Between Myths and Norms: Constructivist Constitutionalism and the Potential of Constitutional Principles in International Law

Nordic Journal of International Law 81 (2012) 2, 79–132

40 Pages Posted: 5 Mar 2017

Date Written: April 11, 2012

Abstract

The aim of this article is to restate, refine and defend the constitutionalist argument in international law. As a basis for a more nuanced approach, the contribution sorts the phenomena to which the constitutionalization thesis refers. Secondly, it analyzes methodological and doctrinal features of constitutionalist approaches to public international law and clears up some myths in and about international constitutionalism. Finally, the text focuses on presumptions and burdens of justification established by various judicial institutions. They seem to express constitutional concerns in different areas of international law. It is submitted that these presumptions and burdens of justification are plausibly backed by processes of identity change and argumentative self-entrapment. On the basis of constructivist approaches in International Relations, these processes can be understood as creating the normativity of constitutional arguments. The special character of their normative force may be explained by classifying them as principles in contrast to strict rules.

Keywords: constitutionalization, international constitutionalism, global values, hierarchy in international law, general principles of international law, constructivism

JEL Classification: K33

Suggested Citation

Kleinlein, Thomas, Between Myths and Norms: Constructivist Constitutionalism and the Potential of Constitutional Principles in International Law (April 11, 2012). Nordic Journal of International Law 81 (2012) 2, 79–132, Available at SSRN: https://ssrn.com/abstract=2923975

Thomas Kleinlein (Contact Author)

University of Kiel ( email )

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