Constitution-Making as a Technique of International Law: Reconsidering the Post-war Inheritance

Abstract

Over the last three decades, international lawyers and institutions have come to understand constitution-making as an accepted technique of international law and a means of delivering peace and security. In defending this technique from its critics, scholars have drawn on a particular tradition of constitution-making that understands constitutionalism as a lawful form of international action, realizable through a set of formal practices, and juridically distinct from material concerns. This Article explores the building of this tradition through the work of legal scholars within the United States in conversation with German and Jewish émigré scholars and argues that reimagining constitutionalism for the coming decades requires rethinking this separation between the juridical and the material, as well as asking what constitutionalism demands of the laws governing the global economy.

I. Introduction

Over the course of the last half century, civil war and conflict in the decolonized world has come to be seen as a threat to international peace and security. International lawyers, who since at least 1945 have understood a central task of international law to be the maintenance of that peace, have developed a raft of legal practices designed to limit the severity of such conflict, to manage its consequences, and to prevent its occurrence. One such practice is the international practice of constitution-making. That practice—the practice of reshaping the legal order of a state through the revision of constitutions, or the making of new ones—has occupied the imagination and vocabulary of international law and lawyers over the past three decades. Scholars have commented that “[c]onstitution-making, traditionally the hallmark of sovereignty and the ultimate expression of national self-determination, is increasingly becoming an object of international law.”¹ So too has the promotion of international peace and security through constitution-making become a more explicit concern of international diplomatic, economic, and military interventions in the decolonized world.

International institutions, organizations, and advisors have, since the post-Cold War period, been involved in a number of national constitution-making processes. Practices framed through the language of constitution-making may take the form of some advice or assistance to that work, requirements placed on that work, or in some cases direct administration of that work. To varying degrees, the language of international law also shapes and makes demands of these processes, articulates justifications for practices of sanction or intervention that enable them, or seeks to preserve their outcome through internationalized mechanisms for protection and supervision.² Constitution-making has been understood as part of a suite of solutions that afford an opportunity to end or prevent conflicts occurring within states, to enable peaceful political transitions, or to consolidate peace.³ Although some forms of constitution-making, such as those under internationally sanctioned forms of military occupation or direct administration of populations, have declined from the second decade of the twenty-first century, this has not led to a cognate turn away from constitution-making as an activity or framing device for the work of international institutions.⁴ Instead, in 2020, the Office of the Secretary-General issued a new set of guidelines for the involvement of United Nations officials in constitution-making processes, including as an aspect of “conflict prevention or resolution efforts,” described as “derived from lessons learned from UN constitutional assistance experiences.”⁵ Scholars have observed that international institutions have continued to exhibit “an apparently countervailing rise in faith in constitutions and constitution-making” as a means of promoting, managing, or understanding political transitions.⁶

This articulation of constitution-making as part of the work of international institutions represents a new approach to the idea, hard-won by newly independent states during the period of decolonization, that international law should recognize “the freedom of choice of the political, social, economic and cultural system of a State,” and realize that freedom through a commitment to the principles of self-determination and non-intervention.⁷ As I will argue, it does so through positioning “local ownership,” facilitated by international actors within the field of international constitution-making, as a method of realizing this principle and of facilitating political freedom. The idea that international actors, institutions, or laws should have some formal role to play in defining the processes and norms of constitution-making thus represents a significant expansion of the disciplinary sensibilities of international law in and of itself, aside from more substantive debates over what that process should look like and what norms it should reflect. Yet scholarly recognition that constitutions are defined as much by the outside world as the interior life of the state (and that neither intellectual influence nor social reality can be contained by such categories) has not resolved the normative questions of imposition and independence that are raised by an international order in which power is unequally distributed, to which the principle of self-determination has been understood to attend.⁸ Nor has it resolved the question of the relationship of international constitution-making to economic structures and material interests, a question that is also implicated in the principle of self-determination but which international institutional actors have not centered as a concern.⁹ As the influence of Western states declines relative to other global powers, there is also significant uncertainty over how this legal legacy will be taken up and interpreted in new projects of regional or geopolitical ordering.¹⁰

In this Article, I argue that the politics, practices, and teleology of international constitution-making, as currently articulated by key institutional actors and scholars, evidence what I term a selective technicity: an interest in engaging with local politics and local questions of distribution, but a reluctance to consider the implications of international economic structures, material interests, and their relationship to written constitutions, for that politics and for that distribution. I further argue that while part of this reluctance can be understood as the product of accounts of the field by scholars in the present (on whose work international institutions have drawn) those accounts, and their reception as authoritative, have been enabled by scholarly, theoretical, methodological, and political choices made by scholars in the past. These choices are what I term here the “post-war inheritance.” Tracing this post-war inheritance, I argue, enables us to ask better questions about how we might transform this field for our present moment and for the set of intersecting crises with which our world is faced.

The Article proceeds as follows. I begin in Part II by outlining the landscape of international constitution-making as it is found in the documents of international institutions, its relationship to state and regional actors and to scholarly production, and its significance for the discipline of international law. Here I focus particularly on the guidelines and policies issued by the United Nations secretary-general, by key agencies within the United Nations, and by the World Bank.¹¹ I show that, in conversation with scholars, these institutions have developed a broad and generally shared account of what the practice of “constitution-making” entails, and that this account assists in sustaining a particular interpretation of international law and of local ownership. I then explore the way that scholars within the field have retrieved the history of the post-war constitution-making projects in order to set out particular accounts of the practices and teleology of the field. The framing of many of these projects as contextually informed has meant that it can be difficult to gain a sense of the current politics of the field, or in other words, what is at stake in the question of whether international institutions adopt the vocabularies and techniques of constitutionalism. The predominantly pragmatic way of thinking and theorizing about international forms of constitution-making that has been adopted by scholars within the field has led to a sense that the problems of the field are procedural and contextual in nature, rather than that there might be some limit to the forms and vocabularies of constitution-making that the discipline has inherited, or that they might impede international lawyers and constitutional theorists in asking different questions about the relationship of law to violence and conflict within the decolonized world. Placing these accounts in conversation with critiques of these practices and their relationship to structural concerns therefore assists in describing the shape of the field in its present form.

In Part III, I turn to the histories and theories of international constitution-making developed in the post-war period in order to illustrate the particular tradition of constitutionalism that they represent, developed by scholars within the United States and in conversation with German and Jewish émigré scholars, and which I suggest continues to be significant for international lawyers and institutions in the present. I begin by exploring a foundational theoretical and methodological debate between Franz Neumann and Ernst Fraenkel. I then continue with the accounts of constitution-making and their relationship to the international found in the work of the international lawyer Quincy Wright and the constitutional scholar Carl Friedrich. In retrieving their work, I show that the questions at stake in the formation of that tradition included the understanding of constitutionalism as limited to a set of formal practices rather than the relationship of those practices to material questions, its self-containment as a project and field of social-scientific study, and its relative separation from projects of global economic ordering.¹² As I discuss in Part II, it is this orientation, or loose set of what I term epistemic boundaries, that has helped to make accounts of the practices and teleology of the field possible and to insulate those accounts from the broader questions being raised by other scholars. I then show, in Part IV, and by particular reference to the principle of local ownership, how this recovery can assist us in retheorizing the terms on which international constitution-making is conducted, and in moving toward reshaping that project for the present. I argue that our present moment invites both international lawyers and constitutional theorists to reconsider the post-war inheritance, and that the account I present here opens up new ways of thinking about what it might mean for constitutional orders to be responsive to social demands.

II. The Landscape of International Constitution-Making

In this Part, I explore the articulation of constitution-making as an international legal practice of peace and security over the last three decades, and explain how this practice is conceived of and justified in the policy documents of international institutions. The discipline of international law has witnessed a long history of international practices of constitution-making, both in the aftermath of colonial war or violence as well as during the period of formal decolonization.¹³ Yet the present period is distinctive both in terms of the professionalization of these practices and their formalization as part of the work of international institutions. In 2013, Nicholas Haysom, then deputy special representative for the UN secretary-general for Afghanistan (political affairs), noted “a growing appreciation of both constitutional design as well as constitution-making processes in laying a foundation for inclusive, stable democracies.”¹⁴ As I describe below, international institutions, in collaboration with scholars, states, and non-governmental organizations, have worked to develop guidance for this practice, to find ways to share comparative knowledge, and to create a distinct and recognizable field oriented toward the possibility of these practices in the future.

I begin by offering an account of that field and its understanding of the practice of constitution-making as it has developed over the past three decades. I show that the authority of international actors to conduct that practice is currently understood through the framework of local ownership, but that the specific way that those constitution-making practices are understood has led to an emphasis on political inclusion rather than social ownership or economic self-determination. I argue that this understanding of constitution-making is symptomatic of deeper tensions within the field, and that these tensions can be understood through tracing the role of history in the field today. Prominent scholars have drawn on the history of the post-war constitution-making projects in Germany and Japan in order to offer an account both of the teleology of the field and of the practices with which it should be concerned. At the same time, critiques from international lawyers at least partly concerned with the relationship of international constitution-making to material interests and economic structures were not evidently received as relevant for the field. My argument here is that history performs a dual role: first, a visible retrieval of this history in order to perform the work of reproducing the field in the present; and second, the more diffuse but nonetheless significant way that the epistemic boundaries of the field have been oriented in the past that helps that retrieval to make sense (the subject of inquiry in Part III). Both this retrieval as well as its theoretical antecedents, I suggest, are critical to grasping the politics of constitution-making as an international practice, as well as to understanding its current limits.

A. Building a Technique: Institutions, Scholarship, and the Projects of International Law

The reports and policy documents of international institutions and non-governmental organizations from the last three decades depict constitution-making as an increasingly central field of international engagement.¹⁵ International actors understand constitutions to be not only the founding instrument of the modern nation-state, but as a key means through which law acts to distribute power and wealth and to structure the politics of a society. As such, they are concerned not only with the outward-facing aspects of the constitution, but also how they structure the social relations and market orders within a state. Released in 2020, the latest Guidance Note from the Secretary-General on United Nations Constitutional Assistance (Guidance Note or Note) describes a constitution as “a state's foundational legal instrument establishing rights, institutions and processes that guide how the state functions and power and resources are shared.”¹⁶ For this reason, the Guidance Note positions involvement by United Nations actors and their partners in constitution-making as significant for several different fields of international engagement, including state-building, conflict prevention and resolution, as well as the promotion of human rights and sustainable development. According to the Note, constitution-making is a “central aspect” of this landscape and “UN engagement in, and assistance to, constitution making is increasingly a core component of . . . strategies” designed to secure peace.¹⁷

This emphasis on international assistance to constitution-making, as a means of achieving international peace and security, has been facilitated by the production of expert knowledge and academic work on the practice, design, and theory of constitution-making.¹⁸ International institutions collaborate with “a wide network of academics and practitioners” which they may, in a given situation, identify as offering relevant expertise to actors engaged in a constitution-making process within a state.¹⁹ Within the academy, constitution-making projects and initiatives have proliferated, the aims of which include the provision of expert advice and training, and the promotion of dialogue between scholars and practitioners of constitution-making, with or without international institutional support.²⁰ Prominent academics in constitutional law have also lent their expertise, and the normative authority of their discipline, to international institutions and states engaged in projects of constitution-making indirectly, through the production of reports and resources,²¹ and more directly through consulting work or engagement with international actors or domestic constitution-making bodies.²² Non-governmental organizations working in this area have likewise diverted increased resources to both constitution-making research initiatives and the development of a broader “community of practice” within which ideas and knowledge about the constitution-making process can circulate.²³ Broader changes within the academy, including the growing membership and activity of international societies and journals of public law, and the tendency for increased collaboration across national and regional boundaries have also facilitated a complex set of normative borrowings and the development of a specifically internationalist (as opposed to comparative) outlook on constitutional law. Christine Bell has described this outlook in terms of a conversation about “whether and how international law regulates polity formation and the exercise of constituent power at the domestic level.”²⁴

The questions of what a “constitution” consists of, and where it is to be found, have long been deeply contested among scholars.²⁵ The consolidation and professionalization of constitution-making as an international field of engagement, however, has meant that international actors and policy documents have articulated a flexible but nonetheless distinct and broadly shared understanding of what the practice of “constitution-making” entails. As used by international institutions and actors, this language refers to the preparation of a new constitution as well as the amendment or significant reinterpretation of an existing constitution. As such, it encompasses not only the drafting process of the written document of the constitution but also its institutional implementation.²⁶ It also includes consultation, engagement, and, in some cases, electoral approval of a national public in respect of that document and its projected operation, although organizations caution against drawing an equivalence between any particular moment and a constitutional mandate.²⁷ Given the close relationship that these actors have articulated since the turn of the millennium between peace and security and constitution-making, particular attention has been paid to aspects of the constitution that might be formalized as part of peace negotiations.²⁸ The 2020 Guidance Note sets out this understanding as follows:²⁹

The UN has a broad understanding of constitution making that encompasses not only the drafting or amending of a constitution in formally established processes, but also, for example, decisions about constitutional issues that may occur relatively early in a peace process or when transitional arrangements for exercising public power and basic principles for governance are agreed. It also includes implementation activities in the period following constitutional adoption; for example, establishing and setting up constitutionally mandated institutions or the promulgation of constitutionally mandated laws.

