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Harmonising Global Constitutionalism

Published online by Cambridge University Press:  24 June 2016

CORMAC MAC AMHLAIGH
CORMAC MAC AMHLAIGH*
Affiliation:
School of Law, The University of Edinburgh, Old College, South Bridge, Edinburgh EH8 9YL
*
*Email: [email protected]
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Abstract:

The explosion in the literature on global constitutionalism in recent times has come at the cost of ever more, and more diverse, definitions of the concept of constitutionalism. The state of the current debate can therefore be characterised, conceptually speaking, as a ‘constitutional cacophony’. This cacophony is the inevitable result of the ‘problems of translation’ in importing the state-based concept of constitutionalism to the global level. This article attempts to counter suprastate constitutional scepticism borne of these problems of translation and resulting cacophony by revisiting the concept of constitutionalism itself through the lens of legitimacy. Arguing that legitimacy provides both a key element of the concept of constitutionalism as well as a common denominator for the application of constitutionalism both at the state and suprastate levels, it develops a conception of ‘constitutionalism as legitimacy’ as a way of vindicating the role of constitutionalism in the context of global governance. It presents constitutionalism as a discursive ‘mixed’ form of legitimacy entailing both factual and normative components involving a blend of liberalism and republicanism. These theories are then reworked into a framework of reasons for the legitimacy of an authority centring around its origins, its aims and its methods. Tracing the relationship between constitutionalism and legitimacy in this way brings harmony to the global constitutional cacophony and allows for a plausible ‘translation’ of the concept of constitutionalism between the state and suprastate levels allowing for an effective ‘mapping’ and ‘shaping’ of legitimacy in global governance which is illustrated by reference to the legitimacy crisis surrounding the United Nations Security Council’s ‘war on terror’.

Keywords

constitutionalismbeyond the stateglobal governanceliberalismpolitical legitimacyrepublicanism
Type
Research Article
Information
Global Constitutionalism , Volume 5 , Issue 2 , July 2016 , pp. 173 - 206
Copyright
Copyright © Cambridge University Press 2016 

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References

1 JL Kunz, ‘The “Vienna School” and International Law’ (1933) 11 New York University Law Quarterly Review; F Rigaux, ‘Hans Kelsen on International Law’ (1998) 9 European Journal of International Law 325; T Kleinlein, ‘Alfred Verdross as a Founding Father of International Constitutionalism?’ (2012) 4 Goettingen Journal of International Law 385.

2 The literature is too great to cite with any completeness here. Some representative examples include RStJ Macdonald and DM Johnston (eds), Towards World Constitutionalism: Issues in the Legal Ordering of the World Community (Martinus Nijhoff Publishers, Leiden, 2005); J Klabbers, A Peters and G Ulfstein, The Constitutionalization of International Law (OUP, Oxford, 2009); JL Dunoff and JP Tractman (eds), Ruling the World? Constitutionalism, International Law, and Global Governance (CUP, Cambridge, 2009); A Peters and K Armingeon (eds), ‘Special Issue. Symposium: Global Constitutionalism – Process and Substance’ (2009) 16(2) Indiana Journal of Global Legal Studies 385; A Wiener, A Lang, J Tully, M Poiares Maduro and M Kumm, ‘Editorial: Global Constitutionalism: Human rights, democracy and the rule of law’ (2012) 1(1) Global Constitutionalism 1.

3 A Wiener, The Invisible Constitution of Politics: Contested Norms and International Encounters (CUP, Cambridge, 2008); S Gill and A Claire Cutler, New Constitutionalism and World Order (CUP, Cambridge, 2015).

4 See e.g. D Bodansky, ‘Is There an International Environmental Constitution?’ (2009) 16(2) Indiana Journal of Global Legal Studies 565; E-U Petersmann, ‘Human Rights, Constitutionalism and the World Trade Organization: Challenges for World Trade Organization Jurisprudence and Civil Society’ (2006) 19(3) Leiden Journal of International Law 633; S Gardbaum, ‘Human Rights as International Constitutional Rights’ (2008) 19(4) European Journal of International Law 749; M Kumm, ‘The Legitimacy of International Law: A Constitutionalist Framework of Analysis’ (2004) 15(5) European Journal of International Law 907. In a critical vein, see Krisch’s elaboration of a ‘foundational’ constitutionalism in N Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (OUP, Oxford 2010) ch 2.

