The constitutionalization of what?

Abstract

Abstract There are difficult global challenges that need to be addressed. In response, many have argued for the increased constitutionalization of international law. An argument is often also made that the international order is already constitutionalized in some meaningful sense and that there are founding conditions within the international order that represent something like a global constitution. Nevertheless, when surveying the literature on constitutionalization one is often struck by a general ambiguity about what the term means and with how constitutionalization is meant to operate between theory and institutional practice. In particular, there seems to be an overall ambiguity regarding what is being constituted by the processes of constitutionalization, about how these processes operate, and with whether this legal order is in fact creating the type of progressive cosmopolitanism that is often assumed. To address these ambiguities, this article will seek to better understand what appeals to constitutionalization generally mean and to expose key conceptual problems. The goal in doing so is to highlight areas that need greater conceptual attention and to recommend potential solutions, so that more cosmopolitan minded scholars can feel more confident in prescribing constitutionalization as part of their normative catalogue.

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