Internationales Verfassungsrecht? Anmerkungen zu einer kopernikanischen Wende

"Global constitutionalism" and "international constitutional law" are all the rage. Lawyers place a lot of hope in the idea that on the international plane, something like a constitutional order might be emerging. In this essay, I doubt these hopes are justified. I believe there are differences between what national law on the one hand, and what international and EU law on the other hand, stand for. Employing a cultural study of law, I attempt to reveal those differences. Law is not just a body of rules. It is a social practice, a way of being in the world. A social practice is a way of understanding self and others, and thus, a way to make actions meaningful. To live under the rule of law is to maintain a set of beliefs about authority and representation, self and community, and time and space. Law's rule, then, is a system of beliefs: a structure of meaning within which we experience public order as the rule of law. No functional approach can grasp this meaning of law. It is the imagination that constructs the past and the future of the polity, just as it constructs, at the same time, the political identity of citizens. Law is the source and the product of the imagination of political existence. It serves as memory and storage of political meaning. However, it carries forward constitutive meaning only if it goes beyond the rational, the efficient, and the just. In notable contrast to liberalism's accounts of law, a cultural theory of law emphasizes the nature of law as rooted in bounded space. The state, for instance, maintains itself through the invention of a collective self that is the people. Law plays a crucial role in this maintenance project. That role cannot be explained by reason alone, if law is to carry forward meaning. The cultural study of law understands sacrifice – the process by which ideas are embodied in historical artifacts – to be at the heart of law. To understand the rule of law, we must look to the experience of the political as it makes conflicting claims of loyalty and responsibility. It is here where liberalism fails. International law and EU law seem more like reactions to the destructive forces of politics. It is the spirit of reason, and reason alone, that informs them. Neither has moved from contract to sacrifice. Both are, for many reasons explained in this essay, unable to carry forward constitutive meaning -which is, in a way, ironic because both place the individual at their center. That, however, is exactly the problem: