1 I deem it for present purposes neither needed nor desirable to define the correlative of the notion of objective purport, global value, to any further extent. For, first, I do not want to complicate the argument of this paper by enmeshing myself in particularly sophisticated debates about distinctions to be drawn between types of value – moral, legal, political, etc. Second, as any informative definition of value would presume or embody a particular (moral) philosophy, there is no such thing as an informative, neutral concept of value. Third, recent work in meta-ethics and philosophy of normativity casts doubt on whether the concept of value should be thought of as the fundamental normative entity/property – instead of, for example, the act of ‘valuing’, ‘oughts’, ‘norms’, or ‘normative reasons’. Moreover, such work every so often suggests that different denotations of the normative are inter-definable, there consequently not being such a thing as a basic normative entity/property. Taking these and other considerations into account would unduly and needlessly complicate the argument of this paper. Still, it remains key to the concept of global value that it involves some kind of ‘(mind)-independence’ in the sense specified in the definition of ‘objective purport’ given above, and as elaborated upon in subsection 4.2. It is this ‘heuristically’ specified core that I take to be key to the concept of global value as used in international legal debate.

For a synopsis of value theory, see T. Hurka, ‘Value Theory’, in D. Copp (ed.), Oxford Handbook of Ethical Theory (2007). For an overview of the meta-ethical debate, see A. Miller, An Introduction to Contemporary Metaethics (2003). For a general discussion of the concept of normativity, see R. Wedgwood, The Nature of Normativity (2009); A. Millar, Understanding People: Normativity and Rationalizing Explanation (2004); J. Dancy, Practical Reality (2003).

2 This objective-purport dilemma is also implied by international liberal scholars. See, e.g., Tesón, F. R., ‘The Kantian Theory of International Law’, (1992) 92 Columbia Law Review 53CrossRefGoogle Scholar; A. M. Slaughter, ‘A Liberal Theory of International Law’, (2000) 94 PASIL 240.

3 I draw here upon Stephen Darwall's presentation of the meta-ethical objective-purport dilemma in his Philosophical Ethics (1998), 17–27.

4 Cf. Tomuschat, C., ‘International Law: Ensuring the Survival of Mankind on the Eve of a New Century, General Course on Public International Law’, (1999) 281 Collected Courses 9Google Scholar; Simma, B., ‘From Bilateralism to Community Interest’, (1994) 250 Collected Courses 217Google Scholar, esp. at 233; B. Simma and A. Paulus, ‘The “International Community”: Facing the Challenge of Globalization’, (1998) 9 EJIL 266; A. Von Bogdandy ‘Constitutionalism in International Law: Comment on a Proposal from Germany’, (2006) 47/1 Harv. ILJ 223; E. de Wet, ‘The International Constitutional Order’, (2006) 55 ICLQ 51 and ‘The Emergence of International and Regional Value Systems as a Manifestation of the Emerging International Constitutional Order’, (2006) 19 LJIL 611; A. Peters, ‘Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structure’, (2006) 19 LJIL 579 and ‘Global Constitutionalism Revisited’, (2005) 11 International Legal Theory 39; P.-M. Dupuy, ‘Some Reflections on Contemporary International Law and the Appeal to Universal Values: A Response to Martti Koskenniemi’, (2005) 16 EJIL 131; J. Charney, ‘Universal International Law’, (1993) 87 AJIL 529; B. Fassbender, ‘The U.N. Charter as Constitution of the International Community’, (1998) 36 CJTL 529; H. Mosler, The International Society as a Legal Community (1980), 17–18 and 84–91; R. McCorquodale, ‘An Inclusive International Legal System’, (2004) 17 LJIL 477; J. Delbrück and U. E. Heinz (eds.), New Trends in International Lawmaking: International ‘Legislation’ in the Public Interest (1996), 18–19. For an overview, see J. Klabbers, A. Peters, and G. Ulfstein, The Constitutionalization of International Law (2009).

5 Even though global constitutionalist approaches share an institutionalist endorsement of legal constraints on governance, there are many types of constitutionalist approaches, some of which are based on universalistic, substantive values, whilst others are not. (i) First we have thick constitutionalism, which espouses a classical liberalism that conceives of the international legal order as embodying common and universal values, which need to be, and are actually, protected from political decision-making process. Cf. authors mentioned supra note 4. The term ‘global constitutionalism’ is usually reserved for that which we have labelled ‘thick constitutionalism’. It is this more influential type of constitutionalism that will be the target of analysis and criticism in this paper.

