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Cited by 341Comparative constitutional jurisprudence studiesInternational Law and Human RightsEvolving Legal Systems and Governance

The DOI matches its Crossref record; 19 of the 22 references it cites were found in a registry or an index.

Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures

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PETERS, ANNE·2006·Leiden Journal of International Law
DOI 10.1017/s0922156506003487
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Abstract

The article conceives international (or global) constitutionalism as a legal argument which recommends and strengthens efforts (legal and political) to compensate for ongoing de-constitutionalization on the domestic level. Although the notions ‘international constitution’ and ‘international constitutionalism’ have in recent years served as buzzwords in various discourses, the many meanings of those concepts have not yet been fully explored and disentangled. This paper suggests a specific understanding of those concepts. It highlights various aspects and elements of micro- and macro-constitutionalization in international law, and identifies anti-constitutionalist trends. On this basis, the paper finds that, although no international constitution in a formal sense exists, fundamental norms in the international legal order do fulfil constitutional functions. Because those norms can reasonably be qualified as having a constitutional quality, they may not be summarily discarded in the event of a conflict with domestic constitutional law. Because the relevant norms form a transnational constitutional network, and cannot be aligned in an abstract hierarchy, conflict resolution requires a balancing of interests in concrete cases. Finally, because constitutionalism historically and prescriptively means asking for a legitimate constitution, a constitutionalist reading of the international legal order provokes the question of its legitimacy. This question is pressing, because state sovereignty and consent are – on good grounds – no longer accepted as the sole source of legitimacy of international law. International constitutionalism – as understood in this paper – does not ask for state-like forms of legitimacy of a world government, but stimulates the search for new mechanisms to strengthen the legitimacy of global governance.

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Metadata

Authors
PETERS, A.
Affiliations
Max Planck Institute for Comparative Public Law and International Law (DE)
Corresponding author
PETERS, ANNE
ORCID
PETERS, ANNE
Venue
Leiden Journal of International Law
Publisher
Cambridge University Press (CUP)
Published
2006-10
Volume
19
Issue
3
Pages
579-610
ISSN
  • 0922-1565 (ISSN-L)
  • 1478-9698
DOI
10.1017/s0922156506003487
OpenAlex
W2125278925
Cited by
324
References
22
Citations by year
2026: 15 · 2025: 9 · 2024: 7 · 2023: 14 · 2022: 14 · 2021: 26 · 2020: 34 · 2019: 26 · 2018: 25 · 2017: 21 · 2016: 13 · 2015: 23 · 2014: 17 · 2013: 12 · 2012: 11
FWCI
48.81
Type
journal article
Language
en
Open access
Licence
www.cambridge.org/core/terms (unspecified, 3811 d)
Locations
  • Leiden Journal of International Law (publishedVersion)
  • edoc (University of Basel) (acceptedVersion)
  • SSRN Electronic Journal (submittedVersion)
  • edoc (University of Basel)
Funders
Schweizerischer Nationalfonds zur Förderung der Wissenschaftlichen Forschung
Topics
  • Social Sciences › Political Science and International Relations › Comparative constitutional jurisprudence studies
  • Social Sciences › Political Science and International Relations › International Law and Human Rights
  • Social Sciences › Law › Evolving Legal Systems and Governance
Keywords
international constitutionalism, constitutionalization of international law, anti-constitutionalism, conflict between international and domestic law, legitimacy of international law, global governance, state sovereignty, consent

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