The Limits of Normative Constitutionalism

Global constitutionalism is one of the outstanding accomplishments of normative constitutional theory. The most successful instantiations of normative constitutional theories of global constitutionalism have taken up perspectives that seemed potentially incompatible: legal pluralism and the sociology of constitutions. The normative case for global constitutionalism as the arguments given in support of global constitutionalism are very sophisticated; the relevance of normativism in global constitutional law is undeniable.
Still, the paper questions the undergirding normativity assumed by these arguments. Therefore, it reconstructs the normative arguments in support of global constitutionalism, but then identifies a lack of political reflexivity: The great achievement of modern constitutionalism, the coupling between law and politics, is undone in favour of a colonisation of law by a constellation of legal fragments which often strangle rather than open up the possibilities of politics.

EU Unilateralism and the Development of International Law

Much has been made of the US' recent withdrawal from leadership in multilateral institutions. This is often contrasted with the approach of the European Union. The Treaties commit the EU to seek solutions to international problems through multilateral means, and the EU has sought to influence the development of international law via multilateral institutions. Yet in recent years, many of the EU’s policies have been criticized for being ‘unilateral’, or even breaching international law. The approach of the Court of Justice of the European Union to international law has been less open to international law. In areas such as climate change mitigation, and human rights protection, the EU’s unilateral approach often stems, not from a disengagement with multilateralism, but from an inability to make progress through multilateral institutions. This contribution discusses whether the EU may be undermining global institutions and respect for international law through its action.

Can we escape Normativism in Public Law?

Public Law (as any other field of law) tries to achieve certain goals by certain orders (norms). Norms, thus, have an important role to play in regulating und limiting state activities especially in democratic states with a rule of law. Obligations arising from these norms are expressed in fundamental rights as well as in the principle of legality. Therefore normativism is necessarily linked with the concept of a constitution and the law based on it. This contribution will argue that an “objective” understanding of law responds best to the requirements of democratic states under a rule of law.
However: Despite their normative character legal orders can not only be assessed from a normative perspective. Moreover, every account of constitutional law has to accept that legal provisions are created to solve certain factual problems and to establish and ensure social facts. But neither perspective on constitutional law is feasible without talking its normative character into account.

The Constitution as an Obstacle

The binary distinction between “Normativism” and “Anti-Normativism” may fall short of serving as a stable foundation upon which the character of constitutional law is to be assessed. While an appealing heuristic , it often oversimplifies rather complex discussions underlying the question as to the specific properties of rules and ruleness, of power and authority on the constitutional level. At the same time it tends to divide what is not necessarily to be separated, such as realist approaches to the application of legal rules and a formalist(ic) understanding of the framework determining this application. This contribution will argue in favor of overcoming the “Normativism”/”Anti-Normativism” division by perceiving constitutional law as a normative (and normatively relevant) obstacle to political action taken even according to realist conceptions.

Normativist Resistance

Constitutionalism properly so called is connected to a commitment to
to self-government of free and equals through law. As such it is tied
not only to a distinctive normative conception of public law, but also
grounds justifications for resistance and revolution.