For Democratic Global Governance
Revue européenne du droit
Coronavirus is a global problem. Migration flows are a global problem. Global warming is a global problem. Social inequalities are a global problem. Tax evasion is a global problem. Gender equality is a global problem. Freedom of the press is a global problem. These “problems” do not involve the existence of a person, a State or a continent. They involve the existence of all people, all States, all continents, at the same time. It would therefore be illusory to think, or to suggest, that each person, each State, each continent can settle these matters “in its own way”, “according to its own free decision”. We must abandon the principle of sovereignty, a principle that has become useless and dangerous. We must abandon the national-state framework and propose the principle of solidarity to (re)found the coming world political order.
In 1941, Ernesto Rossi and Alterio Spinelli, anti-fascist activists imprisoned on the island of Ventotene, wrote a manifesto that is even more topical at the beginning of the 21st century: “The ideology of national sovereignty has been a powerful lever of progress; it has made it possible to overcome many divergences based on parochialism with a view to greater solidarity against the oppression of foreign rulers. However, it carried within itself the seeds of capitalist imperialism. The absolute sovereignty of nation States has led to the will to dominate each nation-State, as each feels threatened by the power of others and considers as its ‘living space’ ever-larger territories to allow it to move freely and secure its livelihood without depending on anyone else. As a result, the State has been transformed from a guarantor of citizens’ freedom to a patron of subjects who are at its service. The problem that must be solved first of all – under the risk of rendering vain any further progress – is the definitive abolition of the division of Europe into sovereign national States’’.
This conclusion in the form of an invitation was not heard at the end of the Second World War. It must be heard today, in 2021, in order to emerge from the polycrisis. Just as the Renaissance gave rise to the principle of sovereignty and the State, globalization imposes another principle of political organization: the principle of solidarity between people to manage their common goods by setting up global institutions.
Objectively, all economies, all music, all ideas, all emotions are connected. Objectively, all people form a multicultural global human community. Objectively, humans share the same situations, experience the same conditions and live the same events that constitute them in a world historical Being. This has been the case for a long time, if we are to believe Montaigne, who stated that “each man bears the entire form of the human condition”. But, subjectively, this human condition, this world historical Being, this community of existence was not felt by the people. Because all knowledge led each person to live as an irreducible singularity. Because the spontaneous reaction, even today, is to object that cultural, demographic, religious, economic and political differences accross the Globe make it impossible to establish the existence of a world historical Being.
But, as such, it would quickly become impossible to speak of a French historical Being in view of the social practices that sometimes vary greatly from one end of the hexagon to the other. Unless we define society as a meeting of clones, diversity and even differences do not prevent us from becoming a society; on the contrary, it is its underlying condition, since to become a society is always to associate with someone other than oneself by finding the interests, principles, and values that can form a bond (with this other person). The World Historical Being is not the expression of a Hegelian becoming of the European or Western historical Being. It is today built and continues to build itself by the ability of people to reason with one another about their similarities, their differences, their correspondences.
Today, the subjective meets the objective. Through the multiplication of crises – social, environmental, sanitary, etc – people become aware of “their community of fates” in the words of Edgar Morin, feel in their beings what the artists were singing in 1985: “we are the world”. With the coronavirus, each person experiences the necessary worldwide coordination of scientists – who are not all in the same country! – to find the right treatment; experiences the hitherto abstract and distant formula “health is a global common good”; experiences the economic systems that bind them together and force them to think together about ways to get out of the crisis.
This sensitive experience must not be lost; it must be experimented in accordance with the process described by John Dewey. That is to say, the manifestation through acts and institutions of the consciousness that people have of their relational experiences. If health is now seen as a global common good and not as a concept, it becomes possible to disconnect this good from nation-State institutions and entrust it to a global institution. And this is the case with the issue of climate, biodiversity, migratory flows, tax evasion, etc.
