Constitutionalism as Liberal-Juridical Consciousness: Echoes from International Law's Past

The future of international law is uncertain. The long-hoped-for revitalization of international law and its institutional structures following the end of the Cold War now seems at risk from an increasing deformalization of, and neo-liberal disregard for, international law. Meanwhile European international lawyers are responding by reasserting a Kantian project for a global constitution under an international rule of law. In this article I attempt to position these recent claims that the international legal order is undergoing a process of constitutional transformation in the context of a long-standing connection, since at least the post-revolutionary nineteenth century, between the idea of a positive international law and the emerging structures of the European constitutional nation-state. If one can trace a cosmopolitan or constitutional project to the influence of domestic public law from this time, one can also trace the inherent tension between international law's promise of a substantive ‘good life’, or sense of justice, and its purported legitimacy in a commitment to a voluntarist, or contractarian, form of obligation. These simultaneous commitments seem incompatible, but are inseparable from international law's embedded liberalism, which requires interplay between them to make sense of progress in the absence of any explicit underlying philosophy. In tracing similarities in concerns from the nineteenth century to the twenty-first, as well as repetitions in legal arguments, I suggest that the alternatives of American empire and a (European) vision of global constitutionalism are merely necessary oppositions, reflecting this broader tension underlying the discipline. Because lawyers avoid clarity on what is taken for granted in a leap from (selective) empirical realism towards assertive normative ambition, I argue that it is a mainstream, liberal-juridical consciousness – rather than any explicit legal theory – which continues to sustain shared assumptions about international law's past, as well as a promise of a future liberal world order. The apparently opposing visions of future world order are merely different sides of the same coin: each reflecting back, but each ultimately sustained by the other.