Transnational Constitution Making

Alicia Pastor y Camarasa is a researcher at the Swiss Graduate School of Public Administration at the Faculty of Law, Criminal Justice, and Public Administration of the University of Lausanne, Switzerland.

• 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