK.
In fact, the alleged division of powers within the
system of international organization is at best
incomplete since the UN Security Council holds
both the legislative and the executive compe-
tences. Moreover, the UN Charter is far from
World Constitutionalism
having the same hierarchical position generally
recognized to constitutions in national systems,
and the authority of supra-state international law
is often contested. Lastly, the rule of law is con-
stantly threatened by the display of power (Paulus
2009). Beside these critiques, a further consider-
ation should be added. In an epistemological per-
spective, CHK relies heavily on the assumption
that a worldwide community of humankind exists
which shares fundamental values and interests.
However, this assertion is neither self-evident
nor can it be empirically proved since no less
evidence speaks for the contrary. Therefore, it is
understood rather as an ontological axiom to be
recognized and accepted – than as a political pro-
ject to be built. Given these premises, it is not
surprising that the paramount role in guaranteeing
the realization of CHK is given to the international
courts – as the interpreters of the already existing
ontological truth and of its legal expression – and
not to democratic processes of deliberation within
the international organization.
The Democratic and Eco-social Cosmopolitan
Constitution
World constitutionalism has been accused of cov-
ering up normatively – and thus of improperly
dignifying – worldwide hegemonic ambitions car-
ried out by transnational elites. By marginalizing
or even annihilating the principle of popular sov-
ereignty rooted in national traditions of constitu-
tionalism, transnational economic agents, as in the
case of GEC, technocratic experts in respect of
GCG, or legal professionals and judges at inter-
national courts are allowed to act in a sphere
which is less politically controlled by the involved
individuals and populations than in national con-
texts. Thus, under the cover of a noble and pro-
gressive idea, social and economic exploitation
would flourish on an unprecedented scale. In
fact, constitutionalism – before going global –
has never been an elitist undertaking but a
bottom-up project supported by broad coalitions
of stakeholders.
Taking this criticism seriously, a fourth variant
of world constitutionalism has been conceived
which keeps the contents of the concept of consti-
tution as broad as possible by recognizing, at the
same time, the value of pluralism and diversity, as
7
well as by putting the stakeholders at the basis of
the entire proposal. The epistemological funda-
ment, here, is the communicative understanding
of society, according to which this is constituted
by different contexts of interaction. The most
general and inclusive among these is the one in
which human beings are involved transnationally
and irrespective of their citizenships and belong-
ings (Dellavalle 2015). In accordance with this
understanding, world – or, to be precise,
“cosmopolitan” – constitutionalism is the political
project that aims at regulating this kind of trans-
national interactions with principles and rules in
order to make them predictable, inclusive,
and just.
Cosmopolitan constitutionalism is based on
four pillars. The first is a rather thin layer of
international organizations – largely comprised
of institutions under the aegis of a reformed
UN – with the limited task to protect peace and
fundamental human rights (Habermas 2004;
Kadelbach and Kleinlein 2006). However, in con-
trast with the present situation, these institutions
should be endowed with adequate democratic
legitimation – which is what the second and
third pillars have to deliver. In particular, the sec-
ond pillar envisages to deepen and broaden the
parliamentarization of the institutions of the inter-
national community (Archibugi 2008; Peters
2009), while the third explores bottom-up forms
of nonrepresentative – i.e., direct – and inclusive
empowerment of stakeholders, aiming at the safe-
guard of the social and ecological conditions of
life (Tully et al. 2016). The fourth pillar is consti-
tuted by the politicians, the scholars, the legal
professionals, etc., who are committed – everyone
in and with her/his activities – to an inclusive, just,
and democratic world order. Under these condi-
tions, world constitutionalism is explicitly some-
thing to be developed, rather than a matter of fact
to be simply analyzed.
Conclusion: Toward a New Concept of
Constitution?
