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Following Onuf

Anthony F Lang, Jr

Constitutionalism is most often associated with law, or rather the rule of law. As a result, constitutionalism becomes an ideology of limits, the limits that law imposes on social and political life. This modern understanding derives in large part from the politics of the written constitution, where purposefully putting form to a political order and enacting that in a public way has become more widely accepted (McIlwain 2008 [1958]). For those interested in the relationship of constitutionalism to international affairs, this assumption means turning to international law as the location for an international or global constitutional order (Dunoff and Trachtman 2009; Klabbers, Peters, and Ulfstein 2009). For others it means locating constitutionalism in international organizations such as the UN (Fassbender 2009).

But law and legalization are not the only dimensions of constitutionalism. To constitute means to create, to empower, to give life to institutional forms and structures. The strong emphasis on law throughout the literature on global constitutionalism and constitutionalism more generally, tends to obscure the importance of power, particularly the constituent power at the basis of modern constitutional thought. This chapter explores the relationship between law and power through an engagement with the work of Nicholas Onuf. Onuf’s seminal work of international relations and law, World of Our Making (2013 [1989]), explores the nature of rules and laws in the construction of international affairs. It well deserves its status as one of the ur-texts of Constructivism in international relations, for it helped frame many efforts to explore the nature of constructed political life through its engagement with the idea of a rule, drawing on social and linguistic philosophy to understand how rules construct and bind agents by means of heteronomy, the Kantian idea of being bound by rules that lack a formal enforcement mechanism. Onuf’s conclusions in World of Our Making arose, in part, from his engagements with international legal theory (Onuf 2008). His analysis of the sources of law, law making, enforcement, and the intersection of social and legal theory in understanding the international legal order deserve greater attention, which in part this chapter is intended to provide.

Onuf moved from questions of rule and law to a different, albeit related strand of work, that concerning Republicanism. In 1998 he produced yet another groundbreaking work, one that moved out of debates in Constructivist IR theory and towards international political theory: The Republican Legacy in International Thought. Republicanism, like constitutionalism has many trajectories, but Onuf explores an international republican ideal through an engagement with three key figures: Aristotle, Vattel, and Kant. Republicanism for Onuf echoes some of his earlier concerns, for as Aristotle famously said, to be political is to know how to rule and be ruled.

In between these moments of Constructivism and Republicanism, nestled quietly in the sphere of international legal theory, Onuf published an essay entitled ‘The Constitution of International Society’ (1994). The article, published in the then newly launched European Journal of International Law, was reprinted in The Republican Legacy in International Thought. In his collection of essays on international law, Onuf describes the origins of the essay as a bridge between his work in international relations and international law. It had a second purpose, though, which Onuf describes as an effort to correct an overly strong emphasis on discourse which had led scholars to neglect ‘the structural properties of constitutions’ (Onuf 2008, 295). The move to the constitutional in Onuf’s work represents a transformation from a focus on rules and Constructivism to a focus on Republicanism and institutions. For it is a constitution that locates law within institutions and yet also constitutes a legal order that can construct those institutions. A constitution provides the bridge between rules and institutions.

But to move from the rules to institutions requires something that remains unexplored in much of the literature on international and global constitutionalism. It is power that makes law and institutions possible, and it is power that provides the origin of a constitution at its moment of founding. The particular form of power in modern constitutionalism that provides this bridge is constituent power, also known as pouvoir constituant. The power of the people, the coming together of individuals who formally agree to reorganize themselves and consciously live under the rule of law, can be found in multiple domestic settings. From the American and French revolutions to the Arab Spring and recent demands for accountability in Hong Kong, constituent power appears often on the nightly news. Yet there appears to be no such moment at the global level. Of course, the Occupy Movements that arose in response to the 2008 financial crisis might be one version of an emerging constituent power, though this and previous movements against global capitalism have failed to construct a new constitutional order. Others might locate such constituent power in states coming together to constitute new institutions, such as the founding of the League of Nations or the United Nations. Yet others might see constituent moments in cosmopolitan-driven ideals that manifest themselves in activist NGOs seeking to drive forward particular agendas in diverse legal and political realms.

Locating such constituent moments in the international is difficult, to be sure, but not impossible. I argue that finding and labelling such moments should perhaps be the next stage in the research agendas of Constructivist and legal scholars around the world. In that vein, this chapter will seek to do two things: first, it will describe Onuf’s transition from rules and Constructivism to rule and Republicanism. In so doing, I will highlight the role that constitutionalism plays in Onuf’s ideas, focusing on the essay noted above. Second, I wish to see if the path revealed by Onuf’s brush clearing might lead us towards the neglected element of power and particularly constituent power in international affairs. To do this, I turn to a different theorist of Republicanism, Hannah Arendt, and explore how her arguments in On Revolution (1963) connect with Onuf and yet also supplement his understanding of power, constitutionalism and change. Onuf has led us to down a path that demonstrates how the international can be constituted by rules and institutions. This chapter follows that path, but turns it towards a different kind of constitutionalism one in which constituent power points towards moments of global constitutionalism.

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