No society has a constitution without the guarantee of rights and the separation of powers; the constitution is null if the majority of individuals comprising the nation have not cooperated in drafting it.
— Olympe de Gouges (Marie Gouze)1
Constitutionalism is confident in its assertion that it is good for everyone. While the Federalists, or Bagehot or Rousseau argue about its form, the funnelling of constituent and constituted powers through the separation of powers, democracy, rule of law and human rights, raises all boats. So too then for global constitutionalism. And yet, as de Gouges highlights in her Declaration of the Rights of Woman and the Citizen, it cannot be assumed that everyone includes women; it has to be demanded.
There is a confidence to the global constitutional narrative, which sees itself as taking the ‘best’ of constitutional and international governance and putting them together to create an idealised order. What is curious about the global variant is that it takes the ‘idealism’, but none of the critique that domestic constitutionalism has faced, and in some instances, inculcated. The ‘good for everyone’ lie has been banished by feminist, race and economic legal critique, as scholars demonstrate that domestic constitutional forms do indeed favour certain groups. Within the global variant, few of these concerns have been reflected upon, instead classic constitutionalism without any musings on the potential for harm is the order of the day.
We argue that global constitutionalism needs to not only look to the idealised version of constitutionalism but also its critiques — in particular feminism. Otherwise it risks calcifying elements of both international and domestic law, which have been proven to be harmful to women. Feminist political thought and activism, which includes the political writings of women such as de Gouges, are largely ignored by global constitutionalist scholars. We see an opportunity in the global constitutionalism debate to set a new agenda, to take the feminist critique — of both domestic and international law — and forge a new form of constitutionalism, which from its outset is feminist. As such, we put forth our feminist manifesto for global constitutionalism.
It is perhaps easiest to begin with what global constitutionalism is not. It is not comparative constitutionalism, an area that is subject to feminist critique, nor is it an amalgamation of all constitutions into one whole. Rather it takes several forms. First, a world constitution based on the UN Charter, second, a series of constitutional documents or constitutional norms for specific areas of global governance such as free trade or the environment, third, it emerges from specific groups of norms such as jus cogens or fourth, some combination thereof. Global constitutionalism uses a hybrid normative and descriptive process and fundamentally it is a desire to improve both international and global law by making them more legitimate through finding or establishing constitutionalism at the global level. Yet, in doing so it largely ignores the critique of both international and domestic law that feminists, and others, have proffered. We seek to change that.
- Women2 as active agenda setters;
- Women’s co-authorship of global constitutions;
- Women’s substantive participation in ‘living’ global constitutions;
- Right of Rejection;
- Abandoning the idealised citizen so constituent and constituted power reflects who we really are;
- ‘Global’ necessitates a move beyond a Euro-centric gaze;
- Right to Revolt.
This manifesto seeks to end the dismissal of women both in international law and global constitutionalism. The first manifesto point, women must be active agenda setters, requires that women have agency in constituent agenda setting. So often in international politics agendas are set by state and institutional actors, which only ask for participation on a pre-defined set of issues. Women should be allowed to contest what is put on the schema for inclusion in global constitutionalism and where women are absent or silent the outcome is considered illegitimate.
Second, women must be co-authors of the constitution. This includes in the making and creation of law itself, but also in academic debate. Academics within international law have a particular function within its creation and the persistent absence of women — particularly non-white or non-cisgender individuals — from academic fora, which includes the continued publication of edited collections with none or a single token woman cannot endure. The academy, alongside governments and international organisations must address gross gender disparities. Whilst the role of women in constitution-writing processes in post-conflict situations has been promoted by the UN Security Council (albeit the efficacy of the Council in this regard, is questioned) there is no equivalent championing of women’s participation in domestic constitution-writing outside of a peace process, nor in global constitutional writing.
Third, women’s substantive participation in the ‘living’ global constitution. Women’s substantive involvement must go beyond constitutional moments or conventions to ensure that the outcomes of any feminist agenda-setting and/or co-authorship are translated into continuous involvement of women as both constituent and constituted power holders. Women must preserve in their global constitutional activism and their voices must be genuinely engaged with.
Fourth, the power of rejection must persist. Women must be allowed to discard elements or entire cohorts of global constitutionalism when previous or new critique demonstrates the harms that are being replicated or created. Any re-assertion of patriarchal constituted power or euro-centrism must be capable of dismissal.
Fifth, challenging preconceived notions of constituent and constituted power holders. The suffrage movements questioned the established myth of equality as being inherent to constitutional democratic forms, particularly when constituent power is regarded as akin to national sovereignty. This alignment of equality and national sovereignty excludes forms of debate and political struggle. Myths of ‘the people’ are predicated on this equality and on an idealised citizen, which acts to exclude who people really are. It is only through appreciating the multiplicity of persons who hold constituent and constituted power that we can begin to build stronger accountability mechanisms.
Sixth, moving beyond the Euro-centric gaze is essential for constitutionalism, international law and global constitutionalist debate. This requires us to move beyond the current forms of constitutionalism that are looked to and the international legal authorities relied upon. Third World Approaches to International Law (TWAIL), sub-alternism, and intersectionality all demonstrate the dearth of substantive change in international law; this must not be replicated within global constitutionalism. A global constitutionalism written only by men and women of the Global North cannot be legitimate.
Though women’s suffrage is almost universal, women’s political participation is still hindered. Whether it is ingrained stereotypes of women’s role in the home, the abuse faced by women who enter ‘public’ spaces, or gendered hierarchies in the workplace, women across the world still need to claim space in the political sphere. Thus, the seventh manifesto point, which is a right of revolt, is essential. The suffragettes redefined the right to vote as a right to revolt, making gender politics into, as Ziarek argues, a revolutionary tradition. The right to revolt discards preconceived notions of the political sphere as a male-centric space, and claims a place for women.
It pleases me in this part to be as passionate as a woman, since many men assume that the female sex does not know how to silence the abundance of their spirits. Come boldly, then and be shown the many inexhaustible springs and fountains of my courage, which cannot be stanched when it expresses the desire for virtue.3
The aim of the manifesto is both for women to have the courage to tackle patriarchal structures and for them not be vilified for doing so.
It is through revolt that women’s rejection of continued oppression becomes a call for self-government; a constitutional concern. A right to revolt ensures continual challenge to constituted power, it drives reform forward and pushes constituted power — often covetous and combative in the shape of separation of powers — to have regard for constituent actors and political struggle. From the outset, all women must be present and active within global constitutionalism. If not, feminism will have to re-fight to open the fissures that feminist activism already introduced to domestic and international law. The seven-point manifesto provides a template for how this could be achieved. But as a manifesto that incorporates revolt, it too must be contested and debated.
This manifesto is a starting point, other voices will have to be heard and listened to if it is truly to be feminist. So far global constitutionalism has largely been complacent in its idealisation of global law. “It’s good for everyone” can no longer be the retort to feminist and other concerns!
This work is further developed and published in Aoife O’Donoghue & Ruth Houghton, ‘Can Global Constitutionalism be Feminist?’ in Sue Harris Rimmer and Kate Ogg (eds), In Future of Women’s Engagement with International Law (Edward Elgar forthcoming).