Thick constitutionalism is to be distinguished from the following approaches sometimes characterized as constitutionalist: (ii) Global Administrative Law espouses procedural standards for legitimate international decision-making, thereby hoping to avoid the pitfalls that stifle thick constitutionalism, there (supposedly) being no substantive agreement on material, universal values, except perhaps on an exceedingly high level of abstraction. Cf. Kingsbury, B., Krisch, N., and Stewart, R. B., ‘The Emergence of Global Administrative Law’, (2005) 68 Law and Contemporary Problems 15Google Scholar. (iii) Kollisionsrecht espouses the search for contextually justified solutions as a response to fragmentation, instead of promising to overcome conflict once and for all, as, at least on a natural reading, thick constitutionalism has it. Cf. A. Fischer-Lescano and G. Teubner, ‘Regime-Collision: The Vain Search for Legal Unity in the Fragmentation of Global Law’, (2004) 25 Mich. JIL 4, at 999. (iv) Pluralist Constitutionalism espouses a pluralist normative order based on (harmonious) coexistence, on which there is no overlapping consensus as regards constitutional, global values, including a version that emphasizes the function of international law in reducing inequality among its participants and including a ‘metaconstitutionalism’ that aims to facilitate dialogue between coexisting participants. Cf. A. Hurrell, On Global Order: Power, Values, and the Constitution of International Society (2007); and Walker, N., ‘The Idea of Constitutional Pluralism’, (2002) 65 Modern Law Review 317CrossRefGoogle Scholar. Finally, (v) the Constitutionalism as a Mindset approach espouses the role of constitutional values in legal and political decision-making, not as embedded in legal rules and the architecture of the international legal order, as with thick constitutionalism, but as embedded in the mindset of its practitioners. Cf. Koskenniemi, M., ‘Constitutionalism as Mindset: Reflections on Kantian Themes about International law and Globalization’, (2007) 8 Theoretical Inquiries in Law 9Google Scholar. Klabbers shares a similar, but not identical, approach. Cf. Klabbers, J., ‘Constitutionalism Lite’, (2004) 1 International Organizations Law Review 31CrossRefGoogle Scholar. This taxonomy derives from Klabbers's classification in Klabbers, Peters, and Ulfstein, supra note 4, at 25–31.

6 Werner, W., ‘The Never Ending Closure: Constitutionalism and International Law’, in Tsagourias, N. (ed.), Transnational Constitutionalism: International and European Perspectives (2009), 329, esp. at 330–1Google Scholar.

7 d'Aspremont, J., ‘The Foundations of the International Legal Order’, (2007) 18 Finnish Yearbook of International Law 219Google Scholar. This ‘Hobbesian’ approach, although in some respects similar to, amongst others, that of Goldsmith and Posner in The Limits of International Law (2005), differs from the latter neo-realist approach in allowing a role for common interests. Moreover, Goldsmith and Posner do not so much draw on the logic of the international national legal system, but adopt a perspective that is external to the logic of international law, drawing, as they do, upon game theory. Hence, their approach, even though relevant to, does not expressly address, the legal, conceptual objective-purport question that is the topic of this paper. Also, because d'Aspremont's paper more specifically targets constitutionalism, I will, however, limit my discussion to his paper.

8 E. Voyiakis, ‘International Law and the Objectivity of Value’, (2009) 22 LJIL 51.

9 Another approach may be distinguished, which affirms the second horn of the dilemma and consequently faces the question as to what might explain practitioners’ thought as though the international legal order had objective purport. This position is at least to be logically distinguished from arguing the dilemma to be a false one. Yet, since arguments for both positions will be very similar, this distinction is not further elaborated on in this paper.

10 Of course, such a theorist still owes us an explanation of why practice is as it is, even if falsely so. This has, however, not proven entirely impossible in the field of meta-ethics, thus why should it be impossible with international law? Moreover, as has been done in meta-ethics, such an error theorist may even argue that his ‘second-order theory’ does not in any meaningful way affect first-order practice.

