WiP Session: Cormac Mac Amhlaigh- ‘Global Constitutionalism and its Discontents: Towards a new framework of analysis’
This article attempts to reorient debates on global constitutionalism away from check-list approaches to the concept of constitutionalism and the related question of ‘aptness’ – that is whether the global context is ‘constitutionalism apt’ – to a more functional approach which identifies the questions to which constitutionalism is provided as the answer. It identifies an overarching primordial preoccupation with legitimacy in global order as the theme which unifies all approaches to global constitutionalism notwithstanding the diversity of concepts employed to this end. The article goes on to build a framework of constitutionalism based on this core concern of legitimacy drawing on the relationship between legitimacy and constitutionalism in the state context. It argues that questions of political legitimacy, and constitutionalism’s contribution to their resolution, are not simple. As such the framework of constitutionalism as legitimacy developed encapsulates this complexity primarily through the tension between liberal and republican constitutional thought. The framework shows how public power can be both legitimate from some perspectives and illegitimate from others which is then applied to the UN security council to show the ways in which constitutionalism as a form of legitimacy can make a substantive contribution to debates surrounding the legitimacy of global governance more generally.