None of the variants of world constitutionalism
matches perfectly the full range of contents of the
national concept of constitution. As a result, we
8 World Constitutionalism
are confronted with two possible outcomes: the
first is to give up the use of “constitution” for the
kind of legal order that is established beyond the
borders of the nation-state; the second is to ques-
tion which ones of the contents of the national
concept of constitution are really essential for the
notion to make its use generally justifiable and its
application to the postnational context reason-
able. Some considerations may help to find a
way out of the dilemma.
First, within the national context, the constitu-
tional identity is sometimes defined by references
to religious beliefs, national traditions and history,
or substantive political goals. Yet, in a post-
metaphysical society, characterized by ideologi-
cal, social, political, and religious pluralism, the
normative elements of the constitutions cannot
but be only formal, in the sense that they are
limited to the specification of the rules of interac-
tion. This assumption represents the core tenet of
constitutionalism in the liberal and democratic
nation-states, but is a downright inescapable
necessity for the definition of world constitution-
alism, where we are confronted with a much
higher level of cultural and religious diversity.
Secondly, national constitutional identity
always implies an element of exclusion: in fact,
we are what we are also because we are not what
others are. Obviously, this element cannot be part
of a constitutionalism which aspires to include all
human beings. Nevertheless, it is also possible to
understand constitutional identity not by focusing
primarily on the contrast to others but on the tasks
of our community. Given this premise, even a
cosmopolitan constitutional identity becomes
conceivable if we address the protection of peace
and fundamental rights, as well as of the social
and ecological conditions of life, as the paramount
missions of the cosmopolitan society.
Thirdly, if the constitution has to guarantee that
social interactions are peaceful and cooperative,
as well as that they aim at benefits shared by all
involved, then it cannot be value-free. In national
liberal and democratic constitutions, these values
are expressed through the safeguard of fundamen-
tal rights and democratic procedures of legitima-
tion. Albeit with the inevitable differences and
nuances, these values should be enshrined also
in world constitutionalism. This consideration
leads us to conclude that the use of “constitution”
is inappropriate if applied to conceptions in which
little or no attention is given to the most value-
related contents of the basic law of the transna-
tional community – like CGE and GCG.
Fourthly, the only content that cannot but be
excluded from the postnational definition of con-
stitution is the presumption of the hierarchical
supremacy of the constitution within the legal
system. This pretension may be reasonable for
the constitution as the apex of the domestic system
of norms but is largely inapplicable to any kind of
normative integration beyond the nation-state.
Indeed, the jus cosmopoliticum cannot – and
should not – be hierarchical but is characterized
by the dialogical interaction and cooperation of
supra-state principles and norms, as well as of
political institutions and courts, with their national
counterparts. Nonetheless, provided that the con-
stitution is the legal document which organizes
the life of a community, and a human community
of cosmopolitan scope exists whose interactions
should be regulated, the only logical conclusion,
then, is that the legal documents which are endo-
wed with the task of shaping the cosmopolis have
a constitutional quality as well – and a quality
which leads us to the most advanced frontier of
constitutionalism.
Cross-References
▶ Catholic School Thought
▶ Cosmopolitan (Transnational) Citizenship
▶ Cosmopolitan Constitutionalism
▶ Cosmopolitanism
▶ Hans Kelsen (on Legal Science)
▶ Law and Language (General)
▶ Law as Discourse
▶ Legitimacy of International Law
▶ Natural Law Theory
▶ Philosophy of Language and Law
▶ Political Constitutionalism
▶ Positive Law and Natural Law
▶ Protestant Natural Law
▶ The History of Legal Pluralism
World Constitutionalism
References
Archibugi D (2008) The global commonwealth of citizens:
toward cosmopolitan democracy. Princeton University
Press, Princeton
von Arnim J (1905) Stoicorum veterum fragmenta, vols
I and III. Teubneri, Lipsiae
von Bogdandy A, Dellavalle S (2013) The lex mercatoria
of systems theory: localisation, reconstruction and crit-
icism from a public law perspective. Trans Legal The-
ory 4:59
von Bogdandy A, Goldmann M, Venzke I From public
international to international public law: translating
world public opinion into International Public Author-
ity, MPIL Research Paper Series no. 2016-02
Dante A (1986) De Monarchia (1310–1314). In: Dante
A (ed) Opere minori, vol II. Utet, Torino
Dellavalle S (2015) Addressing diversity in post-unitary
theories of order, GlobalTrust working paper
no. 05/2015, The Buchmann Faculty of Law, Univer-
sity of Tel Aviv
Dunoff JL, Trachtmann JP (eds) (2009) Ruling the world?
