Volume 47, Number 1, Winter 2006

The Denationalization of Constitutional Law

Gráinne de Búrca∗
Oliver Gerstenberg∗∗

Introduction
International law, in general, and international human rights law, in par-
ticular, have experienced a battering in recent years. Spurred in part by national
reactions to the “new terrorism,” politicians and legislators—as well as judges,
practitioners, and intellectuals worldwide and along the ideological spectrum—
have expressed reservations about the role and function of international law
in domestic affairs. Reactions have ranged from sharp skepticism about the au-
thority and utility of international law to conditions and caution about how it
should be given effect within the domestic system.
Concerns regarding the role of international law are evident throughout
Europe. In Germany, the federal constitutional court has in different ways
positioned itself as a bulwark between the national legal system and the two
European legal orders of which the court is a part—the European Union (“EU”)
and the European Court of Human Rights (“ECHR”) system.1 In Denmark,
the Council of Europe’s Human Rights Commissioner’s 2004 censure of Danish
immigration policy on family reuniªcation sparked critical political and
media debate on the relevance and authority of international human rights
law.2 And in the United Kingdom, which sought to derogate from the rele-
vant provisions of the European Convention on Human Rights, the Home
Secretary responded sharply to the United Nations Special Rapporteur on Tor-

∗ Gráinne de Búrca: Professor of Law, European University Institute, and member of the Global Law
Faculty, New York University.
∗∗ Oliver Gerstenberg: Reader in Law, School of Law, University of Leeds. This Article was written
while the author was a Fellow of the Program in Law and Public Affairs at Princeton University, in 2004-
05.
Thanks are due to Ruti Teitel, who made extremely insightful comments at the presentation of an ear-
lier version of this Article in the LAPA-seminar at Princeton University, and to Joshua Cohen, Stanley
Katz, Frank Michelman, Andrew Moravcsik, Chuck Sabel, Kim Scheppele, and Anne-Marie Slaughter.
The usual disclaimer applies.
1. See, e.g., BverfG, Oct. 14, 2004, docket number 2 BvR 1481/04, at juris online/Rechtsprechung
(ªnding that appellate court did not sufªciently consider the judgment of the European Court of Human
Rights concerning the custody rights of biological father); BverfG, July 18, 2005, docket number BvR
2236/04, at juris online/Rechtsprechung (holding that German law implementing resolution concerning
European arrest warrant violates German Basic Law).
2. See Council of Europe, Office of the Commissioner for Human Rights, Report by Mr. Alvaro Gil-
Robles, Commissioner for Human Rights, on His Visit to Denmark, Doc. No. CommDH(2004)12 (July 8,
2004).
244 Harvard International Law Journal / Vol. 47

ture’s criticisms by castigating the United Nations and its alleged focus on the
“human rights of terrorists.”3 On the other side of the Atlantic, the debate
about the relevance of “foreign law” to constitutional adjudication has been
equally vigorous. A number of liberal academic scholars have joined conserva-
tive intellectuals in declaring international law fundamentally anti-democratic.4
Using the European experience as a basis for analysis, this Article chal-
lenges the prevailing skepticism by arguing for an understanding of interna-
tional human rights law and international adjudication as a practice of “justiª-
cation.” Under this view, international law obligates states merely to justify
those local practices that deviate from a shared, publicly evolving, cross-
community set of standards. This obligation may be triggered in part by indi-
vidual claims. The theory conceives of the relationship between national consti-
tutional law and international adjudication, moreover, outside the context of
a strict monism-dualism dichotomy. According to that dichotomy, international
law is either an authoritative external body of law which directly penetrates
the national legal order, or a corpus of foreign law which must be ªltered ªrst
through the prism of national constitutional law. This Article argues instead
that international adjudication should be conceived of as having a persuasive
function and not an overriding one. International and constitutional norms
should be understood as contextually competing rule-of-law values rather than
as conºicting legal sources vying against one another.
Part I sets forth the theoretical framework of the argument for a “justiªcation
view.” Part II applies this framework to EU law, examining the relationship
that has developed between both European Court of Justice (“ECJ”) and Euro-
pean Human Rights Convention (“EHRC”) case law on the one hand and
national law on the other.

I. Dualism and Justiªcation

An argument for a “justiªcation” theory of international law in the domestic
constitutional context requires an initial examination of the prevailing theo-
retical approaches. Dualism is one of these approaches and is appealing as a
contemporary legal doctrine in two distinct ways.5 First, it erects a bulwark

3. See Sam Knight, Row Over New Rules for Deporting Hate Preachers, Times Online (London), Aug. 24,
2005, available at http://www.timesonline.co.uk/article/0,,22989-1748672,00.html (last visited Nov. 20,
2005).
4. For some provocative contributions to the debate, see Sanford Levinson, Looking Abroad When Inter-
preting the Constitution: Some Reºections, 39 Tex. Int’l L.J. 353 (2004) (criticizing the “moral parochialism”
of U.S. judicial conservatives); Jed Rubenfeld, Unilateralism and Constitutionalism, 79 N.Y.U. L. Rev. 1971
(2004) (explaining U.S. judicial unilateralism through the judiciary’s longstanding commitment to
democratic, rather than international, constitutionalism).
5. The idea of dualism is captured in the following telling quote: “The Basic Law is clearly based on
the classic idea that the relationship of public international law and domestic law is a relationship be-
tween two different legal spheres and that the nature of this relationship can only be determined from the
viewpoint of domestic law only by domestic law itself.” BverfG, Oct. 14, 2004, docket number 2 BvR
1481/04, supra note 1, at para. 34. For a general discussion on dualism (key aspects of which are enumer-
ated in the subsequent text), see generally J. G. Starke, Monism and Dualism in the Theory of International
2006 / The Denationalization of Constitutional Law 245

against the overextension of judicial comity. From the dualist perspective, the
ultimate legitimate source of coercive legal norms within a democratic legal
order is the democratic process itself. Accordingly, international norms—
including even human rights norms—are enforceable domestically only when
and to the extent that the democratic sovereign has explicitly given them
effect by “incorporating” them through acts of statutory legislation. Dualists
worry that allowing international norms to have an “immediate” effect on do-
mestic constitutional choices—that is, unmediated by legislative acts of statu-
tory incorporation—would open the proverbial ºoodgates, permitting a free-
wheeling and self-programming judiciary, accountable only to its own pro-
fessional norms of judicial comity, to usurp domestic legal and political pre-
rogatives. Ports of entry, for international and foreign proto-legal materials
therefore are, as to both existence and scope, wholly contingent upon domes-
tic statutory legislation under the domestic constitution.
The dualist concern with abdication and delegation of sovereignty to the
judiciary may be shallower and more inconclusive than it ªrst appears, per-
haps to the extent of bordering on bad faith. After all, primarily the highly
successful and inºuential domestic constitutional courts, such as the German
Bundesverfassungsgericht, are today tending toward, if not actively advocat-
ing, dualism. The objection, whether based on considerations of sovereignty or
merely of institutional competence, simply assumes that norms of public inter-
national law and their judicial vindications per se clash with democratic com-
mitments. If law’s validity depends (as the dualists maintain) on originating
from democratic processes such as enactment by statute (rather than on de-
mocratic values or principles), then international law is necessarily “anti-demo-
cratic”: It does not have democratic origins.
Second, and more fundamentally, dualism appeals because of its essentially
skeptical view of the status of moral principle and moral reasoning in inter-
national affairs outside the “bounded community” of the nation-state.6 This
outward-looking skepticism at once is a corollary of and reinforced by a speciª-
cally contractarian view of democratic legitimacy. According to this view,
the domain of domestic, inward-looking constitutional law takes on an in-
trinsic moral and epistemological priority over the essentially “immature”
domain of international law.7
The increasing ethnic and cultural pluralism within nation-states and, a forti-
ori, sharp ethnic, cultural, ideological, constitutional, and economic diversity
beyond the states (that is, globally), render any assumptions about social con-
vergence in a moral context wildly implausible. Within contemporary interna-

