Criticism of Comparative Constitutional Law, Essay Example

Introduction

Schneider’s work . “A New Global Constitutional Order,” argues for the incorporation of different forms of transnational legality along with comparative constitutional studies. In order to do this the author states that focus must be paid to the “regime of international investment law” (189) and that along with this focus comes a budding understand of the necessity of constitutional functions of transnational legality being necessary to understanding the fundamental functions of how, exactly, constitutional law evolves through the framework of national “systems of law” (189). Schneider highlights such a premise by stating that such “elements of transnational legality” aid in understanding the intrinsic and extrinsic functions of constitutional law.

Constitutional Law

Schneider argues that constitutional law is based solely on a traditional framework enforced through the theories of comparative constitutionalists. These traditionalists, or comparative constitutionalists argue that there are instinctively, within the framework of the system, three types: differences, similarities, and convergence. On the latter matter, the author argues that the United States has fundamentally failed to see such convergence, or at least, has failed to participate in its functionality. This can be verified through the United States’ failure to participate in the U.N. and other constitutional make-ups. While the world is emerging into an era of global consensus in constitutional matters, this convergence is being lost on one of the primary super powers. I believe that the author argues that the U.S. isn’t an exception, but merely “missing out” on the fodder of goods and services available in our “post-war rights model” world (189). The author takes such an argument from data from the U.S. represented from 1979 to current publication of their work. The past three years in history have done little to prove the author wrong.

Mitigating Circumstances with Constitutional Rights

Due to the changing role of constitutional rights in this technological era, the authors states that such convergence (correspondingly with global economic integration) does not mitigate pace, content, or allowances. The author states that the separation that occurs between global political economy and (property) rights has more to do with such integration (189). This separation, the author argues, is alien in and of itself. This alienation is furthered by economic integration (the author cites the WTO and the EU as exceptions). In this separation, Schneider argues between the definitions of “constitutionalism as project” and “constitutionalism as critique” (189): or, to put it more succinctly, I believe the argument between those who “submerge” such rights discourse on the forefront of global economic relationships and those who “noisily take note of it” (189) but are inactive in their participation of it. In this distinction, the author’s bias is clearly noted.

Argument For Global Constitutionalism

I think that Schneider argues for the advocation of global constitutionalism, as he sees it as an overall improvement to global legitimation through improvement of global institutions; and through such improvement, the stabilization of “global governance” (190). The author’s argument is based on his notions of constitutionalism being a benefit because of its intrinsic nature  inregards to government, despite some global government being defined as ‘limited’. Schneider argues that constitutionalism brings “power and political economy back into the folds of transnational legality” (190) by way of interconnecting economic standards, global governmental rights in regards to international trade, and the capital that ensues. The author essentially argues that constitutionalism is beneficial on a global scale as it levels the playing field for participating governments. What is left out of the literature, however, is the lack of cooperation of transition into constitutionalism with other first world governments (here again the U.S. should be mentioned as it is in that category of non-participatory) and the impact of such extrinsic behavior on the tertiary set-up above (interconnecting economic standards, global governmental rights in regards to international trade, and the capital). Schneider continues to argue that “recent trends driving toward global “constitutional engagement, evenconvergence” (190). Schneider defines this constitutionalism as “project constitutionalism” and suggests that this is the dominant “mode of inquiry” (190) by which such standards are viewed. The author argues this through the scope of international investment law.

Transnational Legality and Constitutional Law

Schneider rightfully argues that there’s a linkage between transnational legality and constitutional law; not only that, but I believe Schneider argues that transnational law apes national constitutional law with few differentiations between. Such a differentiation, however, must be analyzed first between project and critique constitutional approaches. Schneider works his arguments through a macro-argument at first, then defines certain particulars (transnational constitutional law, dominant features, linkages) on a micro-scale when he should be focusing these particulars to individual countries that comprise the transnational constitutional law (something that is not approached in the work). Schneider’s work does consist of a solid approach to non-constitutional interpretations of international investment law, stating that such an enterprise ought to have “explanatory power of each of the counter-claims” (190) in which these claims are applicable to Schneider’s macroargumentor “global legal order” (190).