That this historical moment prompts us to reflect about governance that is not only global but also democratic leads us to question the legal document through which the democratic principle is expressed: the constitution. “Global”, “international”, “postnational” constitutionalism has, recently, become a theme of reflection for jurists, both internists and internationalists. And, with a few exceptions, the authors highlight the contradictory, illogical and aberrant nature of this notion. And they are right. It is contradictory to think of a post-national constitution when the constitution is “the genius of the people” and there is no such thing as a post-national people. It is illogical to conceive of a world constitution imposed on States when the international democratic order is based on respect for the principle of sovereignty of each State. It is absurd to imagine that a world constitution could express the living-together of peoples with different histories, traditions and cultures. They are right ... if and only if the reflection remains within the conceptual framework inherited from the 18th and 19th centuries, that is to say, a framework that thinks in terms of constitution, State, nation and sovereignty. This framework, which in its time “revolutionized” the understanding and perception of the order of things, must today be rethought in light of a global society. All conceptual frameworks move under the effect of globalization; so does the one legal one.
Until recently, and perhaps even today, the relationship between international law and constitutional law was represented under the double opposite figures of monism and dualism.
For advocates of dualism such as the German Heinrich Triepel or the Italian Dionisio Anzilotti, domestic law and in particular constitutional law and international law constitute two equal legal systems, two disciplines that are foreign to each other, independent and isolated from each other. The validity of internal norms is independent from their conformity to international law. This separation of the two disciplines is based, according to the dualists, on the difference of sources, legal instruments and addressees. Constitutional law expresses the will of a State, international law by the agreement of several States; constitutional law is embodied by the constitution, which is a unilateral act, international law by a treaty, which is a contractual act; constitutional law is addressed to citizens, international law to States. The two orders being separate, there can be no normative conflicts between them and the norms of one order have no force in and for the other order.
For the supporters of the monist thesis, international law and internal law constitute one and the same order within which the two types of norms, international and internal, are subordinate to each other. For some, in the Bonn School represented by Erich Kaufmann and Max Wenzel (1920), monism gives precedence to domestic law, since it is the constitution of the state that provides the basis for the State’s international competences and the place of international treaties. For others, such as “the Austrian Normative School” represented by Kelsen and Verdross and defended in France by Duguit and Scelle, monism gives primacy to international law because the latter conditions domestic law and is “at the top of the universal legal edifice” according to Verdross’s formula.
The choice would therefore be between indifference or submission. The indifference between international law and constitutional law (the dualist school) would not allow us to think about the internationalization of constitutional law. Or the submission of international law to constitutional law or of constitutional law to international law (the monist school). Kelsen is certainly the one who most strongly theorized this submission through his metaphor of the pyramid of norms: “there can only be one type of relation between two normative orders,” he writes, “that of partial and subordinate orders in the superior unity of a total order”.
However, these representations are no longer able today to account for the relationship between constitutional law and international law. The present moment of social internationalization makes it necessary to rethink the structure of the legal order (1) and the legitimacy of this new structure (2).
1. The affirmation of a new representation of democratic global governance
1.A. The representation of governance in networks
The inadequacy of the Kelsenian representation – monism with precedence for international law – is not only due to globalization. It has to do, first of all, with the logical structure of the Kelsenian theory. Indeed, its pyramidal conception clashes with its own conception of the interpretation of norms since, according to Kelsen, judges are not in a situation of subordination to norms; in order to apply them, they must determine their meaning, i.e., they must move them from the quality of legal statements to that of legal norms, and consequently the internal judge is the master of the international norm. On the other hand, according to Kelsen himself, the pyramid stands only due to the hypothetico-logical norm, the famous grundnorm; whereas the constitution should derive from the fundamental norm, it is the constitution, an inferior norm, that is supposed to give rise to the hypothesis of a norm that is superior to it so that it appears inferior to it!