Law, 1936 Brit. Y.B. Int’l L. 66; Jonathan Turley, Dualistic Values in the Age of International Legisprudence,
44 Hastings L.J. 185 (1993); Curtis A. Bradley & Jack L. Goldsmith, Federal Courts and the Incorporation
of International Law, 111 Harv. L. Rev. 2260 (1998).
6. See Seyla Benhabib, On the Alleged Conºict Between Democracy and International Law, 19 Ethics &
Int’l Aff. 85, 90 (2005).
7. For examples of the dualism-as-contractualism concept, see Thomas Nagel, The Problem of Global
Justice, 33 Phil. & Pub. Aff. 113 (2005), and Rubenfeld, supra note 4.
246 Harvard International Law Journal / Vol. 47

tional law discourse, this diversity is experienced as an irreversible loss of law’s

unity. The result has been the “fragmentation” of international law into
pragmatic parallel “regimes” such as trade, environment, human rights, in-
ternational criminal law, and so on. This fragmentation in turn renders a consti-
tutionalization of international law unlikely, undermining its democratic le-
gitimacy from the contractarian and thus dualist perspectives.8
In response to the existence of pervasive ethnic and cultural pluralism, dual-
ists divide the realm of international public affairs into two separate, mutu-
ally juxtaposed and discrete spheres. The ªrst sphere—the “bounded com-
munity” of the nation-state—is constituted by an ongoing practice of con-
stitutional interpretation. The “bounded community” is further character-
ized by a gapless system of constitutional meaning reºecting a political contract
among citizens, and by a collectively shared commitment to democratic self-
government by citizens as both authors and addressees of binding law. In con-
trast, the sphere of international relations is one of background-less voluntary
agreements between contracting sovereign states, where the primary norma-
tive reference is to states, peoples, and societies rather than to individuals. Dual-
ism seeks to re-formalize the role of adjudication along the same lines that
divide the domestic and international spheres. Dualism sees the domestic con-
stitutional legal system as a coherent and gapless system of constitutional mean-
ings, expressive of a political contract between citizens and giving rise to special
obligations among them, and only among them. Conversely, the role of in-
ternational adjudication is to monitor the terms of the relational contracts
among states, peoples, and societies from which international legal norms arise.
From international law’s inception in the Grotian legal tradition—as de-
scribed and reformulated by Hersch Lauterpacht9—international legal dis-
course has been fraught with, indeed positively constituted by, a tension
between two co-originating, non-mutually substituting ideas: contractual gene-
sis on the one hand and deontological moral validity on the other. While many
international norms emerge through complex voluntary treaty obligations
among sovereign states and are thus member-driven contractual regimes, hu-
man rights norms accrue to individuals as moral and legal persons tout court—as
members of a global moral community which is always also a legal commu-
nity in statu nascendi. According to a contractual-positivist account, interna-
tional law is, as noted by Lauterpacht, “the product of will, of the will of
States as expressed in their consent—a view differing only in degree from
the imperative theory of law within the State according to which the essence

8. Martin Koskenniemi & Päivi Leino, Fragmentation of International Law: Postmodern Anxieties, 15 Lei-
den J. Int’l L. 553, 556–67 (2002) (outlining the fragmentation of international law and the conse-
quent problems of ensuring a consistent, hierarchical application of international legal norms).
9. Hersch Lauterpacht, The Grotian Tradition in International Law, 23 Brit. Y.B. Int’l L. 1 (1946), re-
printed in 2 International Law: Being the Collected Papers of Hersch Lauterpacht 307 (1970)
(arguing that, despite being criticized for its internal contradictions and potential gaps, Grotius’ De Jure
Belli ac Pacis was the ªrst comprehensive and systematic treatise on international law).
2006 / The Denationalization of Constitutional Law 247

of law is that it is the command of the State.”10 The rival anti-positivist ac-
count, in contrast, deªnes international law as being “constituted by its confor-
mity with reason—reason in relation to law conceived as justice and in relation
to the State conceived as the recognition of the individual human being its
primary and ultimate unit.”11
Given these competing views, the question arises as to how possibly to
prescribe human rights norms that (a) are characteristically created through
voluntary commitments in the absence of an overwhelming sovereign power
with the ultimate right of enforcement; that (b) are legally binding upon both
nonstate and state actors when they come into contact even with individuals
who are not members of the actors’ own polities; and that (c) express an in-
terculturally acceptable standard of human rights while leaving sufªcient mar-
gins of appreciation for circumstantial and cultural variations? This genesis/
validity paradox is unavoidable in the context of international law and creates,
as a corollary, a tension or conºict between two competing accounts of adjudica-
tion. The more positivistically inclined account—steeped in private-law meta-
phors of delegation, principal-agent relations, and trusteeship—is one of defer-
ence to the will of states. The other account is a constitutional one, crystallizing
around the notion of persuasive authority and the idea of constitutional order-
ing of social spheres in light of contextually colliding open-ended normative
principles.
Whatever the supposed beneªts of “participation in a common global en-
terprise of judging,”12 “[j]uxtaposing the constitutional and the international
systems with regard to a right they both protect” will, as dualists routinely
fear, have the effect of “multipl[ying] the possibilities for competing inºuences
on the interpretation of the right.”13 The realization of this expectation is
particularly likely in situations where standards differ and where an interna-
tional body might interpret even the most basic and seemingly uncontrover-
sial human rights in a way that runs counter to settled features of domestic con-
stitutional law. Dualism’s inner justiªcation, then, lies in barring a domestic
constitutional order from placing itself, in its entirety, in the hands of an inter-
national court, thus ensuring that the domestic order and its adjudicative acquis
are subject only to their own interpretations of basic moral norms that have
been established as legal norms.
The familiar distinction between fundamental rights and the Rawlsian no-
tion of the “fair value” of those rights provides insight into dualist fears.14

10. Id.
11. Hersch Lauterpacht, International Law—The General Part, in 1 International Law: Being the
Collected Papers of Hersch Lauterpacht 54–55 (1970).
12. Anne-Marie Slaughter, Judicial Globalization, 40 Va. J. Int’l L. 1103, 1104 (2000).
13. Gerald L. Neuman, The Uses of International Law in Constitutional Interpretation, 98 Am. J. Int’l L.
82, 85 (2004); see also Gerald L. Neuman, Human Rights and Constitutional Rights: Harmony and Dissonance,
55 Stan. L. Rev. 1863 (2003) (arguing that “the result may be dissonance in the articulation of funda-
mental values, or unresolvable conºict between norms that deny each other’s validity”).
14. On this distinction, compare Frank I. Michelman, Liberties, Fair Values, and Constitutional Method,
in Stone et al., The Bill of Rights in the Modern State 91 (1992), with Frank I. Michelman,
248 Harvard International Law Journal / Vol. 47

