How to Constitutionalize International Law and Foreign Policy for the Benefit of Civil Society

Abstract

All societies have adopted rules in order to reconcile conflicts among the short-term interests of their citizens with their common long-term interests. All societies have learned that rule-making and rule-enforcement require government powers, as well as "checks and balances" against abuses of such powers. Constitutionalism has emerged as the most important human invention for protecting equal rights of the citizens against such abuses. It rests on the rationality of Ulysses who, when approaching the island of the sirens and knowing of their dangers, ordered his companions to bind him to the mast and not to release him under any circumstances.' The underlying technique of "precommitments" is based on the psychological insight that human rationality is imperfect and exposed to short-term temptations (like the songs of the sirens) that may be inconsistent with our long-term interests (e.g., not being killed by the sirens). The self-limitation of our freedom of action by rules and the self-imposition of institutional constraints (like tying our hands to the mast) are rational responses designed to protect us against future risks of our own passions and imperfect rationality.

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