See you in Geneva? Democracy, the Rule of Law and the WTO (Working Paper 16)

This paper is a constructivist attempt to understand a global political space where states as actors (the traditional domain of international relations theory and international law) are joined by international organizations, firms, NGOs, and others. Today we know that many supposedly private or international orders (meaning sources of order other than the central institutions of the territorial state) are engaged in the regulation of large domains of collective life in a world where the sources of power are multiple, sovereignties are overlapping, and anarchy is meaningless. The paper begins with an attempt, discussed in the first section, to sort out what the rule of law might mean in the context of the WTO, where we soon see that it can only be understood by also considering the meaning of Administrative Law. Much of the debate about rule of law depends on positivist and centralist theories of “law,” whose inadequacy for my purposes leads, in the second section, to a discussion of legal pluralism and implicit law in legal theory. These approaches offer an alternative theoretical framework that respects the role of the state while not seeing it as the only source of normativity. The third section looks directly at WTO law and dispute settlement. I tr y to show that the sources and interpretations of law in the WTO and the trading system cannot be reduced to the Dispute Settlement Body. I conclude in the fourth section with some suggestions on how a WTO rule of law could be understood as democratic.

CONSTITUTIONAL JUSTICE IN AFRICA: An Examination of Constitutional Positivism, Fundamental Law and Rights in Ghana and Nigeria

This work explores the idea of constitutional justice in Africa with a focus on constitutional interpretation in Ghana and Nigeria. The objective is to develop a theory of constitutional interpretation based upon a conception of law that allows the existing constitutions of Ghana and Nigeria to be construed by the courts as law in a manner that best serves the collective wellbeing of the people. The project involves an examination of both legal theory and substantive constitutional law. The theoretical argument will be applied to show how a proper understanding of the ideals of the rule of law and constitutionalism in Ghana and Nigeria necessitate the conclusion that socio-economic rights in those countries are constitutionally protected and judicially enforceable. The thesis argues that this conclusion follows from a general claim that constitutions should represent a ‘fundamental law’ and must be construed as an aspirational moral ideal for the common good of the people. The argument is essentially about the inherent character of ‘legality’ or the ‘rule of law.’ It weaves together ideas developed by Lon Fuller, Ronald Dworkin, T.R.S. Allan and David Dyzenhaus, as well as the strand of common law constitutionalism associated with Sir Edward Coke, to develop a moral sense of ‘law’ that transcends the confines of positive or explicit law while remaining inherently ‘legal’ as opposed to purely moral or political. What emerges is an unwritten fundamental law of reason located between pure morality or natural law on the one hand and strict, explicit, or positive law on the other. It is argued that this fundamental law is, or should be, the basis of constitutional interpretation, especially in transitional democracies like Ghana and Nigeria, and that it grounds constitutional protection for socio-economic rights. Equipped with this theory of law, courts in developing African countries like Ghana and Nigeria will be in a better position to contribute towards developing a real sense of constitutional justice for Africa.