Questions to Dominique Rousseau

Jurist, Professor of Constitutional Law in the School of Law of La Sorbonne - Paris 1; Former member of the Superior Council of the Judiciary; President of the Scientific Council of the French Association of Constitutionalists; Member of the Scientific Council of the International Academy of Constitutional Law.

Question 1. In the introduction to your article For a democratic world governance, you quote Ernesto Rossi and Altiero Spinelli, who were in fact great federalist activists. Do you think that federalist thought could inspire the “new principle of political organization” that you advocate, in response to globalization, to manage the common goods?

Question 2. You conceive of the world legal order as a non-hierarchical tangle of rights, a “star” where several levels of normative production interact, without any of these levels being subordinate to another. What is, in your opinion, the relationship between this constitutional vision and the federalist approach, where the different levels of power, although coordinated, are independent of each other, their relationship not being of a hierarchical nature? In fact, federal laws are supreme in areas of federal jurisdiction, the laws of the federated states remaining supreme only in areas that remain within their sphere of competence.

Question 3. You plan to build a global constitution based on shared constitutional “standards”. Is this point of view compatible with federalism, which aims to preserve the diversity of the components of the federation?

The federalist approach as I understand it, and the constitutional approach as I understand it have in common, I believe, a critique of the principle of state sovereignty as a principle of the political organization of societies. This is not a dogmatic critique, but a pragmatic critique drawn from contemporary concrete political experience. In this sense, I feel close to Spinelli's assertion when he wrote in 1941: “the ideology of national sovereignty has been a powerful leaven of progress; it has made it possible to overcome many differences based on parochialism with a view to greater solidarity against the oppression of foreign rulers. However, it carried within itself the seeds of capitalist imperialism. The absolute sovereignty of the nation states has led to the desire for domination of each of them, since each feels threatened by the power of the others and considers as its 'vital space' increasingly vast territories, to allow it to move freely and to secure its means of subsistence without depending on anyone. As a result of this, from guarantor of citizens' freedom, the state has transformed itself into the patron of subjects held in its service. The problem that must first be solved – or else any further progress will be frustrated – is the final abolition of the division of Europe into sovereign national states.”

What was in 1941 an objectively correct analysis is today also felt just subjectively by the peoples who, through daily experience, realize that none of their “problems” – employment, health, migratory flows, the climate,… – can be thought out and treated either behind the false security of the borders of the States or by the affirmation of the sovereignty of each people. The historical moment is not that of building walls between peoples isolating themselves from one another, but of bridges between peoples to let them come together in the development of shared policies.

The question where the debate takes place is that of “levels of power”. In the federalist approach, each level has its own sphere of competence, and practice often leads to “raising” the most important powers to the federal level, the federated level having residual powers which are also sometimes aspirated by the federal level. In the vision of the constitutional network, the different “levels” of power contribute equally to the formation of the norms which are diffused in the world community; and these norms disseminated in the world community feed back into the different “levels” of power to start again in a continuous movement of formalization.

This is precisely how the world constitutional standards emerge, through the patient development of an agreement of the peoples on the values of their living together. Reading international conventions, reading the constitutions of different states, gender equality is or will become a shared principle, a standard, and if it is not respected by a level of power, whatever that level, this level should be sanctioned. Recognizing the diversity of the “levels” of power as producers of the principles which will become standards, this is the philosophy of the relations among peoples. The philosophy of the federation is recognizing the diversity of the federation's components, with the risk to allow this or that component not to respect the common constitutional standard.

Question 4. What is the relationship between political institutions and society? How do you judge the integral federalism, which is not centered only on the institutions but relates to the organization of the society itself?

Question 5. Contrary to the ordinary notion of the people author of the constitution, it is, you say, the constitutive gesture which will crystallize a process of integration of individuals and communities, initially strangers to each other, from which will result the historical global Being and the world people. Can we draw a parallel with the “constitutional patriotism” dear to Jürgen Habermas, who also asserts that the process which led to the formation of nation-states can be reproduced on a larger scale? Can we thus distinguish the “political people” from the “cultural people”?

Here is another possible point of convergence between my constitutional vision and the federalist vision. First of all by the inspirational reference to Habermas, because, of course, the idea of “constitutional patriotism” feeds my idea of a “constitutional patrimony common to the peoples of the world”, which, in producing itself, makes up the historical global Being. And in a certain way, to resume the previous debate, cultural people and political people are dialectically linked: the cultural people produce the values which will become constitutive standards of the political people, and this political people thus constituted will retroact back towards the cultural people, who will produce new values modifying the constitution of the political people, and so on, continuously.

Secondly, because the object of the constitution is not the state, but society. Article 16 of the Declaration of 1789 says: “any society in which the guarantee of rights is not assured and the separation of powers is not established, has no constitution”; it does not say “any state” but “any society”. Therefore the constitution does not stop at state powers, but “touches” all spheres of society. Democracy is not a form of state, it is a form of society, and that form is given to it by the constitution.

Question 6. How do you see, in concrete terms, the process of a world constitution that you are calling for? Federalists, notably within the WFM, see global federalism as the product of political innovations establishing ever higher forms of political organization. Thus, the World Federation would complete several concomitant regional integration processes, the European Union being the main laboratory. Or, to use your image of the “star”, the world constitution could be the legal order represented by a star comprising as many branches as there will be regional constitutional identities, the regional federations. What do you think?

Question 7. If you take into consideration that the greatest success of the action of the world federalists was the creation of the International Criminal Court, and starting from your theory of world constitutionalism, what is the priority that in your opinion the global federalist Movement should pursue?

The process of drawing up a world constitution will be long and slow, because it has before it, if not against it, the States which always want to ensure their sovereignty and revive among “their” people a feeling of sovereignty in order to maintain themselves. It will depend on the acceleration and deepening of the social contradictions which will make people aware of the need for a world political organization, and on the initiatives that civil society organizations from all continents will take to imagine a constituent assembly having the mission of writing a draft world constitution, that would make its architecture visible.