Early instances of these practices were undertaken in specified contexts under Security Council authorization, with the first often being dated to the UN Transition Assistance Group (UNTAG) operations in Namibia at the close of the Cold War, and subsequent iterations conducted as an aspect of the experiments in “international transitional administration” in the two decades thereafter.³⁰ From at least 2015, international institutions began to argue for an extended timeline for international involvement in constitution-making, both before and after conflict. This corresponded with a broad approach to the peace-related work of international institutions as “need[ing] to be liberated from the strict limitation to post-conflict contexts” in order to facilitate a more holistic approach to securing peace.³¹ The 2018 World Bank-United Nations report “Pathways for Peace: Inclusive Approaches to Preventing Violent Conflict,” relying on the work of legal scholars, argued that “ [t]ranslating a political settlement into a more sustainable process of constitutional change, institutional reform, and modified legal frameworks [wa]s complicated and often require[d] multiple iterations.”³² Accordingly, it called for an increased emphasis on the surveillance and monitoring of constitutional implementation, as well as the initial period of constitution-making after conflict, suggesting that the process may require “sustained, long-term attention and periodic renegotiation.”³³ The existence of constitution-making as a broader field of practice now involves a wide range of international actors, both within and outside the UN system. Within the UN system, these actors are coordinated through the UN Department of Political and Peacebuilding Affairs (DPPA) Constitutional Focal Point, tasked with coordinating and sharing information among different UN agencies and entities through members of a working group.³⁴ The Focal Point also aims to “strengthen[] UN relationships with external actors providing constitutional assistance.” In respect of actors outside the UN system, the Guidance Note takes the position that “national actors” should “play the main coordination role.”³⁵ Nonetheless, it suggests that the UN may act to facilitate the involvement of both regional organizations and foreign states in constitution-making processes.³⁶

Early justifications for the involvement of international actors in constitution-making included encouraging adherence to international legal obligations and standards, especially human rights norms.³⁷ But beyond substantive norms, the relationship between international law and constitution-making has in the past two decades been articulated centrally in the language of procedure, and the potential for a guided constitutional process to transform societies affected by conflict.³⁸ The 2020 Guidance Note focuses on support in the identification of a structure and timetable for constitution-making processes, the building of inclusive processes and public consultations, as well as the implementation of procedural rules.³⁹ As a question of process, international institutions have emphasized that the drafting and consultation period should be understood as an “exceptional opportunity for a state to create a common vision of its future,” with consequences for prospects of peace into the future.⁴⁰ This is described as a “transformational exercise . . . an opportunity for people to engage in a healthy debate on the nature of the state and state power . . . experience democratic governance practices and learn about relevant international principles, practices and standards.”⁴¹ Scholars have suggested that longer time frames for constitution-making may, depending on the political situation, be more beneficial, since they are thought to enable a more deliberative and inclusive process of negotiation, and the building of political relationships that engage previously marginalized groups in society.⁴² In this context, expert assistance is thought to play a key role through providing “support on transitional political arrangements, designing constitution-making processes, engaging the public and managing public consultation, constitutional design and management of constitution-making bodies.”⁴³ Early iterations of policy proposals for international constitution-making imagined this as a process of “civic education” through which local publics were taught to translate political aspirations into constitutional forms.⁴⁴

This shift to process can be understood as a means through which international institutions understand the legality of constitution-making practices. As explained in official documents, the principle of “local” or “national” ownership is the idea that external actors “refrain from imposing solutions” but instead act as far as possible to facilitate the choices of local actors.⁴⁵ In that sense, “local ownership” can be understood as a gloss on, or interpretation of, the international legal principle of self-determination.⁴⁶ Scholars and international institutions involved in the project of constitution-making chose to give the question of local ownership shape and substance by turning to the inclusion of particular social groups—“social, cultural, religious and minority groups, as well as women, youth, civil society groups and professional organizations”—within constitution-making processes.⁴⁷ In practice, this has often meant a focus on the identification of relevant marginalized groups, especially women, and on the creation of consultation mechanisms or the preservation of space for their formal representation in constitution-making processes.⁴⁸ It has also meant the taking into account of such marginalization when offering a range of “design options” for new constitutional settlements, leading to particular emphasis on “decentralized” models of governance such as federalism or consociationalism that claim to facilitate the dispersal of power along these axes of exclusion.⁴⁹ Through the design and supervision of processes for drafting and adoption, international advisors view themselves as facilitating the inclusion of particular parts of society that are understood as having been excluded from previous political settlements. Institutional mechanisms by which international actors are able to facilitate this inclusion, such as quotas of representation in constitutional assemblies, are invoked as a rationale for international presence and involvement in constitutional processes.⁵⁰ In line with the idea that inclusion provides a practical means of fulfilling an in-principle commitment to local ownership, the 2020 Guidance Note identifies the facilitation of this participation in the constitutional process as the “main goal” of international actors.⁵¹

Centering the principle of local ownership can also be understood as a response to concerns regarding constitutional imposition. Scholars have observed that there is an “obvious tension” between an international mandate for constitution-making processes, on the one hand, and local ownership of the product of any such process.⁵² Official institutional documents therefore emphasize the importance of adopting a contextual rather than technical approach, and urge a full assessment of the historical and legal situation in a given state before engaging with the modes and substance of constitution-making.⁵³ Circulars to UN officials engaged in processes of constitution-making emphasized that it was the role of the constitutional advisor to engage with and draw upon the knowledge of local actors in order to properly understand the varying “pathologies” of different states for which well-selected techniques of constitution-making could be the cure.⁵⁴ This emphasis is also found in scholarly literature that depicts the endeavor of constitution-making as flexible, rather than normatively bounded, and responsive to different forms of knowledge and political demands that might be posed by peoples engaged in political struggle.⁵⁵ As a result, the figure of the constitutional advisor has come to occupy a significant role in the field, as well as within the documents and policies of international institutions. UN guidance now emphasizes the assessment of context as determinative of threshold questions regarding the involvement of international institutions, as well as the nature and extent of that involvement.⁵⁶

As international lawyers have long observed, any emphasis on “local” ownership or participation by international actors that does not accept that governments are representative of the people they govern necessarily entails the question of how to define those local actors whose ownership is desired, and the form that ownership might take,⁵⁷ as well as its relationship to broader questions raised through the principle of self-determination. This is particularly the case in the context of constitution-making as a technique for realizing international peace and security, and the disparity in resources, institutional capacities, and military power between international and local levels, and as between local groups, with which it is often associated. Much is therefore at stake in whether the activity of international constitution-making is characterized as a question for international law or as a question for other kinds of law. Both more committed and more critical accounts of the activity of constitution-making often frame it as a transnationalized practice rather than an international one.⁵⁸ Yet international institutions that engage in this work are founded through treaties relying on the principle of state consent, a principle that remains foundational to international legal thought and practice. Legal scholars’ understanding of the nature, history, and present role of the United Nations also remains indelibly linked to the promise of self-determination: the ability of peoples to choose the legal, political, and economic forms of government under which they live.⁵⁹

In emphasizing the question of local ownership, as well as through stating that United Nations involvement in or assistance to constitution-making processes “will normally take place based on a Security Council or other UN legislative mandate or in response to a request from a national government,” official guidance can be understood as remaining concerned with these sources and boundaries of international authority.⁶⁰ Yet over the past several decades, the “move to institutions” and the gradual professionalization and specialization of fields of international practice means that much of the shape of that activity has come to be addressed as a question for expert vocabularies rather than a question for peoples.⁶¹ The articulation of constitution-making as a field of practice and scholarship also reflects the maintenance by United Nations officials of the standing capacity and institutional framework for engaging in these operations. This is a significant development, one reflecting what Anne Orford has described as the expansion of “forms of executive action undertaken by international actors in the decolonised world.”⁶² In such a context, vocabularies shaped through the landscape of institutional and professional practice may come to guide scholarly interventions and to inflect legal interpretation of norms derived from treaty and custom. Here, I suggest, the particular vocabulary that is shaping the interpretation of international law and of self-determination is the vocabulary of constitution-making, and the practices with which that vocabulary is currently associated.

Asking what that vocabulary entails, and how it is shaping interpretations of self-determination and the scope of international authority, is especially timely given recent expression of the project's relationship with the international financial institutions. The expansion in the scope and duration of constitution-making projects, as an aspect of the post-Cold War emphasis on achieving security in the decolonized world through humanitarian and development activities, corresponded with an explicit emphasis on collaboration with international financial institutions. International involvement in constitution-making, as an integral part of the preventive approach to conflict expressed through the language of “sustaining peace” jointly published in 2018 by the United Nations and the World Bank, sat alongside a focus on foreign investment and development aid, the potential contribution of private actors to peace processes, the greater participation of women and youth in peace processes, and the perceived need for security sector reform.⁶³ In part, this collaboration between the UN and the World Bank was framed as a means of addressing demands for additional funding and capacity.⁶⁴ In part, however, it reflected a shift in justifications for international peacebuilding more generally. Calls to consider constitution-making as a strategy for international peace and security here stemmed from the realist assertion that conflict might be more a question of contemporary struggles over “resources” than “historic” tensions between social groups.⁶⁵ Aspects of these policy documents noted the concerns with corporate trading activity and land acquisition in the agricultural and mining sectors that had led to the displacement of peoples.⁶⁶ They also drew on scholarship arguing that governments that had been able to deliver forms of redistribution had prevented the recurrence of conflict.⁶⁷

This acknowledgment led to a tentative embrace of certain forms of redistribution as a part of international assistance to constitution-making. Unlike previous official documents, the 2018 report emphasizes the importance of constitutional structures not only as a mechanism for inclusion but as a means through which that inclusion might deliver a more equal and politically acceptable distribution of wealth. It positions constitutional techniques for the dispersal of political power through law, including devolution, decentralization, and federalism, not purely as exercises in sub-national self-determination but as a means by which a “balance of power” can be produced between different groups while also enabling “goods and services” to be adequately delivered by a competent authority.⁶⁸ This same emphasis on the centrality of wealth and the distribution of social goods to the persistence of conflict can be seen in the 2020 Guidance Note, which describes the constitution as “inextricably linked” to questions about, inter alia, “the allocation of resources.”⁶⁹ Here too, constitution-making is depicted as a means of ordering conflict-afflicted societies that have been unable to resolve problems of material inequality and resource capture, understood as the “root causes of the violent conflict.”⁷⁰

Despite this distributional shift, theoretical understandings of what the constitution was, and the practices that should be understood as constituting it, have remained largely consistent with previous articulations of constitution-making as political process, written document, and institutional implementation. Put differently, unlike the understanding of local ownership as political inclusion and political freedom that has been at the heart of scholarly and institutional descriptions of what constitution-making is as a practice (and how it should influence understandings of international authority), the focus on redistribution has been a predominantly pragmatic rather than normative shift. While projects of international constitution-making have emphasized the political aspects of self-determination, they have been less interested in how practices might be reconceived in order to accommodate the dimensions of self-determination that deal with questions of a people's choice of economic system or with collective social freedom. Questions of material equality are, in the core documents that I described above, generally not understood as relevant to the “main goal” of facilitating political inclusion but as subsidiary questions addressed through the language of international commitments to economic and social rights, or federalization, or as benefits to be derived from foreign investment.⁷¹ Rather than focusing on constitutional methods for reimagining property rights, or viewing the authority of international actors as contingent on ensuring social ownership, scholars and practitioners have tended to imagine the constitution's role in that redistribution in terms of a more minimalist redrawing of federal boundaries around particular contested areas of territory or resources.⁷² In line with past policies of the international financial institutions, writing on constitution-making has also often been coupled with an emphasis on the role of constitutions in “ensuring predictability of state action and the security of private transactions through the legal system.”⁷³ In official United Nations circulars, for example, proposals for federalization and decentralized access to land and resources, such as in Mindanao in the southern Philippines, have been accompanied by assumptions about the benefits to be derived from the opening and hospitality to foreign investment.⁷⁴ Commentary published by other institutional actors, such as the World Intellectual Property Organization, has described the inclusion of protections for patents in new constitutional settlements as part of a broader and rights-consistent process of “constitutionalization.”⁷⁵ This reflects the relatively pragmatic way that practices espoused by scholars and practitioners of international constitution-making in the English-speaking world have often been consonant with, rather than perceived as a site of resistance to, the strategies for development-through-investment and protections for international property that have been promoted through other aspects of the international institutional and legal architecture.⁷⁶

In the next Section, I argue that this approach to understanding questions of local ownership and the legality of international constitution-making reflects a deeper tension within the field. I do so through exploring the framings that different scholars used to characterize those practices, focusing either on a legalist account of those practices, or drawing them into relation with broader questions of economic structure. I further show how histories of post-war constitution-making were instrumental in depicting a narrower account of that constitution-making, and the implications of this for scholarly debate and political action.

B. Renewing the Field of International Constitution-Making: History, Teleology, Practice

Techniques of constitution-making, and their realization through international institutions and actors, have been understood as part of the contemporary project of international law.⁷⁷ At the same time, international institutions and international lawyers have continued to question whether, and in what circumstances, United Nations involvement in the process of constitution-making should be understood as lawful. This questioning became particularly pronounced as the debates about the failures, controversies, and politics of the involvement of international institutions in projects of constitution-making intensified during the first decade of the twenty-first century. These critiques corresponded with a broader shift in international law from a more triumphant or at least optimistic disciplinary moment following the end of the Cold War and the proliferation of international institutions and multilateral treaties, to a more anxious, self-reflective, and pluralist moment from the second decade of the twenty-first century.⁷⁸ In this Section, I suggest that aspects of these debates can be fruitfully read not just as debates over the legality of constitution-making but also as debates over what those practices of constitution-making were and how to frame and analyze them as a phenomenon: questions that, as I argued above, are central to the vision of international law being offered by the field.

Many critiques of international constitution-making offered during this period were essentially regulatory in orientation. They focused on the absence of clear international standards that might guide the activity of international constitution-making and limit the ability of states or international actors to act according to their interests or in ways that were perceived as undemocratic. Fundamental norms such as the political self-determination of peoples, some international lawyers argued, were too imprecise to effectively limit international action.⁷⁹ So too was it difficult to determine where the boundaries of lawful international action might lie from the text of authorizing instruments, such as Security Council resolutions.⁸⁰ Scholars commented that norms and frameworks perceived to have a humanitarian orientation, such as those drawn from international human rights law or the laws of war, had in practice tended to operate to facilitate aspects of constitutional transformation, such as the inclusion of bills of rights, rather than to foreclose them.⁸¹ A second set of critiques from international lawyers centered more directly on concerns over imposition.⁸² These critiques focused on whether, regardless of whether or not laws existed to guide or direct the work of constitution-making, those laws might in fact be, or be seen to be, complicit in projects of domination or exploitation, or in new forms of undesirable international rule.