Evidently, internationalization, that is, the emergence of a common global space for the application of rights, has brought to light the logical contradictions of the pyramidal representation by showing a non-hierarchical tangle of rights. The 19th century was the one in which each State brought order to chaos by producing a constitution; the 20th century was the one in which the States built relations between internal orders, the so-called time of system relations; the 21st century is the one in which law is no longer thought of in terms of “internal/external” but in terms of global order. On the semantic level, it may be interesting to observe that European law is increasingly being stated in constitutional terms: the ECHR says that the Convention is “the constitutional instrument of the European legal order” and the Court of Luxembourg qualifies the treaties establishing the European Union as a “constitutional charter”. The same applies to the texts establishing the UN, the ILO, the WHO, etc.
This semantic shift opens up the space for alternative theories to that of the hierarchy of rights systems. Some try to save the Kelsenian vision and propose the model of a plurality of normative pyramids. Others, such as Ingolf Pernice, reject the pyramidal model in favor of that of “multilevel constitutionalism”. Others such as François Ost and Mireille Delmas-Marty, propose a radical paradigm shift by thinking of rights no longer in terms of pyramids but in terms of networks. Internationalization manifests itself through processes of interaction between constitutional systems that implement legal communicability. In this network system, no element of the network is privileged over another, no element is merely subordinate to one or another. Constitutional rights are connected to each other, interact with each other, thus breaking both the classical conception of an incommunicable national constitutional law and the conception of an international law separate from constitutional rights.
The global legal order can be thought of through the model of a star. It is built by and with constitutional identities. In other words, it is not a pyramid but a star whose branches are the constitutional identities, a star that draws its vital energy from its branches and gives its branches their radiance and luminosity. The world legal order is not the only level of normative production, nor is it an autonomous level. It draws its general principles from the constitutional traditions of the member States, it takes its reasoning from constitutional jurisprudence, it leaves States a margin of appreciation in the implementation of fundamental rights. In a word, it supports and builds from several levels of normative production, local, regional, national and international, without one of these levels being, once and for all of overhanging. All of them compete and participate in the production of the world constitutional star. And this sense meets the movement of de-State internationalization of contemporary constitutionalism.
If law can be thought of now as a network or a star, then it is possible to think of the emergence of a new discipline, a new knowledge, a new regime of intelligibility of the legal order: global or international constitutional law.
1.B. The affirmation of a global constitutionalism
The first condition for the possibility of an international constitutional law is a theory of a global or comprehensive constitution. It is built from global constitutional standards. A standard designates “a generally shared and recognized principle”; hence global constitutional law must define the modalities of the discovery of this shared generality. One of the possible venues is that opened up by the recent work of a young generation of historians who are redrawing a “connected history” that tends to understand history from points of view that are more diverse than those of Europeans or Westerners, as illustrated in particular by the work of Romain Bertrand, Histoire à part égales (History as equals). These works are perhaps a path to be followed by jurists to discover the world constitutional standards under the aegis of “connected law”, that is, a law that would have the advantage of focusing on situations of contact and the circulation of concepts. The standards would not be sought through the juxtaposition of legal systems presented as perennial, nor in a “model”, presented as universal and therefore supposed to apply to the entire world constitutional system. They would be constructed by connecting the constitutional networks that would constitute the global constitutional space.
In the classical paradigm of constitutional law and international law, as a whole structured around the principles of State and Sovereignty, it is often argued that this space is unthinkable. Wrongly so. For, without needing to change the paradigm, by remaining within the classical regime of constitutional and international intelligibility, it is permissible to hypothesize a global constitutional space. The three elements usually retained by jurists to identify a legal order are, in fact, present: a territory (the planet), a people (humanity) and a legitimate power over this territory with respect to this humanity (the UN and its institutions, including the International Court of Justice). In this global constitutional space, global constitutional standards can thus emerge from the connection of constitutional networks in which multiple actors, public, associative and private, participate.
The second condition for the possibility of a comprehensive constitutional law is to rethink the traditional analytical framework of the links between constitution, state and people. Two objections can, in fact, be immediately raised: a constitution has as its object the State, and since there is no world State there can be no world constitution and therefore no global constitutional law. Since a constitution is “the genius of a people”, the world people do not exist and there can be no global constitution either.
