Remontajes de un archivo: Historias para repensar

Like others, we are searching for the best mode of constitutionalism for global governance. But we do not expect to find a new constitutional model with a complete architecture of principles and institutions. In fact, it is our position that no such model can be found. There are such a variety of global governance settings that any “one size fits all approach” is at best suspect. Instead, we put forward a methodology for constitutional choices in global governance that can make use of the insights of the theories we have discussed and, in doing so, reflect the paradoxes and tensions upon which constitutionalism is founded. These paradoxes and tensions coupled with the high transaction, organization and information costs of our world mean that the institutional choices that are the building blocks of global governance will always be difficult in two senses. First, the choices will tend to be close and problems in one alternative will often be mirrored by parallel problems in the other. Second, in a world of high numbers and complexity, the real best choices will be far from the ideal. We will often be choosing the best of the bads. We can hide from these realities, but only at the cost of irrelevance.

Pieces of the analytical framework we are proposing have surfaced as we have discussed the various theories of global governance constitutionalism. First, the usual approaches to global governance suffer from a problem shared by many forms of law and public policy analysis. They are single institutional: they focus on a particular set of malfunctions and propose a constitutional alternative without taking into account the paradoxes and balances of constitutionalism and the potential constitutional malfunctions of the alternatives proposed in a world of high transaction and information costs.

In the global governance context, single institutional analysis is commonly accompanied by perfectionism. Perfectionism is in turn manifested in two ways. First, there is the belief that showing serious malfunctions in existing institutions makes the case for reform. There are malfunctions of all sorts: political malfunction, market malfunction, judicial malfunction, administrative malfunction and so on. The argument that existing markets, political processes and courts are subject to severe malfunction is at the same time always true and, standing alone, largely irrelevant. It might seem that this very common sort of single institutional analysis is justifiable because it sets out a necessary condition– in the form of market malfunction or political malfunction– for institutional choices such as government regulation or deregulation. Moreover, the degree or extent of market failure or political malfunction would seem critical in assessing the case for regulation or deregulation and, therefore, single institutional analysis would seem at least a good first approximation of comparative institutional analysis.

Upon closer inspection, however, none of these arguments for single institutional analysis hold. Yes, market failure or political malfunction is a necessary condition for allocation of decision-making to another institution. But these are trivial necessary conditions with little analytic value. They are always fulfilled and, in a complex world, always significantly fulfilled. The best functioning market or political process is far from perfect; transaction costs or political process participation costs are always considerably greater than zero.

More importantly, a single institutional approach cannot be justified even as a first approximation of comparative institutional analysis because institutions tend to move together. The severity of institutional malfunction tells us surprisingly little. The same conditions– usually wrapped around the increasing costs of information– that cause one institution to deteriorate also cause the institutional alternatives to do so. In particular, all institutions deteriorate as numbers and complexity increase creating a similar movement of institutions and ruling out a role for single institutional analysis.

That institutions tend to move in a similar direction does not mean that they move identically. As numbers and complexity increase and, therefore, transaction costs and other participation costs increase, institutions can vary in the rate if not the direction of their movement. It is here that comparative advantages and superior institutional choices lie. But for present purposes the central point is both simple and fundamental: That institutions move together makes single institutional

analysis irrelevant and comparative institutional analysis essential albeit difficult.

The second version of perfectionism is the mirror image of the first. Proponents of reforms set up idealized visions of these reforms. They tend to see the advantages of their reform in terms of the superiority of some set of social goals which they associate with a given institutional form. Markets are associated with allocative efficiency. Political processes are associated with redistribution. Courts are associated with protection of individual rights. These examples only scratch the surface of the quite sophisticated philosophical considerations of goals and values that accompany these quite unsophisticated considerations of institutions. The realities of institutional choice do not allow these simple associations of goal and institutions. Even if one can establish without doubt a single vision of the good, nothing about institutional choice and, therefore, law and public policy follows. Depending on the setting, courts or political processes as opposed to markets may be the best at producing allocative efficiency, markets or courts as opposed to political processes may be the best at achieving fair distribution and political processes or market as opposed to courts may be the best at protecting individual rights. Assuming a hardwired connection between any goal and any institution is analytically precarious. This failure is compounded when it is accompanied by the assumption that the institutional form wrongly assumed to be associated with the given goal also functions frictionlessly.

Put simply, the normative project of constitutionalism cannot be pursued by assuming perfect or idealized institutions or processes. Participation costs such as transaction and information costs which mediate between constitutional rules, processes and individuals make all institutional alternatives highly imperfect and disrupt the idea that any institution mirrors some constitutional ideal. Any

constitutional argument based on an institutional ideal in comparison with an institution operating in a world of transaction and information costs is doomed from the start. Second, constitutionalism is inherently paradoxical and grounded on a permanent balance between opposing tensions. Any form of single constitutionalism, which advocates for a particular institutional model of constitutionalism, ignores the paradoxes of constitutionalism and how they require different institutional alternatives.

