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GLOBAL CONSTITUTIONALISM AND LEGAL FRAGMENTATION: THE POPULIST BACKSLIDE IN CENTRAL AND EASTERN EUROPE
NRU Higher School of Economics
,
2021.
No. WP BRP 78/PS/2021.
Globalisation has provoked a deep transformation in international law, political affairs and governance with contradictory consequences. It has stimulated the cosmopolitan project of global constitutionalism, transnational integration and the unification of democratic standards. However, it also resulted in the fragmentation of international affairs, the deterioration of constitutional democracy and a feeling of a growing shortage in democracy on national and international levels of governance.
The international debate on global legal stability therefore cannot ignore the problem of constitutional transformation. The most simple solution to the dilemma consists in the polarised opposition of two trends in the development of the international legal order, namely, integration (in the form of the constitutionalisation of international law) and its fragmentation (in form of the separation of different global constitutional regions, supra-national actors or regimes). According this view, the two rival trends cannot be coordinated and a sharp collision cannot be avoided. The result could be described as a “zero-sum game”, as progress in integration means an equal regress in fragmentation and vice versa. This approach is therefore useful as a methodological presumption grounded on the very abstract, linear and teleological vision of globalisation considering its development from a black and white perspective and associating it strictly with positive results—progress in human rights protection, the supremacy of law and law-based states. The current global pandemic, however, reveals the other side of globalisation—economic recession, legal contradictions, the prevalence of egoistic motives, and the perceived interests of separate regions and national states over general international values or a different interpretation of its content and “common” character. That simple fact makes it important to reconsider the complex character of legal globalisation and the reciprocal relations between its opposite sides—constitutionalisation and the fragmentation of international constitutionalism.
Trying to balance the impact of these two opposing trends, the author analyses the positive and negative effects of globalisation on constitutional development regarding such issues as transnational constitutionalisation, democracy and national sovereignty, the changing place of multilayer constitutionalism, the international separation of powers, and the system of global governance in the establishment of transnational constitutional democratic legitimacy. From this point of view, the populist backslide in Central and Eastern Europe (CEE) looks dangerous and unforeseen, but it is a systemic and potentially predictable reaction of global regions on the uneven character of integration, the lack of democratic legitimacy and a new answer to the contortions and dysfunctions of global governance. An adequate response to these challenges could be found in a new concept of constitutional integration based on ongoing dialogue between the transnational and national actors of legal globalisation. This dialogue is possible by using a conflict-mediation strategy, elaborated by international experts, especially, for the deliberation of complex and protracted conflicts, which have no clear practical solutions in the short to medium term.