11 D'Aspremont, supra note 7, at 227–8.

12 Cf. Simma, supra note 4; Tomuschat, supra note 4, at 63 and 70.

13 Cf. Tomuschat, supra note 4; Werner, supra note 6.

14 Cf. M. Weller, ‘The Struggle for an International Constitutional Order’, in D. Armstrong (ed.), Routledge Handbook of International Law (2009), 179.

15 Cf. M. Griffin, ‘Accrediting Democracies: Does the Credentials Committee of the United Nations Promote Democracy through Its Accreditation Process, and Should It?’, (2000) 32 NYUJILP 725.

16 Cf. de Wet, ‘The International Constitutional Order’, supra note 4.

17 Cf. D. Shelton, ‘International Law and “Relative Normativity”’, in M. D. Evans (ed.), International Law (2010), 141.

18 Cf. Tomuschat, supra note 4.

19 Cf. de Wet, ‘The International Constitutional Order’, supra note 4.

20 Ibid.

21 Cf. R. Cryer, ‘International Criminal Law’, in M. D. Evans (ed.), International Law (2010), at 752–83.

22 Cf. de Wet, ‘The International Constitutional Order’, supra note 4.

23 Cf. Weller, supra note 14, at 190.

24 Ibid., at 191.

25 Cf. de Wet, ‘The International Constitutional Order’, supra note 4.

26 Cf. ‘If anyone were to propose a pairing of phrases to characterize current developments in international law, the smart money would surely be on constitutionalization and fragmentation’; Klabbers, supra note 5, at 31.

27 M. Koskenniemi, ‘History of International Law, since World War II’, in R. Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law (2008), online edition, available at www.mpepil.com, para. 61.

28 For an overview, albeit partisan, see A. Peters, ‘The Constitutionalist Reconstruction of International Law: Pros and Cons’, NCCR Working Paper 2006/01 (2006), available at http://phase1.nccr-trade.org.

29 Cf. Klabbers, supra note 5, at 48; A. Peters, ‘The Merits of Global Constitutionalism’, (2009) 16(2) Ind. JGLS 397, at 405–6. As regards the sources component of Austinian scepticism, perhaps constitutionalism is best thought of not as setting out to meet the Austinian challenge ‘head on’, but as spurring legal scholars to leave their pathological insistence on a strict identification of ‘determinate sources’ behind. For, constitutionalists argue, the ends that motivate that strict identification (amongst which are, prominently, democratic legitimacy and legal certainty) may be achieved by adopting other more accommodating beliefs (besides not being attainable through traditional, ‘bilateral’ means anyway). Hence, constitutionalists argue that our best, if not only, alternative for a conception of legitimacy in statal terms is ‘compensatory constitutionalization’ on the international plane. Cf. Peters, ‘Compensatory Constitutionalism’, supra note 4.

30 Cf. A. Paulus, ‘International Law and International Community’, in D. Armstrong (ed.), Routledge Handbook of International Law (2009), at 51.

31 Cf. Klabbers, supra note 5, at 37–45.

32 Cf. ibid., at 47 (for a critical account); Peters, supra note 29, at 407.

33 Cf. Peters, supra note 29, at 404–5; Peters, ‘Compensatory Constitutionalism’, supra note 4; Peters, ‘Global Constitutionalism Revisited’, supra note 4; A. Peters, ‘The Globalisation of State Constitutions’, in A. Nollkaemper (ed.), The International–National Law Divide (2007), 251; Cottier, T. and Hertig, M., ‘The Prospects of 21st Century Constitutionalism’, (2003) 7 Max Planck UN Yearbook 261CrossRefGoogle Scholar.

34 Cf. Klabbers, supra note 5, at 47–8; Von Bogdandy, supra note 4, at 242; M. Kumm, ‘The Legitimacy of International Law: A Constitutionalist Framework of Analysis’, (2004) 15 EJIL 907; Peters, supra note 28, at 10; N. Walker, ‘The EU and the WTO: Constitutionalism in a New Key’, in G. de Búrca and J. Scott (eds.), The EU and the WTO: Legal and Constitutional Issues (2001), 57; Koskenniemi, supra note 5, at 35–6.

