Draft:Global Constitutionalism

Global Constitutionalism is a theoretical concept and legal principle according to which the fundamental principles of democracy and European constitutionalism—the rule of law, the primacy of human rights, and representative democracy—should have direct impact not only within individual states but also at the level of the entire international system. Within the system of international law, proponents of this concept see the emerging constitution of the global community. The concept is based on the idea of the universal global primacy of human rights, representative democracy, and the rule of law. It is proposed that these principles be made universal and binding on all actors at the national and international level.

Principles

This approach is based on the following principles:

A limitation on state sovereignty, whereby it is no longer regarded as absolute but is constrained by the state’s obligation to protect the fundamental rights of its citizens and to comply with the norms of global law.

The creation of a common global legal order, in which national and international law form a unified system and hierarchy of norms, in which international norms have priority or direct force.

The constitutionalization of international organizations, when structures such as the UN or the WTO are endowed with “constitutional” characteristics; for example, the UN Charter is often referred to as the “Constitution of Humanity.”

Theoretical Approaches

There are several theoretical approaches within this legal framework: the normative, functional, and pluralistic approaches.

The normative approach focuses on the legal regulation of the international order in accordance with the ideals of justice and law.

The functional approach analyzes how international organizations and courts can, in practice, perform functions traditionally carried out by national authorities.

The pluralistic approach recognizes the existence of a multitude of overlapping legal systems and looks for ways to harmonize them through the shared human values of civilization, without insisting on the creation of a global state.

The Evolution of Global Constitutionalism (From Antiquity to the Renaissance and the Modern Era)

Ancient Foundations

The idea of a single supreme law standing in opposition to the chaos and violence of international politics emerged at the dawn of our civilization, when the ancient Greek thinker and historian Thucydides (5th century BCE), traditionally regarded as the father of political realism, described the Peloponnesian War in his “Melos Dialogue” from “The History of the Peloponnesian War,” asserting that “The powerful do what they can, and the weak suffer as they must.” In his view, international relations without global law are based solely on chaos and violence. The idea of global constitutionalism evolved from his concept of replacing the law of power with the power of law.

The Age of Enlightenment

In the 18th and 19th centuries, the idea of global constitutionalism gained a philosophical foundation.

In his 1795 essay “Perpetual Peace,” the philosopher Immanuel Kant proposed the creation of a federation of free states known as a “peaceful union (foedus pacificum).” He argued that global peace is achievable only if the internal constitution of each state is republican, and international relations are governed by the “law of nations (ius cosmopoliticum),” which guarantees protection and proper legal status to every person.

Kant’s contemporary Wilhelm von Humboldt, in his 1789 essay “The Limits of State Action,” proposed the thesis of the primary importance of human personality development. For Humboldt, the ultimate goal of any political order, whether national or global, is the development of creative freedom. He proposed the idea of global constitutionalism, in which the international system exists to ensure human well-being, rather than for the stability of the state.

The Modern Era

The current phase in the development of the idea of global constitutionalism is characterized by the “constitutionalization” of international law as a means of correcting the shortcomings of the Westphalian system.

International legal instruments adopted after World War II, such as the UN Charter and the European Convention on Human Rights, have come to function de facto as norms of a global constitution, limiting the sovereignty of individual states in favor of the supremacy of universal international norms and standards. The formation of the International Criminal Court (ICC) and the World Trade Organization (WTO) provided Kant’s and Humboldt’s ideas with mechanisms to ensure compliance with global norms.

A legal philosopher and political philosopher, Hans Kelsen in his key work, Pure Theory of Law, proposed the establishment of a supreme level of global law, which he called the "supreme norm."

A leading contemporary theorist, Jürgen Habermas advocates for the constitutionalization of international law as a necessary tool to protect citizens from the volatility of globalization, arguing that democratic legitimacy must transcend the nation-state. Habermas described the global constitution as "norms accepted by all in the perspective of everyone."

Modern legal scholars and sociologists (P. Bourdieu, M. Castells) view the transfer of popular sovereignty from separate nations to a global society as a natural consequence of socio-media globalization.

Traditionalist approach

Traditionalist researchers (S. Izmestyev) suggest basing global law (consensus) on the principles and traditions of world religions, which have formed the uncodified constitution of civilization throughout its long history.

In the constitutions of many Oriental states, the role of “fundamental law” is performed by religious law, which has supreme force in relation to any legislation. Modern studies speak of the phenomenon of “Islamic constitutionalism” in the Middle East and “Buddhist constitutionalism” in South and South-East Asia.

In the Compendium of the Social Doctrine of the Church, published in 2004, the Catholic Church notes that “national sovereignty, however, is not absolute. Nations may freely renounce the exercise of some of their rights in the interest of achieving a common goal, recognizing that they form a ‘family of nations’” (Compendium, 2004, no. 435).

