Transnational Constitution Making

About the author

Acknowledgements

List of acronyms and abbreviations

Introduction: demystifying 'We the People'

Understanding constitutional drafting as a transnational site

Transnational constitution-making in current debates

The porosity of constitutional legal orders

The transnational regulatory web

Epistemological and methodological considerations

Law and society approach to constitution-making

Scope of the present study

Limitations of the study

Why read this book

Chapter overview

PART 1 Crafting a new theory: from constituent power to the development enterprise

1 The limits of constituent power for transnational constitution-making

Constituent power as a foundational concept for the liberal constitutional state

Constitutions as a legal tool to limit government power

The people are sovereign

Constituent power as the foundation of the constitutional legal order

Inherent limitations of analysing transnational constitution-making through the lens of constituent power

Between liberal constitutionalism and legal positivism

Implications for the analysis of external actors in constitution-making processes

Towards an antifoundationalist approach to constitution-making

Conclusion

2 Unpacking liberal legalism

Law as an instrument for social change

Rational law to reach political and economic development

Weber, rationalisation, and the law

New bottles, old wine: the many shapes of legal rationality in the development enterprise

The West as the ultimate stage of development

The colonial lineage of the modernisation rationale

From the 'mission civilisatrice' to development

Political development equals liberal democracy

Conclusion

3 The figure of the expert

Framing problems in the development enterprise

Recasting social problems as technical problems

Legal experts to the rescue

The expert as holder of technical knowledge

Knowledge from training

Knowledge from participation

The expert as political outsider

'Apolitical' ideology

At the service of the 'common good'

Apolitical ideology with political consequences

Conclusion

PART 2 External actors in constitution-making as a development enterprise

4 Tracing external actor involvement from decolonisation to post-cold war constitution-making

Constitution-making as a tool to achieve political change

The constitution factory: from Whitehall to the White House

Post-cold war constitution-making as a tool for peace-building and democratic governance

Liberal constitutions to achieve political development

Liberal constitutions as a signifier of 'civilisation'

The end of history and the liberal constitution

Conclusion

5 The expert as a key actor in transnational constitution-making

Involvement of constitutional experts in constitution-making processes

Drafting constitutions in the context of decolonisation

Development decades and the rise of US constitutional experts

The institutionalisation of transnational constitutional expertise

Justifying involvement with specific knowledge

Constitutional experts in the British Empire

The 'technician of democracy' as the expert

External actors as 'neutral' providers of constitutional expertise

Outside the political process

The discursive turn towards 'technicity'

Conclusion

Conclusion: towards a new theory of constitution-making

Law and society approach to constitution-making and the value of descriptive work

Constitutions within regulatory webs: governing by objectives

The development enterprise: an antifoundationalist vision of constitution-making

The politics of constitutional expertise

En route to a new normative theory

References

Index