Constitutionalism and International Law: Clarity from “Impurity”

There has been resurgence in discourse relating to the relationship between domestic constitutional law and international law. Further, perhaps in an effort to re-examine normativity in international relations, there has been increased discussion of the prospects of international constitutionalism. The latest edition of the European Journal of International Law has several such articles:- “Human Rights as International Constitutional Rights” by Stephen Gardbaum and “Human Rights, International Economic Law and ‘Constitutional Justice’” by Ernst-Ulrich Petersmann, amongst others. Similarly, the latest edition of the International Journal of Constitutional Law features a number of articles which examine the impact of international law on domestic constitutional law and vice versa. Elements of this body of scholarship draw on disciplines such as moral philosophy and rational choice theory.

 

This enterprise is, however, not new. But it has undoubtedly taken on added sophistication. Hans Kelsen was one of the first to think about the relationship between the domestic and the international legal orders. From his “Pure Theory of Law”, Kelsen posited that international law is a source of validity for changes in the basic norms of domestic legal systems. This suggests that all domestic constitutional orders derive validity from international law. Further, this theory is considered “pure” insofar as it is derived from cognition focused on law alone. To Kelsen, an “impure” theory of law would include ingredients of psychology, ethics and other disciplines or ideologies.

 

What would Kelsen say about the “purity” of current interdisciplinary scholarship in international constitutionalism then? Domestic constitutional law scholarship has itself evolved along inter-disciplinary lines. For one, fairness and justice discourse is seldom far away, as evidenced by the works of Rawls and other moral philosophers. Further, public choice theory and other law and economics theories have had significant impact on domestic constitutional law scholarship. I suppose it is only natural for these and other extra-legal disciplines to have had the same effect on international constitutional scholarship and hopefully, increased scrutiny from multiple angles will help clarify the factors that continue to divide the international and domestic spheres. I believe a collection of essays edited by Professors Joel P. Trachtman and Jeffrey Dunoff on this very topic is forthcoming. We shall update you accordingly.

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