It is in this context that we have attempted to address the interaction between national and global constitutionalism. There is nothing in constitutionalism that requires its limitation to the borders of the States. National constitutionalism is simply a contextual representation of constitutionalism and not its single expression. This does not mean, however, that national constitutionalism is both unnecessary and without normative authority. We tend to believe that, in this complex world of imperfect institutional choices, national constitutionalism is the better alternative because of the advantages created by the existence of traditional national political communities. These communities provide political and social loyalty (linked to a long-term political contract) that allows for the better contextual resolution of the tensions of constitutionalism. They also lower the costs of participation in the processes of national and global decision-making by leaving in place familiar structures and processes. None of these advantages comes without costs and these costs will vary with setting and, therefore, so will the reliance on nations as the participants in global governance. In other words, we cannot ignore that the ultimate need for constitutionalism at the global level. This obviously requires more than a simple reference to the international commitment or obligation of the State. It requires a constitutional form of controlling the extent of autonomous normative decisions that are left for global and regional institutions and of reviewing their impact on national constitutionalism; they also require a constitutional form of balancing the competing national constitutional claims that come into conflict through the mechanisms of inter-dependence (such as those of free trade).

The reality is that, even if we begin with a perception that global governance is or should be built on national constitutionalism, we have not gone very far in understanding the place of global governance. There is an interaction here between normative and positive analysis. As we examine particular forms of global governance and the theory and reality of their attempts to navigate this constitutional balance, we see the various forms of constitutionalism appear. The basic actors in each instance may in theory be the nations. But the reality of decision-making that emanates from the structures lying behind entities like the WTO has evolved beyond a world of national veto and unanimous decision-making. The story of this evolution is different for each such organization. But there are certain shared traits and these traits are a place to begin.

As always, the evolution begins with the nations. The nations that form these global decision- making processes guard their national decision-making powers. This result is weak global governance decision-making at least at the legislative level. Unanimity protects the national political processes by giving them the ultimate control (via the veto) over actions of the global governance political processes. But this protection is purchased by severely constraining the activities of the global governance political processes. The chink in this armor is the existence of a constitution (charter) for these global governance arrangements usually phrased in terms of broad goals or aspirations. It seems easy enough to declare grand aspirations and even fundamental rights when the actual engines of global governance are severely confined. This all works to preserve nation-state power so long as there is no decision-making process empowered to interpret and apply this charter. But sometimes there is. The entity is a court– by any name. And it has court-like trappings– hearings, lawyers and published opinions.

Why would nations concerned with confining the power of these global governance arrangements allow this source of decision-making expansion? One answer is that they often do not. The UN has no such mechanism and remains captured by the veto powers of the Security Council. In fact, the examples of this judicial device are quite limited. The major examples are the WTO and the EU. The second is or began as a regional governance device (so not truly global governance) with confined political branches. But it created a seemingly confined court system with the ECJ at its head. That

decision produced the near-nation that the EU has become. Why would the nations that formed the EU and the WTO create this potential for global governance growth? The answer is both simple and complex. The simple answer is that they wanted these instances of global governance to be somewhat effective. The complex part is achieving a true constitutional arrangement that allows the desired balance of effectiveness and control. This balance is virtually impossible to control ex ante and, therefore, like many examples of constitutionalism, these attempts at global governance produced results different from those envisioned. The complexity of setting up charters or constitutions for global governance arrangements suggest familiar quandaries of institutional choice in particular the choice between present and future decision-makers (between Framers and the decision-making institutions that create). This manifests in the traditional trade-off between charters that spell out substantive results in great detail and those that use broad language. This is more or less the trade-off between rules and standards. Even the most code-like constitution will inevitably leave considerable decision-making room to some future decision-making process and, therefore, create the difficult trade-off between control and effectiveness inherent in the design of political processes (the extent of unanimity rules) and the existence of a separate interpreter not subject to the veto power (courts).

If global political processes are controlled and constrained by national veto, this vacuum attracts less encumbered decision-making. The extent of this pressure and its results will vary depending on the reality of the dynamics of participation in these global governance processes and in the political processes of the nations that are its members. This is a story about institutional behavior and about the impacts of different patterns of use of these institutions by various actors. To understand what global governance is, we must take care to follow the interaction between this dynamics of participation and the formal structures that have been established.

All of this description sets the stage for the difficult normative questions that surround the challenges of global governance constitutionalism. In its broadest sense, constitutionalism is a normative theory to allocate, discipline and govern power in such a way as to maximize constitutional ideals such as freedom and full participation and representation. Such a theory is applicable to larger and smaller jurisdictions of social decision-making, to political processes and to courts or markets.26 _It

is and ought to be applicable to any institution that exercises power. Its expression does not have to be the same as national constitutionalism. We cannot require global governance to be legitimated under the same conditions as those of national constitutional law. But we must require it to be legitimized in constitutional and, therefore, comparative institutional terms.

It cannot be legitimated by the single institutional argument that national decision-making processes are profoundly malfunctioning. The particulars of any global governance mechanism must be examined through the same critical eyes used to catalogue the problems with the national mechanisms they are meant to replace. Romantic images of high minded elites and contemplative judges will not do. Even if the motives and abilities of these decision-makers live up to expectations they are embedded within larger decision-making processes and it is the character of these processes that will determine when and where global governance untethered (or less tethered) to nation-states is superior.

Constitutionalism at the global level means constitutionalism without a political community and, therefore, its mechanisms must focus on exit and voice without expecting immediate loyalty. It cannot therefore be based on simple extrapolations of the traditional democratic model of the State. It must proceed through analogous constitutional choices taking into account the constant trade-offs between the constitutional values of inclusion and intensity of participation, the different stakes of potentially affected interests and the way the different global institutional alternatives interact with transaction and information costs. The normative value of global governance will be found in providing new institutional alternatives to correct some of the malfunctions of national political communities. But

that value will depend on a critical assessment of these new mechanisms without romance or rancor. Down this path are inevitable trade-offs and difficult institutional choices. But it is the only path to good global governance.