The Politics of Constitutionalism: International Institutions and the Relationship Between Law and Politics
Since the fall of the Berlin Wall there has been both noticeable optimism and anxiety for the future of international institutions. In European international legal scholarship in particular, there has been both a renewed hope to enhance international regulatory governance, influenced by regional and global economic integration, but also a fear of hegemonic abuse, perhaps taking advantage of fragmented, incoherent and unordered regimes and networks, or through institutional "capture" under abusive hegemonic domination. Scholars have reacted developing "constitutional" perspectives on international institutional governance: promising political restraint and political coherence; effective but hierarchical, limited governance. This offers a palliative to concern over depleted sovereignty, accountability in opposition to hegemony, and a normative, structural hierarchy in opposition to fragmented incoherency.
I take a critical stance to these claims, situating these aspirations as part of a perpetual liberal promise. A promise of a cosmopolitan future under the rule of law: lawyers looking inwards to Western tradition and offering a universally verifiable future: the idea of the Western state. This narrative is inseparable from international law’s “professional” transformation in the nineteenth century, where legal structures were interwoven with the terms of post-revolutionary domestic politics. The “constitutionalists” rely on two fatal suppositions, however. An ideological supposition of an imaginary international rule of law, secured by liberal elites through supranational governance, and a structural supposition, ignoring the schizophrenic nature of institutions as autonomous, functional entities, but also as agorae for political contestation - a necessary role which can give voice to the otherwise disenfranchised, giving direction to politics as a positive end in itself.
Keywords: International Law, International Relations, International Organizations, History, Political Ideology, Liberalism
PhD Candidate and Graduate Tutor in Law, School of Law, University of Sheffield