The effect of this was that a broad swathe of practices were subject to criticism from international lawyers. Yet rather than advocating for a turn away from constitution-making, many of these critiques tended to recommit themselves to the need for international constitution-making projects. As David Kennedy has argued, this work of renewal has in various ways been critical to sustaining the discipline of international law: “performances of renewal, criticism, and reform” are not only political responses to contemporary events but have been “central to professional identity and competence.”⁸³ Critiques concerned with the possible exercise of arbitrary power sought mechanisms for restraining and guiding that power in some fashion—whether by multilateral agreement,⁸⁴ by a more ethical and neutral internationalism,⁸⁵ or by a more flexible set of norms that left some space for political negotiation or contingent decision making in line with the perceived needs of particular situations.⁸⁶ Critiques concerned with the appearance of imposition took a more managerial approach to answering this question, focusing on issues of perception and public relations rather than on whether constitution-making processes could or should be normatively understood as externally imposed. They argued that what was essential was to avoid the “impression that the exertion of influence on the nation building process from outside is a renewed form of neo-colonialism,”⁸⁷ but did not, in general, conclude that creating this impression required a substantially reimagined project in and of itself. Instead, the involvement of institutional actors (as opposed to powerful states) coupled with an increased sensitivity to such perceptions was often judged sufficient to navigate these concerns.⁸⁸ Underlying this renewal, then, was an implicit sense of the mission and future of the project of international constitution-making (as conducted by international institutions) as opposed to other forms of action.

In order to fortify the account that I outlined above of what that constitution-making is, as well as where we should look for its history, and how we should understand its future, scholars drew on the history of post-war constitution-making projects in Germany and Japan. Historical ideas about post-war constitution-making in Germany and Japan took on an especially central role in how some scholars presented their ideas about the teleology of that constitution-making.⁸⁹ This emerged most strongly in response to critiques of constitutionalism as a project of international law, where the centering of particular accounts of how to realize democratic ordering was perceived to be in tension with the claim of that law to be drawn from the practice of all states. The international lawyer and global constitutionalist scholar Mattias Kumm, for example, explicitly sought, in response, to offer an “affirmative genealogy” of constitutionalist thought and practice.⁹⁰ He did so by positioning the changes wrought by the Allies in the political and legal structures of Germany and Japan, together with the rise of the United Nations, as part of building a world after empire.⁹¹ In this context, the United States was a “revolutionary agent” “seeking to shape a new world order” in taking a role in “establishing new constitutions” under military occupation for the two powers.⁹² Kumm narrated these practices of constitution-making as an aspect of the struggle against fascism, both within “the most aggressive imperial powers of their time,” and as part of the movement toward establishing self-determination as a general principle and the representation of formerly colonized peoples through the United Nations.⁹³ Understood in this way, the post-war moment (and the practices associated with it) could be properly seen as “a high point of anti-imperialism” rather than a form of imposition.⁹⁴

The history of directing these practices toward fascist and imperialist states has been held out by scholars within the field as evidence not of a perfect analogy with the constitution-making practices of the post-Cold War period, but of their suitability for adoption and defense as an institutional project. This history showed, according to some scholars, that processes led by or involving external actors could deliver a greater degree of democracy in the longer-term, and therefore could not be ruled out as a matter of principle, even if they had been poorly implemented in practice.⁹⁵ Underpinning this return to the post-war history of international constitution-making was a sense that projects by Allied states in both nations had resulted in the apparent longevity and stability of the constitutional orders in Germany and Japan, and the participation of those states as liberal and prosperous members of the international community.⁹⁶ By centering fascist forms of empire and the need for their transformation, however, this historiography directed attention away from the question of how the relations of domination inherent in empire were remade for the post-war world, and what constitutionalism might, if anything, have to do with that remaking.⁹⁷

Returning to the history of the post-war projects of constitution-making by Allied occupiers in Germany and Japan was also significant for scholars creating or sustaining an account of what constitution-making was, of which practices it consisted, and how to judge and evaluate the level of “imposition” involved. This was especially important for scholarship that sought to analyze the relative “success” of post-war constitution-making projects through an empirical or social-scientific lens, scholarship on which international institutions have drawn.⁹⁸ The classic article by Zachary Elkins, Tom Ginsburg, and James Melton on constitution-making in occupied states is an early example of empirical work in this field. That article expressed itself as being “motivate[d]” by the parallels that the authors perceived, as well as those that the occupiers had explicitly drawn, between the then-ongoing Coalition occupation of Iraq, and the Allied occupation of post-war Japan.⁹⁹ In recounting this history, the authors focused on the practices of drafting a written document that was labeled a constitution by the military occupation, emphasizing, inter alia, the inclusion of the “peace clause” found in Article 9 and the abolition of the aristocracy.¹⁰⁰ Also significant were the public-facing aspects of that process: the secrecy surrounding the occupiers’ drafting, the process of translation by members of the Japanese pre-war government, and the means through which the product of the written constitution was presented to the people and adopted by the legislature.¹⁰¹ Finally, through a focus on written constitutional provisions, the authors defined the metric of constitutional imposition as the similarity between the occupation constitution and the occupier's own, rather than a thick analysis of the types of structural relation that it brought into being.¹⁰²

This focus on formal written constitutions and their presentation to and reception by a domestic public has informed the framing of subsequent empirical work. Much of that work went on to treat questions of constitution-making as primarily questions of design and of participation.¹⁰³ As Tom Ginsburg and Rosalind Dixon have observed, this focus on written documents termed constitutions has also commonly been adopted in the framing of qualitative work.¹⁰⁴ That focus was critical to studies suggesting that new constitutions assisted in the reduction of recurrent violence, studies that were invoked by the World Bank and United Nations in concluding that “the process of writing a constitution and the existing post-conflict political, security, economic, or other conditions that enable this process are important for sustaining peace.”¹⁰⁵ Finally, this focus on formal constitutions may have intersected with at least some teleological accounts above, in the sense that it is not any account of constitutionalism that is considered to be possessed of a teleology but a dominant or broadly shared account of the practices and principles of which it consisted. As noted above, however, the question of what is “constitutional” and where to find it has long been contested by scholars, some of whom have pointed to the outward-facing dimensions of constitutionalism as well as its material (as opposed to formal) elements.¹⁰⁶ These accounts of the teleology of constitution-making and of which practices it consisted were therefore, in part, the product of scholarly intervention and debate.

More radical accounts written during this time presented international constitution-making not as an enclosed field of professional practice but as part of a broader relationship of structural exploitation. Although many of these accounts focused on the relatively exceptional case of the occupation and constitutional transformation of Iraq, I am interested in the ongoing lessons to be derived for the field from the method that they adopted for doing so. Unlike the work conducted with a reformist sensibility that I explored above, these accounts positioned the question of constitutional imposition (and of international law's possible complicity with such imposition) as a more fundamental challenge to existing institutions, doctrines, and practices. Part of their basis for doing so was that they took a wider view of the practices that could be said to be associated with “constitution-making.” These scholars brought into view the routinization and depoliticization of practices relating to development, finance, property, or investment that had accompanied projects of administration and constitution-making. They argued that these practices were unresponsive to social demands on the part of local actors,¹⁰⁷ or served to justify the transformation of political structures under conditions of military occupation.¹⁰⁸ They critiqued the forms of knowledge about constitution-making that had accompanied these transformations, which they saw as facilitating economic exploitation,¹⁰⁹ or as the product of specific “situated interests.”¹¹⁰ Some argued that the combination of international constitution-making under military occupation with marketization and the facilitation of foreign investment created new relationships of dependency between powerful states and those peoples for whom a constitution was being made.¹¹¹ Others positioned contemporary projects of international administration and constitution-making in Iraq and the expansive powers granted to occupiers to interpret the scope of their authority as continuous with the partial and unequal sovereignty afforded to peoples under relations of mandatory governance.¹¹²

This literature offers significant reason to be skeptical about claims that constitution-making, as currently understood, can or should be a central technique for processes of legal and social transformation. Although not all of these scholars took on the framing and language of constitution-making, each of their work brought constitutionalist thought into relation with the forms of global economic ordering that it helped to facilitate and deepen, or against which it offered little purchase. In this sense, they might be understood as having engaged in the move that scholars of constitutionalism have more recently renewed calls for: to widen our view beyond the “formal” constitution to include the material forces that influence its change and development and that cause it to come into crisis.¹¹³ Repeated references in the literature on international constitution-making to questions of imposition and the reproduction of colonial forms of relation can be read as responses to these critiques, as well as symptomatic of the broader anxieties provoked by the now long-standing call to reassess and critically reimagine the doctrines, sources, histories, politics, and practices of international law as it relates to the disciplining of the decolonized world.¹¹⁴ These anxieties might be taken as evidence that the question of domination is a shared concern, and that the critical point of divergence between the two approaches to constitution-making presented here—of renewed commitment or of structural critique—is how to understand and interpret its relationship to economic ordering.

Yet it was not clear from the work of scholars writing in the field that, beyond a generalized concern with domination, these structural critiques were received as critiques with which the field should be concerned. Scholars concerned to defend constitutionalist approaches from critique and to point out the shortcomings of “critical post-colonial sensibilities” focused largely on critiques that centered the question of “civilizational or cultural difference.”¹¹⁵ As I have highlighted, however, much of this work was not concerned with “civilizational or cultural difference” but with economic structures, material interests, and new relations of dependency. One function of narrating the teleology and defining the practices of the field in the ways that I have described can therefore be understood as insulating the field from the more radical implications of bringing constitution-making and these more structural questions into conversation. In other words, it can be understood as a manifestation of a kind of “disciplinary sensibility.”¹¹⁶ David Kennedy has argued that these kinds of sensibilities can be unpacked through observing the “blind spots, strategies of evasion, elision, or forgetfulness” of a particular field or professional or intellectual discipline, and that this sensibility is “as much about desire, construction, and work as it is about error or ignorance.”¹¹⁷ In the context of international human rights practice, Susan Marks has described a similar kind of active reluctance to consider whether economic structures have exacerbated forms of violence and deprivation as related to a disciplinary tendency to render problems technical, rather than obviously political, and amenable to professionalized solutions offered by international actors.¹¹⁸ In relation to international constitution-making, a field which has sought to actively facilitate some forms of local contestation, pluralism, and redistribution while largely avoiding the deeply political questions of legal structures governing the distribution of wealth and the creation of private right, this might better be described as a selective technicity: the embrace of politics in some quarters but not others.¹¹⁹

In what follows, I argue that at least part of that technicity can be understood as related not only to the choices that scholars were overtly making in the present but to the epistemic boundaries and blind spots of the law that they have inherited. In other words, I am interested in exploring the relationship of history to the disciplinary sensibility of this particular field. Articulations of the teleological orientation of a field and descriptions of the practices that it takes as the basis of its analysis can be understood not only as offering a project but as setting out and reproducing the boundaries of that project. These boundaries—how the field is oriented, which practices it is interested in examining or confronting, and who it is in conversation with—are the product of choices made by scholars in the present. But those choices are made easier (although not inevitable) by the theories, taxonomies, and ways of organizing the discipline that are the product of choices made in the past. This dual quality of scholarly reproduction within the discipline of international law reflects the nature of that law, which Anne Orford has described as a “virtual object” that is “neither fully factual nor fully fictional.”¹²⁰ Instead, international legal scholars work with actually existing materials, and the politics, concepts, and orientations transmitted through those materials,¹²¹ while also patterning them anew. The particular shape that this reproduction takes at any given point in time is not only a question of choice but of reception: while scholars selectively draw in new materials and use them to create new syntheses, only some of these syntheses may be understood by scholarly venues as acceptable, or received by the audience within the field as authoritative. This is particularly true of fields that are adjacent to practice, that understand themselves as responding to a “demand for usefulness” from practitioners and activists operating within an already-drawn field, and that may prioritize those demands over other scholarly imperatives.¹²² Inquiring into the epistemic boundaries of the field seemed therefore essential in order to reckon with the questions of force, imposition, imperialism, and domination that continue to trouble the field as a whole.

In the case of international constitution-making, I have shown how scholars make the field through drawing on historical narrative. As I will argue below, however, the background assumptions that enable that narrative to be put together and to make sense for its audience are also the product of disciplinary orientations and vocabularies that have been inherited from the past. The close relationship between the academy and practice that I have described above may help to orient scholarship toward that “demand for usefulness” that helps to reproduce international constitution-making as a distinct field of practice and condition what we see as relevant for that practice.¹²³ Yet paradoxically, that close relationship also means that past scholarship and disciplinary taxonomies can be understood as doing significant conceptual work in organizing, orienting, and sustaining the field. For this reason, an intervention that draws on history and theory to understand that orientation can also help to reorganize that field for the future. In what follows, I turn to the histories and theories of international constitution-making in the post-war period in order to illustrate the particular tradition of constitutionalism that they represent and on which international lawyers and institutions continue to draw in the present. In doing so, I show that the questions at stake in the formation of that tradition included the understanding of constitutionalism as a formal set of practices rather than a material process, its self-containment as a field of social-scientific study, and its relative separation from projects of global economic ordering. I then show how this recovery can assist us in retheorizing the terms on which the international constitution-making project is conducted, and in moving toward reshaping that project for the present.

