Schneiderman, David --- "A New Global Constitutional Order?" [2011] ELECD 371; in Ginsburg, Tom; Dixon, Rosalind (eds), "Comparative Constitutional Law" (Edward Elgar Publishing, 2011)

Book Title: Comparative Constitutional Law

Editor(s): Ginsburg, Tom; Dixon, Rosalind

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848445390

Section: Chapter 11

Section Title: A New Global Constitutional Order?

Author(s): Schneiderman, David

Number of pages: 20

Extract:

11. A new global constitutional order?
David Schneiderman*



Accompanying the rise of new transnational legal rules and institutions intended to promote
global economic integration are questions about the linkages between transnational legality
and constitutional law. In what ways does transnational economic law mimic features of
national constitutional law? Does transnational law complement in some ways or supersede
in other ways what we typically describe as constitutional law? To these questions we can
now add the following: are transnational rules and institutions a proper subject of study for
comparative constitutionalists? This chapter makes a case for the incorporation of forms of
transnational legality into comparative constitutional studies.1 Taking as my focus the regime
of international investment law, I argue that an appreciation of the constitutional functions of
transnational legality deepens understandings of how constitutional law develops within,
across and beyond national systems of law. More specifically, elements of transnational
legality can help to explain the phenomenon of convergence and divergence in constitutional
law. This expansion of the comparativist's toolkit of resources, though challenging conven-
tional understandings of constitutional law as grounded exclusively in states, better captures
current developments.
Comparative constitutionalists traditionally have been preoccupied with the identification
of difference and similarity between families of national constitutional systems (see e.g. Finer
1979). Today, the dominant trend among comparative constitutionalists is to seek out not just
differences and similarities but convergence. With a focus on judicial branches operating
within national constitutional systems, proportionality review typically is singled out as
evidence ...