Constitutionalism, international law, and global gover-
nance. Cambridge University Press, Cambridge/New
York
Fassbender B (2009) Rediscovering a forgotten constitu-
tion: notes on the place of the UN charter in the inter-
national legal order. In: Dunoff JL, Trachtmann JP, see
supra, p 133
Fischer-Lescano A, Teubner G (2007) Fragmentierung des
Weltrechts: Vernetzung globaler Regimes statt
etatistischer Rechtseinheit. In: Albert M, Stichweh
R (eds) Weltstaat und Weltstaatlichkeit. Verlag für
Sozialwissenschaften, Wiesbaden, p 37
French RR, Nathan MA (eds) (2014) Buddhism and law.
Cambridge University Press, Cambridge/New York
Gentili A (1933) De jure belli libri tres (1612). Clarendon
Press, Oxford
Goldoni M, Wilkinson MA( 2016) The material constitu-
tion, LSE working papers no. 20/2016, London School
of Economics and Political Science
Grotius H (2005) In: Tuck R (ed) De jure belli ac pacis [The
Rights of War and Peace] (1625). Liberty Fund,
Indianapolis
9
Habermas J (2004) Der gespaltene Westen. Suhrkamp,
Frankfurt a. M.
Hostiensis H (1556) Summa Aurea (1250–1261).
Servanius, Lugduni
Kadelbach S, Kleinlein T (2006) Überstaatliches
Verfassungsrecht. Archiv des Völkerrechts 44:235
Kant I (1977a) Zum ewigen Frieden. Ein philosophischer
Entwurf (1795). In: Kant I, Weischedel W (eds)
Werkausgabe, vol XI. Suhrkamp, Frankfurt a M, p 191
Kant I (1977b) Die Metaphysik der Sitten (1797). In:
Kant I, Weischedel W (eds) Werkausgabe, vol VIII.
Suhrkamp, Frankfurt a M, p 305
Kelsen H (1934) Reine Rechtslehre, Deuticke, Leipzig/
Wien
Kelsen H (1944) Peace through law. University of North
Carolina Press, Chapel Hill
Paulus AL (2009) The international legal system as a
constitution. In: Dunoff JL, Trachtman JP, see supra, 69
Peters A (2009) Dual democracy. In: Klabbers J, Peters A,
Ulfstein G (eds) The constitutionalization of interna-
tional law. Oxford University Press, Oxford/New York,
p 263
Pufendorf S (1995) De jure naturae et gentium libri octo
(1672). Hein, Buffalo
Slaughter A-M (2004) A new world order. Princeton Uni-
versity Press, Princeton/Oxford
Suarez F (1944) De legibus, ac Deo legislatore (1612). In:
Suarez F (ed) Selections from three works. Clarendon
Press, Oxford
Teubner G (1997) “Global Bukowina”: legal pluralism in
the world society. In: Teubner G (ed) Global law with-
out a state. Dartmouth, Aldershot, p 3
Tomuschat C (1999) International Law: ensuring the sur-
vival of mankind on the eve of a new century, “col-
lected courses of The Hague academy of international
law”, vol 281. Nijhoff, The Hague
Tully J, Dunoff JL, Lang AF Jr, Kumm M, Wiener
A (2016) Introducing global integral constitutionalism.
Glob Con 5:1
Verdross A (1926) Die Verfassung der Völkerrechtsge-
meinschaft. Springer, Wien/Berlin
de Vitoria F (1964) De Indis (1538–1539) et De Jure Belli
Relectiones (1532). Oceana, New York/London