III. Histories Present: Post-war Order and the Boundaries of Constitutionalism

This inquiry into the tradition of post-war constitutionalism begins with the history of empire. The rapid expansion of European colonial rule and domination during the nineteenth century saw immense violence in the colonized world as well as the ordering of the global economy through a system of laws and imperial preferences facilitating the transfer of wealth to the metropoles. It was within this system of imperial competition, combined with rapid economic transformation after its forcible “opening up” to trade with the United States in the nineteenth century, that the Japanese state came to be a mandatory power in the Pacific as well as being a colonial power in Asia itself.¹²⁴ Japanese officials and scholars supporting a policy of expansion sought to justify this authority initially in civilizational terms and then subsequently by reference to ideas of a greater Asia organized around racial hierarchy and Japanese rule.¹²⁵ For the fascist officials of the German Reich, which had been stripped of its legal authority over colonized peoples in the Versailles settlement, territorial expansion, racialized violence within Germany, and the conquest of peoples living to the east also became central to the reclamation of a German empire. Following the extensive bombing and defeat of Germany and Japan, the Allied states (themselves imperial powers) formulated plans for a period of occupation of the former enemy states and the transformation of their legal and social orders.¹²⁶

Treating former imperial powers as societies to be remade through law—as less than sovereign—required a reformulation of theories about international law and its relation to the legal instrument of the constitution, as well as engagement with broader debates about questions of law and aggression that were central to both the resolution of imperial rivalries and the process of decolonization. In the years leading up to and following World War II, states and international lawyers turned to constitutional thought in order to answer the question of how law should respond to war and aggression, and to facilitate change in the political institutions of a territory after war. Significant aspects of that reformulation, which I argue are critical to understanding the shape of the contemporary field of international constitution-making, took place within the United States and were the product of conversations between German émigré scholars and members of the U.S. legal and political academies. As others have argued, the experiences, vocabularies, and sensibilities formed during and in relation to the post-war occupations were also central to the forms of internationalism that animated the work of the U.S. post-war generation of international lawyers.¹²⁷ My intention in tracing this reformulation is not to take a position in the significant historical and historiographical debates about whether and to what extent constitutions were pivotal in the post-war transformations of these states, but rather to ask what the legacies of that disciplinary conversation have been for present theories of international constitution-making projects. While Japanese scholars were relatively underrepresented in that conversation, I have sought to emphasize where possible how the place of Japan, as well as of other non-European societies, was significant for this body of thought.

I begin this Part by exploring the debate between two German and Jewish lawyers and legal theorists that emigrated to the United States in the 1930s and who were, in different ways, in conversation with their U.S. contemporaries: Franz Neumann and Ernst Fraenkel. I argue that this debate shows the particularity and limitations of a way of thinking about constitution-making that focused on institutions and formal rights, and how an approach that sought to relate those constitutional questions to a thicker understanding of social power was available. I then revisit the work of U.S.-based scholars Quincy Wright and Carl Friedrich, who I argue each contributed to the building of constitutionalism as a vocabulary for the international legal management of Germany and Japan, a vocabulary on which, as I have shown, lawyers continue to draw. In refuting older assumptions, theories, and forms of international legalism, they pointed to new ways in which these practices could be conceived of and justified: as a means of transforming prerogative rule, of preventing international aggression, and as a form of democratic transformation rather than authoritarian dictatorship. Reading their work, I suggest, offers a window into the broader disciplinary transformation provoked by the encounter between Allied, German, and Japanese empires and occurring in the wake of immense violence. I show also that this tradition of constitutionalist thought can be viewed as deeply imbricated with ideas about the economic and constitutional organization of a purportedly post-imperial world, and that it came at the cost of different ways of understanding the possibility of political and social change after fascist and colonial rule.

A. Against the Economic Constitution: Juridical Modernism and the Solidification of the State

During the years of and following World War II, lawyers sought to understand how the state had been enrolled in a process of fascist expansion and to develop theories of the relationship of law to a peaceful future. One such radical or revolutionary imagining of the work that law might do after war can be found in the work of the German and Jewish lawyer Franz Neumann, a member of the Institut für Sozialforschung. ¹²⁸ In contrast to the focus on formalist modes of written constitution-making and public reception that I explored above, Neumann offered a window onto a larger vision of the role that law might perform after conflict: one of social ownership, rather than guided transition. In this Section, I describe aspects of Neumann's methodological approach that permitted this vision. I then read that method and vision against the competing approach in the work of Ernst Fraenkel, who, like Neumann, had emigrated to the United States and was in conversation with prominent scholars of his time. I do so in order to offer an account of the theoretical questions at stake in the post-war moment and to explore one instance of how those questions came to be answered.

In his work Behemoth, Neumann had inquired into the nature and political constitution of the Nazi “state” and the twin projects of colonization in the East and mass persecution and violence within the German territory.¹²⁹ At the time, some theorists had argued that the political and economic system of Germany was a variety of state capitalism, in which the existence of private property had been all but erased, and in which the state had achieved the “primacy of politics” over formalized practices of governing and economic exchange.¹³⁰ Against this, Neumann had argued that Germany was best understood as a new kind of legal entity composed of the four “ruling groups”—German industry, the party, bureaucracy, and the military. Each of these groups, on Neumann's account, was possessed of legislative, administrative, and judicial power: there was no centralized authority that dictated the direction of politics, but only the product of the agreements and compromises between them.¹³¹ The existence of governing power across these social groupings, he argued, showed that the German “state” was no Hobbesian leviathan, but a Behemoth: able to “control the rest of the population directly, without the mediation of that rational though coercive apparatus hitherto known as the state.”¹³² For Neumann, the defining characteristic of the German legal order was not the subjugation of private industry to the commands of the party, but the forming of new legal relationships and networks of collaboration between them.¹³³

Neumann's theory of the political and legal organization of Germany flowed from his attention to material and social structures and their interrelationship with formal sources of law. Rather than German expansionism being solely guided by the executive and realized through central directives, Neumann argued that “the aggressive, imperialist, expansionist spirit of German big business unhampered by considerations for small competitors, for the middle classes, free from control by the banks, delivered from the pressure of trade unions” was “the motivating force of the economic system.”¹³⁴ This analysis owed a debt to Bolshevik theorists of imperialism, but was also shared to some degree by both liberal thinkers and Allied officials, with early agreements regarding the German occupation reflecting this condemnation of the large industrial firms that had been so implicated in the impetus to war.¹³⁵ It was the difficulties in satisfying business under social democracy, Neumann argued, that had necessitated new forms of state command of the economy, aggressive territorial expansion, and the corralling of economic activity into the network of industrial combines.¹³⁶ Neumann's diagnosis of the German condition, and of the causes of militarism and aggression, led him to prescribe a particular set of responses. In order to return to conditions of legality, it was not sufficient that the party and senior bureaucracy be removed from power, or that German armaments be destroyed: “the power of the monopolistic economy must be definitely broken and the economic structure of Germany must be profoundly changed.”¹³⁷ Resolution of the German question, in other words, would require a reckoning with the material as well as legal legacies of fascist expansionism.

This vision of the concrete situation necessary for the peace can be understood through Neumann's writing on the relationship between constitutional order and social and economic life. In his 1931 essay “On the Preconditions and the Legal Concept of an Economic Constitution,” Neumann had argued that the limited freedoms that capitalism offered to its laboring subjects—freedom of choice and the negotiation of contractual conditions—could not exist in the context of a monopolized economy. Instead, the significant social and political power exercised by monopolies, both over workers but also, through trade associations, in relation to the functioning of the state itself, required a means of addressing the “contradiction . . . between the norms of constitutional law and the concrete contemporary situation of the constitution.”¹³⁸ Legal analysis of this “concrete contemporary situation,” for Neumann, required attending not only to formal constitutional ordering but to its relationship with structures of private law—property, the company, and finance—and the consequences of the social order they engendered for the very possibility of public law, understood as a relationship between free subjects. This was what he termed the “economic constitution,” as distinct from the formal or state constitution.

This analysis was potentially transformative of the way that lawyers conceptualized the state, its obligations, and relations to its subjects. For example, in arguing that particular forms of state action were not precluded by the provisions of the Weimar constitution regarding freedom of contract and property, Neumann theorized that the failure of the state to intervene in situations of a “change in the legal substratum” was not best conceptualized as non-intervention. Rather, this apparent neutrality could be seen as an active process of facilitation of exploitation and capital accumulation by industrial concerns, with which the state had actively cooperated. Seen in this light, the provisions of the constitution providing for socialization and worker representation could give rise to a countervailing duty to prevent that accumulation.¹³⁹ This argument had implications not only for the landscape of possible constitutional interpretations but also, critically, for the forms of knowledge that one needed in order to be a good constitutionalist. For Neumann, it was not possible to have an appreciation of the constitutional situation without a thick understanding of social and economic power and its implications for political subjectivity.

Following the fall of the Nazi state and in relation to the period of occupation, Neumann again drew on these ideas. He argued for a social-democratic agenda of redistribution, both domestically and internationally: the seizure of corporate property on a massive scale; land reform and the sequestration of “[l]arge estates”; and the restitution of looted property.¹⁴⁰ Although he opposed extreme plans to deindustrialize Germany and create an agrarian society, Neumann argued nonetheless for the comprehensive conduct of reparations through taxation of the wealthy and of corporate interests, though urging that “care should be taken to avoid curtailment of vital social services.”¹⁴¹ In the circumstances of a society restructured in this way, it was possible for a “fairly stable and fully acceptable government” naturally and democratically to arise to take the place of the occupying powers.¹⁴² In order for a constituent assembly that could set the pattern for a future Germany to be democratically elected, it would also be necessary to offer clarity to the German people on “whether, to what extent, and what kind of international supervision is to be maintained over Germany after the cessation of [military government], how long it is to last, and under what conditions it is to be changed or abrogated.”¹⁴³ That constituent assembly had also to be “free to enact expropriation and socialization measures and to provide for far reaching legislative acts intended to eliminate aggressive elements from German society.”¹⁴⁴ In other words, he argued that the horizon for international intervention should be social ownership and the elimination of the influence of war industrialism, coupled with formalist constraints on the manner and scope in which that authority was exercised.

Neumann's exposition of the types of theorizing that were needed for a democratic order in the aftermath of conflict can be contrasted with the competing analysis found in the work of Ernst Fraenkel.¹⁴⁵ A German and Jewish émigré who had worked as a defense lawyer during the Reich, Fraenkel's experience as having been subject to both legal and seemingly extra-legal forms of persecution had led him to theorize the Reich as an Urdoppelstaat, or “Dual State.”¹⁴⁶ He wrote that “Nazi Germany, far from being the unitary state that the Hitler regime proclaimed it had established, consisted of two parallel and contending halves.”¹⁴⁷ In the prerogative state, a creature of “unlimited arbitrariness and violence unchecked by any legal guarantees,” officials exercised discretion according to political aims and in the circumstances of the individual case.¹⁴⁸ The normative state, a technical legal apparatus characterized by predictability, certainty, and the rule according to law that German capital demanded, subsisted under Nazi rule, in which it functioned “as the legal frame-work for private property, market activities of the individual business units, all other kinds of contractual relations, and for the regulations of the control relations between government and business.”¹⁴⁹ It did so, however, only to the extent that it was not consumed by the prerogative state.¹⁵⁰ Since the two were halves of an “interdependent whole,” the normative state could not be compared to the state of law obtaining under the Weimar Republic, but rather, Fraenkel argued, should be considered a beast peculiar to the period of National Socialism.¹⁵¹

Although it has been described as a sociological or ethnographic undertaking, Fraenkel's thesis was organized along primarily juridical lines. He took as his central problematic the expansion of prerogative jurisdiction—with which he had had to contend as a lawyer under the Reich—at the expense of Neumann's focus on the shifting relations between particular social groups, including his analysis of cartels as an aspect of the state.¹⁵² His initial diagnosis of Germany's ills relied heavily on formal legal materials and in particular an indictment of the German courts. Fraenkel claimed that “possessing no guiding traditions in questions of constitutional law, [these courts] never succeeded in establishing a claim to jurisdiction” after the Weimar Republic declared a state of siege in 1933, thus easing the way for National Socialism.¹⁵³ Instead, a series of judicial decisions had led to a position where administrative decrees, exercises of discretion, and finally the political precepts of the party prevailed over the Weimar Constitution.¹⁵⁴ Critically, in his account, the political authorities had the ability to decide on the limits of their own jurisdiction, and in so doing, to “draw[] the line” between the normative and prerogative halves of the state.¹⁵⁵ In this sense, Fraenkel argued, there was no clear separation of functions or any area entirely free from the exercise of arbitrary power: rather, under the prerogative state, “politics is that which political authorities choose to define as political.”¹⁵⁶

What accounted for the continued existence of the normative state, under which “the legal foundations of the capitalistic economic order ha[d] been maintained” by the German courts?¹⁵⁷ Fraenkel's initial thinking on this had been influenced by Marxist and socialist legal thought, as well as by the work of his former colleague Neumann, with whom he had set up a law practice in the late 1920s.¹⁵⁸ But the original German work refuted what he saw as some of their excessive conclusions:

We are far away from claiming that big agriculture and heavy industry raised the Hitler movement as their vassal, so to speak. The course of world history cannot be explained in such simple terms, nor can the materialist conception of history be applied in such a crude fashion.¹⁵⁹

After consulting with scholars on publishing for a U.S. audience (including Carl Friedrich, who provided comments on the manuscript) Fraenkel further distanced himself from theories of the Nazi state that emphasized the constitutive role of capital in German expansionism and aggression.¹⁶⁰ He characterized the cartels, who had sought to free themselves from political interference, as merely “organs” of the normative state: it was the courts and the National Socialist party that were its primary guardians.¹⁶¹ Fraenkel accepted that, in general, the work of arming Germany and of expansionist war had served to enhance the safety of income from private property.¹⁶² On his account, however, and remembering the “necessity for decentralization of certain [economic] functions in any large-scale society with advanced technology,” it was not industry that fueled the prerogative state, but ultimately the prerogative state that needed private enterprise, and allowed for the normative state that sustained it.¹⁶³ In this sense, we can understand Fraenkel as concerned to develop a vocabulary that, unlike Neumann, eschewed any direct legal or constitutional relationship to social planning. This account led him to the conclusion that the true enemy was not the expansionist tendencies of capitalist relations but the prerogative state that had nurtured and corrupted them, and from which they could be redeemed.¹⁶⁴

