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The global legal system and the procedural construction of constituent power
Published online by Cambridge University Press: 03 November 2016
Abstract:
This article proposes an alternative to more standard, neoclassical theories concerned with the proceduralisation of constituent power. It argues that more established theories of proceduralisation are insufficiently aligned to the sociological realities in which constituent power is located and expressed, and their residual fixation on the premises of classical constitutionalism impedes adequate understanding of constituent power in the global constitutional order of contemporary society. On this basis, the article offers a sociological examination of constituent power, which attempts to grasp constituent power in its objectively existing procedural form. In particular, it claims that constituent power now exists as an inner-legal function, activated through procedures within an increasingly differentiated legal system: whereas in classical theory constituent power was a primary political source of constitutional norms, it now appears only as a secondary expression of norms already contained within the global legal system. Rather than renouncing the idea of constituent power, however, the article uses its sociological focus to observe new procedural openings for the activation of constituent agency, adapted to the material/sociological fabric of contemporary society.
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- Research Article
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- Copyright © Cambridge University Press 2016
Footnotes
Research for this article was funded by the European Research Council (Advanced Grant: 323656-STC). I wish to thank my co-researchers Maria Smirnova, Rodrigo Cespedes, Elizabeth O’Loughlin and Carina Calabria for their great assistance in the research required for this article.
References
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35 The emergence of international law as a specific legal system can be traced to the immediate aftermath of the war, although it only became an evolved reality at a much later stage. From the late 1940s, the ICJ began to define individual persons as having rights under an international legal system. Eventually, this became an important principle in ICJ jurisprudence (see ICJ case LaGrand (Germany) v United States of America (2001)). Powers of states were relativised by the fact that other subjects could claim international legal personality, including the UN itself. See DJ Bederman, ‘The Souls of International Organizations: Legal Personality and the Lighthouse at Cape Spartel’ (1995) 36 Virginia Journal of International Law 275. The power of international courts to intervene directly in domestic politics was initially low, although, in the context of decolonisation, they could influence the constitutional design of new polities. By the 1980s, regional human rights courts routinely struck down domestic laws.
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37 The new democracies created after 1945 in Western Germany and Italy obtained powerful constitutional courts, backed by their role in protecting international defined human rights. In both cases, courts used international norms to block acts of other branches of government. This constitutional dimension became increasingly strong in new democracies, and in the democratic transitions beginning in the late 1980s, judicial bodies often used international law to invalidate domestic laws.
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44 This can be seen in many contexts. But, as a rather extreme example, we can observe the Concept of Judicial Reform, introduced in Russia by President Yeltsin in 1991. This document stated that the aim of the new state was to ‘return into the world civilization, which requires legal reforms in order to turn from a political state into a rule of law state’. According to this Concept, judicial reform had to be seen as the ‘nucleus of legal transformation of the country’. Importantly, the Concept recognised international law as an important source of law, regardless of whether it had been formally incorporated in the domestic legal system, and it prescribed to the courts the ‘universally recognized principles’ (see Supreme Council of RSFSR Decision No 1801–1 of 24 October 1991 ‘On the Concept of Judicial Reform in RSFSR’ [O Kontseptsii sudebnoy reformy v RSFSR], Vedomosti SND i VS RSFSR 44, 31 October 1991, item 1435).
45 For discussion of Kenya, see below at pp 34–6. In South Africa in the early to mid-1990s, the constitutional transition was presided over by a very powerful Constitutional Court. Supported by reference to norms of international law, the court was able to review and in some cases to clear away legislation from the apartheid era, to stimulate trust in the emerging institutions of government, and generally to distil a new normative foundation to insulate the emergent political system against extreme external contestation. See Dickson, B, ‘Protecting Human Rights through a Constitutional Court: The Case of South Africa’ (1997) 66 Fordham Law Review 566.Google Scholar
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61 UK judges have openly ascribed to themselves the duty to make a ‘sociological assessment’ of the impact of administrative acts and to ensure accordance of such acts with higher rights norms. See Wilson v First County Trust Ltd [2003] UKHL 40 142 (Hobhouse LJ). UK judges have also, rather unconvincingly, tried to claim, as follows, that proportionality does not involve a constitutional shift to merits review: ‘In other words, the intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued. The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving Convention rights must be analysed in the correct way. That does not mean that there has been a shift to merits review’. This view is expressed in Huang and others v The Secretary of State for The Home Department [2005] EWCA Civ 105 (Laws LJ).