5 Wiener et al. (n 2) 8.

6 Ibid.

7 See above (n 4).

8 Particularly in the light of its supremacy under art 103. See E de Wet, ‘The International Constitutional Order’ (2006) 55 International and Comparative Law Quarterly 51. See also N Detsomboonrut, International Law as a Constitutional Legal System (unpublished PhD thesis, University of Edinburgh, 2015).

9 De Wet (n 8) 58–9.

10 De Wet (n 8) 65.

11 See e.g. A Peters, ‘Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures’ (2006) 19(3) Leiden Journal of International Law 579; J Cohen, Globalization and Sovereignty: Rethinking Legality, Legitimacy and Constitutionalism (CUP, Cambridge, 2012) ch 5.

12 D Grimm, ‘The Constitution in the Process of Denationalization’ (2005) 12 Constellations 447; Krisch (n 4); M Loughlin, ‘What is Constitutionalisation?’ in P Dobner and M Loughlin (eds), The Twilight of Constitutionalism? (OUP, Oxford, 2010).

13 See e.g. B Fassbender, ‘The United Nations Charter as Constitution of the International Community’ (1998) Columbia Journal of Transnational Law 529.

14 De Wet (n 8).

15 Gardbaum (n 4); see also Cohen (n 11).

16 WJ Waluchow, A Common Law Theory of Judicial Review (CUP, Cambridge, 2007) ch 2; AL Paulus, ‘The International Legal System as a Constitution’ in Dunoff and Tractman (n 2). For extended discussion see Detsomboonrut (n 8).

17 Grimm (n 12). See also D Grimm, ‘Does Europe Need a Constitution?’ (1995) 1 European Law Journal 282.

18 Krisch (n 4).

19 Ibid.

20 Loughlin (n 12). See also Jayasuriya, K, ‘Globalization, Sovereignty, and the Rule of Law: From Political to Economic Constitutionalism?’ (2002) 8(4) Constellations 442.CrossRefGoogle Scholar

21 Cohen (n 11).

22 Peters (n 11).

23 N Walker, ‘Taking Constitutionalism Beyond the State’ (2008) 56 Political Studies 519, 520.

24 Ibid 521.

25 N Walker, ‘Beyond boundary disputes and basic grids: Mapping the global disorder of normative orders’ (2008) 6 International Journal of Constitutional Law 373, 387.

26 Walker (n 23) 522.

27 D Kennedy, ‘The Mystery of Global Governance’ in Dunoff and Trachtman (n 2).

28 JL Dunoff and JP Trachtman, ‘A Functional Approach to International Constitutionalization’ in Dunoff and Trachtman (n 2) 9.

29 Walker (n 23) 522.

30 Wiener et al. (n 2) 8.

31 Ibid.

32 See N Walker, ‘Postnational Constitutionalism and the Problem of Translation’ in JHH Weiler and M Wind (eds), European Constitutionalism Beyond the State (CUP, Cambridge, 2003) 27.

33 J Habermas, ‘Constitutional Democracy: A Paradoxical Union of Contradictory Principles?’ (2001) 29 Political Theory 766, 767.

34 P-M Dupuy, ‘The Constitutional Dimension of the Charter of the United Nations Revisited’ (1997) 1 Max Planck Yearbook of United Nations Law 1.

35 J Klabbers, ‘Setting the Scene’ in J Klabbers, A Peters and G Ulfstein, The Constitutionalization of International Law (OUP, Oxford, 2009) 18; Dunoff and Trachtman (n 28) 5–9.

36 A-M Slaughter, A New World Order (Princeton University Press, Princeton, NJ, 2004). Whereas use of this phrase here is inspired by Slaughter’s title, unlike Slaughter’s account of disaggregated states and governmental networks, it is used as a generic label for the contemporary condition of law and politics incorporating globalised states, state-like global regimes, the fortification of the international legal system more generally and the interactions between different legal orders.