The distinctions between Neumann's account and Fraenkel's provide a heuristic for understanding the implications of the shifting trajectory of U.S. practice. During the war, German-speaking lawyers in the United States, influenced by Neumann's theories, had been influential in shaping responses to cartelization.¹⁶⁵ In response to the dangers of fascist internationalism, early proposals from within the United States called for radical German deindustrialization and agrarianization.¹⁶⁶ Some U.S. lawyers and administrators initially took a similar view of Japan, where since the 1920s large zaibatsu or company combines had steadily increased their connections to and influence over the government of Japan.¹⁶⁷ During the war, permissive legislation had enhanced the “dominant economic position” of these companies within Japan, and “ hybrid agencies” with state capital and a measure of state control were created for international ventures, such as “Manchuria Colonization” and “Imperial Mining Development.”¹⁶⁸ U.S. military administrator General Douglas MacArthur in turn attributed significant responsibility for the conflict to the zaibatsu, stating that “[i]t is these very persons . . . who, working in closest affiliation with the military, geared the country with both the tools and the will to wage aggressive war.”¹⁶⁹

Later in the occupations, however, administrators during the Japanese occupation would echo Fraenkel's views, reluctant to extend early measures for the purge of “active exponents of militant nationalism and aggression” to figures that many politicians and business leaders perceived to be merely ordinary commercial actors, critical to the revival of the post-war world.¹⁷⁰ In some German industries, such as coal and steel, extensive deconcentration proved difficult due to perceptions of business needs for technological integration and security of supply.¹⁷¹ A focus on deconcentration also proved politically contentious within the United States given domestic struggles over the scale of its own oligopolies during this period.¹⁷² Commentators in the subsequent decade would also observe that private property became more significant for the occupiers of the western zones over the course of their occupation.¹⁷³ In the occupations of both Germany and Japan, the focus of Allied administrators shifted toward decartelization and antitrust, which U.S. occupiers viewed as compatible with concepts of the free market and healthy competition, and the internationalization of an “open door” economy.¹⁷⁴ This philosophy was also reflected in planning for post-war forms of regional organization that might ensure a secure, economically integrated Asia.¹⁷⁵ Regulation, rather than transformation, became the Allied answer to the question of private industry and its relationship to problems of international aggression. With the eventual shift from a strategy of military pacification to one of reindustrializing new strategic allies, and of feeding occupied populations, economic revitalization in both Germany and Japan would eventually become the core aim of the occupying forces.¹⁷⁶ The re-instantiation of constitutional protections, including for property rights, would to a large extent prevail over proposals for the socialization or redistribution of private power.¹⁷⁷

In this endeavor, Fraenkel's vocabulary of prerogative rule lent itself to a focus on legal institutions as constituting the “state” and, correspondingly, a solidification of formal legal analysis over sociological readings of private power. That solidification, offering as it did an alternative to Neumann's economic constitutionalism, can be understood as significant for the U.S. scholars with whom he was in conversation.¹⁷⁸ For Fraenkel, the task of military government within the conditions of a formerly fascist state was to ensure the restoration of the rule of law, rather than the narrower confines of military necessity.¹⁷⁹ Like Neumann, he believed that the political realities of foreign interference under the conditions of occupation were unavoidable.¹⁸⁰ But the role that Fraenkel proposed for the occupier was not to support the social-democratic vision put forward by Neumann and the remaking of private right and social power that it required. Instead, Fraenkel's was a more technocratic focus on institutions and formal rights: the elimination of the “prerogative state” and of “German institutions that are contrary to the idea of the Rechtstaat,” along with the granting of “civil liberties” and protection from arbitrary interference.¹⁸¹ As I have shown, this same question of whether scholarship should attend to formal written constitutions or encompass a thicker analysis of structural relations has also been at stake in contemporary scholarly debates.¹⁸² Retrieving the Neumann-Fraenkel argument shows that this can be understood not only as a question of scholarship about international constitution-making versus scholarship about structural exploitation or new forms of dependency, but also as a question of the boundaries and methods adopted for the constitutionalist vocabulary.

B. Law After Empire? From Civilization to Constitutionalism

Debates about desirable theories of constitutionalism in the wake of imperial expansion were staged not only among lawyers and theorists from the defeated states, but also among U.S. international lawyers and theorists of international organization. Of these, the work of Quincy Wright is instructive for illustrating one influential account of the relationship between constitutions and the post-war international legal order.¹⁸³ In this part, I argue that Wright's interest in constitutional forms of organization as a technique for organizing the post-war transition drew on frameworks of mandatory governance and the standard of civilization that had been significant in mediating legal relations between the European and non-European worlds. His contribution, along with other shifts in thought and scholarship during this time, assisted in transforming these frameworks into a social-scientific vocabulary for the post-war world. At the same time, recovering his work on this question shows that this vocabulary was connected to a set of ideas about international commerce and economic ordering: a connection which was unremarkable for Wright's contemporaries but which has come to seem marginal as a result of present taxonomies and ways of organizing the field.

Wright's vision of the post-war transformation, and the new forms of thinking required to achieve it, is perhaps most clear in his 1942 paper entitled “Political Conditions of the Period of Transition,” published in a collection of papers by the Commission to Study the Organization of Peace.¹⁸⁴ This was part of a wider project to set out new frameworks of international ordering in the aftermath of the failure of the League, and of colonial organization and domination of territory, to prevent the outbreak of war.¹⁸⁵ Members of the Commission, including Wright, dedicated themselves to planning for a new mode of international organization in which states would renounce force except in self-defense, commit to collective security maintained through regional and international policing, and maintain a global economy with free access to resources and goods.¹⁸⁶ Central to that project was the conceptualization of and planning for the “transitional period” following the conclusion of the war, which needed to take place before this organization of international society could be realized.¹⁸⁷ In his paper, Wright argued that the present situation demanded a departure from the conventions of international law regarding war's resolution. What Wright described as ordinary practices—a brief transitional period following the resolution of war through treaty-making, premised on a swift return to the state of international relations that existed prior to the war—did not, he argued, accord with present needs, in which the community of nations was faced with a “revolutionary outbreak” against established laws, including the outlawry of aggressive war or the non-recognition of its gains in the Paris Pact and the Stimson Doctrine.¹⁸⁸ The present conflict, widely regarded as exacerbated by the terms of the Versailles settlement, had also revealed the peace treaty to be a “static instrument ill-adapted to cope with changing conditions.”¹⁸⁹ In its place, Wright proposed that “the transitional period from violent to peaceful change be given a more definite recognition” through the active suppression of aggression and a “period of reconstruction” by international occupiers.¹⁹⁰ In other words, Wright felt that that process of governing should now be performed by international, rather than domestic, political actors.

In Wright's view, the horizon for that process of international governing should be the eventual acceptance by the local population of the new forms of order that it installed, rather than an account of how that order could be liberated from private interests. The function of this period of transition would be first and foremost to enable the discrediting of aggression as a means of conducting politics, by means of both the complete defeat of aggressor governments and the sustained occupation of their populations.¹⁹¹ However, the actions of the occupying states needed to avoid the characterization of “Anglo-American aggression”—instead presenting themselves as performing the functions of a “police power acting in behalf of the world community.”¹⁹² Hence, the governments responsible for the defeat of the aggressors should first perform “emergency tasks” of administration stemming from the needs of the occupied populations, including “the suppression of violence and lawlessness, the demobilization of armies . . . the setting of people to work . . . and the reeducation of peoples in the values of civilization.”¹⁹³ Following these emergency tasks, the most important aspect of the transition would, Wright said, be the establishment of political institutions based on consent of the governed. This was to be conducted “in accordance with the “ Anglo-Saxon tradition of gradual development” developed through imperial and colonial forms of administration which preferred “tried practices to logical theories.”¹⁹⁴ However “[c]are must be taken not to restore and recognize national governments prematurely,” in order to avoid “concepts of national sovereignty” that would prove problematic to these new forms of international organization.¹⁹⁵ In the meantime, the occupiers should focus on obtaining the consent of the occupied populace to “democratic institutions.”

One means of doing so was through constitutional forms of organization, which both worked to establish such institutions and provided a treatment for aggressive tendencies. In a technical sense, the transformation of “civilized” states under conditions of occupation was not evidently straightforwardly permitted by formal international conventions, a problem that vexed international lawyers and that fueled critiques from the Japanese government.¹⁹⁶ Elsewhere, Wright had argued that constitutionalism of the United-States type “facilitate[d] a harmonizing of international law and municipal law through application of the former in national courts,” and thus reduced conflicts between legal sovereigns.¹⁹⁷ A separation of powers meant that the ability of the executive to wage war was restrained by legislative bodies, such as Congress, while a functional centralization facilitated war.¹⁹⁸ Third, the geographical federalism of a government, such as the division of powers between state and national governments in the United States, also lent itself to peace, insofar as it reduced the intrusion of the government into private rights.¹⁹⁹ In summary, Wright considered that

absolutistic states with geographically and functionally centralized governments under autocratic leadership are likely to be most belligerent, while constitutional states with geographically and functionally federalized governments under democratic leadership are likely to be most peaceful.²⁰⁰

Wright's interest in these techniques was part of a then-emergent vocabulary of constitutionalist thought emerging out of colonial and mandatory rule. During the preceding century, international lawyers deployed what they termed the “standard of civilization” as a means of differentiating the legal status of European, Christian states and the rights, capacities, and immunities accorded to the political communities they encountered through trade and military conquest. This formulation, born of the colonial encounter, was central both to European expansion and to the constitution of the modern discipline of international law and the concomitant shift to a largely, though not exclusively, positivistic and fact-oriented jurisprudence.²⁰¹ It allowed for the mediation of unequal relations with non-European polities and the rationalization of their exclusion (with limited exceptions) from full membership of international society. Civilization existed not only as a binary question of inclusion but as a set of capacities based on gradation within a hierarchy, at the apex of which was the European state.²⁰² Both this question of factual classification and the question of legal consequences attaching to such classification were a matter of contest: for example, the occupation of lands inhabited by peoples considered not to be possessed of recognizable legal institutions of their own could lead to territorial acquisition either through conquest or through the legally distinct though no less violent doctrine of territorium nullius.²⁰³ This explicit use of civilizational language, though still common, was by Wright's time in decline, while resistance and movements for self-determination in the colonies were ascendant.²⁰⁴

But if by 1930 Wright had recorded that “international law [was] no longer limited by geographical position or type of civilization” in form, nonetheless as a practical matter international law's subjects were not yet equal.²⁰⁵ Instead, Wright saw a world of “entities displaying a tropical luxuriance of political and legal organization, competence and status.”²⁰⁶ The new institutions and techniques of mandatory government created under the League of Nations had at least nominally been directed at the amelioration of that status, with the promise of statehood conditioned on the imparting of specific forms of rule, and the opening of territories to trade on equal terms as between the mandatory power and other states.²⁰⁷ Although few formal international legal protections applied to the inhabitants of the mandates, Wright implied that the mandatory powers were nonetheless moderately suited to such a task since:

[a]ll civilized states have incorporated in their constitutions . . . certain limitations upon political and administrative tyranny or caprice in the interests of the inhabitants of their territories . . . [and] have become so imbedded in the system of law, in the practice of the administration, in the traditions of the legislature and other political bodies, and in the mores of the people that departure from them is unlikely.²⁰⁸

In other words, Wright endorsed the idea that the mandatory powers were possessed of superior constitutional orders not only in a formal sense, but also through their inculcation into the social norms and political attitudes of the power's own population.

Wright's focus on constitutional structure and mores illustrates a moment of transition toward the embedding of civilizational language in the more scientific vocabulary of constitutionalism. As scholars have shown, Wright's work was heavily influenced by social science methodology in general and Chicagoan pragmatism in particular.²⁰⁹ This transition had begun to occur through the League institution of the mandate.²¹⁰ In respect of the Syrian mandate, for example, the French government had ‘refused to accept’ several articles of the constitution as drafted in 1928. Though this refusal was influenced by domestic conservative anxieties over the end of empire, the French couched it in legal terms, claiming that those articles conflicted with the general duties of mandatory powers to supervise and circumscribe the transition to self-government.²¹¹ As this claim was a matter of interpretation it required that the idea of proper constitutional self-government be given some meaning: an enterprise that was being undertaken before the war in U.S. practice and schools of government and with which U.S. international lawyers were becoming familiar.²¹² Carl Friedrich, whose thought is explored further below, had been one of the leading figures in promoting a version of this vocabulary within the United States.²¹³ Wright himself had been significant in the building of this social-scientific enterprise through describing and evaluating the extent to which, in Iraq, the promulgation of a national constitution had been able to solve “the international problem of backward areas.”²¹⁴ This movement from mandatory governance to scholarly evaluation shows that civilizational thought lived on through an embrace of constitutional techniques of governance.