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63 See the recent ECJ cases: Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke and Eifert (9 November 2010).
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72 The Preamble to the Bolivian Constitution declares as follows: ‘We have left the colonial, republican and neo-liberal State in the past. We take on the historic challenge of collectively constructing a Unified Social State of Pluri-National Communitarian law, which includes and articulates the goal of advancing toward a democratic, productive, peace-loving and peaceful Bolivia, committed to the full development and free determination of the peoples.’
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81 See Lubbe v Cape Plc [2000] UKHL 41 in the UK; Canada (Justice) v Khadr [2008] 2 SCR 125, 2008 SCC 28 in Canada. See also Familia Pacheco Tineo v Estado Plurinacional de Bolivia (2013) in the IACtHR. As a core case in this line of reasoning, see Italian Constitutional Court (238/2014).
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84 Classical legal procedures for controlling administrative acts were widely observed as ‘the application of the state’s law … to the state itself’ in Cotterrell, R, ‘Judicial Review and Legal Theory’ in Richardson, G and Genn, H (eds), Administrative Law and Government Action: The Courts and Alternative Mechanisms of Review (Clarendon Press, Oxford, 1994) 26Google Scholar.
85 In common-law settings this reflects a widely diagnosed ‘righting’ of administrative law, which has led to the more rigid binding of public bodies by norms of international extraction. See on this Taggart, M, ‘Proportionality, Deference, Wednesbury’ (2008) New Zealand Law Review 432–3Google Scholar; Dyzenhaus, D, ‘The Rule of (Administrative) Law in International Law’ (2005) 68(3/4) Law and Contemporary Problems 140Google Scholar.
86 This is a very common phenomenon in Russian law. For recent examples see Constitutional Court of the Russian Federation, Analytical Report on the Implementation of Decisions of the Constitutional Court of the Russian Federation, Adopted in the Course of Constitutional Proceedings in 2014 [Informatsionno-analiticheskiy otchet ob ispolnenii resheniy Konstitutsionnogo Suda Rossiyskoy Federatsii, prinyatykh v khode osushchestvleniya konstitutsionnogo sudoproizvodstva v 2014 godu]. [Online] 15 April 2015. Available (in Russian) at <http://www.ksrf.ru/ru/Info/Maintenance/Informationks/Pages/ReportKS2014.aspx>, accessed 24 November 2015.
87 See for example the Russian Administrative Litigation Code (2015), which is designed to facilitate litigation against government bodies and to simplify procedures for public interest litigation. The 2015 Code was anticipated in one of Putin’s post-election memoranda (2012), in which he outlined his priorities for the development of the judicial system, based on harmonisation of public services standards with international norms through the use of best practices of other countries in state-building processes.
88 See Gidi, A, ‘Class Actions in Brazil: A Model for Civil Law Countries’ (2003) 51(2) American Journal of Comparative Law 332Google Scholar.
89 This distinction is now quite emphatically declared in Colombia and Bolivia, where public interest litigation is seen as focused on rights that pertain to persons, not as members of a legal group or class, but simply as members of the nation. See discussion below at p 32.
90 Yeazell, SC, ‘Brown, the Civil Rights Movement and the Silent Litigation Revolution’ (2004) 57(6) Vanderbilt Law Review 1976Google Scholar; Klarman, MJ, From Jim Crow to Civil Rights. The Supreme Court and the Struggle for Racial Equality (Oxford University Press, Oxford, 2004) 344–442Google Scholar.
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92 The cases discussed below occurred in common-law settings, and they saw a liberalisation of standing rules partly because this permitted a shift away from English metropolitan law, towards a more decidedly post colonial constitution. English laws on standing were traditionally very restrictive, as expressed in the following: ‘a private person could only bring an action to restrain a threatened breach of the law if his claim was based on an allegation that the threatened breach would constitute an infringement of his private rights or would inflict special damage on him.’ Gouriet v Union of Post Office Workers and others [1977] 3 All ER 70.
93 In India, the basic structure doctrine, asserting the absolute entrenchment of certain elements of the constitution, was partly worked out through reference to international human rights law. See arguments in Kesavananda Bharati v State of Kerela (1973) 4 SCC 225.
