International Journal of Constitutional Law Advance Access originally published online on August 28, 2008
International Journal of Constitutional Law 2008 6(3-4):371-372; doi:10.1093/icon/mon026
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This article appears in the following International Journal of Constitutional Law issue: SYMPOSIUM: constitutionalism in an era of globalization and privatization [View the issue table of contents]
Preface: Rethinking constitutionalism in an era of globalization and privatization
Traditionally, constitutional law has been tied inextricably to the nation-state, and its scope and impact have remained primarily matters of domestic concern. This state of affairs began changing after World War Two, and the process has accelerated in the last few decades. Increasingly, countries look to one another's constitutional norms; moreover, numerous international instruments promote standards that are constitutional in substance and function, if not in form. Judges have become engaged, more and more, in comparing constitutional norms, even as comparative constitutional scholarship has spread rapidly and expanded greatly. Against this background, I•CON was launched in 2003 to provide a worldwide forum for analysis and scholarship devoted to international and comparative constitutional law.
As globalization challenges the role of the nation-state and calls into question its position as the center of gravity of constitutional ordering, it becomes important to reexamine the proper boundaries of the field. The traditional constitutional order harmonized and guaranteed by the nation-state seems steadily threatened—from above and from below. On the one hand, international and transnational legal regimes claim supremacy over and, at times, contradict the dictates and priorities of national constitutional law. On the other hand, traditional state-run or -supervised public orderings ordinarily subject to national constitutional norms and standards are becoming privatized, often escaping the state's constitutional fetters and, in some cases, freeing themselves of all state-based legal regulation.
Does this mean that the field of constitutional law is gradually being eroded? Or has it, on the contrary, greatly expanded beyond its traditional boundaries? And, whether it has eroded or expanded, has constitutional law changed in its nature, function, or content?
As the articles included in this symposium indicate, some have argued that constitutional law has become internationalized; others, that international law has become constitutionalized; and yet others, that private networks have generated their own constitutional orders. Does such proliferation strengthen or weaken constitutional ordering? And is the multiplication of legal regimes, each constitutionalized in its own way, consistent with the kind of legal hierarchy and unity that hitherto has protected against incompatible legal obligations and that, traditionally, has been guaranteed by the constitution of the nation-state?
These are critical questions, and it seems particularly appropriate to devote I•CON’s fifth-anniversary symposium issue to them and to a broader examination of the rapidly evolving boundaries of constitutional law in a progressively intertwined, ever more international and pluralistic legal universe. The symposium addresses both general issues, such as the theoretical and institutional implications of the confrontation between constitutionalism and legal pluralism, and particular ones, such as the evolution or redefinition of some key rights, including those of minorities, those relating to secularism and religion, and socioeconomic rights, in an era of globalization and privatization.
Most of the articles published in this special double issue of I•CON were first presented at one of two international conferences, the first held in Paris, on October 25 and 26, 2007, and the second in New York City, on November 4 and 5, 2007. These conferences were cosponsored by I•CON, the Institute for Comparative Law of the University of Paris I (Panthéon-Sorbonne/CNRS), the Floersheimer Center for Constitutional Democracy of the Benjamin N. Cardozo School of Law, and the New York University School of Law. We are grateful to all these institutions for their generous support.
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