New modes and orders: The difficulties of a jus post bellum of constitutional transformation†

This article examines the difficulties and dilemmas of the idea of a jus post bellum of constitutional transformation in territories under foreign or international administration. It begins with an argument that, at present, international law contains no such rules and that the law of self-determination provides no guidance. But should international law develop such rules? The balance of the article argues that international law should not prescribe rules or standards for constitution making in such circumstances. En route to this conclusion, it is argued that contractarian understandings of the problem of state making and constitution making are fallacious and that to properly understand the problem of founding new political orders we must conceive of that founding as an aleatory, contingency-riven process of concentrating forms of social and political power within particular territory. Thus, no special premium can be placed on democratic modes of legitimation, and international rules or standards prescribing specific modes of legitimation are likely to be either irrelevant or counter-productive. It is argued, finally, that one of the virtues of international law in these situations is its (relative) agnosticism with respect to different modes of legitimation. It is contended that international law is usefully understood as 'inter-public law.' In light of this theory, the structural situation of international law is analogous to the structural position of public law in newly founded domestic political orders. That is, international law is preoccupied with crafting relationships of order across diverse kinds of social and political legitimacy, and its normativity and efficacy are finely balanced between accommodating power and restraining it.