35 Cf. I. Brownlie, ‘Problems Concerning the Unity of International Law’, in Le droit international à l'heure de sa codification: Etudes en l'honneur de Roberto Ago, Vol. 1 (1987), at 153.

36 Cf. G. Hafner, ‘Risks Ensuing from Fragmentation of International Law’, International Law Commission, Report of the International Law Commission on the Work of Its 52nd Session, UN Doc. A/55/10 (2000), 143; G. Haffner, ‘Pros and Cons Ensuing from Fragmentation of International Law’, (2004) 25 Mich. JIL 849. This list is not exhaustive. Other risks are, for example, the risk of forum shopping and ‘evisceration of the ICJ docket’. Cf. J. Pauwelyn, ‘Fragmentation of International Law’, in Wolfrum, supra note 27.

37 Mario Prost argues for the multifaceted character of fragmentation and distinguishes between three types of unity/fragmentation contrasts in his ‘All Shouting the Same Slogans: International Law's Unities and the Politics of Fragmentation’, (2006) Finnish Yearbook of International Law XVII 1. I do think there is a point to distinguishing these types of fragmentation. Consequently, I also think that different indirect arguments for global constitutionalism can be distinguished, each relating to one of these forms of fragmentation as its dialectical counterpoint. Distinguishing between types of fragmentation would, however, unduly complicate the argument of this paper.

38 Fassbender, supra note 4, at 567.

39 Ibid., at 585.

40 Ibid., at 588–9.

41 De Wet, ‘The International Constitutional Order’, supra note 4, at 53.

42 Ibid.

43 See note 5 for a definition of ‘thick’ constitutionalism.

44 Koskenniemi, M., ‘Global Governance and Public International Law’, (2004) 37 Kritische Justiz 241, at 243CrossRefGoogle Scholar.

45 Koskenniemi, supra note 5, at 13.

46 Koskenniemi, supra note 27, at para. 61.

47 Koskenniemi, M., ‘The Fate of International Law: Between Technique and Politics’, (2007) 70 Modern Law Review 1, at 9CrossRefGoogle Scholar.

48 Ibid.

49 Cf. P. Weil, ‘Towards Relative Normativity in International Law?’, (1983) 77 AJIL 413.

50 Peters, supra note 28, at 9.

51 Werner, supra note 6, at 330.

52 Ibid., at 329.

53 Fassbender, supra note 4, at 552. Also quoted by Werner.

54 My understanding of transcendental arguments is based on Barry Stroud's ‘modest’ conception as elaborated mainly in ‘The Goal of Transcendental Arguments’, in B. Stroud, Understanding Human Knowledge (2000). For a good exposition, see C. Hookway, ‘Modest Transcendental Arguments and Sceptical Doubts: A Reply to Stroud’, in J. Stern (ed.), Transcendental Arguments (1999), 173.

55 Global constitutionalism, like other theoretical proposals in the literature, should be conceived of as a theoretical response that is shaped by its particular anti-sceptical strategy and should be judged according to how well it holds out against different types of international legal scepticism. International legal scepticism is not a mere academic armchair concern, as the strongest arguments for international legal scepticism are not esoteric at all, but draw only on ‘highest common factor’ features of the international legal order acknowledged by practically all of its practitioners. Moreover, even if rarely adhered to overtly and explicitly in practice, international legal scepticism still exerts a major subterranean influence on international legal practice, amongst, possibly, as the constitutionalist might have it, a buttressing of the rigid bilateralism of those who still conceive of international law as composing an essentially value-free order amongst sovereign states.

Global constitutionalism, it is submitted, is particularly subject to the following sceptical setbacks and challenges. First, the constitutionalist must, on the face of it, contra Koskenniemian scepticism, assume or argue for the objectivity of the global values it appeals to. The fact that we should at least be sceptical about the objectivity of value and of the possibility of inter-subjective justification of evaluative propositions, as only a cursory view of the philosophical debate should suffice to establish, does certainly not improve on the prospects of global constitutionalism. Second, in the course of establishing, contra descriptive realism, that norms of international law do constrain/influence political behaviour, constitutionalists must, at the cost of international law's explanatory value, not provide so loose an interpretation of law-governed behaviour as to be impossible to falsify. Third, constitutionalists should avoid a ‘Western’ account of international law such that it may come to be perceived as an instrument of Western imposition. Fourth, in order to establish their ‘thick’ reading of international law, constitutionalists must, contra Austinian scepticism, establish international law's relative determinacy and its effective enforcement or must provide a Wittgensteinian ‘therapeutical’ argument to the effect that there is a good alternative to insisting on these. Cf. A. Fichtelberg, Law at the Vanishing Point (2008), Chapter 1.