Constitutions do more than merely provide justiciable legal guarantees for

the individual by protecting her freedoms against the intervention of public
authority. Constitutions also give rise to a protective function of the state, im-
posing the institutional and social presuppositions of equal access by all to
the effective “use” of the rights and freedoms protected and, in a sense, cre-
ated by the constitution. Consider, as an example, the difference between having
the basic liberty to speak and having the ability and resources to employ that
liberty and thus to speak effectively. When conceived of as programs or consti-
tutional directives,15 fundamental rights reºect a state of affairs that consti-
tution has committed itself to upholding or achieving. The individual rights
specify principles and directives according to which social relationships and
state-society relationships—that is, entire constitutional domains—are to be
ordered through a given political community’s constitutional politics.
A perfectly natural conclusion is that between the normative and the pro-
grammatic role of fundamental rights, there exists a relationship of tension and
inverse proportionality. That is, the more a fundamental right is programmatic,
the less it is judicially enforceable. Accordingly, the less justiciable funda-
mental rights are or claim to be, the more programmatic they can become as
crystallization points of social hope and constitutional-transformative prom-
ise, and as appeals to civic participation and to shared constitutional patriot-
ism. But suppose instead that, within a given constitutional order, the proper
role of constitutional law and of constitutional adjudication is to enforce com-
prehensively the protective function of rights. In other words, suppose that
the programmatic content of fundamental rights becomes increasingly a matter
for courts to enforce. Such an internal development of fundamental rights
from “merely programmatic” to “fully normative,”16 which typically occurs
as a matter of transitional justice, occurring instead as a constitutional identity-
generating response to past denials of decency and justice,17 has two conse-
quences.
One consequence is that fundamental rights become available for critical
use as mutually acceptable and at least partially justiciable principles of justice.
The availability of these rights, in turn, enables even excluded minorities to
join a community and the discourse of rights, to cast doubt upon existing con-

Reasonable Umbrage: Race and Constitutional Antidiscrimination Law in the United States and South Africa, 117
Harv. L. Rev. 1378 (2004).
15. With regard to the German constitutional, legal, and intellectual context, see Brun-Otto Bryde,
Programmatik und Normativität der Grundrechte, in Handbuch der Grundrechte Band I Entwick-
lung und Grundlagen 679 (Detlef Merten & Hans-Jürgen Papier eds.) (Heidelberg 2004).
16. Id. passim.
17. Compare the famous German Lüth case, 7 BverfGE 198 (1958) (holding that private law must be
construed to respect fundamental constitutional rights), with the decision by the South-African Constitu-
tional Court in the Grootboom case, South Africa v. Grootboom, 2000 (11) BCLR 1169 (CC) (S. Afr.) (ªnding
that the constitution imposes a duty on the government with respects to right of access to adequate
housing). On the idea and practice of transitional justice, see Ruti Teitel, Transitional Justice (2000);
Ruti Teitel, Comparative Constitutional Law in a Global Age, 117 Harv. L. Rev. 2570 (2004) (reviewing
Comparative Constitutionalism: Cases and Materials (Norman Dorsen et al. eds., 2003)).
2006 / The Denationalization of Constitutional Law 249

stitutional settlements, and to push for ever more inclusive interpretations of

those rights. The programmatic and open-ended content of fundamental rights
thus can no longer be positivistically determined by or derived from the tradi-
tions of sub-constitutional private or administrative law.18 Moral principles
of equal membership and inclusion do not have to be incorporated from outside
law, as positivists would have it. Instead, the principles are necessarily im-
plicated in the process of law “working itself pure.”
A second consequence of widening the province of judicial action, how-
ever, is that courts outgrow their function as mere catalysts of democratic re-
form and become drawn into the very center of political and constitutional-
interpretive conºict and controversy. Interpretive disagreement not only prolif-
erates merely within civil society (as law’s counterpart and opposite), but
also affects and pervades the inner morality of law19 itself. Thus, adjudicative
legitimacy presupposes and depends on the possibility of a particularly deep
personiªcation of the community. It presupposes, in Ronald Dworkin’s words,
“that the community as a whole can be committed to principles of fairness or
justice, in a way analogous to how persons of integrity can be committed to
convictions or ideals.”20 It is both a regulative and constitutive assumption
of successful judicial practice that a given political order’s legal record can be
reconstructed into a coherent set of political-legal intentions. Once constitu-
tional adjudication is involved in the political-epistemic struggle, however,
the integrative function of the constitution dissolves.
Dualism hesitates to embrace, and ultimately rejects, precisely this latter
account of adjudication—of international law penetrating the shield of state-
hood and becoming “societal” and normative. The dualist view overlaps and
blends with normative positivism insofar as dualists advance a cautionary
and skeptical view about the propriety of for normative considerations, play-
ing a role in practical reasoning about international affairs. At its core, nor-
mative positivism rejects an assumption that anti-positivists supposedly em-
brace: the assumption that there exists a set of distinct, necessary moral norms
acting as a kind of political contract, and that when these moral norms are ap-
plied in court, a judge can escape the manifold political, cultural, and inter-
pretive conºicts pervading a pluralistic society by reaching into the roots of
competing conceptions of justice and political morality. If a constitution
functioned as a proposition of fact, rather than as a norm,21 then one limb of
the genesis/validity paradox outlined above would be missing. The idea that
the “true” moral status of a norm has any necessary bearing on the possibil-
ity of the norm’s being made a legal one would cease to exist.

18. “Verwaltungsrecht besteht, Verfassungsrecht vergeht.” Bryde, supra note 15, at 697 (quoting
Otto Mayer, 1 Deutsches Verwaltungsrecht (Vorwort zur dritten Auºage 1924)).
19. See Lon Fuller, The Morality of Law 33–94, 152–70 (1964).
20. Ronald Dworkin, Law’s Empire 167 (1986).
21. On this idea, see Frank Michelman, Constitutional Authorship, in Constitutionalism: Philoso-
phical Foundations 64, 67 (Larry Alexander ed., 1998) (relating the concept of the Constitution as a
proposition of fact to the idea of an “authority-authorship syndrome”).
250 Harvard International Law Journal / Vol. 47

In rejecting the anti-positivist assumption, normative positivists argue

that within a deeply pluralistic and morally divided society, whether domes-
tic or international, law can deliver a useful, otherwise unattainable “service”
to social actors and can establish a stable framework of rules of interaction. Law
can succeed in this respect, the argument goes, provided its rules are trans-
parent, determinate, and self-controlling, in the sense that they preempt moral
and political controversies looming at the fringes.22 What counts as law—
including even the supposedly unambiguous public tests necessary to deter-
mine what counts as secondary rule of law—can only be self-referentially de-
termined by law itself. Otherwise society’s ongoing cultural wars and ideo-
logical divisions would erupt into the province of law itself, the role of legal
disputation would be reduced simply to reproducing factional disputation,
and law would lose its distinctive purpose of providing a framework for in-
teraction.
Under the normative positivist view, judges in domestic settings should
only use their “judicial discretion” to decide cases or surmise legislative intent
only when the established rules are insufªcient to do so. Similarly, in interna-
tional adjudicative settings, judges should stick to the terms of contract, using
their discretion marginally. Normative positivists thus argue that a zone of
judicial discretion is built into “relational contracting” as a necessary ele-
ment because parties cannot and do not even seek to specify fully their recip-
rocal rights and duties.23 The point and purpose of adjudication is to clarify
over time the antecedent meaning of the contract and to monitor compliance.
This latter supposed function imposes, in turn, an external limit on the de-
gree to which judges are permitted to “incorporate” moral considerations
into legal argument and decision-making in any given case before them.
It is undoubtedly true that deep, unbridgeable ideological division does
not stop at the boundary of the “sphere” of the state and its domestic law. An
important debate exists today about whether persisting disagreements even
within domestic constitutional interpretation affect the legitimacy of the
domestic democratic system as a whole. But “Hobbes’ thesis,”24 as it is known
in the literature, immunizes the domestic-constitutional sphere from the devo-
lution of interpretive disagreement into full skepticism. Both “weak” and
“strong” versions of Hobbes’ thesis exist. The weak version, as defended by
Frank Michelman,25 posits that the practice of government by law can succeed
only when there exists within civil society a persistent and widespread inclina-
tion to comply voluntarily with the laws and legal interpretations issuing
from that practice. Furthermore, this inclination to comply cannot persist over