Wright's writings on the Manchurian incident indicate his view that legal responses to Japan's actions needed to consider the constitutional dimensions of imperialism. Dating from the forcible “opening up” of Japan to forms of unequal commercial and diplomatic relations in the nineteenth century, the Japanese government had pursued legal recognition of civilized status through a set of private law codification reforms and a constitution modeled on the German state.²¹⁵ From the early twentieth century, this had extended to a policy of imperial expansion into Manchuria, first through the management and exploitation of treaty-based concessions and then, after demands from Japanese companies, to direct colonial control of areas of the mainland.²¹⁶ In 1931, conflict between Japanese imperialists and Chinese nationalists came to a head through an explosion engineered by Japanese army officers, which served as a pretext for invasion and colonization.²¹⁷ In response, Secretary of State Henry L. Stimson announced that the United States would refuse to recognize “any situation, treaty, or agreement which may be brought about by means contrary to the covenants and obligations of the Pact of Paris.”²¹⁸ While Wright's writings on the subject considered Stimson's doctrine to be a development of the general principles of international law,²¹⁹ he was also interested in more durable solutions that would reach within the structure of the state as a matter of law, not merely as a matter of consequence. He framed the question as one of Japanese legal organization, and specifically “the division of authority in the Japanese constitution by which the military arm is imperfectly controlled by the civil government responsible for the conduct of the foreign relations of Japan.”²²⁰ Japan's “constitutional institutions,” he had written, tended to “act as a spur” to “war-like activities.”²²¹ It was therefore “difficult to avoid the conviction . . . that a development of the position of parliament and cabinet in Japan beyond the possibility of constitutional challenge by the military would be in the interest of peace.”²²² In other words, the answer might be to turn to the legal and particularly constitutional structures that for the mandates had been so regarded as a civilizing force: not in respect of “backward areas” but, now, as a generalized technique for ensuring peace. Similar views came to be reflected in internal memoranda produced by the UK and United States, which viewed the former Meiji constitution as “defective” because it allowed Japanese aggression to “flourish,” while avoiding the question of the co-existence of the constitutional arrangements of European states not only with centuries of colonial rule but with the re-invasion of former colonial territories following the fascist defeat.²²³

At the same time as promoting a focus on formal institutions of government, civilizational thought was the medium through which Wright contested the idea that post-capitalist forms of social ordering were needed in the wake of fascist aggression. Within Europe, what international lawyers perceived as distinguishing the war from other conflicts was not only the scale of the violence but the many acts of “economic spoliation” by Axis powers: the stripping from the land and its inhabitants of food, raw materials, and even slave labor.²²⁴ By the interwar period, the idea that imperialism was an economic as well as a political phenomenon had gained currency among Western authors, as well as Soviet and anti-colonial thinkers.²²⁵ Wright, however, was among those scholars of economics, political science, and law that contested the idea that aggression could be understood as the product of capitalist structures. Although during the nineteenth century, war had perhaps rightly been understood as an economic institution, wrote Wright, the conditions of modern capitalism and trade on liberal terms “made it no longer such.” While the German war rhetoric linked the war to “demands for Lebensraum, colonies and conquest,” Wright ascribed these demands not to expansionary tendencies of capital but to misguided “[m]otives of escape from domestic depression, coupled with dubious theories concerning the economic value of protectionism and of the political control of markets and sources of raw materials.”²²⁶ Such theories, geared as they were toward the acquisition and withholding of military power from potential enemies, were ultimately political in nature, rather than lending themselves to materialist explanations.²²⁷ Here, he relied on a new wave of British and U.S. scholarship by economists such as Lionel Robbins and Eugene Staley, suggesting that “[i]nvestors have more frequently been the unwilling instruments of a politically motivated imperialism than the concealed drivers of diplomatic or military expansionism.”²²⁸ Although these attempts at economic self-sufficiency contained “the seeds of war” because states raising barriers to trade were “certain to injure others thereby deprived of markets,” the solution that Wright proposed was not the reduction of the power of capital through forms of state control or nationalization.²²⁹ Rather, the economic elements of the solution were greater industrialization and international trade on liberal terms.²³⁰

Wright, along with other Allied international lawyers, positioned fascist expansionism as part of a wider landscape of challenges to liberal economic order in the interwar period that included socialist planning and nationalization, as well as liberal protectionism and barriers to trade.²³¹ Addressing the American Society of International Law in 1941, Wright described this as a process by which the

[g]eneral equality of the opportunity to trade and moderate freedom of trade have given way to discrimination and totalitarian control of economy. As this process has developed, economic crises and wars have become worse, until the structure of not only business and government, but of civilization itself, has been gravely shaken.²³²

Liberal forms of international economic organization, Wright believed, were another aspect of the “concepts of civilization” long expounded by international law, which, by “separating commerce from government and insisting on some respect for the individual, had an influence in moderating the practices of war.”²³³ The experience of the nineteenth century showed that constitutions had also acted to embed these concepts through protections for freedom of contract and carrying on a business. The flaw in such forms of organization up until this point, for Wright, was not their contribution to expansionism, but their failure to sufficiently integrate a focus on institutions of rule. Accordingly, he proposed a program for an international economic multilateralism concerned with fair dealing in international commerce, the investigation and conciliation of controversies, and the adjudication of international responsibility for injuries to an underlying customary right to trade.²³⁴ Although drawing more explicitly from international legal traditions than from Austrian economics, Wright thus shared the diagnosis of the mid-century's ills with the ordoliberal thinkers that were influential in reshaping the state for a smoothly functioning economic order following the end of formal colonialism.²³⁵

Wright's scholarship on the constitutional aspects of this question offers a window onto one moment in the social-scientific professionalization of the vocabulary of constitutional governance. Above, I have shown that contemporary empirical or social-scientific scholarship addressing the question of international constitution-making has facilitated a focus on the formal written constitution at the expense of alternative theories and methods. I have also argued that isolating and addressing of the “constitutional” question in this way has allowed it to be framed as a legal question that is distinct from questions of economic ordering. Recovering Wright's thought shows, however, that ideas about both economic and constitutional ordering for the post-war world can be understood as two halves of a wider vocabulary. Rethinking their relative separation, and asking how we might reinterpret constitutional vocabularies in response, therefore offers one means of crafting a new field for the present.

C. Framing the External: The Constitutional Dictator

I have argued above that Wright's engagement with the question of constitutional governance can be understood as part of an emerging social-scientific vocabulary of constitutionalism as a form of international rule. One of the most prominent authors of that vocabulary was the constitutional law scholar and advisor to the U.S. military government in Germany Carl Friedrich.²³⁶ For Friedrich, as for Wright, constitutional change under occupation represented the best possible method of achieving peace.²³⁷ But the relative formalization of this method required grappling with a number of legal and political questions: under what circumstances was it lawful or excusable to impose constitutional democracy through force?²³⁸ And how was it possible to preserve a degree of the wartime commitment to popular self-determination or to defend against accusations of authoritarianism? For Friedrich, the answer revolved centrally around the political system of the occupying state and the objects of the post-war transformation. Part of his scholarship had sought to work with the international legal categories of the occupatio pacifica to adjust what was possible within existing vocabularies.²³⁹ But a far greater part of his work sought to offer, through the use of constitutionalist thought and practice, a new way of conceiving of the international. As I will show, his work also explicitly opposed attempts by other authors to connect the use of constitutional techniques to broader questions of international order and forms of domination. Returning to Friedrich's theories therefore illustrates the significance as well as the limitations of this form of constitutionalist thought and its relationship to the building of a post-war vocabulary.

Friedrich's writings during and after the war were aimed at producing a political theory of the transformation of foreign territory under military occupation. The question that this theory sought to answer was how a vision of democratization of the defeated enemy states by the occupation governments (and specifically, in his account, by the government of the United States) could be justified, employing as it did the authoritarian technique of political change through military government.²⁴⁰ Friedrich aimed to theorize this “new” post-war type of military occupation, a “politico-military phenomenon whose boundaries, as a science or a profession, have not yet been defined.”²⁴¹ His answer, which he termed “constitutional dictatorship,” can be read as both an answer to the question of under what conditions an internationalized transformation could be conducted, as well as a description of a process that Friedrich had been intimately involved with. In 1942, believing that a responsible bureaucracy was central to new forms of administrative government, Friedrich had helped to found the new Harvard School of Overseas Administration, providing training for a new class of post-war international bureaucrats to be deployed to locations including Italy, Germany, and Japan.²⁴² Due to his expertise in constitutional law and theory, and familiarity with the institutions and debates of the Weimar period, he was later appointed governmental affairs adviser to both Military Governor of Germany Lucius Clay and the Control Council in 1948, and was “in constant touch” with the German Parliamentary Council, the body that would later draft the German Basic Law.²⁴³

Unlike many international lawyers, who had also argued for temporary but expansive ideas of the occupiers” authority, Friedrich emphasized that a theory of what was taking place needed to allay the concerns of an Anglo-American public that this kind of military government was an undemocratic and coercive form of rule “more nearly akin to dictatorship than to democracy.”²⁴⁴ The language of constitutionalism offered a means of allaying these concerns, as well as of responding to German claims regarding the authoritarianism of military government, and the forms of violence that it enabled.²⁴⁵ While acknowledging arguments that “a certain amount” of what he understood to be authoritarian measures, including forced labor and capital punishment, had occurred under Allied rule, Friedrich argued that the innate tendency of “the military government of constitutional democracies” was to “ continually relax[] these controls as it moves toward the establishment of a constitutional system.”²⁴⁶ It was this form of military government that he labelled “constitutional dictatorship.”²⁴⁷

Friedrich described “constitutional dictatorship” as drawn from an institution that emerged in the Roman empire “for the explicit purpose of protecting the constitution against exceptional dangers.”²⁴⁸ In his major work on constitutional government he had described the tendency of “[e]very modern constitution” to “provide for a temporary concentration of powers to be used in overcoming such emergencies.”²⁴⁹ Constitutional dictatorship was his term encompassing “all such methods” of emergency rule, including the civil law “state of siege,” as well as “martial law,” “emergency power,” and what Nazi jurist Carl Schmitt had in the interwar period described as the “commissarial dictatorship” of earlier times.²⁵⁰ Far from being a constitutional deviation, the provision for such emergency was, according to Friedrich, “the final test” of an effective constitutionalism, since “a government which cannot meet emergencies is bound to fall sooner or later.”²⁵¹ Unlike Schmitt, however, Friedrich sought to establish a concept of constitutional dictatorship in which Schmitt's “exercise of state power freed from any legal restrictions, for the purpose of resolving an abnormal situation” took place across national borders and under a temporary situation of occupation, rather than territorial acquisition.²⁵² In this sense, what Friedrich was proposing was a new form of international rule.

Before the interwar period, international lawyers framed questions of occupation through the “elaboration of basic theories on the status of occupants” rather than a more direct interrogation of their political ends.²⁵³ As we have seen, however, international legal scholarship on constitutional government during the interwar and post-war period had begun to shift in focus, from theories of international legal authority based on status to ones that grappled explicitly with the politics of the post-war transition. A growing number of international lawyers and administrators sought to accommodate that shift through practical readjustment of international legal rules, replacing a concern with the coincidence of imperium and dominium with one focused on functional questions of the capacity to rule and the product of that rule.²⁵⁴ Like other international lawyers of his time, Friedrich's inclination was to bypass questions of the precise source of title, and the corresponding status of the governed, in order to concentrate on the “unprecedented task” of “building a constitutional government.”²⁵⁵ On his account, constitutional dictatorship, as a juridical form of international rule, was properly understood not as unbounded, but as tightly confined by “constitutional provisions.”²⁵⁶ These provisions, the origins of which Friedrich located in the Roman tradition, “determine . . . who decides when the state of emergency exists . . . who is to appoint the dictator, . . . for how long a period such powers are to be exercised, and . . . for what purposes it may be employed.”²⁵⁷ In other words, the conditions of restraint were not to be found in international legal instruments, such as the treaties governing the laws of war, or principles derived therefrom contained in military manuals. Instead, they were located in the authority given to the dictator and the limits placed on it by the domestic structures and democratic publics within the state granted that authority—in this case, the Allied states.

As articulated by Friedrich, the legality of modern constitutional dictatorship turned on its very impermanence, as well as two specific conditions that would ensure that impermanence. The first condition was that a constitutional dictatorship should be “established by a constitutional government” such as the United States.²⁵⁸ This turn to his adopted homeland as a guarantor of international liberalism, for Friedrich, reflected a faith in the ethic of constitutionalism, understood as a faith in elite reason combined with some form of public scrutiny. His pre-war writings had argued that what was required in order to create a new and foundational law for a political community was not some revolutionary or radically democratic mobilization of the people, understood as a totality. Instead of popular sovereignty—“a confused expression at best”—his constitutional theory urged a focus on the narrower category of the “constitutional group” that in fact exercises the “revolutionary, residuary, constituent power of establishing a new constitution.”²⁵⁹ This was the ultimate insurance for the “procedural devices” of appointment, delegation, and temporal limits that attached to the use of emergency power.²⁶⁰ When it came time to operationalize this theory in the international sphere, and in the context of the failure of German elites to safeguard Weimar republicanism, Friedrich turned to the traditions of U.S. constitutionalism and to the U.S. electorate as a source of restraint and responsibility. “Full, and at times sharp, even unjust, criticism,” he wrote, “by the representative bodies and by the public both in Britain and in the United States has tended to ensure the employment of these dictatorial powers for constitutional purposes.”²⁶¹

The second condition was that constitutional dictatorship be instituted “for the express purpose of re-establishing constitutional government” in the occupied territory.²⁶² The military government of the Western Allies, which according to Friedrich, conformed—unlike that of the Soviet zone—to those conditions, “far from being a totalitarian dictatorship, [was] instituted precisely for the purpose of preventing its recurrence.”²⁶³ This reflected a view that constitutionalization of the polity itself was the only justifiable goal. Friedrich saw the U.S. model of constitutionalism as an answer to the excesses of fascist imperialism, realized through governmental power. Like Wright, he believed that a federal constitutionalism, such as that of the United States, could “provide for a greater diffusion of this power both by making it work slowly, and in separate localities,” while at the same time avoiding the “absolute prohibitions” that were apt to lead to violent revolution.²⁶⁴ Seen properly, the military force of the Allies had been directed “not toward imposing democracy, but toward imposing restraints upon those elements of the population who would sabotage efforts of the constitutionalists and who would seek to undermine and eventually destroy constitutional democracy.”²⁶⁵ Understood as confined within these conditions, constitutional dictatorship was a form of liberation rather than an unacceptable imposition.²⁶⁶