37 Peters (n 11).

38 Ibid 592.

39 Ibid 587.

40 As asserted most famously by HLA Hart: ‘In form, international law resembles […] a [primitive] regime of primary rules, even though the content of its often elaborate rules are very unlike those of a primitive society, and many of its concepts, methods, and techniques are the same as those of modern municipal law.’ HLA Hart, The Concept of Law (Clarendon Press, Oxford, 1994) 227. The debate has moved on considerably in recent years. See J Waldron, ‘International Law: “A Relatively Small and Unimportant” Part of Jurisprudence?’ in L Duarte d’Almeida, J Edwards and A Dolcetti (eds), Reading HLA Hart’s ‘The Concept of Law’ (Hart Publishing, Oxford, 2013); S Besson ‘Theorizing the Sources of International Law’ in S Besson and J Tasioulas (eds), The Philosophy of International Law (OUP, Oxford, 2010); R Dworkin, ‘A New Philosophy for International Law’ (2013) 41(1) Philosophy and Public Affairs 2; Paulus (n 16).

41 See e.g. JL Goldsmith and EA Posner, The Limits of International Law (OUP, Oxford, 2005). For a contrary view see TM Franck, ‘The Power of Legitimacy and the Legitimacy of Power: International Law in an Age of Power Disequilibrium’ (2006) 100 American Journal of International Law 88.

42 Walker (n 25).

43 Reflecting a core tenet of analytical positivism that law, probably so called, is comprehensive in its reach. See e.g. J Raz, The Authority of Law (OUP, Oxford, 2009) 43.

44 K Culver and M Giudice, Legality’s Borders: An Essay in General Jurisprudence (OUP, Oxforld, 2010) 22.

45 See e.g. JS Nye, The Paradox of American Power: Why the World’s Only Superpower Can’t Go It Alone (OUP, Oxford, 2002) 17.

46 See Krisch, N, ‘The Decay of Consent: International Law in an Age of Global Public Goods’ (2004) 108(1) American Journal of International Law 1.Google Scholar

47 For a classic account see T Franck, The Power of Legitimacy Among Nations (OUP, New York, NY, 1990). For a more recent account see J Brunnée and SJ Toope, Legitimacy and Legality in International Law (Cambridge, CUP, 2010). See also J Goldstein, M Kahler, RO Keohane and A-M Slaughter, ‘Special Issue: Legalization and World Politics’ (2000) 54(3) International Organization 401. For a ‘mapping’ of the different trends in theorising global order see Walker (n 25).

48 Hart (n 40) 97.

49 Ibid 94.

50 Ibid 97.

51 Such as Austin’s sovereignty-inspired account of law as the orders of a sovereign backed by threats for non-compliance. J Austin, The Province of Jurisprudence Determined, edited by WE Rumble (CUP, Cambridge 1995)

52 Franck (n 47); Goldstein et al. (n 47).

53 For an excellent overview of the state of the debate, see C Thomas, ‘The Uses and Abuses of Legitimacy in International Law’ (2014) 34 Oxford Journal of Legal Studies 729.

54 Franck (n 47)

55 M Koskenniemi, ‘Formalism, Fragmentation, Freedom: Kantian Themes in Today’s International Law’ (2007) 4 No Foundations: Journal of Extreme Legal Positivism 7, 16.

56 J Crawford, ‘The Problems of Legitimacy-Speak’ (2004) 98 American Society of International Law Proceedings 271, 271.

57 See I Hurd, ‘Legitimacy and Authority in International Politics’ (1999) 53 International Organization 379. In the context of international law Franck argues that it is precisely the absence of coercion from the international sphere, at least in the form of a global sovereign enforcing international norms, which makes legitimacy such a fruitful subject of inquiry for international relations. Franck (n 47) 19. Of course, this is not to suggest that legitimacy cannot operate concurrently with others’ reasons for obedience such as coercion and self-interest. See e.g. L Green, The Authority of the State (Clarendon Press, Oxford, 1988) 75.

58 For a comprehensive overview see F Peter, ‘Political Legitimacy’ in The Stanford Encyclopedia of Philosophy, edited by EN Zalta (Winter 2014), available at <http://plato.stanford.edu/archives/win2014/entries/legitimacy/>.