22. For a discussion and critique of positivism, see generally David Dyzenhaus, The Genealogy of Legal
Positivism, 24 Oxford J. Legal Stud. 39 (2004).
23. Alec Stone Sweet, The European Court and Integration, in The Judicial Construction of Europe
1, 24 (2005) (arguing that the “Treaty of Rome can be analyzed as an incomplete contract”).
24. See generally Frank Michelman, Ida’s Way: Constructing the Respect-Worthy Governmental System, 72
Fordham L. Rev. 345 (2003) [hereinafter Michelman, Ida’s Way]; Nagel, supra note 7.
25. See generally Michelman, Ida’s Way, supra note 24.
2006 / The Denationalization of Constitutional Law 251

time without an existing web of reciprocal expectations that everyone will

abide by these laws and interpretations. The persistence of the web of recip-
rocal expectations, in turn, depends on visible guarantees of institutional back-
up effectively providing third-party enforcement. Otherwise, the web cannot
effectively block participants from sliding back into a state of war or prevent
the entire constitutional regime from unraveling. Assuming the citizenry’s
expectations include recognition of equal rights ªrst and foremost, no one’s
moral interests will be served if morally reprehensible means produce this
necessary institutional backup.
The absence of morally reprehensible means, then, must imply a commu-
nity comprised primarily of members who are attached to a common ideal of
justice.26 Reliance, for the purposes of integration, on other factors such as na-
tionhood, religion, history, or culture, cannot conceivably sufªce here.27 Ref-
erence to even a common ideal of justice, however, inevitably raises the spec-
ter of “deep, intractable, normative disagreement that recent liberal theory
posits as endemic in modern political societies.”28 Disagreement often occurs
over weighty moral and policy issues such as the right to life, the display of
religious symbols in the public sphere, the efªcacy of constitutional rights in
the private sphere, afªrmative action, socio-economic rights, taxation, and so on.
This weak version of the Hobbesian thesis yields a reciprocal political atti-
tude within and across civil society that makes constitutional practice under
conditions of disagreement possible. The weak version yields, in other words, a
constitutional-political attitude of Frustrationstoleranz. Wherever we happen
to ªnd ourselves standing within moral debate, frustration of our respective
constitutional-interpretive hopes makes us aware of a background that is im-
plicitly shared, and yet our being co-participants in a common constitutional
practice. This is a practice which even outsiders and marginalized groups can
invoke in order to identify pathologies of exclusion; and losing in one “round”
of this practice does not foreclose the chance of having a stake in subsequent
rounds.
The strong version of Hobbes’ thesis, by contrast, asserts that only the state
can provide the required institutional backup. “Without the enabling condi-
tion of [state] sovereignty to confer stability on just institutions,” Thomas Na-
gel has argued, “individuals however morally motivated can only fall back on a
pure aspiration for justice that has no practical expression, apart from the will-
ingness to support just institutions should they become possible.”29 And from
that premise follows the proposition that “[e]galitarian justice is a require-
ment on the internal political, economic, and social structure of nation-states
and cannot be extrapolated to different contexts, which require different stan-

26. See generally Nagel, supra note 7.

27. Cf. Dieter Grimm, Integration by Constitution, 3 Int’l J. Const. L. 193, 196 (2005).
28. Michelman, Ida’s Way, supra note 24, at 353–54.
29. Nagel, supra note 7, at 116.
252 Harvard International Law Journal / Vol. 47

dards.”30 Finally, the principles of Rawls’ egalitarianism “cannot be reached by

extending to the international case the principles of domestic justice.”31
An obvious response to this strong version of Hobbes’ thesis is that virtu-
ally “all depends.” The role that an international adjudicative body should
have in reviewing a domestic system depends on the reasons we believe that
the court’s decisions on the whole will be guided by a discourse that is in
touch with the relevant rule of law values themselves. That question can be
answered only with regard to situation and context. Indeed, an emphasis on
persuasive authority32 points in a direction exactly opposite to and precluded
by dualism. This is because the use of persuasive authority brings to light facts
regarding the cultural, ethical, and interpretive pluralism that characterizes
the constitutional setting beyond the state. The emphasis on de-nationalized
persuasive authority therefore may yield an enlarged understanding of justice
that comports with enlarging the sphere of mutual justiªcation. In this way,
the emphasis may enhance, rather than undermine, the objectivity of adjudi-
cation,33 and ultimately may increase awareness that the character of consti-
tutional law is itself in ºux. To be sure, the emphasis on de-nationalized persua-
sive authority in no way suggests a freestanding monist preference for inter-
national law over domestic law.
Rather, using the example of the approach employed by the European
Court of Human Rights (“ECtHR”), the relationship between human rights
and constitutional rights can be understood as one of mutual backup and
multi-layered justiªcation. The ECtHR applies an occasionally substantial
“margin of appreciation” in interpreting and enforcing the ECHR’s provi-
sions and states’ reservations of “democratic necessity” that often attach to
those provisions. The margin of appreciation doctrine legitimizes and, in a
sense, invites circumstantial and cultural variations at the domestic level. At
the same time, however, the doctrine burdens the states’ localities that pro-
duce these variations with a requirement of justiªcation or reason-giving in
light of an interculturally accepted but evolving standard of human rights
interpretation. The multiple pluralisms evident here—interpretive pluralism,
cultural variations, functional differentiation of spheres of life—thereby
make us aware of a shared background crystallizing within a common legal-
institutional practice. This practice is rights-based—it is triggered at the
behest of aggrieved individuals and thereby mirrors facts of radical individuali-
zation that accompany the de-nationalized condition. The association of a