However, it is necessary to re-read article 16 of the Declaration of 1789: “a society in which the guarantee of rights is not assured, nor the separation of powers determined, has no constitution”. In other words, the object of a constitution is not only the State but the society to which it gives form. It is not only the State, since all the activities of individuals seized by the law can be related to the constitution. This, in legal language, is translated by the expressions “constitutionalization” of civil law, labor law, social law, commercial law, administrative law, criminal law, and similar. That is, by the idea that all branches of law, and not only political law, find their principles in the constitution. Moreover, the fact that the constitution is the act that informs – in the philosophical sense of the term – society is only a break with regard to the habit of thinking of the constitution as an act that organizes public powers. When Montesquieu imagines the ideal constitution, he starts from an analysis of society, from an analysis of the “social powers” – nobility, bourgeoisie, etc. – that are the basis of the constitution. When Rousseau writes his draft constitution for Corsica, he explicitly takes as the basis and objective of his work the structuring of the Corsican social body. This conception of the constitution-expression of society faded away when the idea was imposed, throughout the 19th century, that it was only the particular status of the rulers; it reappears logically today with the emergence and development of the idea of constitution-guarantee of rights which contributes to include all social activities in the scope of the constitution.
Nor is the existence of a world people the precondition for a world constitution. “One is not born a woman, one becomes one,” wrote Simone de Beauvoir; one is not born a citizen of the world, one becomes a citizen through the constituent act. The force of law, recognized by Pierre Bourdieu, is to institute, that is to say, to make what it enunciates exist, to give life to what it names. Thus it will be with the world constitution which, by naming the citizens of the world, will make them exist “in reality”. It is the magical force, often ignored, of the language of law and in particular of the words of the constitution to make things with words.
Recognizing in Siéyès the father of the theory of the people subject to constituent power, Carl Schmitt, in his Constitutional Theory, re-actualizes and reinforces the abbot’s ideas by considering that if the people are the subject of constituent power and if the constitution is the act of the people capable of acting politically, “it is necessary that the people preexists and is presupposed as a political unit”. The notion of “people” is undoubtedly not the same in Siéyès and Schmitt; it refers to an origin and ethnic homogeneity in the latter, to natural law in the former. But both discourses express the same idea of the people, whatever its identity, above and before the constitution. It must be agreed that this scholarly representation of the relationship between the people and the constitution has the immense merit of “making it true” by spontaneously echoing the ordinary language that generally presents the people as the author of the constitution. The effectiveness of the two discourses, scholarly and ordinary, thus produces a truth of evidence, of common sense, a “well-founded illusion” according to Durkheim’s formula, which reinforces the system and which it obviously seems absurd to discuss.
And yet, it is not forbidden to deconstruct this representation and to argue that the “genius of the constitution is the people” or, more exactly, that “the genius of the constituent process is the people”. The citizen of the world, in fact, is neither an immediate fact of consciousness nor a natural fact; it is the result of a continuous and often conflicting process of integration of individuals, groups, communities that are initially foreign to each other and which, through the action of the law and the institutions that the constitution establishes, will find themselves bound by common questions to be debated and resolved, by common values, by common services that, in turn, will develop a sense of solidarity that constitutes the world historical Being. A world constitution will be this moment of crystallization of the process of formation of the world historical Being, offering the citizens of the world the instrument to see themselves as such. The world historical Being exists, but it will only through the emerge constituent gesture that will give it life.
2. The affirmation of a new representation of the democratic legitimacy of global governance
2.A. The principle of global commonality
The political inadequacy of the principle of sovereignty. Domestic constitutions were founded on and implemented the principle of sovereignty to express the legitimacy of the national people to determine for itself the rules of its living-together. It cannot be the principle that establishes and implements the political legitimacy of action of the world historical Being. All the more so since this principle has become empty and dangerous.