59 Some also add ‘legal legitimacy’ as a distinct form of legitimacy. See Thomas (n 53); R Fallon, ‘Legitimacy and the Constitution’ (2005) 118 Harvard Law Review 1789. However, it is submitted that ‘legal legitimacy’ can be collapsed into sociological legitimacy rather than forming a distinct category on its own. Fallon, for example, while arguing for legal legitimacy as a distinct form of legitimacy argues that it involves the idea that the legitimacy of a directive of an authority is legitimacy if it conforms with the law (which includes the constitution). (1794) However, this, in turn, begs the question of the legitimacy of the law/constitution which seems to boil down to a form of sociological legitimacy: ‘[The Constitution’s] sociological legitimacy gave it legal legitimacy’ (1804–5) and ‘The process by which the Constitution achieved legal legitimacy contains a large lesson about the dependence of legal legitimacy on sociological legitimacy. With respect to the most fundamental matters, sociological legitimacy is not only a necessary condition of legal legitimacy, but also a sufficient one.’ (1805, emphasis added) As such, for taxonomic purposes it is submitted that legal legitimacy constitutes a subcategory of sociological legitimacy rather than a distinct form of legitimacy.

60 M Weber, Economy and Society, in two vols (University of California Press, Berkeley, CA, 1978) 213

61 I Hurd, After Anarchy: Legitimacy and Power in the United Nations Security Council (Princeton University Press, Princeton, NJ, 2008) 7. See also Hurd (n 57).

62 D Beetham, The Legitimation of Power (2nd edn, Palgrave, Basingstoke, 2013) ch 1.

63 As Griffiths argued with respect to the British constitution: ‘The constitution of the United Kingdom lives on, changing from day to day for the constitution is no more and no less than what happens. Everything that happens is constitutional. And if nothing happened that would be constitutional too.’ JAG Griffith, ‘The Political Constitution’ (1979) 42 Modern Law Review 1, 19.

64 Beetham (n 62) 10–11. See also J Williams ‘Nothing Succeeds Like Success? Legitimacy and International Relations’ in B Holden (ed), The Ethical Dimensions of Global Change (MacMillan, London, 1996).

65 Beetham (n 62) 11.

66 Ibid.

67 Peter (n 58)

68 S Mulligan, ‘The Uses of Legitimacy in International Relations’ (2006) 34 Millennium 349, 359.

69 See Peter (n 58).

70 In fact many reinterpretations of the Weberian account of sociological legitimacy such as Beetham’s outlined above come very close to ‘mixed’ accounts of legitimacy; Beetham (n 62). See also Thomas (n 53) 744.

71 J Habermas, The Theory of Communicative Action, translated by T McCarthy, two vols (Beacon Press, Boston, MA, 1984); J Habermas, Between Facts and Norms, translated by T Rehg (Polity Press, Cambridge, 1996).

72 J Habermas, Communication and the Evolution of Society, translated by T McCarthy (Beacon Press, Boston, MA, 1979) 205.

73 Which was the title of his book in English. Habermas ‘Between Facts and Norms’ (n 71). For an alternative, albeit Habermas-inspired, account of legitimacy as involving both factual and normative elements see C Thornhill, ‘Political Legitimacy: A Theoretical Approach between Facts and Norms’ (2011) 18(2) Constellations 135.

74 Habermas, ‘Between Facts and Norms’ (n 71) 151.

75 Ibid 151.

76 Ibid xxxvi

77 Ibid xxviii.

78 GJ Schochet, ‘Introduction: Constitutionalism, Liberalism and the Study of Politics’ in JR Pennock and JW Chapman (eds), Constitutionalism: Nomos XX (New York University Press, New York, NY, 1979) 2.

79 Bodansky (n 4) 583.

80 Walker (n 32) 38.

81 See generally K Dyson, The State Tradition in Western Europe (OUP, Oxford, 1980); M Oakeshott, On Human Conduct (Clarendon Press, Oxford, 1975) ch 3.

82 See CH McIlwain, Constitutionalism: Ancient and Modern (Cornell University Press, Ithaca, NY, 1975).

83 M Loughlin, Foundations of Public Law (OUP, Oxford, 2010) ch 10.

84 Ibid.

85 GWF Hegel, The Philosophy of History, translated by J Sibere (Prometheus Books, Buffalo, NY, 1991) 447 (Part IV, Section III, ch III) cited in Krisch (n 4) 49.

