Legal scholars have been inspired by the dialogic approach and rallied around it as the solution to constitutional conflict in domestic constitutional orders and the transnational legal landscape. This paper aims to show that the gravitation towards judicial dialogue in contemporary constitutional theory misses the point, given the ambiguities surrounding it. My investigation reveals that the dialogic approach does not succeed in guiding the inter-departmental or inter-regime interactions in a way that no single power would exert unilateral domination. The emergence of judicial supremacy in both national and transnational constitutional orders further suggests that underlying those ostensible examples of judicial dialogue is a transfigured conception of sovereignty. As it is the rise of judicial sovereignty that drives the move towards judicial dialogue in contemporary constitutional developments, I suggest that legal scholars shift focus of attention from the idea of dialogue to the enhanced judicial role in the new constitutional era.
Original citation:Kuo, Ming-Sung. (2013) On the constitutional question in global governance : global administrative law and the conflicts-law approach in comparison. Global Constitutionalism, Volume 2 (Number 3). pp. 437-468. ISSN 2045-3817 Permanent WRAP url: http://wrap.warwick.ac.uk/56911/ Copyright and reuse:The Warwick Research Archive Portal (WRAP) makes this work by researchers of the University of Warwick available open access under the following conditions. Copyright © and all moral rights to the version of the paper presented here belong to the individual author(s) and/or other copyright owners. To the extent reasonable and practicable the material made available in WRAP has been checked for eligibility before being made available.Copies of full items can be used for personal research or study, educational, or not-forprofit purposes without prior permission or charge. Provided that the authors, title and full bibliographic details are credited, a hyperlink and/or URL is given for the original metadata page and the content is not changed in any way. Publisher's statement: © Cambridge University Press, 2013 A note on versions:The version presented in WRAP is the published version or, version of record, and may be cited as it appears here. Abstract :The question of constitutionalization cuts through the heart of theoretical debate on the fragmentation of global governance. This paper aims to contribute to this debate through a comparison of global administrative law (GAL) and the confl icts-law approach. While the confl icts-law approach espouses the move towards global constitutionalism, GAL disavows constitutional ambition. I make a twofold argument. First, the differing diagnoses these two approaches make of global governance lead to their distinct proposed solutions. GAL identifies the lack of accountability as the underlying concern of global governance and responds to fragmented global governance through balancing-centred legal management. The conflicts-law approach instead attributes the challenges facing global governance to the ill-designed democratic institutions in nation states and turns to 'democratic juridification' as the solution. Second, GAL and the conflicts-law approach reflect two distinct images of constitutionalism. GAL's 'constitutional deficit' suggests its implicit embrace of a version of constitutionalism rooted in the tradition of populist democracy. The conflicts-law approach situates transnational democracy in the confl icts-law process in which inter-regime confl icts are resolved, suggesting a prototype of constitutionalized global governance underpinned by an epistemic understanding of democracy.
The question of legitimacy occupies center stage in debates on various constitutional developments. For as long as constitutional scholars cannot settle on a theory of legitimacy, the specter of a legitimacy deficit will continue to haunt the practitioners of constitutional law. Constitutional scholar Frank Michelman engages different schools of constitutional theory, seeking the definitive answer to the legitimacy question. He classifies theories of legitimacy into three categories, premised on notions of contract, acceptance, or authorship. Arguing that contract-based and acceptanceoriented legitimacy theories assume the notion of authorship, he distinguishes constitutional authorship in terms of its presumed transtemporal character and abandons it because of this character. To cut this Gordian knot, Michelman proposes a presentist view of legitimacy. Through an analysis of his theoretical engagement, this article argues that his effort to abandon authorship-based theories fails. A commonly chosen, authoritative dispute-settling institution, in line with Michelman's presentist alternative, cannot stand without assuming a transtemporal concept of constitutional authorship. Thus the Gordian knot remains. * Visiting Researcher, Yale Law School. The author would like to thank Bruce Ackerman and Owen Fiss for their reading and commenting on early drafts of this article, which is based on part of the author's unpublished J.S.D. dissertation at Yale Law School. Wojciech Sadurski's suggestions and comments on an early version of this article are heartily acknowledged. The author is deeply grateful to Frank Michelman for his generous, gracious, and illuminating reply to this article and his toleration of the author's bold construction of his work. The author expresses wholehearted gratitude to Paul Kahn for his meticulous reading of numerous drafts of this article and critical interrogation of its arguments in the course of supervising the author's dissertation. Finally, the author benefits greatly from Karen Barrett's expert editing. Any errors remain the author's responsibility.
The recent upsurge of populism has prompted a wave of theoretical reflections on constitutional democracy. Echoing Max Weber’s sociology of legitimate authority, Bruce Ackerman’s Revolutionary Constitutions: Charismatic Leadership and the Rule of Law stands out from the crowd by providing an ambitious trichotomy of constitutional legitimacy—revolutionary, establishmentarian and elitist—with a focus on the revolutionary pathway. Engaging with Ackerman’s theoretical modelling of the relationship between constitutionalism and legitimate authority, I argue that the resurgence of popular sovereignty, as embodied in We the People in populist rhetoric indicates the centrality of authenticity in constitutional democracy as constitutional authenticity is underpinned by the ethics of being true to the people’s originality. Yet, with the ethics of authenticity assuming its pathological form, the focus has been shifting from making sense of the constitution to the people’s self-identification with individual politicians. The latest wave of populism crystallises the anti-ethics of authenticity in our quest for lasting constitutional legitimacy.
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