56 Even so, the writing of some scholars implies this distinction of sorts. Marc Weller, for instance, writes that the ‘international constitutional law approach’ may be regarded as espousing a descriptive theory to the extent that ‘the core elements of an international constitution already exist and can be described in positivist terms’. Yet he also acknowledges that the international constitutional system is evolving and grants accordingly that the constitutionalist approach, even though not ‘programmatic’ or ‘Kantian’ in outlook – that is, putting forward an ‘idealist construct’ that remains without implementation – may legitimately proceed by ‘foster[ing] visions for its future development without being exposed to the charge of being naively “idealist”’. Again, commenting on the ‘disintegrative tendencies’ of international law, he writes that ‘the question arises therefore of whether the international constitutional approach is, indeed, grounded in the modern realities of international life, and whether it is likely to retain or gain credibility in the light of the disintegrative challenges’. Here, ‘being grounded in the modern realities of international life’ should be taken as not only referring to direct argumentation, but also as indirect argumentation in the sense noted above – that is to say, grounded in international legal practice by being a necessary condition for making sense of it. M. Weller, ‘The Struggle for an International Constitutional Order’, in D. Armstrong (ed.), Routledge Handbook of International Law (2009), at 180–2.

Neil Walker, moreover, characterizes global constitutionalism as ‘a deeply contested but indispensable symbolic and normative frame for thinking about the problems of viable and legitimate regulation of the complexly overlapping political communities of a post-Westphalian world’. N. Walker, ‘Post-National Constitutionalism and the Problem of Translation’, in J. H. H. Weiler and M. Wind (eds.), European Constitutionalism beyond the State (2003), at 53, emphasis added. If Walker is right in presenting constitutionalism as an ‘indispensable normative frame’ for sensible thinking about the problematic trends that confront the present international legal order, this means, on the face of it, not (just) that constitutionalism constitutes a normatively attractive theory, but that only within a constitutionalist frame is sensible, coherent, rationally justifiable, etc. thinking or argument about these problems ‘viable’. Hence, if Walker is right, the constitutionalist frame of thought should be conceived of as a necessary condition of meaningful international legal practice.

Furthermore, Erika de Wet's conception of global constitutionalism as discussed in sub-subsection 2.3.2. implies an indirect argument along the following lines: [WE1] The international legal order is increasingly integrated; [WE2] international legal practice proceeds on the assumption of there being exercise of control over the political decision-making process; [WE3] in an increasingly integrated international legal order, the exercise of control over the political decision-making process would only be possible in a Verfassungskonglomerat; [WEC] hence, we have to believe that the international legal order constitutes a Verfassungskonglomerat. Cf. de Wet, ‘The International Constitutional Order’, supra note 4, at 53.

57 See previous note.

58 Not all arguments for the legal unity of international law can be given an indirect paraphrase. Normative arguments regarding the legitimacy and democratic character of international decision-making, for instance, do not appear to be grounded in international legal practice in any meaningful sense.

59 Klabbers, supra note 5, at 49.

60 Werner, supra note 6, at 348, emphasis added.

61 D'Aspremont, supra note 7, at 227–8.

62 A different conception of international law will naturally affect the right and obligations of participants to the extent that rules are to be interpreted differently. However, the claim is, very roughly, that on the minimalist interest-based reading, the rules might be substantially similar to that which they are ‘ordinarily’ taken to be.

63 Note that any talk of ‘objective’ or ‘real’ interests, if not incoherent, would evidently render the exercise pointless. What matters is only a participant's perceived interest.

