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Constitution Making and Transnational Legal Order: A Comparative Constitutional Perspective

Ernest Powell

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Constitution-Making and Transnational Legal Order (Comparative Constitutional Law and Policy)

by Terence C. Halliday

5 out of 5

Language	:	English
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Print length	:	314 pages

Constitutions are fundamental legal documents that establish the framework for a political system and define the relationship between the government and the people. They are typically drafted and adopted by a constituent assembly or a constitutional convention, and they usually contain provisions on the structure of government, the rights of citizens, and the principles of governance.

In recent years, there has been a growing interest in the study of constitution making from a transnational legal order perspective. This approach examines the ways in which international law and global governance influence the development and implementation of constitutions. It also considers the impact of transnational legal norms on the interpretation and enforcement of constitutional provisions.

This article provides a comprehensive overview of constitution making and transnational legal order from a comparative constitutional perspective. It explores the theoretical foundations, historical developments, and contemporary challenges in this field. The article also discusses the role of international law and global governance in shaping constitutional processes and outcomes.

Theoretical Foundations

The theoretical foundations of constitution making and transnational legal order can be traced back to the work of scholars such as Immanuel Kant, Georg Jellinek, and Hans Kelsen. These scholars argued that constitutions are not simply legal documents, but also expressions of the social and political values of a society. They also emphasized the importance of international law in shaping constitutional development.

In the 20th century, the work of scholars such as Karl Loewenstein, Louis Henkin, and David Kennedy further developed the theoretical foundations of this field. These scholars explored the relationship between constitutional law and international law, and they argued that the two systems are increasingly interconnected.

Historical Developments

The historical development of constitution making and transnational legal order can be divided into three main periods: the early modern period, the 19th century, and the 20th century.

Early Modern Period

The early modern period (16th-18th centuries) saw the development of the first modern constitutions. These constitutions were typically drafted by monarchs or ruling elites, and they often reflected the principles of natural law and the social contract theory.

During this period, international law also began to develop as a distinct body of law. The Treaty of Westphalia (1648) established the principle of state sovereignty, and it paved the way for the development of a system of international relations based on the rule of law.

19th Century

The 19th century was a period of significant constitutional development. The American Revolution (1776) and the French Revolution (1789) led to the adoption of new constitutions that were based on the principles of popular sovereignty and the separation of powers.

During this period, international law also continued to develop. The Hague Conventions (1899 and 1907) established rules for the conduct of war, and the Geneva Conventions (1864 and 1906) established rules for the treatment of prisoners of war.

20th Century

The 20th century was a period of unprecedented constitutional development. The aftermath of World War II led to the adoption of new constitutions in many countries, and the United Nations Charter (1945) established a new international order based on the principles of peace and security.

During this period, international law also continued to develop. The Universal Declaration of Human Rights (1948) established a set of universal human rights that are now recognized by most countries in the world.

Contemporary Challenges

Constitution making and transnational legal order face a number of contemporary challenges. These challenges include:

The rise of populism and nationalism
The increasing interconnectedness of the world
The challenges of climate change
The rise of new technologies

These challenges require new approaches to constitution making and transnational legal order. Constitutions must be drafted in a way that is responsive to the needs of the people, while also taking into account the global context in which they will be implemented.

International law must also be updated to address the challenges of the 21st century. The existing international legal framework is not always adequate to deal with new issues such as climate change and the rise of new technologies.

The Role of International Law and Global Governance

International law and global governance play an increasingly important role in shaping constitutional processes and outcomes. This is due to a number of factors, including the increasing interconnectedness of the world, the rise of transnational corporations, and the global reach of new technologies.

International law can play a role in shaping constitutional processes in a number of ways. For example, it can establish minimum standards for the protection of human rights, it can provide a framework for the conduct of elections, and it can help to resolve disputes between states.

Global governance can also play a role in shaping constitutional outcomes. For example, the United Nations can provide technical assistance to countries that are drafting new constitutions, and the World Bank can provide financial assistance to countries that are implementing constitutional reforms.

Constitution making and transnational legal order are two closely related fields that are becoming increasingly important in the 21st century. The challenges of populism, nationalism, climate change, and new technologies require new approaches to constitution making and transnational legal order. International law and global governance can play a key role in shaping constitutional processes and outcomes.

By understanding the theoretical foundations, historical developments, and contemporary challenges of constitution making and transnational legal order, we can better prepare for the challenges of the future.

Constitution-Making and Transnational Legal Order (Comparative Constitutional Law and Policy)

by Terence C. Halliday

5 out of 5