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Emergence of two politico-judicial systems in world affairs is possible, believes a Yale University Professor

Interview by Kayhan KARACA

In an interview to the Council of Europe on the occasion of a conference on European and American constitutionalism, organised in Göttingen, Yale University Professor Jed Rubenfeld stresses that “the European states are more committed to an international system of enforcement and interpretation and implementation than the US is”. He adds, however, that the two systems remain committed to the same fundamental values and ultimately, there is no reason why there must be complete uniformity in the constitutional law of every democratic nation.


Question : There is historic relationship between the European and American constitutional systems but it seems that this relationship has changed since the end of the communist systems in Eastern Europe. What could be the reason for this evolution?

J. Rubenfeld : There have always been differences. Perhaps they are just becoming more visible after 1989. There are two kinds of differences that we could talk about. There are differences on matters of doctrine such as the difference between the American law of free speech and European free speech law. As is well known, the US constitutional system is more protective of speech than are many European states. Similarly with respect to religion the American constitution protects against the establishment of religion in a way that a number of European states constitutional systems do not. The major change that happens after 1989 is not however a matter of doctrine. It is a matter of the developing internationalisation of constitutional protections, especially human rights protections, in Europe, for which there is no parallel in the US.

To understand this development you have to go back before 1989. You have to go back to the Second World War. What develops in Europe after the war is a kind of international constitutionalism, in which constitutional rights and other important principles are shifted to international institutions, which come to play a higher law role – a constitutional role – in Europe. International law systems come to function as a kind of constitutionalism in Europe. This is what did not happen in the United States. The US does not share the same commitment, from 1945 to 1989, to the international system as a system for restraining national self determination. These differences were suppressed during the cold war. But since 1989 this is the difference which has emerged. The European states are more committed to internationalisation as a constitutional matter. They are more committed to an international system as a form of constitutional law with the authority to restrain national power and national self-determination. This is the difference we have begun to see in the last several years. It is perceived as American unilateralism or American defiance of international law. At bottom it is reflective of two different forms of constitutionalism.

Question: So according to you, the interpretation of the death penalty, freedom of speech or human dignity are not the only examples of the difference between the two systems?

J. Rubenfeld : There are of course differences with respect to speech, religion and the death penalty. You can name a couple of more. They are important but not fundamental. They are not what is creating the anxiety that people feel today. What is creating the anxiety is the fact that the American constitutional system is showing some tendency not to be bound by the international law system.

Question : Do you think the war in Iraq has changed something more, especially when we think of the disagreements between the US and some European countries over the role of international law?

J. Rubenfeld : I think there is cause for concern. The question is whether the existing framework for international governance of the use of force is sufficient. I think this question has been on the table since Kosovo when NATO’s intervention was not authorised by the Security Council. I do not believe that Iraq is the first example of this. Iraq is not a sudden departure. We saw a similar state of affairs in Kosovo.

Question : The US is accused of unilateralism by Europe in the field of the application of the international law. Do you believe this accusation is justified?

J. Rubenfeld : The US is in fact less committed to the international form of constitutionalism that the European states have committed themselves to. This will be seen from a European point of view as unilateralism. Unquestionably, the US has shown some unilateralist tendencies on human rights and certain other matters. For instance we have not joined international human rights conventions that virtually every other country in the world has joined. We have refused to subscribe to the Kyoto protocol. We have walked away from the antiballistic missile treaty with Russia. There are several actions the US has taken last several years which demonstrate uncertainty and anxiety about the reliability of the international law system. But the US and Europe are both committed to the same ultimate legal values of rule of law, fundamental protections for individuals, equal protection under law and individual autonomy. So at a fundamental level there is much more congruence than conflict between the deepest principles that the two systems are committed to. But the European states are more committed to an international system of enforcement and interpretation and implementation than the US is. This is what the European states see as unilateralism on the US part.

Question : Is it possible to predict a bicephalous or two different politico-judicial systems in world affairs in a foreseeable future?

J. Rubenfeld : It is a possibility. Indeed with the EU, this two-headed system already exists to some extent. If the European Union succeeds in the way that it seems to be succeeding then you will have a full-blown European system of human rights and economic regulation. This would be a distinct system from the American human rights and economic regulation.

Question : Can those two systems live together without conflict?

J. Rubenfeld : The confrontation risks are very much exaggerated. Fundamentally the two systems are committed to the same values. There may be moments of anxiety and concern, when one system does not follow exactly the rules that the other system would like it to, but this is natural and viable. There may be differences between US and European constitutionalism but there is no reason ultimately why there must be complete uniformity in the constitutional law of every democratic nation.

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