30. Id. at 115.

31. Id. at 123. For an important critique of Nagel’s paper which fully engages its philosophical prem-
ises, see Joshua Cohen & Charles F. Sabel, Extra Ecclesiam Nulla Justitia?, Phil. & Pub. Aff. (forthcoming
2006).
32. See Slaughter, supra note 12 (examining how domestic legal bodies, responding to forces of global-
ization, increasingly confer persuasive authority on international legal decisions).
33. See Frank Michelman, Integrity-Anxiety?, in American Exceptionalism and Human Rights
241 (Michael Ignatieff ed., 2005); see also Harold Hongju Koh, International Law as Part of Our Law, 98
Am. J. Int’l L. 43 (2004) (arguing that U.S. constitutional interpretation should be guided in part by
international law).
2006 / The Denationalization of Constitutional Law 253

practice of intercultural justiªcation with rights suggests a different analogy

than the hierarchic posture of fundamental rights as overriding trumps
within the state system, a posture that saturates the prerequisites of a stable
political contract between citizens. The analogy is less related to trump cards
in a preconceived game than to the concepts of “enabling” and “empowering,”
with rights as “preconditions.”
Contrary to the assertions of the contractarian analogy, rights beyond the
state are intrinsically political and draw claimants into a shared process of
argumentation just as much as they enable claimants to express difference and
separateness in the face of “false coherence.” By signaling the need to recog-
nize individuals as participants, these political rights enable doubt to be cast
on the conception of existing constitutional settlements as exclusionary. In-
ternational law, then, neither seeks nor depends on personiªcation, with its
corollary of representative democracy. Instead, international law remains delib-
erately immature and inchoate; expresses a commitment to the idea of law’s
working itself pure; exposes the “pride and prejudice” of domestic constitu-
tional practice and of the elite political philosophy reºecting that practice;
and provides a forum for a rights-based politics of recognition, thereby per-
mitting the ongoing re-negotiation of the various cultural, social, legal, and
economic boundaries of bounded political communities. But taking this
possibility seriously necessarily means viewing the intersection of interna-
tional law and constitutional law less in the conventional terms of established
legal sources and more in terms of contextually competing rule of law val-
ues.
The preceding analysis may appear a long-winded way of conveying a very
simple point—that the genesis-validity paradox of international law simply
will not go away, no matter which escape route is chosen. The strong version
of Hobbes’ thesis yields, whether we like it or not, normative positivism in
international law. And normative positivism, contrary to its supporters’ protes-
tations, is anything but a neutral, non-partisan doctrine. Normative positiv-
ism favors and advocates a speciªc, limited set of rule of law values, the same
values associated with the goals of certainty, stability, and efªciency. These
are Hayekian values that understand the rule of law as a social facilitator capable
of establishing the formal and impersonal guidelines that allow the sponta-
neous order of the market to advance without impediment. Under this regime,
all else is derivative. From a constitutional standpoint, however, those values
are far from being the only or even the most important ones. Concerns about
fairness, dignity, and social justice for individuals need not be “incorporated”
into law because they are already a part of an ongoing process of a law incho-
ately working itself pure.
The strong version of Hobbes’ thesis presents another, equally serious prob-
lem. The ideology of a “multiculturalism of states,” quite apart from the fact
that it recapitulates private-law formalism at a higher plane, expresses a prob-
254 Harvard International Law Journal / Vol. 47

lematic understanding of pluralism itself by conºating the boundaries of politi-

cal communities with those of ethical ones.34 The ideology, moreover, reverses
the relationship between the right and the good and between democracy and
the demos and builds up an unresolvable tension between romantic ideals of
autonomous personality and a closed, historically complete society with a co-
herent and gapless legal system.
In the context of the problems of collapse into positivism and of collapse
into national liberal romanticism, the unsettling and provocative question
emerges whether political liberalism, at least in its current ofªcial instantia-
tions, has become a self-subverting doctrine. Of course, recourse to the other
limb of the paradox—natural-rights thinking in international law—is pro-
hibited, as indeed it should be. Given the existence of multiple pluralisms,
retrogression to natural law and to the monism that accompanies it would drive
the international legal system toward public law formalism punctuated by
the hypocrisy and injustice of deliberate avoidance.
What international adjudication can do then is to engage in a constant
grooming of the genesis-validity paradox by embracing both its limbs—the
idea of law working itself pure, on the one hand, and the idea of a deliberate
inchoateness of international law, on the other. International rules and insti-
tutions should—as Anne-Marie Slaughter and William Burke-White have
written—“ensure that [domestic political actors] do what they should be doing
anyway—e.g., what they have already committed to do in their domestic con-
stitutions and laws.”35 From the standpoint of international law, however,
terms such as “already committed” and “doing anyway” are themselves con-
structions or operative ªctions—not mere givens to be re-collected and as-
sembled by an impartial observer.
“Being in touch with the relevant rule of law values” could thus mean a shift
away from considerations of form, away from the ofªcial legal-sources-thinking
toward Lauterpacht’s “reason of the thing.”36 By devoting attention to the
pluralistic social context, adjudication could itself become an invitation to
embrace the heuristic possibility of, ªrst, de-nationalizing constitutional and
adjudicative norms and gradually transforming them into cosmopolitan norms
and, second, re-contextualizing law’s “sense and sensitivity” with regard to the
speciªcs of the particular constitutional domain at issue. These colliding princi-
ples would form two corresponding, mutually reinforcing parts of the same
process, understood as both a legal and a moral learning process. The follow-
ing Section, in examining the gradual transformation of EU law and the
practice of adjudication it encompasses, argues that this heuristic is not en-
tirely at odds with reality.

34. See Seyla Benhabib, Reclaiming Universalism: Negotiating Republican Self-Determination and Cosmopoli-
tan Norms, in The Tanner Lectures on Human Values 25 (Grethe B. Peterson ed., 2005).
35. Anne-Marie Slaughter & William Burke-White, The Future of International Law Is Domestic (or, The
European Way of Law), 47 Harv. Int’l L.J. (forthcoming 2006) (manuscript at 31, on ªle with authors).
36. See Lauterpacht, supra note 11, at 54 and passim.
2006 / The Denationalization of Constitutional Law 255

II. The European Experience

Of the two main post-war European legal systems—the Council of Europe’s
European Convention on Human Rights and the European Communities—
only the ECHR was founded expressly as a human rights organization with
the primary goal of promoting human rights and democracy in the “wider”
Europe. The ECHR sought to achieve its goals through a judicially enforce-
able international bill of rights. On the whole, the ECHR and its creation,
the ECtHR, have gained in strength and reputation over the years and have
developed a dynamic transnational legal process aimed at furthering common
values. The second of the two systems, now the EU, is clearly the more pow-
erful organization both institutionally and politically, but unlike the ECHR,
the EU’s primary focus has generally been on the goals of economic growth
and trade liberalization, rather than on the promotion of democracy and human
rights. The EU originated as an enterprise to promote the economic growth
and wealth of its member-states by creating a common market among them.
Although the EU began as a liberal economic experiment, it has since moved
beyond economic integration toward a broader, political integration “founded
on the principles of liberty, democracy, respect for human rights and funda-
mental freedoms, and the rule of law.”37
The EU has begun not only to engage in a broader discourse of transnational
constitutionalism, but also to align itself more explicitly with the norms and
goals of the ECHR and to identify itself as a rights-based, rather than purely
market-based, order. The characterization of the original European Economic
Community (“EEC”) as a positivist project of economic integration has been
gradually giving way to a complex and comprehensive conception of a transna-
tional legal process, which has recently moved in the direction of a more ex-
plicit commitment to a framework of human rights protection. The procla-
mation in 2000 of a Charter of Fundamental Rights, although a legally
complex and uncertain human rights instrument,38 and the political agree-
ment that emerged during the recent constitutional debate on the desirabil-
ity of the EU’s accession to the European Convention on Human Rights39
are indicative of this gradual reorientation. Less symbolically, this trend is
also evident in the way in which provisions governing market integration poli-
cies have over time been debated and re-interpreted before the European Court