Trade

Trade is both a constraint and a rule in the terminology of constitutionalist projects (e.g. Uruguay Round World Trade Organization). Such constraint, as seen by Schneider, is endemic of such linkages between national constitutional systems and emergent trade constitutions. Such systems are not just in a relationship with each other, but they define each other, as I opinionate, according to Schneider’s argument. The establishment of the WTO at once sanctions certain behavior, but also restrains trade through its factionalism. Schneider does a good job in arguing the different points of view on WTO, as he cites advocates or fair critics as well a others (such as Cass) who find the “WTO falls well short of the typical markers of a ‘fully constitutionalized entity” (190). Schneider then argues that what is truly needed for constitutionalist projects is more law, or more politics, not less. Here, Schneider seems to argue that trade constraints are a way for a country to legitimize themselves (which is probably why the U.S. has opted out), and thereby the free market becomes antiquated terminology.

Transnational Law/Market

Instead of a free market, Schneider is arguing for Kant’s “perpetual peace” wherein there’s a “federation of republican states” (191). This disallows for Habermas’ “global constitutional law” (191) being “managed …by intermediary federal institutions such as those of a reformed United Nations” (191). Then, Schneider further argues that the only legitimate constitutional law is found with Kumm’s idea, insomuch as it supports a “new cosmopolitan paradigm” (191). This, however, is only true insomuch as differing countries and laws define constitutionalism as either being thick or thin (as laws either supporting separation of powers or laws regulating groups). Schneider argues that this, again, does not apply to the United States believe the author argues, but can be firmly representational in a European context.

In the European context laws make their own “independent constitutional claims…[which] exist alongside the continuing claims of the states” (191). Schneider argues that the trick, or foundation of such laws resides in their treatment as overlaying pre-existing “higher-law constitutions” (191). Thus, integration, is key to normative foundation according to the European context but not according to the author who argues such a premise is merely a premature theory based without consideration for the “liberal constitutional order” (191). Schneider goes on to differentiate that transnational legal regimes are similar, or share some basic constitution-like features with national constitutional law. Schneider means that constitutionalism is merely a structure to be worked out, instead of a full-fledged project.

New Constitutionalism

Schneider, while criticizing the lack of foresight in constitutionalism (despite its incorporation into the EU, argues instead for the sanction and use o a “new constitutionalism” (192). This new constitutionalism seeks to “shrink political authority over markets and to replicate mythical paths to development of wealthy, capital-exporting states” (192). In order for this to come to fruition, Schneider states that it must marry itself with politics and markets in order to be fully effective. Schneider, however, is limiting his vision for constitutionalism, as he does not account for a proper relationship with foundational support in either of these sectors. Such a lack of vision may deplete faith and infrastructure, without which there will be no “development of wealthy, capital-exporting states” (192). Schneider argues that there needs to be less politics so that markets are free to trade under fewer constraints. Such a premise, however, leaves, marketability at a premature loss due to consumer-driven markets and governmental sanctions (something that Schneider only hints at in his arguments, but does not blatantly state, nor issue supporting facts as he does so eloquently with his other macro arguments).

Schneider’s argument for inclusive constistutionalism for markets, however, is a solid argument. Schneider does try to temper his argument by stating that “[it] does not presume to defend the vested interests of powerful economic actors and resists being preoccupied exclusively with ‘northern theory’; and methodologically insists upon interdisciplinarity as the most appropriate means of understanding the phenomenon associated with globalization” (192). Schneider, while not favoring an abundance of law, politics or economy, does favor their inclusion with each other in equal parts (or with law having less a say).

Conclusion

Ultimately, I think that Schneider’s argument for a “transnational dimension of new constitutionalism” is well established with the incorporation of a focus on “legal regime to promote and protect foreign investment” (193). The diversity of this investment seems to be key for development on an international level. Where Schneider argues that overreaching and blanket laws on transnational trade (as witnessed with the Uruguay Round World Trade Organization) do nothing to promote and foster constitutuionalism as they in fact, as the author argues, bind “enforcement mechanisms, and oftentimes draw on the language and experience of national constitution systems” (193). Such limits are set forth by agreement between states and laws but also by investors. In order to support a change in something more foundational, Schneider’s argument for less restrictions is supported by valuable authors and researchers, despite his sometimes narrow scope of focus.

Works Cited

Schneiderman, David. “A New Global Constitutional Order.” Comparative  Constitutional Law. Ed. Tom Ginsburg. Northampton. Edward Elgar Publishing Limited, 2011. 189-207. Print.