Introductory remarks

My intention is to address the structural dimension of ‘democracy’, i.e. the question, how to make the organs of the state capable of reflecting the principle of ‘rule by the People’. Such a question cannot be discussed in abstract terms, but must be related to a particular historical and geographical setting. The evolution of constitutionalism in post-Communist Europe in the 1990s, in which I had the privilege to participate, seems to meet this requirement.

The term ‘international influences’ can be understood in different ways. In particular, ‘international influences’ can be associated with attempts of the outside world to impose certain solutions upon the constitution-drafting process in a particular country. Short of military intervention and/or economic pressure, the most civilised way of imposing certain standards upon national processes of constitution drafting is to ‘universalise’ these standards by expressing them in the norms of international law. Such norms, if vested with sufficient binding authority, can pre-define the content of national constitutions leaving to the framers of a particular constitution no alternative but to reproduce them in the text of the constitution. In consequence, the choices reserved for the sovereign decisions at the national level may become rather limited. If ‘international influences’ develop in such a direction, it would inevitably lead to a conflict between democracy (or, rather, national sovereignty) and international law. Professor Rubenfeld's concern seems quite legitimate from this perspective.