86 The full citation reads as follows: ‘it has been reserved to the people of this country … to decide an important question, whether the societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force’. A Hamilton, J Madison and J Jay, The Federalist Papers [1788], edited by I Kramnick (Penguin, London, 1987) No 1 (87).

87 See Dyson (n 81); Oakeshott (n 81).

88 With the obvious caveat that constitutionalism is a largely Eurocentric or Western phenomenon. It is recognised that the Western-centric model of constitutionalism and the international legal order more generally can elide many non-Western forms of legitimacy and authority which do not conform to this model such as the concept of Ubuntu in Zulu which is loosely translated into English as ‘humaneness’. See S v Makwanyane & Another 1995 (6), BCLR, 665 (CC) para 308 per Justice Mokgoro. For discussion see O Onazi, Human Rights from Community: A Rights-Based Approach to Development (Edinburgh University Press, Edinburgh, 2013) 40–4. It is beyond the scope of this article to deal with this problem in detail. However, I would like to thank an anonymous reviewer for bringing this to my attention.

89 Loughlin (n 12).

90 J Raz, ‘On the Authority and Interpretation of Constitutions: Some Preliminaries’ in L Alexander (ed), Constitutionalism: Philosophical Foundations (CUP, Cambridge, 1998) 153.

91 TC Grey, ‘Constitutionalism: An Analytical Framework’ in JR Pennock and JW Chapman, Constitutionalism: Nomos XX (New York University Press, New York, NY, 1979) 191.

92 See G Jellinek, Allgemeine Staatslehre (Gehlen, Bad Hamburg vor der Höhe, 1966); Dyson (n 81) ch 8.

93 This is exemplified in the work of Hans Kelsen, and in particular his account of the unity of law and state. H Kelsen, General Theory of Law and State (Harvard University Press, Cambridge, MA, 1945).

94 See Habermas, ‘Between Facts and Norms’ (n 71) xi.

95 Where he claimed that his concept of law was an exercise in ‘descriptive sociology’. Hart (n 40) vi.

96 At least with respect to the basic norm. Kelsen (n 93) 119.

97 Raz, J, The Authority of Law (OUP, Oxford, 2009).Google Scholar

98 Walker (n 32).

99 Through the ideas of ‘fit’ and ‘justification’ in legal interpretation. See R Dworkin, Taking Rights Seriously (Duckworth, London, 1977) ch 4.

100 In his characterisation of principles as optimisation requirements relative to what is ‘legally and factually possible’. R Alexy, A Theory of Constitutional Rights, translated by J Rivers (OUP, Oxford, 2002) 67.

101 Noting the ‘Janus-like aspect of [constitutional] interpretation’ (177) between factual ‘fidelity’ and normative ‘innovation’ (180–3). Raz above (n 90).

102 Drawing the distinction between the ‘symbolic’ and ‘instrumental’ functions of constitutions. Loughlin (n 12) 52.

103 Who argues that constitutionalism involves social, normative and legal legitimacy. Fallon (n 59).

104 Particularly in Between Facts and Norms. Habermas (n 71). See also Habermas (n 33).

105 Austin (n 51) Lecture VI.

106 Cf Peter (n 58).

107 M Krygier, ‘Law as Tradition’ (1986) 5 Law and Philosophy 237, 241.

108 Loughlin (n 83) 158.

109 Ibid.

110 Ibid.

111 Krygier (n 107) 248.

112 Characteristic features of the liberal tradition. See J Locke, Two Treatises of Government, edited by P Laslett (CUP, Cambridge, 1988); J Rawls, A Theory of Justice (Harvard University Press, Cambridge, MA, 2001). For discussion of the ‘ideal’ aspects of Rawls’s account see L Valentini, ‘On the Apparent Paradox of Ideal Theory’ (2009) 17 The Journal of Political Philosophy 332.

113 Michael Oakeshott, The Politics of Faith and the Politics of Scepticism, edited by T Fuller (Yale University Press, New Haven, CT, 1996) 19.

