Constitutionalism without borders and governance beyond the states a comparative institutional approach

Abstract

This chapter explores the role of governments, governance, and constitutions in an increasingly interdependent world. Interdependence has always led to governance. As world interdependence grows, so does the need and claims for governance beyond the state. At the same time, the forms of governance beyond the state we see developing are strongly contested and, more importantly, difficult to map and assess. Furthermore, those forms of governance beyond the state seem to increasingly depart from the paradigm of state delegation and eliminate the distinction between the state as an international and internal actor. In some cases, they also increasingly recognize individuals as actors of the global order. The chapter exposes the way through which processes of governance beyond the state change the forms and locus of power at the national as well as the international levels. They also challenge the character and conditions supporting state constitutionalism and with it they require a rethinking of constitutionalism itself. Even if the constitutional nature of the emerging forms of transnational and global governance is contested, what cannot be denied is their impact on state constitutionalism. The chapter sets out an approach to understanding how state constitutions and the governance mechanisms or, even, constitutionalism of the world interact. In considering those questions of constitutionalism, the chapter tries to avoid a common but deadly analytical trap: perfectionism or single institutionalism. Instead it adopts and articulates a comparative institutional alternative. The chapter argues that there may be many competing goals or values at play in considering constitutions and constitutionalism beyond the state, but how well any of these will be achieved will be determined by the functioning of the decision-making institutions chosen and, in turn, the functioning of these institutional alternatives will be determined by the dynamics or patterns of participation.