This book examines the largely neglected but crucial role of transnational actors in democratic constitution-making.
The writing or rewriting of constitutions is usually a key moment in democratic transitions. But how exactly does this take place? Most contemporary comparative constitutional literature draws on the concept of constituent power – the power of the people – to address this moment. But what this overlooks, this book argues, is the important role of external, transnational actors who tend to play a crucial role in the process. Drawing on sociolegal methodologies but informed by new legal realism, this book develops a new theoretical framework for examining the involvement of such actors in constitution-making. Empirically grounded, the book uncovers a more comprehensive picture of how constitution-making unfolds on the ground. Illuminating the power dynamics at play during the legal process, it reveals not only the wide range of external actors involved but also the continuity between decolonisation and post-Cold War constitution-making.
This book, the first to provide an in-depth examination of external actor involvement in constitution-making, will appeal to scholars of constitutional law, sociolegal studies, law and development, and transitional justice.
About the author
Acknowledgements
List of acronyms and abbreviations
Introduction: demystifying ‘We the People’
Understanding constitutional drafting as a transnational site
Transnational constitution-making in current debates
The porosity of constitutional legal orders
The transnational regulatory web
Epistemological and methodological considerations
Law and society approach to constitution-making
Scope of the present study
Limitations of the study
Why read this book
Chapter overview
PART 1 Crafting a new theory: from constituent power to the development enterprise
1 The limits of constituent power for transnational constitution-making
Constituent power as a foundational concept for the liberal constitutional state
Constitutions as a legal tool to limit government power
The people are sovereign
Constituent power as the foundation of the constitutional legal order
Inherent limitations of analysing transnational constitution-making through the lens of constituent power
Between liberal constitutionalism and legal positivism
Implications for the analysis of external actors in constitution-making processes
Towards an antifoundationalist approach to constitution-making
Conclusion
2 Unpacking liberal legalism
Law as an instrument for social change
Rational law to reach political and economic development
Weber, rationalisation, and the law
New bottles, old wine: the many shapes of legal rationality in the development enterprise
The West as the ultimate stage of development
The colonial lineage of the modernisation rationale
From the ‘mission civilisatrice’ to development
Political development equals liberal democracy
Conclusion
3 The figure of the expert
Framing problems in the development enterprise
Recasting social problems as technical problems
Legal experts to the rescue
The expert as holder of technical knowledge
Knowledge from training
Knowledge from participation
The expert as political outsider
‘Apolitical’ ideology
At the service of the ‘common good’
Apolitical ideology with political consequences
Conclusion
PART 2 External actors in constitution-making as a development enterprise
4 Tracing external actor involvement from decolonisation to post-cold war constitution-making
Constitution-making as a tool to achieve political change
The constitution factory: from Whitehall to the White House
Post-cold war constitution-making as a tool for peace-building and democratic governance
Liberal constitutions to achieve political development
Liberal constitutions as a signifier of ‘civilisation’
The end of history and the liberal constitution
Conclusion
5 The expert as a key actor in transnational constitution-making
Involvement of constitutional experts in constitution-making processes
Drafting constitutions in the context of decolonisation
Development decades and the rise of US constitutional experts
The institutionalisation of transnational constitutional expertise
Justifying involvement with specific knowledge
Constitutional experts in the British Empire
The ‘technician of democracy’ as the expert
External actors as ‘neutral’ providers of constitutional expertise
Outside the political process
The discursive turn towards ‘technicity’
Conclusion
Conclusion: towards a new theory of constitution-making
Law and society approach to constitution-making and the value of descriptive work
Constitutions within regulatory webs: governing by objectives
The development enterprise: an antifoundationalist vision of constitution-making
The politics of constitutional expertise
En route to a new normative theory
References
Index
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