At the same time, according to the Church, spiritual principles must have the force of a supreme global law: “To establish and strengthen an international order that effectively guarantees peaceful relations among peoples, the same moral law that governs the lives of individuals must also govern relations among states” (Compendium, 2004, No. 436). The Church affirms this by stating that “universal respect for the principles underlying the ‘legal structure corresponding to the moral order’ is a necessary condition for the stability of international life. The pursuit of such stability led to the gradual development of “the law of nations” (“ius gentium”), which can be considered “the precursor of international law.” Legal and theological reflections, firmly grounded in natural law, formulated “universal principles that precede and stand above the internal law of states” (Compendium, 2004, no. 437).

Traditionalist researchers (S. Izmestyev) suggest basing global law (consensus) on the principles and traditions of world religions, which have formed the uncodified constitution of civilization throughout its long history.

Academic forums and resources dedicated to global constitutionalism

Despite the challenges and imperfections of the political system, the idea of a single law for humanity remains a topic of discussion and popular in progressive academic circles. This is related to the need to regulate global economic processes, the exchange of information on the Internet, and the exploration of space and extraterrestrial environments.

The main academic forums and resources focused on global constitutionalism include:

The journal “Global Constitutionalism (GlobCon)“, published by Cambridge University Press, is a leading interdisciplinary publication that brings together the fields of international law, political science, and international relations.

The Oxford Handbook of Global Constitutionalism, edited by Anthony Lang and Antje Wiener, is a comprehensive collection featuring articles by leading experts on the theory, history, and practice of the field

The “Yale Seminar on Global Constitutionalism,” organized by the Yale Law School, is an annual seminar that produces a series of e-books (available for free online) on topics such as the limits of law, sources of rights, and global crises.

Futher Reading

1. Peters. A. (2014) "Global Constitutionalism". In The Encyclopedia of Political Thought, M.T. Gibbons (Ed.), The Encyclopedia of Political Thought website. URL: https://doi.org/10.1002/9781118474396.wbept0421/
2. Peters A. (2009) The Merits of Global Constitutionalism. Indiana Journal of Global Legal Studies. Vol. 16 (Iss.2). pp. 397–411. DOI: 10.2979/gls.2009.16.2.397.
3. Lang AF. (2021) Global constitutionalism: A practical universal. Global Constitutionalism. Vol.10(Iss.2). pp. 367-375. DOI: 10.1017/S2045381721000149.
4. Fonte J. (2011) Soverenity or Submission: Liberal Democracy or Global Governance? Essay about book Sovereignty or Submission: Will Americans Rule Themselves or be Ruled by Others? (Encounter Books, September 2011), at FPRI on September 14, 2011. Available at: https://www.files.ethz.ch/isn/150610/2011_10_sovereignty.pdf
5. Kant I. (1991). Perpetual Peace: a Philosophical Sketch. In H. S. Reiss (Ed.), H. B. Nisbet (Trans.), Kant: Political Writings (pp. 93–130). chapter, Cambridge: Cambridge University Press.
6. Smith GH. (2013) The System of Liberty: Themes in the History of Classical Liberalism. Cambridge: Cambridge University Press. 231 p.
7. Kelsen H. (1960) Pure Theory of Law. Transl. from German by Knight. Berkeley, CA: University of California Press. 376 p.
8. Habermas J. (1998) The Inclusion of the Other. Studies in Political Theory. Edited by Ciaran Cronin and Pablo De Greiff. Cambridge, MA: The MIT Press. 340 p.
9. Bourdieu P. (2014) On the State: Lectures at the College de France (1989-1992). Edited by Patrick Champagne, Remi Lenoir, Franck Poupeau and Marie-Christine Riviere. Translated by David Fernbach. Cambridge: Polity Press. 450 p.
10. Castells M. (2009) Communication Power. NY: Oxford University Press. 571 p.
11. Schonthal B. (2017) Formations of Buddhist constitutionalism in South and Southeast Asia. International Journal of Constitutional Law Oxford University Press and New York University School of Law. Vol. 15 (Iss.3). pp. 705–733.
12. Compendium of the Social Doctrine of the Church (2004). Vatican: Libreria Editrice Vaticana. 224 p.
13. Izmestyev S. (2025) Global Perspective: monograph. M.: World of science. Online edition. ISBN 978-5-908044-73-8 (printed book) Available at: https://izmestyev.org/book/Global_Perspective_PBook_S_Izmestyev_2025_EN.pdf
14. Izmestyev S. (2023) Global Alternative : monograph. M.: Triumph Publishing. 326 p. DOI: 10.32986/978-5-94472-115-0-01-2023 ISBN 978-5-94472-115-0 Available at: https://izmestyev.org/book/Global_Alternative_2023_S_Izmestyev_ENG.pdf