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Global constitutionalism and constitutional imagination

Published online by Cambridge University Press:  20 November 2017

OLIVIERO ANGELI
OLIVIERO ANGELI*
Affiliation:
University of Dresden, Institute of Political Science, 01062 Dresden, Germany
*
*Email: [email protected]
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Abstract:

There is a difference between the normative reasons for endorsing global constitutionalism and the conditions determining its emergence. This article addresses the latter issue. Specifically, the article claims that global constitutionalism rests on an underexplored shift in constitutional imagination. To account for this claim, the article is structured in several parts. It begins by clarifying the meaning of ‘constitutional imagination’. In so doing it builds on Kant’s concept of imagination (‘Einbildungskraft’) and in its reception by Hannah Arendt. The article then illustrates the significance of constitutional imagination by focusing on two major developments in constitutional thinking. The first development involves the shift away from a narrative reconstruction of constitutional authority; the second points to a cosmopolitanisation of constitutional imagination.

Keywords

Arendtcosmopolitanismglobal constitutionalismimaginationKant
Type
Research Article
Information
Global Constitutionalism , Volume 6 , Issue 3 , November 2017 , pp. 359 - 376
Copyright
Copyright © Cambridge University Press 2017 

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References

1 Cf. M Kumm, ‘The Cosmopolitan Turn in Constitutionalism: On the Relationship between Constitutionalism in and beyond the State’ in Dunoff, JL and Trachtman, JP (eds), Ruling the World? Constitutionalism, International Law, and Global Governance (Cambridge University Press, Cambridge, 2009).Google Scholar

2 There is already a considerable amount of literature on the causal connections between active dialogue among constitutional courts and the generation of global language of constitutionalism. See, for example, Mark Tushnet, who notes that constitutional judges increasingly meet ‘in academic and other conferences, and some serve with others on various transnational bodies’ (M Tushnet, ‘The Inevitable Globalization of Constitutional Law’ (2009) 49 Virginia Journal of International Law 998). See also Perju, V, ‘Constitutional Transplants, Borrowing and Migrations’ (2012) Oxford Handbook of Comparative Constitutional Law 1304.Google Scholar

3 I am grateful to the anonymous reviewer who urged me to make clear that this is not equivalent to arguing that because we are observing a gradual shift in imagination in constitutional practice, then global constitutionalist theory is on the rise. As mentioned above, it is quite possible that theories help to create the phenomenon that they are supposed to describe for example by nudging legal experts and judges to approach their cases from a different perspective.

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22 Prior to the act of subsuming, precedents must be found, and this necessarily involves a degree of imaginative freedom (what Scott Brewer calls the ‘uncodifiable imaginative moment in exemplary, analogical reasoning’; see S Brewer ‘Exemplary Reasoning: Semantics, Pragmatics and the Rational Force of Legal Argument by Analogy’ (1996) 109 Harvard Law Review 954).

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26 For Kant imagination is hidden ‘in the depths of the human soul’ (see (n 8) 273) and cannot be viewed as a conscious or reflective activity.

27 An anonymous reviewer has pointed out that what I am labelling in this article as a shift in constitutional imagination is in effect a ‘de-constitutionalisation’ of imagination. Note, however, that this presupposes that the meaning of constitution is fixed and inextricably rooted in statist founding narratives and imaginaries. Such a view finds support on a strand of contemporary literature that criticises global constitutionalism for dismissing the very core of constitutionalism (cf. Kuo (n 5)). From a non-essentialist perspective, however, controversies over the meaning of constitution cannot be resolved by positing a specific feature of the constitution as its essence. A concept’s meaning depends – to a considerable extent – upon its usage. Hence, what needs to be taken into consideration are emerging practices among constitutional interpreters (such as constitutional experts) – and this is essentially what I am doing in this article. I look at how imagination works, when constitutional ideas transcend the conventional boundaries of constitutional law.

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58 Kim Scheppele has provided other examples of how foreign legal examples are being leveraged by Prime Minister Viktor Orban to limit minority rights. Cf. Scheppele, KL, ‘Enforcing the Basic Principles of EU Law through Systemic Infringement Procedures’ in Closa, C and Kochenov, D (eds), Reinforcing the Rule of Law Oversight in the European Union (Cambridge University Press, Cambridge, 2016).Google Scholar

59 For a criticism of the use of foreign law along these lines, see Posner (Posner, RA, ‘Foreword: A Political Court’ (2005) 119 Harvard Law Review 85).Google Scholar

60 To minimise the influence of strategic ‘cherry-picking’, theorists of global constitutionalism, like Vlad Perju, have endeavoured to connect the two above developments in such a way as to subordinate the second to the first. In Perju’s view, ‘the most that can be achieved by expanding the pool of normative references (…) is to inject a degree of reflectiveness into the constitutional discourse at the specific request of citizens, or of other constitutional actors’ (Perju (n 2) 353).

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