37. Consolidated Version of the Treaty on European Union art. 6(1), Dec. 24, 2002, 2002 O.J. (C
325) 5, 11, available at http://www.europa.eu.int/eur-lex/lex/en/treaties/dat/12002M/pdf/12002M_EN.pdf
(last visited Nov. 20, 2005).
38. Charter of Fundamental Rights of the European Union, 2000 O.J. (C 364) 1 [hereinafter Charter],
available at http://www.europarl.eu.int/charter/pdf/text_en.pdf (last visited Nov. 20, 2005). This charter
was later incorporated into the now-suspended Treaty Establishing a Constitution for Europe art. I-9(1),
Dec. 16, 2004, 2004 O.J. (C 310) 1, 13 [hereinafter European Treaty], available at http://europa.eu.int/
eur-lex/lex/LexUriServ/site/en/oj/2004/c_310/c_31020041216en00110040.pdf (last visited Nov. 20, 2005).
39. See European Treaty, supra note 38, art. I-9(2), at 13 (establishing that the European Union will
accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms).
This treaty, however, has since been rejected by popular referendum in France and the Netherlands.
256 Harvard International Law Journal / Vol. 47

of Justice in light of other normative commitments expressed in the Treaty

establishing the European Community (“EC Treaty”)40 and under the ECHR.41
This process of adjudicative debate and re-interpretation has gradually de-
stabilized exclusionary national practices in areas such as social welfare42 and
immigration,43 and it has forced domestic reconsideration of those policies
and practices. In this sense, the expansion, development, and deepening of the
EU polity have given rise to an increasingly engaged transnational process.
Partly through a discourse of equal rights and non-state membership, this
process has the potential to challenge the closure of state boundaries and to
generate a strengthened level of public justiªcation in a broader cross-national
context.
The literature on the process of “constitutionalization” of the EU describes
some of the early case law of the ECJ.44 The term “constitutionalization” in
this context refers to the principles of direct effect (whereby EC law can be
pleaded directly before national courts by individual litigants on whom it
confers rights) and the primacy of EC law over national law. The principle of
primacy has often been depicted as a trump card that the European legal order
enjoys over national legal systems, implying the subordination of the latter

40. See, e.g., Charter, supra note 38, art. 7, at 8 (indicating a commitment to respecting private and family
life); id. art. 21, at 13 (containing the principle of non-discrimination based on sex, race, religion, etc.).
41. See, e.g., European Convention for the Protection of Human Rights and Fundamental Freedoms,
art. 8, Nov. 4, 1950, 213 U.N.T.S. 230 (providing for the right to private and family life).
42. See, e.g., Case C-85/96, Sala v. Freistaat Bayern, 1998 E.C.R. I-2708 (holding that Germany cannot re-
quire an unemployed Spanish national to produce formal residence permits to receive a child-raising
allowance when German nationals need not produce such documentation); Case C-224/98, D’Hoop v.
Ofªce national de l’emploi, 2002 E.C.R. I-6191 (ªnding that a Belgian national could claim a student
tide-over allowance, an unemployment beneªt for recently graduated students looking for their ªrst jobs,
even though the student completed secondary education in another EU Member State); Case C-184/99,
Grzelczyk v. Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve, 2001 E.C.R. I-6229 (ªnding
that a French student was entitled to Belgian unemployment beneªts); Case C-138/02, Collins v. Sec’y of
State for Work and Pensions, 2004 ECJ WL 58319 (Mar. 23, 2004) (holding that while a national of a
Member State national is subject to residency requirements when seeking jobseeker beneªts, those re-
quirements must be objective, independent of the person’s nationality, and limited to what will satisfy
the authorities that the individual is genuinely seeking work in the host Member State); Case C-456/02,
Trojani v. Centre public d’aide sociale de Bruxelles, 2004 ECJ WL 59428 (Sept. 7, 2004) (holding that a
French part-time worker was entitled to Belgian residency and economic assistance); Case C-209/03, The
Queen (on the application of Dany Bidar) v. London Borough of Ealing, 2005 ECJ WL 588878 (Mar. 15,
2005) (holding that a French student in the United Kingdom was entitled to full residency status for the
purpose of student loans).
43. See, e.g., Case C-60/00, Mary Carpenter v. Sec’y of State for the Home Dep’t, 2002 E.C.R. I-6279
(holding that out of a respect for family life, a non-EU citizen married to an EU citizen is entitled to
residency in the citizen’s country of origin under Council Directive 73/148/EEC exclusive of any rights
derived from the European Constitution); Case C-109/01, Sec’y of State for the Home Dep’t v. Akrich,
2003 E.C.R. I-9607 (indicating that a non-EU citizen who is lawfully a resident in a Member State and
married to an EU citizen would be entitled to residency status in any Member State in which the spouse
is a resident); Case C-413/99, Baumbast v. Sec’y of State for the Home Dep’t, 2002 E.C.R. I-7136 (hold-
ing that parents of EU citizens are entitled to remain with their children in any Member State in which
the children commence their education even if that parent lacks an independent right of residence).
44. See, e.g., Eric Stein, Lawyers, Judges, and the Making of a Transnational Constitution, 75 Am. J. Int’l
L. 1 (1981) (discussing the development of the direct effect and supremacy principles in the case law of
the European Court of Justice); Frederico Mancini, The Making of a Constitution for Europe, 26 Common
Mkt. L. Rev. 595 (1989) (same).
2006 / The Denationalization of Constitutional Law 257

to the former. This conception has re-ignited debates on dualism, generating

counter-arguments about the role of national constitutional courts in protecting
the priority of the national constitutional order.45 The conception, moreover,
seems to contrast with the substance-driven notion of constitutionalism im-
plied in the ECHR system, which focuses not on the priority of legal sources
but on the fundamental notion of respect for human dignity and the “public
order” necessary to protect that dignity.
Van Gend en Loos46 and Costa v. E.N.E.L.,47 the cases that introduced princi-
ples of direct effect and primacy, should not necessarily be understood as
hierarchical assertions of the primacy of legal sources. Instead, these cases can be
read as an expression of the commitment made by the member states to give
reality to the promise of a “new legal order” that is “more than an agreement
which merely creates mutual obligations” among contracting states, that “not
only imposes obligations on individuals but is also intended to confer on them
rights,”48 and that “[is] an integral part of the legal system of the member
states.”49 Member states cannot unilaterally derogate from or undermine the
commitments they undertook in joining the EU.50 EU constitutionalism is
rooted in the idea of a transnational system in which states have made good
faith commitments from which they cannot withdraw by asserting their sover-
eignty or by elevating parochial interests over shared common interests. EU
constitutionalism requires the states to defend, justify, and reconsider their
national preferences and choices in the light of these common commitments.
While the EU and the ECHR were in some ways quite different in origin
and aspiration, they are now closely linked systems of transnational coopera-
tion sharing an instantiation of a dynamic form of constitutionalism beyond
the state. That is, a group of states has come together against a background
of mutual commitments and has agreed to participate in a legal system that
has evolved into more than a contract among sovereigns. The system directly
implicates the rights of citizens as participants and aims at both reforming
and transforming national democracies through a process of transnational en-
gagement, adjudication, and debate. Through these adjudicatory practices, the
set of normative and political commitments embodied in the agreements are
debated, interpreted, and ultimately reintroduced into national legal orders,

