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Journal Article

Opting out of “Global Constitutionalism”


Hirschl,  Ran
Fellow Group Comparative Constitutionalism, MPI for the Study of Religious and Ethnic Diversity, Max Planck Society;

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Hirschl, R. (2018). Opting out of “Global Constitutionalism”. Law & Ethics of Human Rights, 12(1), 1-36. doi:10.1515/lehr-2018-0003.

Cite as: https://hdl.handle.net/21.11116/0000-0001-F48C-E
Much has been written about the global convergence on constitutionalsupremacy. Yet, a closer look suggests that while constitutional convergencetrends are undoubtedly extensive and readily visible, expressions of constitu-tional resistance or defiance may in fact be regaining ground worldwide. Thismay point to a paradox embedded in global constitutionalism: the more expan-sive constitutional convergence trends are, the greater the likelihood of dissentand resistance are. In this article, I chart the contours of three aversive responsesto constitutional convergence: neo-secessionism, nullification, and deference tolocal authority, and draw on an array of comparative examples to illustrate thedistinct logic and characteristics of each of these responses. Taken together,these increasingly common expressions of defiance provide ample evidence thatglobal constitutionalism is not the only game in town. Neo-secessionism, nulli-fication, and other forms of constitutional dissent and“opting out”may thus beviewed as a reaction against the centralization of authority and the decline ofthe local in an increasingly—constitutionally and otherwise—universalizedreality.