Empty first of all because, in the words of Sandana Shiva, “globalization has genetically modified the State; it no longer represents the interests of citizens but those of multinational corporations”. The history of the right of peoples to self-determination is implacable: in its name, a people claims and endows itself with a State, and then that State disposes of its people and seeks to dispose of other people as well. What is at issue, then, is the principle of sovereignty. It was invented in 1576 by Jean Bodin as an ideological weapon at the service of the King who, at the time, was looking for an argument that would allow him, at the top, to challenge the power of the Pope and, at the bottom, to subdue the lords of his kingdom. No doubt useful at that time in history, it is no longer useful today. It has become an empty principle. National sovereignty no longer means anything when large international contracts involve technology transfers and products are no longer manufactured by and in one country but from components from all continents. National sovereignty is meaningless when trade barriers are abolished between States as they once were between the provinces of the Kingdom. National sovereignty no longer means anything when communications tend to universalize consciences.
Dangerous, second all, because the principle of sovereignty leads the State, that refers to the desire to secure its means of living, to promote its freedom of existence and in doing so, to impose its domination over weaker States. To take an example: Catalonia wants to become the State of the Catalan people, while it lives in the Kingdom of Spain, whose constitution recognizes the existence of the peoples of Spain, including the Catalan people who, like the Basque people or the Andalusian people, enjoy political autonomy! In other words, Catalonia no longer wants to live with other peoples within a State; it wants to become a nation-State, the State of the people. In this way, it will finally be sovereign, free to organize itself as it wishes.
This is a dangerous sovereignist illusion, whose Catalan enacment is easy to imagine, since it has produced the same results everywhere and always. Assuming that Catalonia becomes a sovereign State, at the beginning the sun will shine: the sun of the Republic, the sun of the flag, the sun of the language, the sun of the way of life, the sun of the happiness of finally being alone with its peers. Then, quickly, the clouds will pile up. Inside, Tarragona and Lleida will ask to be able to administer themselves freely. But above all, outside, Catalonia will have to promote its existence, to be concerned about its own development without worrying too much about the consequences for its neighbors. Born to free itself from the Spanish “yoke”, Catalonia will become a nation-State imposing its “yoke” both internally and externally.
The emergence of the principle of global commons. Just as the Renaissance gave rise to the principle of sovereignty and the State, globalization imposes another principle of political organization: the law of multinationals. As Vandana Shiva writes, this will not be countered by nation-States but by a “global awakening of citizens”. With globalization, a new world is beginning, made up of a pluralism of conceptions of life, of post-national spaces for deliberation, of income detached from the labor force, of global institutions for decision-making in matters of health, the environment, climate, food, etc. This world that is beginning needs a new spirit-principle to guide it: the world that ends had sovereignty as its principle; the world that comes has as its principle loyal cooperation between peoples, the principle of the en-common, to take up Monique Chemille-Gendreau’s proposal, the principle of common goods that peoples share and that they must manage by equipping themselves with post-State institutions. And this principle must inspire the writing of the next world constitution.
The idea is far from being accepted, and some, like Finkielkraut, grumble, vituperate and anathematize against the disappearance of the principle of sovereignty. They are wrong. The anguished posture in the present always leads to a nostalgia for the past which ends up fuelling the desire for a return to what is presented not as the ancient order of things but as the true, natural and authentic order of human reality. The past is transformed into myth, the work of meaning is halted and things are immobilized at a point in their history. The fact that a world ends does not mean that the world is finished. In the last lines of his Memoires d’Outre-Tombe, Chateaubriand writes: “it seems that the old world ends and the new one begins”.
In his book Politics, Aristotle defines the polis as a community of the good life for families and lineages for a fulfilled and self-sufficient life. This definition refers to three functions of the polis: an economic function – ensuring the satisfaction of the needs of the community – a security function – ensuring defence against enemies – and a moral function – enabling people to live well together. And for Aristotle, it was this last function that allowed the polis to be characterized in relation to simple conventions of common utility. Simple conventions of common utility, this is what the World has been, globally, until now a constitutional polis, this is the World that a world constitution will institute. It is not, in fact, the same World that is instituted according to whether it is instituted by the categories of international law or by the categories of constitutional law.