114 This notion has provided the basis of much contemporary liberal egalitarian political philosophy. See J Rawls, Political Liberalism (Columbia University Press, New York, NY, 1993) 5. Habermas (n 33). See also J Tully, ‘The Unfreedom of the Moderns in Comparison to the Ideals of Constitutional Democracy’ (2002) 65 Modern Law Review 204; Thornhill (n 73); F Scharpf, ‘Legitimacy in the Multi-level European Polity’ in Dobner and Loughlin (n 12). Although he does not refer to liberalism and republicanism specifically in his account of the development of the modern state, Oakeshott provides a similar picture of the development of politics in modernity, identifying the development of the modern state as a tension between two conceptions of association drawn from Roman law; ‘societas’ and ‘universitas’ which tracks this dichotomy. The former relates to formal bonds of legality whereas the latter relates to an association bound together by a common purpose. See Oakeshott (n 81) 185–326. For discussion see M Loughlin, The Idea of Public Law (OUP, Oxford, 2003) ch 2.

115 For a classic account see J-J Rousseau, The Social Contract and Other Later Political Writings, edited by V Gourevitch (CUP, Cambridge, 1997). For a more recent statement, see P Petit, Republicanism: A Theory of Freedom and Government (OUP, Oxford, 1999). What are presented here are stylised accounts of republicanism and liberalism for the sake of clarity. There can be conceptually, and is in practice, many overlaps between liberalism and republicanism which are bracketed here for the sake of argument. Some of these overlaps are explored in the ensuing section.

116 Habermas, ‘Between Facts and Norms’ (n 71).

117 Petit (n 115) 165.

118 See Bellamy, R, Political Constitutionalism (CUP, Cambridge, 2007).CrossRefGoogle Scholar

119 Locke (n 112) ch II.

120 Mill, JS, On Liberty (Penguin, Harmondsworth, 1985).Google Scholar

121 This liberal sentiment is clearly illustrated in the ‘prescribed by law’ requirements of the ‘restricted freedoms’ provisions of art 8–11 of the European Convention of Human Rights.

122 Locke (n 112).

123 Rawls (n 114) Lecture IV.

124 But not necessarily. Jeremy Waldron is an example of a liberal who attempts to refute the fact that a belief in liberal values such as fundamental rights necessarily lead to judicial enforcement of constitutional norms See generally J Waldron, Law and Disagreement (OUP, Oxford, 1999).

125 J Habermas, Communication and the Evolution of Society, translated by T McCarthy (Beacon Press, Boston, MA, 1979) 178.

126 For discussion, see J Steffek, ‘The Legitimation of International Governance: A Discourse Approach’ (2003) 9(2) European Journal of International Relations 249.

127 See references at (n 71).

128 Habermas ‘Between Facts and Norms’ (n 71) xxviii.

129 Ibid 147.

130 CJ Friedrich, ‘Authority, Reason and Discretion’ in CJ Friedrich (ed), Authority. Nomos I (Harvard University Press, Cambridge, MA, 1958) 30.

131 Ibid.

132 M Weber, Essays in Sociology, translated and edited by HH Gerth and C Wright Mills (Routledge, London, 1991) 51.

133 Even with regard to supposedly ‘universal’ ideals such as human rights. Waldron (n 124).

134 Bellamy (n 118) 166–7.

135 Habermas, ‘Between Facts and Norms’ (n 71) 179.

136 Tully (n 114) 209.

137 In Geuss’s formulation: ‘who does what to whom, for whose benefit?’; R Geuss, Philosophy and Real Politics (Princeton University Press, Princeton, NJ, 2008) 25. See also M Wilkinson, ‘Political Constitutionalism and the European Union’ (2013) 76(2) Modern Law Review 191, 222.

138 Pettit (n 115).

139 For general discussion see Loughlin, M and Walker, N, The Paradox of Constitutionalism: Constituent Power and Constitutional Form (OUP, Oxford, 2006).Google Scholar

140 Rousseau (n 115) 17[8].

141 Bellamy (n 118) 156–9.

142 Such as many of the interventions in global constitutional debates see Kumm (n 4), Peters (n 11), Cohen (n 11) and A O’Donoghue, Constitutionalism in Global Constitutionalism (CUP, Cambridge, 2014).

143 Krisch (n 4) 28.

144 Tully (n 114) 207.

145 Ibid.

146 Tully (n 114).

147 Michelman, F, ‘Constitutional Authorship’ in Alexander, L (ed), Constitutionalism: Philosophical Foundations (CUP, Cambridge, 1998).Google Scholar

148 In this regard, Bellamy’s republican account of political constitutionalism is concerned with the protection of fundamental rights. Bellamy (n 118).

