From the Rule of Law to the Constitutionalist Makeover: Changing European Conceptions of Public International Law

Abstract

The article identifies major characteristics of how public international law has been endorsed by European legal scholars. Prominent among these is the repeated effort to pinpoint the deficiency of public international law as it stands and to suggest improvements. The article tries to identify a chain of substitutions with regard to what is taken to be the core problem. It can be shown how attempts to overcome one reveal another. The chain of substitution, reconstructed in this article, begins with decentralization and results in the realization that public international law is inadequate from a constitutional point of view. Not surprisingly, the constitutionalization of public international law becomes an issue. However, it turns out that some current ideas regarding the constitutionalization of public international law, rather than taking constitution-making seriously, appear to be idealistic refractions of the real absorption of legality by administrative processes. Rather than offering a solution, they may very well be part of the constitutional deficiency that they claim to resolve.