45. See, e.g., Mattias Kumm, Who is the Final Arbiter of Constitutionality in Europe?: Three Conceptions of
the Relationship between the German Federal Constitutional Court and the European Court of Justice, 36 Common
Mkt. L. Rev. 351 (1999) (addressing whether and to what extent national courts may subject secondary
EC law to constitutional review).
46. See Case 26/62, N.V. Algemene Transp.- en Expeditie Onderneming van Gend & Loos v. Neder-
landse Administratie de Belastingen, 1963 E.C.R. 1, 7 (establishing direct effect for EC law, provided the
law explicitly grants an individual right and creates for Member States “a speciªc unambiguous obligation” to
their nationals).
47. See Case 6/64, Costa v. E.N.E.L., 1964 E.C.R. 585, 586 (establishing the primacy of the European
legal order which “binds both [the Member States’] nationals and themselves”).
48. Case 26/62, Nederlandse Administratie de Belastingen, 1963 E.C.R. 1, 12.
49. Case 6/64, Costa, 1964 E.C.R. at 597.
50. Id. at 593.
258 Harvard International Law Journal / Vol. 47

triggering a process of reopening, reconsideration, and justiªcation of local

practices. Rather than operating as a restraint on national democracy or as an
imposition of externally speciªed standards on locally determined preferences,
the European adjudicative process instead forces reconsideration—and some-
times disruption—of particular national or local choices in light of new, po-
tentially richer information, argumentation, and normative understandings
generated by prior adjudication. The worth of such adjudication is not found
in the authority of European or international jurists, or the priority accorded
European or international legal texts, or in the fallacy that normative closure
can be achieved by deciding at a “higher” level the contested questions of moral
and political values. Rather, EU adjudication’s worth lies in the very process
of exposing community practices and norms to self-reºection and justiªcation
as part of a shared reºexive practice of developing normative standards based
on broadly held values. This process requires openness to the consequence that
the agreed upon values may affect and disrupt local rules and programs, and
a commitment to accommodate the outcome of these adjudicative processes
in good faith, incorporating them into the national process of contestation
over how to resolve the problem at hand. Thus, European constitutionalism
is not about restraining or undermining national democratic practices, nor
about delegating the resolution of incomplete bargains to judicial elites em-
powered to impose external, centralized standards on local communities. In-
stead, EU constitutionalism is about enabling local and national democratic
practices to be confronted—and, ultimately, strengthened and improved—
by debate in cross-national fora, generating renewed explanations of, and justiª-
cations for, localized practices.51
The examples below illustrate the way that the practice of constitutional-
ism has taken shape within Europe. They focus on the contentious ªeld of wel-
fare rights and immigration, both politically difªcult and electorally sensitive
issues traditionally the concerns of national sovereignty.
The welfare example, at ªrst sight, seems a counter-intuitive one. Judging
by some accounts, the EU has little or no social welfare dimension.52 The EU
does not generally engage in redistributive politics, although its internal market
rules do destabilize national welfare systems in the interests of trade liberali-
zation. EU social policy is generally described as labor market focused, dealing
primarily with employment related issues. Yet closer examination reveals a
rudimentary EU welfare system. The gradual unfolding of a series of legal

51. Contrast this understanding of European constitutionalism and transnational adjudication with
that of the German constitutional court, the Bundesverfassungsgericht, in its famous Maastricht decision.
In that decision, the court implied that the EU did not manifest—and was unlikely in the future to
develop—the necessary interaction of “social forces, interests and ideas” to satisfy the requirements of
democracy. Brunner v. The European Union Treaty, 1 C.M.L.R. 57, 87 (1994).
52. See Andrew Moravcsik, The European Constitutional Compromise and the Neofunctionalist Legacy, 12 J.
Eur. Pub. Pol’y 349, 365 (2005) (“Many areas are essentially untouched by direct EU policy-making,
including taxation, ªscal policy, social welfare, health care, pensions, education, defense, active cultural
policy, and most law and order.”).
2006 / The Denationalization of Constitutional Law 259

challenges based originally on market integration norms, reinterpreted in part

through the lens of broad equality norms and thin citizenship commitments
in the EU treaties, have resulted in political contestation, adjudicative con-
frontation, and disruption of the boundaries of national welfare systems.53 These
effects have arguably led to the beginnings of a system of EU welfare and social
rights premised on some degree of solidarity across states.54 Such a system has
emerged not as a result of insistence on centrally deªned notions of welfare
or by external imposition of European-level agreements, but by the requirement
that national institutions be at least in principle open to the claims of those
who were previously not considered members of the national political com-
munity. Furthermore, such national welfare institutions must be reconsid-
ered in light of broader notions of membership generated by the European
commitment to transnational engagement.
This contestation of national welfare policies has regularly been triggered
by claims based on the provisions on EU citizenship and by adjudication before
the ECJ on the implications of these provisions for national welfare institu-
tions. These claims are often brought by members of marginalized groups
within local and national systems. Challenges of this kind have been made
in the cases of Sala,55 D’Hoop,56 Grzelczyk,57 Baumbast,58 Trojani,59 Collins,60
Bidar,61 and Ionnaidis.62 Each of these cases invoked the commitment to equal
treatment of EU citizens, and each involved a situation where state legislation
or practice denied an individual a state beneªt on the basis of restrictions con-
tained in national or EC legislation. The ECJ ruled in all of these cases that reli-
ance on these restrictions must be reconsidered and re-interpreted in view of
the equal treatment commitment.63 In a number of the cases—for example,

53. For an account of such occurrences in the ªeld of social security regulation, see Dorte Sindbjerg
Martinsen, Welfare Policies under European Pressure? The Domestic Impact of Cross Border Social Security in the
European Union 1–38 (European University Institute, Florence, Department of Political and Social Sci-
ences, Working Paper SPS No. 2004/11, 2004), available at http://www.iue.it/PUB/sps2004-11.pdf (last
visited Nov. 20, 2005).
54. See generally EU Law and the Welfare State: In Search of Solidarity (Gráinne de Búrca
ed., 2005) [hereinafter EU Law].
55. Case C-85/96, Sala v. Freistaat Bayern, 1998 E.C.R. I-2708.
56. Case C-224/98, D’Hoop v. Ofªce national de l’emploi, 2002 E.C.R. I-6191.
57. Case C-184/99, Grzelczyk v. Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve, 2001
E.C.R. I-6229.
58. Case C-413/99, Baumbast v. Sec’y of State for the Home Dep’t, 2002 E.C.R. I-7136.
59. Case C-456/02, Trojani v. Centre public d’aide sociale de Bruxelles, 2004 ECJ WL 59428 (Sept.
7, 2004).
60. Case C-138/02, Collins v. Sec’y of State for Work and Pensions, 2004 ECJ WL 58319 (Mar. 23,
2004).
61. Case C-209/03, The Queen (on the application of Dany Bidar) v. London Borough of Ealing, 2005
ECJ WL 588878 (Mar. 15, 2005).
62. Case C-258/04, Ofªce national de l’emploi v. Ioannis Ioannidis, 2005 ECJ WL 2230265 (Sept.
15, 2005) (holding that a member state cannot deny a tide-over allowance to a national of another mem-
ber state simply because the individual completed his secondary education in another member state).
63. Invocation of the equal treatment and nondiscrimination principle before the ECJ led also to the
disentrenchment of repressive national practices, in particular against transsexuals. See, e.g., C-13/94, P. v.
S., 1996 E.C.R. I-2143 (precluding dismissal from employment of a transsexual for any reason related to
260 Harvard International Law Journal / Vol. 47