94 S.P. Gupta vs President of India and Ors on 30 December 1981 (Bhagwati J).
95 See the Tanzanian case Christopher Mtikila v Attorney General, Civ Case No 5 of 1993 (High Court, Dodoma, 1993). Here the argument runs as follows: ‘The relevance of public interest litigation in Tanzania cannot be overemphasised. Having regard to our socio-economic conditions, this development promises more hope to our people than any other strategy currently in place. First of all, illiteracy is still rampant … Secondly, Tanzanians are massively poor. Our ranking in the world on the basis of per capita income has persistently been the source of embarrassment. Public interest litigation is a sophisticated mechanism which requires professional handling. By reason of limited resources the vast majority of our people cannot afford to engage lawyers even where they were aware of the infringement of their rights and the perversion of the Constitution. Other factors could be listed but perhaps the most painful of all is that over the years since independence Tanzanians have developed a culture of apathy and silence. This, in large measure, is a product of institutionalised mono-party politics which in its repressive dimension, like detention without trial, supped up initiative and guts.’ My thanks are due to Elizabeth O’Loughlin (PhD researcher, University of Manchester) for drawing my attention to this case.
96 Londoño Toro, B, ‘Las acciones colectivas en defensa de los derechos de tercera generación’ (1999) 1(2) Revista Estudios Socio-Juridicos 103.Google Scholar
97 Colombian Constitutional Court C-215/99.
98 Colombian Constitutional Court T-528/1992.
99 Colombian Constitutional Court T-254/1993.
100 Bolivian Constitutional Court 1018/2011-R.
101 See Colombian Constitutional Court C-215/99; Bolivian Constitutional Court 0572–2014.
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104 See for example Indian cases above at p 31. However, public interest litigation has also been used to secure new rights regarding environmental protection and rights of recognition for sexual minorities. In Kenya, notably, public interest litigation has widely focused on environmental rights Sang, BYK, ‘Tending towards Greater Eco-Protection in Kenya: Public Interest Environmental Litigation and Its Prospects within the New Constitutional Order’ (2013) 57(1) Journal of African Law 40Google Scholar.
105 See Bolivian Constitutional Court 0572/2014. See extensive discussion of this in Bellido, MEA, Sistematización de jurisprudencia y esquema jurisprudencial en los pueblos indígenas en el marco del sistema plural de control de constitucionalidad (Fundación CONSTRUIR, La Paz, 2014) 210–11.Google Scholar
106 Njoya and Others v Attorney-General and Others (2004) AHRLR 157 (KeHC 2004).
107 For a long time, Okunda v Republic [1970] EA 453, in which international law was ruled subordinate to domestic law, remained a leading case regarding the status of international law. This approach was sustained in later leading cases, notably in Rono v Rono (29 April 2005), Civil Appeal No 66 of 2002, [2008] 1 KLR 803. However, this position changed gradually in the course of the transition. For example, in In Re Estate of Lerionka Ole Ntutu (Deceased) [2008] eKLR, the Kenyan High Court announced that it would adopt a more purposive ‘living tree’ approach to constitutional interpretation, citing international covenants to overrule customary law. The line of reasoning in Rono v Rono was abandoned in later cases, in particular in Satrose Ayuma and others v The Registered Trustees of the Kenya Railway Staff Benefits Scheme and others (High Court petition No 65 of 2010), where the Justices ruled that the principle stated in Rono v Rono was not ‘good law’. Note though that before 2010 some rulings had already given particular weight to international law. An important example is In Re the Estate of Andrew Manunzyu Musyoka (Deceased) [2005] eKLR.
108 Kenya Law Reports [2004] 1 KLR 237. On the importance of international law in this case see Mbote, PK and Akech, M, Kenya: Justice Sector and the Rule of Law (Open Society Initiative for Eastern Africa, Johannesburg, 2011) 39Google Scholar.
109 Kenya Law Reports [2004] 1 KLR 238.
110 Kenya Law Reports [2004] 1 KLR 239.
111 Yet, for an important model of acentric inner-legal law production, see Ladeur, K-H, ‘Subjektive Rechte und Theorie der Prozeduralisierung: Vom Universalismus des Rechts zur rechtlichen Modellbildung unter Ungewißheitsbedingungen’ (1994) 27(1) Kritische Justiz 56Google Scholar.