Although constitutional dictatorship was most immediately a means of developing new legal and political institutions for domestic rule in Germany and Japan, Friedrich conceived of it as part of a larger international and post-imperial project. The setting for such a project was the period of rapid and profound upheaval for international relations in which he lived.²⁶⁷ Friedrich's most immediate post-war concern was the widespread appeal of socialist politics, the implementation of which, he argued, would inevitably provoke fascist reaction.²⁶⁸ Entrenching forms of constitutional democracy around the world, while instrumentally accepting a degree of economic welfarism in order to gain popular support, was therefore essential to securing a peaceful international order.²⁶⁹ Friedrich defined his theory of constitutionalism in opposition to the critiques of both the British political theorist Harold Laski, and Polish Marxist theorist and revolutionary Rosa Luxemburg, who had each asserted the linkages between constitutionalism, on the one hand, and projects of European enrichment, on the other. For Laski, constitutionalism could be understood as a historically specific aspect of the liberal experiment that had transformed European society and government since the seventeenth century. The project of creating a global market in which men with property could thrive required, he argued, a corresponding theory of political authority in which state interference was limited “to the narrowest area compatible with . . . public order.”²⁷⁰ Understood historically, then, constitutionalism was bound up with capitalism: “with its substitution of rule for discretion, of civil liberty for monarchical caprice, [it] is the answer of the business men to the failure of national economy to serve his needs.”²⁷¹ For Luxemburg, imperialism, and the military violence that accompanied it, was a result of the ongoing European search for new markets, raw materials, and labor. Though this search, and the political transformations that it wrought, was often justified in the name of liberal progress, she argued that such ideals could not be taken as a horizon for political organizing: they ought instead be understood as “little more than a vehicle for the economic process.”²⁷² French colonialism and liberal governmental reform in Algeria, conducted in the name of “instituting orderly and civilized conditions,” was in her account self-confessedly directed toward “the establishment of private property among the Arabs” and the forcible enabling of a capitalist economy.²⁷³ Seen in this light, liberal constitutionalism, and its encouragement among so-called uncivilized peoples, was inextricable from its connection to the “continuous and progressive disintegration of non-capitalist organizations [that] makes accumulation of capital possible.”²⁷⁴

Friedrich rejected such attempts to locate the philosophy of constitutionalism as a historically contingent and specific accompaniment to colonial rule or capitalist expansion.²⁷⁵ For him, the obligation to foster constitutional democracy was rooted in a firm belief in the universality of the principles and practices of constitutionalism. Yet an examination of Allied constitution-making practices in the occupations of Germany and Japan shows their entanglement with specific forms of international economic ordering. U.S. planners presented new forms of internationalism as organized around the logics of free trade rather than of territorial expansion and colonial rule.²⁷⁶ Proposals for rebuilding occupied economies, such as that of Japan, rested on the U.S. argument that certain “forms of economic activity, organization and leadership” would be “likely to strengthen the peaceful disposition of the Japanese people, and to make it difficult to command or direct economic activity in support of military ends,” promoting liberalization and a degree of redistribution while rejecting stronger forms of social ownership.²⁷⁷ For Allied occupiers in Germany, along with practices of decartelization, this general favoring of decentralization and federalism became a key means of articulating the relationship between law and the problem of expansion. This was reflected in the relatively rapid turning over of responsibility to German Länder in the U.S. zone of occupation, with constitutions at the Land level adopted by representative bodies in order to represent the will of the German people.²⁷⁸ Scholars have argued that this nominal commitment to self-determination was accompanied by strategic interventions in order to “elicit necessary changes” to the Länder constitutions, while avoiding the appearance of imposition.²⁷⁹ U.S. opposition to the nationalization of large-scale industries in Hesse and Bremen and a Bremen law implementing workers councils for all large businesses reflected the U.S. position that “no serious step will be taken to limit private capitalism” within Germany, despite the significant popularity of socialist-oriented proposals at the time.²⁸⁰

Though these practices of transformative military government had their parallels with U.S. forms of imperialist war and colonial rule, in particular in the Philippines, Friedrich sought to distance his proposals from the “implied superiority of the conqueror” that had there accompanied “ a greater moral concern . . . with the assumed welfare of the occupied people.”²⁸¹ Such openly racial ideas had no place in a post-fascist world and the new, post-imperial constitutionalism that he hoped would characterize it. Rather than representing a sharp break with ideas of civilizational hierarchy, however, the language of universalism permitted Friedrich to integrate aspects of civilizational thinking within a more social-scientific framework. Like Wright, rather than focusing on cultural or economic difference, Friedrich sought to locate Germany, as well as Japan, at different stages within a hierarchy of constitutional development.²⁸² Friedrich's education and engagement with the U.S. constitutional system had shaped his views on what he termed the “less advanced stage of constitutional and democratic development in Europe.”²⁸³ Since, he wrote, U.S. military government also tended to be conducted “according to law,” at least as far as the “less advanced” European situation required, the suspension of legal norms normally associated with military government was less problematic than it first appeared.²⁸⁴ In the German context, Friedrich considered that administration could be relied on to lead to a revival of the “German democratic tradition” that had existed before the fascist period.²⁸⁵ In a memorandum to Clay, Friedrich proposed that, although where possible decisions should be left to German representatives, “[t]he basic pattern of a permanent German government is fixed by Allied policy declarations to be a decentralized and constitutionalized democratic Republic.”²⁸⁶ At the London conference discussing the future form of the West German constitution, the United States and UK would agree that “only the most general restrictions required by the present and long-term security interests” of the Allies should be placed on the drafting of the West German constitution, which they interpreted to mean a government capable of raising revenue, but with effective guarantees against centralization of power in the executive, and protection of civil rights and freedoms, including the right to property.²⁸⁷

Outside Europe, however, Japan and its territories, “many of which have never been subject to the rule of law or anything like it,” presented “distinct problems” for military government.²⁸⁸ Friedrich, and his colleagues at the School for Overseas Administration, suggested that what was called “law” in Japan was better regarded as “personal loyalty to leaders and obedience to official whims . . . a sort of advance notice of official intentions that are subject to change as a result of official caprice.”²⁸⁹ Not only did they regard these laws as insufficiently constant and certain to meet the very definition of law, they argued that in many cases they “serve only as ornaments to impress the Occident or to placate local pressure groups; they are neither enforced nor honored.”²⁹⁰ What they termed the “backward” Japanese form of government—and regarded as a “government by men” rather than law—did not so much require a departure from the laws of war as simply fail to “fit the pattern” on which the laws of war were premised.²⁹¹ Because of the failure of the Meiji constitution to properly take root, if genuine constitutionalism was to be achieved, it would need to come as a “revolutionary creation” from outside.²⁹² This view took little account of the political debates within Japan and the constitutional proposals put forward by Japanese lawyers, intellectuals, and political parties, which ranged from the retention of the existing imperial structure of authority to proposals for a Japanese republic, with more socialist iterations including provisions for the nationalization of industry and an extensive regime of formal rights modeled after Soviet constitutionalism.²⁹³ Instead, paralleling the language used to justify the mandates under the League, these authors argued that for any new constitutionalism to survive the “strain of the modern world,” what would be needed was a “framework of international agreement and cooperation” to oversee conditions for its emergence.²⁹⁴

Friedrich's case was that the conduct of such a task by military government might be not only excusable but necessary. As he wrote,

what is liberation, in the democratic and constitutional tradition, but the effort to help people achieve constitutional freedom by combating and defeating those who would deny this freedom to them? To do this by the temporary and strictly defined use of military force is the essence of constitutional dictatorship. Consules videant ne respublica detrimentum capiat [Let the consuls see to it that the State suffer no harm].²⁹⁵

This statement illustrates not only the building of a vocabulary of constitutionalism as international rule, but also the relative marginalization of questions of force and imposition in favor of a focus on teleology and technique. In refuting the idea that constitutional techniques could be understood as a historically specific set of practices accompanying European enrichment, and in tying the politics of those techniques to the imperatives of transforming the fascist states, I have sought to highlight in Friedrich's work the beginnings of the kind of universalist vocabulary on which scholars continue to draw. In reading Friedrich's scholarship alongside Wright's, I have illustrated the different ways that legal scholars during this period drew on civilizational thought in order to locate states within a hierarchy of constitutional development. Finally, I have sought to show that Friedrich's account of constitutionalism was one in which the process was driven by domestic elites as well as by specific states within international society with trusted traditions of constitutional government. In the following Part, I will draw on the thought that I have sketched here in order to propose an alternative account of constitutionalist thinking and its relationship to the international.

IV. “ Local Ownership” and the Demands of Constitutionalism

In the previous Part, we saw how international lawyers and legal theorists formulated a vocabulary of constitutionalism as a way of framing the work of law in a post-war world. Tracing the development of this vocabulary allows us to appreciate that the boundaries of the discipline of international law and the taxonomies of its various fields are not fixed. Instead, they represent the instantiation of particular projects around which theory, policy, and doctrine can be oriented and assembled. As I have argued, the solidification of this constitutionalist vocabulary as a way of articulating the work that law might do after war has entailed a focus on legal institutions, text, and process, to the exclusion of the material conditions on which those institutions would rest and that text go to work. In this Part, I explore how that vocabulary might be reimagined for the coming decades and what this reimagination might entail, focusing on the question of local ownership, and drawing on the relationship of international constitution-making practices to the questions of land and of patents. I then argue, drawing on recent scholarship from both constitutional theorists and international lawyers, that this can be understood as one aspect of a broader possible transformation in constitutionalist thought and practice. I suggest that constitutionalist thought and practice for the world in which we live should not only resist the separation between the juridical and the material, but also widen its view beyond the domestic to the laws governing the global economy, in a way that is capable of registering the structural concerns that I outlined above.

As I have foreshadowed, one of the critical ways that constitution-making policy documents and literature have understood the boundaries and purpose of international action is through the principle of local ownership. One dimension of this principle, which I explored above, is its relationship to questions of international authority. But a further and perhaps equally significant way that local ownership is understood is not as a condition or limit on international action but as a catalyst for local transformation. International institutions have stressed that the constitution-making process should be seen as a “transformational exercise” for local populations, and that it enables a “healthy debate on the nature of the state and state power.”²⁹⁶ It offers a promise that through political debate, disagreement, and struggle, people will come to identify with the product of the constitutional process, overcoming old divisions in the process.²⁹⁷ As described by a paper published by one prominent non-governmental organization:²⁹⁸

The hope is that the conflict, rather than being “resolved,” will at least be prevented and “transformed” into less violent forms, and that in the future new opportunities to transcend conflict and ensure sustainable peace might be created and cultivated.

Participation, debate, and identification, in other words, is seen as a further and more dynamic measure by which “local ownership” is judged and by which the “multiple layers of exclusion” within conflict-affected societies may be overcome.²⁹⁹ Scholars have argued that the measure that is most relevant to assessing the politics of internationalized constitution-making, and should be taken as a lens through which to view international involvement, was “whether those subjected to the order generally embrace its basic principles over time . . . engage with it, participate within it and . . . modify aspects of it.”³⁰⁰ The purpose of local ownership is sometimes understood as being not to deliver perfect inclusion but to “provide a reasonable basis on which constitutional practice can evolve over time.”³⁰¹ Some measure of local ownership is thus understood as a condition of the future functioning and evolution of constitutional order.

Understanding local ownership as a dimension of political transformation sits uneasily with another aspect of that concept expressed in the institutional literature: the idea that all peoples within a state are entitled to some share in the wealth of the territory over which it governs. International institutions have for this reason noted that exclusion from democratic processes has “multiple layers” that are political, but also social and economic in nature.³⁰² Yet the loose internationalist consensus described in Part II around concrete techniques of constitution-making—that domestic constitutions might facilitate peace by delivering forms of redistribution through federalism, along with solidifying the domestic adjudication of property and contract as a basis for economic development—is premised on the idea that local ownership is primarily a question of political representation in the constitution, and identification with the product of that process. There is a gap, in other words, between the distributive concerns that have appeared in the literature that I described in Part II, and an examination of whether the practices promoted in that literature facilitate future social (as opposed to political) transformation. In addition, there is little reflection in that literature on the extent to which that transformation might be precluded by international, rather than local, actors and structures.

The question of land offers one site for considering the limits of current concepts of local ownership, and for reconsidering what a different concept might demand. In critiquing the conditions produced by international constitution-making projects, scholars and governmental figures have pointed to the ways that protections for property have prevented the creation of a more just social order through perpetuating the hierarchy and dispossession enacted through colonization. Early instances of international constitution-making in Namibia and South Africa, which each codified those protections, drew heavily on rights frameworks.³⁰³ At the close of the Cold War and with the decline of the political possibilities of non-alignment, rights came to represent a more neutral form of internationalism on which constitutionalist processes could draw.³⁰⁴ These rights frameworks brought together civil freedoms and freedom from forced labor, racial discrimination, and apartheid, with guarantees of the legal protection of property and, in the case of Namibia, an embrace of foreign investment.³⁰⁵ In the ensuing decades, however, writers have pointed to the inclusion of property clauses as effectively impeding redistribution, formalizing the constitutional dispossession of those peoples already once dispossessed of their land through colonization.³⁰⁶ Some scholars have argued that the tendency in South Africa to idealize the post-apartheid constitutional settlement has impeded scholarly critique of the implications of the property clauses for broader questions of justice.³⁰⁷ This suggests that despite widespread concern over the distribution of land in the post-apartheid settlement, forms of international consensus over formal rights provisions came at the expense of a thicker understanding of “ownership” of that settlement. Such an understanding might be concerned with whether that settlement offers the conditions for—or at the very least, does not concretely impede—land justice and the creation of conditions for communal life. In other words, the “economic context” to which constitution-making projects and practitioners are encouraged to attend might be not only a prompt for choosing differently from among the menu of constitutional design options but also for exposing how some such options have been linked to the continuation of forms of dispossession and violence that these processes seek to prevent.³⁰⁸

Patent rights offer a further site for considering the limits of contemporary concepts of local ownership, as well as for tracing their intersection with international economic order. In the occupation of Iraq, scholars have shown that the introduction of patent laws formed a key part of the transformation conducted by the Coalition Provisional Authority.³⁰⁹ These patent reforms were explained by the then deputy secretary of the U.S. Department of Commerce as concerned “[t]o address deficiencies in Iraq's protection of intellectual property rights and to align Iraqi law with current internationally recognized standards of protection.”³¹⁰ Coalition Provisional Authority Order 81 clarified that patents could be granted to legal persons or corporations as well as natural persons, suspended the bar on patenting “[m]edical and pharmaceutical formulations,” and introduced extensive provisions for plant patenting.³¹¹ The law also introduced a narrower basis for the use by the Iraqi state of compulsory licensing than that available under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), restricted to where that use was “a necessity for national defense or emergency or for noncommercial public good” or where patent rights were deemed to be non-competitive.³¹² In the circumstances of the occupation, UN officials justified general measures for economic liberalization on the basis of their alignment with UN Security Council Resolution 1483, which requested the UN special representative and the Authority to promote “economic reconstruction and the conditions for sustainable development.”³¹³ The introduction of patent reforms and the preparation for Iraq's accession to the World Trade Organization (WTO), however, required the removal of constitutional provisions preventing the taking out and enforcement of patents over biological resources.³¹⁴ Ntina Tzouvala has shown that the introduction of these patenting reforms not only accompanied but directly facilitated the concentration and corporatization of land ownership and food production, with major implications for power relations between social groups.³¹⁵

By the time many of the policy documents that currently set out the framework for international constitution-making were drafted, that particular moment of liberal internationalism and its welding to militarized forms of intervention in Iraq had ended. Yet protections for patents have remained a feature of some constitution-making projects conducted outside conditions of occupation since that time. The post-Arab Spring reforms in both Egypt and Tunisia, for example, both introduced explicit protections for patents within the constitution.³¹⁶ In the Tunisian reforms, as Alicia Pastor y Camarasa has shown, external actors, including the UNDP, the Venice Commission, German NGOs, and wealthy state and regional actors, were extensively involved, particularly between the years 2011–2014.³¹⁷ Commentary published by the World Intellectual Property Organization apparently embraced the inclusion of these patent protections, describing them as “part of a general trend towards the ‘constitutionalization’ of IP protection within a human rights framework.”³¹⁸ At the same time, that commentary sought to present intellectual property clauses and frameworks as sufficiently capacious to “take[] into account the level of development of each country and . . . [to be] supportive of their respective public policy” objectives, and to position the main challenges as challenges of implementation.³¹⁹ In other words, some institutional actors involved in projects of constitution-making have either maintained that these clauses are not per se inconsistent with local ownership and local priorities, or have not interpreted their role as being to oppose them.

