Reimagining Global Constitutionalism: Can a Transformative Constitution Better The International Legal Order
University of Manchester
Professor Christopher Thornhill
Global Constitutionalism is a governance theory in which the international system comprises core norms including the rule of law, separation of powers, human rights, judicial safeguards, and democratic legitimacy. It is now agreed that a global constitution exists, however, this thesis draws attention to the poverty of its theory, specifically the shortcomings that emerge from its neo-imperialist background. The liberal constitution authorises violations of international laws and treaties and places structural barriers to achieving subsequent justice. Further, it is strategic and ideological in its perseveration of the hierarchy between the Global North and the Global South.
The current literature ignores the neo-colonial consequences that emerge from the international orders’ development within colonial times and its subsequent facilitation of unequal relations through the establishment of the ‘civilising mission.’ Furthermore, TWAIL scholars have noted that the constitutional principle of state sovereignty presents prominent barriers to achieving justice. These damaging neo-colonial aspects of the liberal constitutional norms are apparent in the case studies of Australia and Canada, where the order results in structural violence. Contrastingly, having emerged through contending Western constitutional ideas, transformative constitutionalism has resulted in progressive reform when utilised in resistance to imperial domination. Examples from Colombia and Kenya demonstrate that transformative constitutions advocate for the re-distribution of power in an egalitarian manner and place emphasis on socio-economic human rights, positive state duties and non-liberal norms including establishing bodies of control that increase accountability and the balance of power.
This thesis sees transformative constitutionalism as the most viable method of reforming global constitutionalism. It will question whether considerations of transformative constitutionalism can be utilised to re-imagine and decolonise the framework. In doing so it aims to conceive an alternative paradigm of global constitutionalism using transformative constitutionalism, and TWAIL’s methods; one which reimagines global constitutionalism to address the democratic deficit, injustices, and inequity within the system.
Public International Law,
Comparative Constitutional Law,
Legal History and
Samara Majd Sharaf, Time for the Sun to Set on the British Empire: Addressing the Legacy of Colonial Era Abuse  Vol.8 No.1 NELR 18