Author Interview: Constitution-Making and Transnational Legal Order

Gregory Shaffer, Tom Ginsburg & Terence C. Halliday

Constitution-Making and Transnational Legal Order

Gregory Shaffer, Tom Ginsburg and Terence C. Halliday tell us about their book Constitution-Making and Transnational Legal Order.

What inspired you to take up this project?

Two of us, Halliday and Shaffer, have been working in recent years developing theory and research on Transnational Legal Orders (TLO), which examine how transnational networks and international institutions help to construct legal norms across borders. Ginsburg has done a lot of work on constitution-making, both as an academic and working for international institutions on the ground. The volume puts these things together to ask whether there is a Transnational Legal Order around constitution-making. We had a terrific workshop at Irvine involving many of the leading scholars in the field as well as some people who have done a lot of work on the ground. The chapters of the book were developed from some of the papers presented there.

Whose work was influential on you throughout the course of the project?

It is a pretty novel approach, and there is not a lot of systematic work on constitution-making outside the contributions of Jon Elster. The TLO concept comes out of a law and society approach to international institutions, with its emphasis on how things actually work, and most especially on the dynamic relations among transnational, national and local legal norms and behavior.

What challenges did you face in writing the book?

Editing volumes is always tough, in terms of herding authors and ensuring a common set of themes. But we feel like we exercised a strong enough editorial hand to have a truly coherent set of papers, which each in their own way address the TLO concept, applying it to constitution-making and opening up our understanding of constitutions in transnational and global context.

What do you hope to see as the book’s contribution to academic discourse and to constitutional or public law more broadly?

First, we add to the literature on the transnational nature of constitutions by showing how these putatively national projects are in fact constructed by ideas and norms that often originate outside the nation-state, and this extends to both the process of constitution-making (on which there are new norms about gender and participation, for example) as well as constitutional implementation, which is increasingly a transnational project. Second, the TLO framework helps to explain instances of iterated constitutional development in which some norms settle and others are contested, including by rival TLOs. Third, it also illuminates the mechanisms at play, and helps us understand the interaction between what we might call the constitution-making TLO with other forms of ordering, such as religion or transnational markets.

What’s next?

Ginsburg’s next project is on Democracies and International Law, looking at the different behaviour of democracies and authoritarians on the international legal plane; this is an extension of his recent work on democratic backsliding. Shaffer is coming out with a new volume on Transnational Legal Ordering of Criminal Justice (also with Cambridge University Press) that examines three categories of criminal justice TLOs – the governance of transnational crimes, the implementation of international norms criminalizing atrocities, and the establishment of human rights safeguards against repressive policing and penal practices. He also is working on a symposium that brings together public and private law fiduciary theorists to engage with TLO theory. Halliday and Susan Block-Lieb are extending the findings of their book, Global Lawmakers, on the social ecologies of international organizations that shape the rise and fall of TLOs.