Mark Tushnet (Harvard University – Harvard Law School) has posted The Inevitable Globalization of Constitutional Law
(Hague Institute for the Internationalization of Law) on SSRN. Here is the abstract:
This Essay examines the forces pushing the presently varying forms of domestic constitutional law toward each other, and the sources of and forms of resistance to that globalization (or convergence, or harmonization). After a brief introduction sketching claims for the existence of a "post-war paradigm" of domestic constitutional law and competing claims about national exceptionalism, the Essay sketches the "top down" pressures for convergence – judicial networks and actions by transnational institutions, including transnational courts, international financial institutions, and transnational NGOs. It then turns to "bottom up" pressures, from domestic interests supporting local investments by foreign investment and high-level human capital and from lawyers engaged in transnational practice. A discussion of counterpressures from the supply side follows. These counterpressures include resistance from local interests, including authoritarian or semi-authoritarian political elites, and subtle but perhaps deliberate misunderstandings that can arise when superficially similar legal arrangements take on distinctive local meanings. The Essay discusses whether the mechanisms it identifies lead to a race to the "top," to the "bottom," or to some more variegated location. It concludes with a brief treatment of how the globalization of domestic constitutional law can be accommodated to local notions of separation of powers.
And from the paper:
Most scholarship on the globalization of domestic constitutional
law focuses on top-down processes. Probably the most widely known is
Anne-Marie Slaughter’s work on the development of cross-national
networks of constitutional court judges, akin to the cross-national
networks she finds throughout the contemporary international system.11
Judges of the world’s constitutional courts now meet regularly in
academic and other conferences, and some serve with others on various
transnational bodies. Slaughter suggests that personal interactions at least
conduce to and probably encourage judges to consider and occasionally
adopt solutions to problems they come to see as common across
constitutional systems.12 Personal contact will show a judge of a
constitutional court in one nation that judges occupying similar positions
elsewhere often confront the same kinds of problems the first judge does,
that those judges seem to be sensible people and reasonably astute
lawyers, and that the first judge could probably do worse than take their
solutions seriously as she attempts to solve the problems she faces. For
some, judges in other nations will become members of the reference group
of people whose judgments about their own work matter. And, apart from
these networking connections, as the world’s elites become more
cosmopolitan – as trends in education and transnational career paths
suggest they will – they will be increasingly inclined to view decisions
taken elsewhere as worth considering as they deal with domestic
constitutional problems.As Weinrib’s account suggests, convergence can occur narrowly,
for example with respect to the general approach constitutional court
judges take to government efforts to regulate speech critical of
government policy that executive officials believe poses some threat of
social disorder. Or it can occur more broadly, as with the formulation of
proportionality tests in numerous doctrinal domains. But, in this phase of
the analysis, what propels convergence is personal contact among sensible
lawyers seeking to perform what they come to understand to be similar
jobs.
And:
David Law connects globalization and constitutional rights by
means of market processes.22 He argues that economic globalization
includes competition among nations for investment and human capital.
Nations compete by offering investors and those with high levels of
human capital – the well-educated and trained – attractive packages of
benefits. An important component of those packages, Law argues, is
constitutional protection.
The argument as to investors is straight-forward.23 When
considering where to place their capital, investors will consider the returns they are likely to receive on the investment. Consider an investor
choosing between one nation that offers a relatively high rate of return, but
does not guarantee that the investor will actually be able to realize the
returns because the nation’s constitution authorizes the government to
expropriate investments and returns at will, and a nation offering a slightly
lower rate of return. As Law puts it, investors “seek . . . to maximize
their risk-adjusted returns.”24Depending on the size of the gap and the likelihood of
expropriation, the second nation may be able to attract the investment by
coupling the lower rate of return with an assurance that the returns will
actually be realized. And it can do that by providing constitutional
protections for investment, to be enforced by an independent court (that is,
a court not under the control of the executive government). To meet that
competition, the first nation will adopt similar constitutional protections.
So, through a race to the top, globalization induces one nation after
another to adopt constitutional protections for property rights, enforced by
independent courts.25
I learned much from this brief, insightful, and very learned essay. Highly recommended to all, but especially if you want a quick introduction to these issues.