Is a Global Constitutional Order Possible, or Even Desirable?

Carmen Pavel’s new book, Law Beyond the State, provides a lucid and generally compelling argument for the necessity of international law, and indeed, for the development of a robust global constitutional order grounded in a treaty that: (1) codifies constitutional rules, (2) attributes substantive rights to both individuals and states; (3) creates institutions empowered to address global collective action problems; and (4) creates institutions with the capacity to interpret, apply, and enforce constitutional norms (Law Beyond, 152-56).  In this brief comment, I adopt the role of the devil’s advocate, raising challenges to several of Pavel’s responses to those who argue against the pursuit of a constitutionalized international legal order. I do so not because I reject her conclusions, but because I suspect that more work must be done to defend them.

Realist Skepticism of International Law

Perhaps the most powerful objection to an argument for the necessity of international law comes from structural Realists like John Mearsheimer who deny its very possibility. As Pavel notes, structural realists advance normative claims, prescriptions regarding what states (or state officials) ought to do, and not simply descriptions or explanations of states’ behavior. These prescriptions, she contends, rest on two hidden normative assumptions: first, that it is good or morally valuable for states to follow their preferences, whatever those preferences are; and second, that survival ought to be the dominant state preference (Law Beyond, 70). Pavel then proceeds to criticize both normative assumptions, and concludes that the Realists’ (implicitly) normative case against international law fails. While her arguments are cogent, I am not sure they succeed against the Realist. Let me explain why.

Realists do start from the premise that states treat survival as their dominant preference – a reason for action that trumps all other reasons for action. But I am not sure they must say that states ought to do so as a condition for advancing prescriptive claims. Rather, the Realist’s argument is akin to saying that we should reject an impartial morality – one that permits us to give no greater moral weight to the interests of our near and dear than to the interests of distant others – because, as a matter of fact, humans cannot and will not act as it requires. This argument does not depend on the claim that human beings should be partial to their near and dear.  Rather, it says that insofar as our aim is to offer guidance to various actors regarding what they should do, our advice should assume that human beings will be partial to their near and dear. Likewise, a Realist like Mearsheimer thinks that states can choose to act contrary to their national interest (and that they sometimes do so). But he thinks that in doing so they risk ceasing to exist, or at least existing only at the sufferance of another state. He posits that no state – or at least no leaders of a political community – will think this is acceptable. If he is right, why should we care whether some states should take such risks? In short, Realists do not (tacitly) offer an ideal moral theory to rival the one Pavel defends; rather, they hold that we should ignore ideal theories (or forgo ideal theorizing) in favor of a realistic take on international relations.

Pavel advances several challenges to the empirical claim that states (or state officials) accord absolute priority to their continued existence. Many states appear to be willing to accept some risks to their survival to achieve goals such as greater wealth, for example. Some states may also have other-regarding preferences, such as a concern with human rights violations in other countries. Whether these putative examples of states acting contrary to Realists’ predictions suffice to undermine its descriptive claim is an exceedingly difficult question to answer. I worry, though, that Pavel may set the bar for doing so too low. For instance, the Realist argument does not rule out states’ having preferences for protecting others’ rights or advancing others’ well-being. All it requires is that states not knowingly take on any (significant?) risk to their own survival and security in order to do so. Note, too, that while Realists tend to describe states as making sound judgments about which course of action will, or will not, put their survival at risk, they need not assume that states are infallible. Thus, they can acknowledge that states sometimes adopt policies that (significantly) increase the likelihood that they will cease to exist, or exist only at the sufferance of some other state, so long as they also maintain that those policy choices reflect a mistaken calculation of the impact they will have on the states’ survival and security. Moreover, they can maintain that once states wake up to the fact that their policy choices are increasing the risk to their continued survival, those states will change course in the direction Realists predict. This is precisely the line Mearsheimer takes regarding U.S. foreign policy since the end of the Cold War, and its current evolution in response to a China whose rise was aided and abetted by that very foreign policy.

Legal Pluralist Skepticism of Global Constitutionalism

Unlike Realists, normative legal pluralists accept the possibility and desirability of international law; however, they oppose Pavel’s call for the development of a global constitution that will forge a unitary legal order in place of a plurality of legal orders. Roughly, normative legal pluralists favor leaving more room for politics, in the form of dialogue and diplomacy, to address conflicts generated by overlapping claims to jurisdiction, while Pavel maintains that we should address such disputes within a framework of legal norms and institutions, particularly courts.

Pavel advances a number of objections to normative legal pluralism (Law Beyond, 144-52). I worry, however, that she does not adequately address the strongest argument advanced on its behalf by theorists like Nico Krisch and Paul Berman. As I explain in detail elsewhere, that argument is an instrumental one, and it invokes an understanding of law’s normativity informed by sociological jurisprudence and constructivist political theory.

Krisch, for example, advocates legal pluralism in part because of its fit with an incremental approach to the pursuit of normative change, which he defends as desirable because the resulting legal evolutions are more likely to be viewed as legitimate by the law’s subjects than if those same changes, or more ambitious ones, are pursued via a unitary, constitutionalized, legal order. This conclusion follows from two claims. The first concerns law’s normativity, which Krisch characterizes in terms of socialization, or the development and evolution of legal consciousness. As he notes, “socialization is most successful when new norms resonate with existing ones or do not run up against entrenched normative convictions . . . [which] suggests that processes that can avoid head-on confrontations on entrenched issues hold greater promise for limiting large-scale resistance and thus for inducing change over time.” The second concerns the extent to which individuals’ identities as members of particular communities—national, regional, and global, in his example—are likely to inhibit or undermine attempts to resolve conflicts by creating a single, integrated legal order. Krisch observes that:

“(…) for those with strong loyalties to national communities, regional or global decision-making may be anathema; for those who believe global problems need to be tackled globally, and European problems in a European framework, it will appear as a moral imperative. In order to build a stable political order, such identifications cannot be ignored; they need to find reflection in the institutions themselves.”

The upshot is that for all the limitations of a pluralist legal order, if the law of the various legal systems that comprise it will enjoy greater legitimacy than will the law produced within a unitary, constitutionalized, legal order, then a pluralist legal order will better enable people to individually and collectively organize their lives with one another than will the creation of a global constitution.

Conclusion

Crucially, this argument for normative legal pluralism does not depend on the embrace of moral relativism, and so it stands even if Pavel is right to critique the relativist arguments Krisch (and Berman) offer in its defense. Nor will pointing out that constitutional orders can recognize a plurality of values suffice as a response to the argument for normative legal pluralism that I have presented here. That is because the question is how best to respond to a world characterized by a plurality of (commensurable or incommensurable) values.  More precisely, the question is how best to design or develop law so that it contributes to the realization of justice in such a world, and does so in virtue of its being treated as legitimate by those over whom it claims jurisdiction. Pavel offers a powerful argument in support of a constitutionalist answer to that question, and I eagerly anticipate her continued development of it in the future.