With the category titled Treaty, the Germans, Italians and Spaniards see themselves as foreigners belonging to different States that mark their identity and make agreements among themselves; with the category Constitution, they see themselves as members of the same family with different histories but united under the same law. With the category Treaty, a world public opinion can manifest itself, at best, which will exercise a more or less effective power of influence; with the category Constitution, world public opinion is transformed into a community of world citizens and the power of influence into a power of political decision. With the category Treaty, individuals are taken as persons and consumers; with the category Constitution, they acquire the quality of citizens, that is, political actors. If the constitutional “moment” makes a break with the treaty “moment”, the passage from one to the other is not necessarily brutal; it is made, prepared, worked on under the treaties.
2.B. The principle of a global jus-commune
Judges are the main actors in this transnational constitutionalism. Indeed, internationalization is manifested by a judicial globalization brought about by the almost simultaneous appearance before different national and/or regional jurisdictions of identical legal questions, most often in the field of human rights and criminal law, but also in economic or business law. Judges are thus called upon to make decisions whose scope extends far beyond the boundaries of the domestic legal order in which they operate and which concern matters involving aspects of international or foreign law or matters that judges know to have already been dealt with by a foreign court. All of these circumstances encourage judges to consider solutions adopted outside their domestic legal order and to establish relationships with the foreign courts.
This phenomenon leads national judges to work on a transnational basis, to engage in dialogue and to borrow from each other, to seek information from their colleagues, to meet and share their case-law. Judges are not subject to international influence; they are the actors of this legal transnationalism, of this global jurisdictional diplomacy in which a global constitutional community is built. This dialogue is manifold, between national judges and between national and regional judges. It can be tense or difficult, as shown by the relations between the ECHR and the ECJ, between the ECHR or the ECJ and national constitutional courts. But, all in all, a global constitutional case-law emerges through the participation of the constitutional courts in jurisdictional networks.
Hence the inevitable questions stand: is it legitimate for a national judge to consult foreign case-law in order to decide a domestic case and is it legitimate that this construction of international constitutional standards is the work of judges and not of the people or their elected representatives? These legitimate questions open up a reconsideration of the contemporary democratic requirement that does not or no longer boils down to the power of suffrage. The guarantee of rights has become a code of access to the democratic quality of governance, and judges are its vectors.
Moreover, the authority of foreign case law solicited by a national judge is only an authority of persuasion in that it can offer more convincing insight or reasoning on identical or similar issues. Secondly, this construction by judges of a transnational constitutionalism is based on constitutional standards derived from the main international treaties and covenants on human rights ratified by States.
Finally, and as a consequence of the above, the legitimacy of this jurisdictional work rests on the principle of good faith insofar as it obliges States to respect the international conventions, covenants and treaties they have signed and from which the international constitutional standards are derived.
Judges crystallize and give effect to the world constitutional heritage. They thus participate in making world governance democratic since it is no longer only in the hands of the States, but also in those of the citizens through access to judges who impose on the States the respect of fundamental rights.
The stakes are therefore high and the moment to dare to choose the constituent pathway can no longer be put off. The current situation is unsatisfactory: States have transferred many of their competences but have retained democratic legitimacy; regional and international organizations have received competences but have no democratic legitimacy. Therefore, no matter how one turns things around, either one must put the competences where the legitimacy is, or one must put the legitimacy where the competences are. Each of the two answers has its own logic and coherence; it is time to assume a clear and radical choice without getting lost in a consensual “good little mix” of the two positions. And, if the second one is chosen – which is my case – we should now open the process of a world constitution organizing democratic world governance.
“The day will come,” writes Victor Hugo, “when all of you, nations of the European continent, without losing your distinct qualities, will be closely united in a superior unity and will constitute the European fraternity, and the day will also come when, even more transfigured, it will be called Humanity.” “The day will come.” The sooner, the better, to avoid the coming of the dark night!
 R. Bertrand, L’Histoire à parts égales. Récits d’une rencontre Orient-Occident (XVIe-XVIIe siècles), Seuil, 2011.