Sala, D’Hoop, Grzelczyk, Trojani, and Collins—this outcome meant that wel-
fare beneªts previously available only to a Member State’s nationals and resi-
dents would have to be made available to other people as well. Other cases, such
as Baumbast and R, resulted in an obligation on member states to recognize a
right of residence for family members of former residents or non-economically
active persons. The logic of particular national immigration policies, or of
various kinds of social welfare entitlement, which had been shaped around the
notion of the bounded community, had to be reconsidered in each case in view
of the minimal solidarity commitments undertaken by the relevant member
states, now part of a cross-national community. The ECJ did not impose
answers on national courts or national welfare institutions. Rather, the Court
required the national authorities to reconsider whether and how they had
taken account of the broadened scope of equality and the citizenship norms
entailed by membership in the EU.64
The developments in this line of cases ªnd support in the EU Charter on
Fundamental Rights (although the ECJ has not expressly used the Charter
to this effect) and in the commitments assumed by member states in this
Charter, with its articles on “Solidarity,” “Equality,” and “Citizens’ Rights.”
The existence of this Charter makes it difªcult for states to insist on exclud-
ing resident non-nationals from membership in, or access to, their national in-
stitutions.65 A further move in this direction can be seen in the gradual de-
velopment of a complicated body of EC legislation regulating the coordina-
tion of social security beneªts. This legislation was originally adopted primarily
as an “internal market” instrument to facilitate the free movement of labor,
but it has in substance—initially through judicial rulings, and then through
a triggered political response—become a partial guarantor of welfare rights
for EU citizens.66 Even in some of the softer political attempts to coordinate
national social policies in areas such as employment, anti-poverty, pensions,
and health, the inºuence of both the articulation of solidarity rights in the new
Charter and the underlying constitutional norm of equality (particularly in

the individual’s transexuality); C-117/01, K.B. v. Nat’l Health Serv. Pensions Agency, 2004 ECJ WL
57758 (Jan. 7, 2004) (holding that The European Convention for the Protection of Human Rights and
Fundamental Freedoms, in principle, precludes legislation that prevents transgender couple from “fulªlling
the marriage requirement” that allows the surviving individual to receive the decedent’s pension
beneªts).
64. See, e.g., Case C-456/02, Trojani v. Centre public d’aide sociale de Bruxelles, 2004 ECJ WL 59428
(Sept. 7, 2004) (ªnding that “in the present case, it must be stated that, while the Member States may
make residence of a citizen of the Union who is not economically active conditional on his having
sufªcient resources, that does not mean that such a person cannot, during his lawful residence in the host
Member State, beneªt from the fundamental principle of equal treatment as laid down in Article 12
EC”).
65. See generally Siofra O’Leary, Solidarity and Citizenship Rights in the Charter of Fundamental Rights of
the European Union, in EU Law, supra note 54, at 32.
66. See Dorte Sindbjerg Martinsen, The European Institutionalization of Social Security Rights: A Two-
Layered Process of Integration 2 (Eur. Univ. Inst., Florence, Working Paper LAW No. 2003/13, 2004) (indi-
cating that the “personal scope of Regulation 1408/71, coordinating social security rights across Euro-
pean borders, has been . . . extended over time.”).
2006 / The Denationalization of Constitutional Law 261

the ªeld of gender) is becoming evident. European integration has thus—in

part through the growing practice of transnational adjudication—challenged
the boundaries of welfare policy, disrupting the rules of inclusion and exclu-
sion set by national citizenship. Integration has challenged the capacity of
states to control the resources and actors within their own “social space and
jurisdiction,” and has required states to consider other affected actors, inter-
ests, and values.67
The second example concerns the ªeld of immigration policy. Here too, ar-
guments based on broadly agreed values in EU and ECHR law, such as the
commitments to equality and to respect for family life, have had a disruptive
impact on restrictive national and European immigration measures. As a
consequence of litigation brought before the ECJ, national authorities have
been required to reconsider immigration practices in light of these values
and to offer more convincing justiªcations for their decisions to deport or to
refuse entry to non-nationals who do not meet the requirements of domestic
immigration law. In the cases of Carpenter68 and Akrich,69 the “public inter-
est” reasons offered by the United Kingdom for restricting the entry and resi-
dence rights of non-EU nationals met with the ECJ’s insistence that due consid-
eration be given to the importance of the right to respect for family life con-
tained in the ECHR. Like decisions require not a rewriting of national laws
at the EU level or an insistence on the priority of European legal sources.
Rather, the cases represent simply a call for reconsideration of domestic law and
practice in light of a wider set of normative commitments expressed in the
ECHR and in the EU treaties.

III. Conclusion
In a comment on the U.S. Supreme Court decision in Lawrence v. Texas,70
Harold H. Koh notes that “concepts like liberty, equality, and privacy are
not exclusively American constitutional ideas but, rather, part and parcel of
the global human rights movement.”71 He argues that they are both consti-
tutive and regulatory concepts of a time-honored dialogic process in which
“litigants, activists, publicists, and academic commentators seek to inform,
inºuence, and improve . . . judicial decision making.”72 This Article concurs
with Koh’s view, but with the following proviso: if the categories of public
international law, foreign law, and domestic constitutional law were to collapse
entirely to the point of indistinguishability, then the critical-transformative,

67. See Maurizio Ferrera, Towards an “Open” Social Citizenship? The New Boundaries of Welfare in the Euro-
pean Union, in EU Law, supra note 54, at 11.
68. Case C-60/00, Mary Carpenter v. Sec’y of State for the Home Dep’t, 2002 E.C.R. I-6279.
69. Case C-109/01, Sec’y of State for the Home Dep’t v. Akrich, 2003 E.C.R. I-9607.
70. Lawrence v. Texas, 539 U.S. 558 (2003).
71. Harold Hongju Koh, International Law as Part of Our Law, 98 Am. J. Int’l L. 43, 54 (2004).
72. Id. at 56.
262 Harvard International Law Journal / Vol. 47

participatory, and re-contextualizing dimension of international law would

be threatened or altogether lost.
The suggestion made by Anne-Marie Slaughter and William Burke-White,
in their defense of international law, to “endorse the division between domestic
and international affairs, at least conceptually”73 faces the reverse problem.
According to Slaughter and Burke-White, the claim that “the future of in-
ternational law is domestic”74 refers not to domestic law, but to domestic poli-
tics, in the sense of an elaborate two-level game, with each game staying on its
own board, however complex the links between the two. This view seems to
introduce a law-politics distinction into the international law-constitutional
law interface, with the international sphere of “law” engaging with the do-
mestic sphere of “politics.”
According to the view presented in this Article, the relationship between
international law and constitutional law should be seen as one of mutual back-
up and multilayered justiªcation. The future of international law is not only
“domestic” but also societal and normative. This view relies on an ontologi-
cal premise that ºies in the face of the current trend toward Hobbesian re-
trenchment: Under circumstances of deep and persistent disagreement, con-
structive dialogue is possible. One might respond to skepticism of this premise
with the quip that radical disagreement, not to mention radical translation,
begins at home. One might also respond that the de-nationalized constitu-
tionalism presented in this Article does indeed presuppose a mature sense of
reasonableness on all sides. The argument here is simply that de-nationalized
constitutionalism is a coherent and worthwhile choice, a “realistically uto-
pian” one if only the political will to implement it existed.

73. Slaughter & Burke-White, supra note 35 (manuscript at 31, on ªle with authors).
74. Id.