Academic Year 2009-2010
Daryl Levinson is the Fessenden Professor at Harvard Law School, where he teaches and writes primarily about constitutional law and theory. He is a faculty fellow of the Harvard Project on Justice, Welfare, and Economics, and last year won the Sachs-Freund teaching award at the law school. More about Daryl Levinson.
The Stability of Constitutional and International Institutions
I anticipate working on a book project, tentatively entitled "Law for States," about the relationship between international and constitutional law. I believe this relationship is in important respects closer, and potentially more generative, than is conventionally appreciated.
Held up to the benchmark of domestic law, international law is commonly perceived as a distinctively dubious or degraded form of law. After all, international law has no centralized legislature or hierarchical court system to create, revise, or specify the application of legal norms. It lacks a super-state enforcement authority capable of coercing the compliance of recalcitrant states. And, out of deference to state sovereignty, it is said to be limited to a system of "voluntary" obligations, contingent upon state consent.
Constitutional law is seldom subject to similar doubts. Yet
constitutional law, too, lacks a centralized legislature or judiciary
capable of authoritatively specifying and settling contestation over the meaning and application of legal norms. Also like international law, constitutional law lacks an enforcement authority capable of coercing the compliance of powerful political actors. And in much the same way as international law, constitutional law purports to impose constraints on the "sovereign" and attempts to legitimate these constraints by invoking the consent of the sovereign who is bound. In sum, all of the features of international law that lead lawyers and theorists to question its legitimacy or efficacy are shared by constitutional law.
This is hardly a coincidence. Both international and constitutional law are "law for states"--in contrast to the ordinary domestic law that is created and enforced by states. The respects in which both
international and constitutional law differ from ordinary domestic law follow from the distinctive aspiration of public law regimes to
constrain the behavior of state institutions, and the distinctive
difficulty they face of not being able to rely fully on these same state
institutions for implementation and enforcement. The ambition of the book is to explore these common difficulties and the resources both constitutional and international law have marshaled to overcome them. It is in large part an exercise in intellectual arbitrage, exploring what international law (and international relations theory) has to teach constitutional theorists and the other way around.