Constructing the global constitutional canon: Between authority and criticism

Abstract

The future of global law seems currently in doubt. Despite this development, and indeed partly because of it, comparative constitutional law and human rights are blossoming as academic disciplines. This makes it a good moment to ask if global constitutional law (by which I mean to refer both to comparative constitutional law and international human rights law) has a canon and whether it needs one. I argue that we do not as yet have much in the way of a canon but that we need one or, at least, a debate about one. I begin by offering a first and tentative assessment of the state of the debate and then discuss in more detail what type of canon might fit global constitutional law. I reject the more traditional, religious conception of a canon as an assembly of normatively authoritative texts as incompatible with comparative law. I argue instead that a canon of global constitutional law should fulfil three key functions: (a) serving as a disciplinary platform establishing the foundations of a shared discourse among comparative constitutionalists and human rights lawyers; (b) encouraging self-reflection by making room for different voices and criticism as well as giving us a sense of the historical development of our fields; and (c) supporting the normative agenda of human rights and democratic constitutionalism. From this, I draw four factors relevant to the canonical status of individual judicial decisions in global constitutional law. Finally, I examine the famous US decision Obergefell v Hodges as a candidate for a global canon as compared to other decisions on same-sex marriage, thus applying my previous arguments to a concrete case.