Scholarship on international intellectual property has drawn attention to significant issues with attempts to position patent rights as consistent with principles of local ownership. The first is the impact of the administration of patent rights on governmental priorities and the delivery of social services. As scholars have noted, the implementation of TRIPS and WTO obligations in and of themselves has been a major burden on the “scarce administrative resources” possessed by states in the Global South.³²⁰ The second is that these constitutional provisions help lock states into structural forms of economic relation that deliver benefits to wealthy states in the Global North and that have been criticized as offering relatively little to those peoples on whose behalf the constitution is understood to govern. Some scholars have argued that TRIPS was an effort to remake the laws of the Global South in order to deliver “the benefits of ownership on a global scale” for intellectual property rights-holders located largely in the Global North.³²¹ They have argued that the use of market power by powerful states to ensure accession to these agreements restricts the ability of states and peoples “to choose the development model, and in particular the legal and administrative system, that they believe best suits their [interests]”: to realize the promise of self-determination.³²² These arguments have been borne out in more recent work by advocates showing that low- and middle-income countries pay vastly more in royalties than they receive, and that the scale of these payments is growing at an alarming rate.³²³ Addressing the implications of contemporary legal and economic structures, especially international intellectual property, in the context of the COVID-19 pandemic, Special Rapporteur Tendayi Achiume has stated that:

the burdens of the pandemic have been borne disproportionately by certain States, peoples and territories most harmed by colonialism and racism, while the mechanisms for reducing these burdens are controlled almost entirely by States, peoples and territories which were the beneficiaries of colonialism.³²⁴

The land and patent questions show how particular projects of constitution-making have facilitated the continuation of colonial dispossession or the incorporation of societies into particular forms of global economic relation. Yet unlike the questions of representation and political inclusion, core policy documents of international institutions have not explicitly addressed these proprietary forms of exclusion as a question of local ownership. Instead, these documents, and much of the literature in the field, are premised on the idea that social exclusions and inequalities are produced by domestic struggles rather than international forms of legal ordering. International institutions have presented constitutional reform as part of a raft of solutions to war and conflict that also includes mechanisms for the development and judicial enforcement of private rights and the attraction of investment and private finance.³²⁵ This vision of the political economy frames social and political inequality and domination as a local question. For many of the scholarly writings canvased in Part II, the enterprise of constitution-making could be examined separately from the continuation of patterns of international trade, development finance and legal protections for foreign investment that were developed from the second half of the twentieth century.³²⁶ The extent to which these relations, and their intersection with aspects of constitutions, might foreclose the choice of political and legal system, the collective ownership of social resources, or the post-colonial repossession of ways of living in community has not been foregrounded by institutional actors as a problem for constitutionalism. Institutional articulations of constitution-making processes remain premised on ideas of political inclusion as enabling “competition over resources and power [to] give[] way to the development of a shared vision of the state,”³²⁷ as well as by the background assumptions about the wisdom of accepted formulas of economic development through investment and marketisation that I explored above. This ongoing separation can be understood as facilitated by the theoretical focus on juridical institutions over material inclusion, and the empirical focus on constitutional text over structural relation, both of which I have argued were also at stake in the post-war debates.

In the context of the rapidly unfolding crises of global inequality, climate emergency, and the new extractivisms of the green transition, addressing the limitations of this vocabulary and the circumscription of the constitutionalist ideal has become an urgent task: one not limited to the “post-conflict” contexts explored above, but raised by scholars as a general question for the discipline. Within Europe, constitutional scholars have criticized the failure of constitutional thinking to grapple with the limits of current forms of European political and legal ordering, and their interrelationship with both material and political crises.³²⁸ Latin American scholars have argued that provisions “excluding certain economic policies and choices from public deliberation” should be understood as a form of authoritarian constitutionalism.³²⁹ In settler colonies such as the United States and Australia, scholars have sought to question the legal identification of strong forms of judicial independence and human rights ideals as progressive horizons, to the detriment of socially transformative forms of politics.³³⁰ In place of the familiar vocabularies of judicial institutions and rights, scholars have sought to broaden out the question of what exactly is “constitutional” in nature to include an analysis of class relations and social movements as well as institutions, and a recognition that political settlements are premised on inherently unequal and therefore unstable relations of production and forms of land ownership.³³¹ In other words, they have returned to the issues that also fueled debates taking place during the interwar period, in the leadup to fascist forms of rule and in the wake of the dismantling of German and Japanese empire. In doing so, they have joined a longer tradition of scholarship and resistance from and in solidarity with the decolonized world that has sought to make constitutional order responsive to the projects, vocabularies, and aspirations of social demands.³³²

As some of these scholars have shown, this call to broaden out constitutional thinking at the domestic level can be productively placed in conversation with scholarship on international economic ordering.³³³ Such scholarship has turned away from the question of how this law might facilitate the fulfilment of basic needs, or order economic relations in accordance with rational principles, to a more foundational inquiry of how such law affects the public “capacity to participate in political decisions about the material limits to the logic and goals of the market.”³³⁴ This inquiry can be understood as part of a now extensive body of work investigating core aspects of international economic law and its relationship to social freedom. Scholars have argued that the operationalization of free trade, now at the core of contemporary international regimes governing the flow of goods and services across borders, should be understood as part of an intellectual tradition that seeks to eliminate forms of planning through which the state might act as a shield against the social impacts of the market.³³⁵ They have also argued that the commitments of the law on investment protection and its judicialization after the mid-twentieth century should be seen as a response to, among other things, what some economists, businessmen, and powerful states viewed as unacceptable forms of collectivism and developmentalism within the decolonizing world, and as animated by a mistrust of democratic politics.³³⁶ Others have argued that regimes for the international protection and enforcement of intellectual property rights should be understood as the structural elevation of private sector interests over rights of public access and social benefits of technology;³³⁷ and that the constitutive instruments of the international financial institutions mean they are not politically representative of the peoples of African states.³³⁸ In the wake of the apparent backlash to forms of internationalized decision making, Anne Orford has described the imperative to reorient international legal scholarship and practice toward the social as an imperative of representation: how would it be possible to craft an international law that is capable of responding to democratic politics?³³⁹

Taking such scholarship seriously means reconsidering the reliance by international constitution-making projects on embedded orders of investment and patent protection and trade liberalization and background claims that by facilitating economic development they support the stability of political compacts. It challenges scholars and practitioners to rethink forms of international constitution-making and their connection to the highly legalized forms of relation that now underpin the global economy. The idea that international practices and forms of economic ordering have acted to insulate decisions about the operation of markets and the role of the state from national control leads to the conclusion that the redivision of power among peoples within a state through forms of decentralization, federalism, or consociation may, in and of themselves, be insufficient to deliver on the promise of local ownership. Instead, this scholarship invites scholars to look beyond redistribution and to reconsider the separation of the constitutional question from other kinds of questions about ownership and the organization of power: questions of the domestic legal forms of property and contract, the privileging of the corporation and deprivileging of other forms of social collectives, and forms of international property protection, trade liberalization, and debt structuring. In terms of procedural implications for processes of constitutional drafting, this points toward a framing of inclusion not in terms of equality of representation or durability of solutions but in terms of historical dispossession or exploitation, as well as a greater focus on the ways that private law structures preclude social ownership or political choice.

This inquiry entails a departure from the pragmatic mode in which post-war constitution-making has been conducted over the last decades toward one that both acknowledges the discipline's past collaboration with forms of dispossession and exploitation, and that actively reconsiders its future boundaries. However, it is not a sharp break from what many writing about constitution-making perceive to be the discipline's commitments. Instead, it takes seriously the question of democratic inclusion and of local ownership by suggesting that current scholarly discourses, policy documents, and practices of constitution-making offer only a limited and partial view of that inclusion and of that ownership. In many ways, this inquiry is only an extension of the already existing sensibility found in constitution-making policy that the question of what constitutionalism is and what it might require is not fixed, but politically and socially contingent: that “[i]t is not possible . . . to divide issues into those that are categorically constitutional and those that are not.”³⁴⁰ It also takes up the call from scholars contending that the project to transform international law for a decolonized world must be framed not only through questions of inclusion and exclusion but also through the transformation of the very order into which inclusion is promised.³⁴¹ This would depart from earlier iterations of a more “global” constitutionalism, framed around procedural mechanisms that sought to formalize interaction between, and the enabling or constraining of, existing institutions and projects of international law and their relationship to domestic order.³⁴² Instead, this would be a thicker conception of constitutionalism that eschews an emphasis on stability and order in favor of social transformation.

Finally, it is worth recalling here the vastly unequal nature of our profession, and the argument that the reproduction of disciplinary sensibilities and exclusions may be “as much about desire” as about anything else.³⁴³ This indicates that moving toward this conception will require not only a degree of reflexivity from legal scholars from powerful states but also our active collaboration in the transformation of our discipline. Writing on the relationship of international law to democracy, Hilary Charlesworth observed in 2015 that the term “post-conflict society”:³⁴⁴

suggests a neat transition from a State of conflict to peace; it also implies that these are discrete and separate types of societies. . . . Post-conflict societies carry the sense of being unruly, teetering on the edge of chaos; of a tentative redemption by the international community; and they are measured in contrast to the mature, secure, democracies of the West. In this sense, the term “post-conflict” obscures the identity of the actors involved and represents them either as the nurturers—the agents of change—or the nurtured. These categories shroud the way that the democracy-builders can be complicit in the dysfunctions that make “building democracy” necessary.

In this Article, I have argued that the problems of “post-conflict societies,” seen in the context of being part of a global network of relations of production that shape the lives of those who live in them, ought not to be seen as hermetically distinct from the societies that have played a role in structuring those relations.³⁴⁵ Instead, scholars of international constitution-making, especially those writing from and situated in universities in the Global North, might also consider on whose behalf, and to whose benefit, laws and treaties are made and economies ordered in this way. Rethinking the vocabularies and practices of constitutionalism along these lines is one method of asking what forms of legal ordering and of political organization might return to the peoples of the decolonized world the ability to make political decisions about forms of production, distribution of wealth, and relations with the natural world. In short, by unsettling the relationship of constitutionalist ideals to contemporary forms of economic ordering, the theoretical challenge that I presented in this Part offers a new kind of invitation to “broaden the constitutional imagination.”³⁴⁶

V. Conclusion

Constitution-making has over the last three decades taken shape as a formalized practice, articulated by a set of international actors and institutions and supported by the orientation of disciplinary sensibilities. The creation of this technique as a means of securing peace and protecting against perceived risks of conflict for societies in the decolonized world has become an internationally supported endeavor, emphasizing common processes and philosophies, a set of minimum norms, and the facilitation of specific forms of economic development. In inquiring into the politics, legality, and effects of this technique, practitioners and scholars have turned to the post-war inheritance and the histories of constitution-making in Germany and Japan. I have argued that through doing so, they assisted in reproducing an account of constitution-making as practice that was narrowly defined, and an account of constitution-making as teleology that acted to insulate the project from critiques regarding its relationship to material interests and structural exploitation. In reproducing this selective technicity, the problems of constitutional intervention have come to be portrayed as problems of political and situational sensitivity, or technical knowledge. They are viewed as problems of implementation, rather than problems of orientation; problems of practice, rather than problems of theory.

Returning to the post-war history and the questions at stake during that moment for the field assists in retrieving these questions of theory. It shows that the vocabularies formed, and that have helped to constitute the epistemic boundaries of the field, were themselves selected from the multiple and unstable meanings of constitutionalism and what it might mean for a world seeking to emerge from imperial and colonial rule. In large part, the specific tradition of constitutionalism around which fields of professional practice, institutional knowledge and forms of law have coalesced remains allied with liberal forms of economic development and of property. In the context of the present crises, however, these same forms are the subject of broad scrutiny, critique, and social resistance. If constitutionalism is one method by which law can be placed in service of social demands, then revisiting this tradition allows lawyers, diplomats, and the movements with which they work to consider which legal institutions—beyond those that have widely been understood as belonging to a “public” law—can be understood as aspects of political settlements, open to reinterpretation and renovation. By placing scholarship and policy literature in conversation with international legal thought and constitutional theory that have, in different ways, refused the separation of the constitutional and the material questions, I hope to provoke a broader reconsideration of the post-war inheritance and the ways that it has continued to animate a particular understanding of the relationship of law to social life. This reconsideration offers international lawyers and constitutional theorists some ways to rethink what constitutionalism has meant and might yet mean in the coming decades, and where it might be found and practiced.