149 Mill (n 120); Waldron (n 124).

150 See e.g. J Waldron, ‘Can There Be a Democratic Jurisprudence?’ (2008) Emory Law Journal 675.

151 Walker (n 32) 41–2.

152 Ibid.

153 Walker (n 32) 42.

154 See generally E de Wet, The Chapter VII Powers of the United Nations Security Council (Hart Publishing, Oxford, 2004); K Scheppele, The International State of Emergency: Constitutional Exceptions and the Globalization of Security Law after 9/11 (Harvard University Press, Cambridge, MA, 2013); Cohen (n 11). The ‘Kadi’ saga which involved the implementation of UNSC resolutions by the European Union has become a key element in global constitutional debates and has spawned a literature all of its own. See Wiener et al. (n 2); M Avbelj, F Fontanelli and G Martinico, Kadi on Trial: A Multifaceted Analysis of the Kadi Judgment (Routledge, Abingdon, 2014).

155 Steffek (n 126) 250.

156 See (n 154).

157 De Wet (n 154).

158 Cohen (n 11) 267.

159 For a general discussion see the Court of Justice of the European Union in Case C–402/05 P and C–415/05, P. Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I–6351. See also Cohen (n 11) 274–5.

160 Loughlin (n 12) 58.

161 See e.g. Advocate General Maduro’s Opinion of 16 January 2008 in Kadi (n 159).

162 Global Survey of the Implementation of Security Council Resolution 1373 (2001) by Member States, Counter-Terrorism Committee, 1 September 2011.

163 S/RES/1267 (1999) 15 October 1999.

164 S/RES/1373 (2001) 28 September 2001.

165 Recital 5 and 8 of Resolution 1267 and 3 and 4 of Resolution 1373 available at <http://www.un.org/en/sc/>.

166 See G Shaffer, ‘International Law and Global Public Goods in a Legal Pluralist World’ (2012) 23 European Journal of International Law 669.

167 Historically security has been understood as the primary and original understanding of the common good in political theory, tracing its origins back to the original meaning of ‘salus populi’ among the ancients. For discussion see Oakeshott (n 113) 40.

168 See Recitals to 1267 and 1373.

169 Scheppele, ‘The International State of Emergency’ (2007) cited by Cohen (n 11) 276.

170 Cohen (n 11) 279.

171 See B Tamanaha, On the Rule of Law: History, Politics, Theory (CUP, Cambridge, 2004) 91–3.

172 G Sartori, ‘Constitutionalism: A Preliminary Discussion’ (1962) 56(4) The American Political Science Review 853, 855.

173 As clearly outlined by the Court of Justice of the European Union in its ‘Kadi’ decision, above (n 159).

174 Moreover, the discourse will involve political and legal actors as the ECJ’s involvement in the discourse through its Kadi decisions illustrates; Kadi (n 159).

175 Kadi (n 159).

176 Resolution 1904 (2009) established an Ombudsperson to assist the Committee in considering delisting requests. Also the way in which the EU handles terrorist listing has been amended; however, these procedures were found to fall short of fundamental rights requirements by the EU’s General Court in Case T-85/09 Kadi v Commission [2010] ECR ii-5177.

177 Tully (n 114).

178 Walker (n 23) 521.

179 See Krisch (n 4).

180 Grimm (n 12).

181 Jayasuriya (n 20); Loughlin (n 12).

182 Walker (n 23) 524.

183 See Walker (n 23) and N Walker, ‘Beyond the Holistic Constitution?’ in Dobner and Loughlin (n 12). For a critique of this approach see C Mac Amhlaigh, ‘The EU’s Constitutional Mosaic: Big ‘C’ or Small ‘c’, Is that the question?’ in N Walker, J Shaw and S Tierney (eds), Europe’s Constitutional Mosaic (Hart Publishing, Oxford, 2011).

184 Tully (n 114) 207.

185 Krisch (n 4) 27.

186 See T Nagel, ‘What Is It Like to Be a Bat?’ (1974) The Philosophical Review 435.

187 Krygier (n 4) 257.

188 Ibid 257.