64 Darwall, supra note 3, at 239.

65 Normative reasons in the sense intended are not justifying reasons or perfect reasons; they are merely pro tanto reasons, which may be outweighed by other normative reasons. Cf. J. Broome, ‘Reasons’, in R. J. Wallace (ed.), Reason and Value (2004), 28; J. Raz, ‘Reasons: Explanatory and Normative’, in C. Sandis (ed.), New Essays on the Explanation of Action (2008), 184; D. Parfit, On What Matters (forthcoming).

66 Darwall, supra note 3, at 233–43.

67 D'Aspremont, supra note 7, at 229.

68 Ibid., at 231.

69 Ibid., at 225.

70 Ibid., at 225.

71 Ibid., at 227.

72 Ibid., at 225.

73 Ibid.

74 Cf. Darwall, supra note 3, Chapter 6. This position bears some resemblance to Habermas's Communicative Ethics, but is even more akin to Kant's practical reason theory. Cf. Miller, supra note 1, Chapter 7 (also for standard references). For an excellent account of Kant's ‘practical reason’ theory, see S. Darwall, ‘Morality and Practical Reason: A Kantian Approach’, in Copp, supra note 1, 282. It is not submitted that an account along the lines of the ideal agent theory actually yields the correct account of value – or any other pertinent normative property, for that matter. It is only suggested that a particular, brute objectivist meta-ethical account of value is unwarrantably taken for granted in much of the legal literature. The ideal-agent theory is only presented as a possible alternative.

75 D'Aspremont, supra note 7, at 233.

76 The distinctive element of a global community consists of the ‘prioritization of community interests’. Cf. Simma and Paulus, supra note 4, at 266. It is not altogether clear whether d'Aspremont upholds the ‘prioritization of community interests’. On the one hand, he argues for the conceptual compatibility of neo-Hobbesianism with the existence of an international society conceived of in functional terms – although this, he admits, does not allow much room for a Grotian conception of international society as a moral project. Still there is a distinction to be drawn between the notion of a global community and an international society. Moreover, d'Aspremont conceives of common interests as promoted by states because and to the extent that they also individually benefit from this promotion. His notion of usefulness, on the other hand, allows for a sort of Kantian prioritization of community interests. It is beyond doubt, however, that a changing perception of what this prioritization consists of, including one that no longer makes recourse to global values to define this prioritization, will, by definition, have repercussions with respect to one's conception of the notion of a global community.

77 Koskenniemi, supra note 5, at 9.

78 This is a variation on what is in philosophical circles more widely known as (Wittgensteinian) rule scepticism, as coined by Saul Kripke in his Wittgenstein on Rules and Private Language (1984). For a clear overview of the debate that has surrounded rule scepticism, see A. Miller, An Introduction to Philosophy of Language (2007), Chapter 5.

79 Koskenniemi, supra note 5, at 9–10.

80 I am not sure whether such a line of argument is as attractive as it prima facie appears. Kripke's remarks on rule scepticism appear to have a nasty bite in store for Koskenniemi's proposal. For, as Kripke suggests, there seems to be no adequate specification of what is to count as a value-guided disposition or mindset that does not invoke the very notion of rule-guided normativity, or its correlative, rule-generated normative reasons. As applied to the present case, defining what constitutes a constitutionalist mindset and what is to be counted as (legitimate) constitutionalist decision-making flowing from such a mindset seems to require a set of constitutionalist rules (even if not necessarily the positivistic rules of international law), which set standards as to what is to be counted as decision-making flowing from that constitutionalist mindset and what not. This is, however, not the place to further elaborate on the viability of such an argument.

81 D'Aspremont, supra note 7, at 234.

82 Ibid., at 235.

83 Ibid., at 237.

84 Ibid., at 237–8.

85 Ibid., at 239–40.

86 Ibid., at 239.

87 Ibid., at 241–7.

88 Ibid., at 248.

89 Ibid., at 248–9.

90 In Chapter 2 of From Apology to Utopia: The Structure of International Legal Argument (2006), Koskenniemi argues that, roughly put, lawyers never acknowledge the lack objectivity of international law, but always presume it, as their particular arguments are contrastive in character. That is to say, they either exhibit a ‘descending pattern’, stressing normativity at the expense of concreteness, or follow an ‘ascending pattern’, stressing concreteness at the expense of normativity, either way at the cost of objectivity, which comprises both normativity and concreteness.