The book published in Italian by Luigi Ferrajoli – Designing the future. For a global constitutionalism – deserves to be taken into consideration by federalists, since it proposes a draft Constitution that would allow the construction of a “Federation of the Earth”, with the consequent extension to the supranational level of democracy, until now experimented only within the cultural and legal boundaries of the nation state. It is a book that would deserve publication in English for its wider circulation. Here, for reasons of space, I will not try to review the entire work. I shall confine myself to recalling the principles on which it is based, in order to compare them with a second constitutional method, developed by the European federalists in the course of their political action for the construction of the European Federation.
In the introductory pages, Ferrajoli states that the classic typology of the separation of powers, proposed by Montesquieu, cannot be adopted for a supranational constitution. In contemporary democratic systems, the executive, “with the disappearance of the monarch, has the same electoral legitimacy as the legislature, and the relationship between executive and legislature, particularly in parliamentary systems, is much more one of connection than of separation” (pp. 29-30). The world Constitution should be based on the distinction between institutions of government, i.e. the sphere of the production and innovation of law, or the sphere of the decidable, different from the institutions of guarantee that must guarantee the application and implementation of the law, such as fundamental rights and peace, therefore the sphere of the undecidable, which therefore has a constitutional value. “What we need, for the purposes of peace, the environment and human rights, is not an improbable or even desirable reproduction of the form of the state at the supranational level – a sort of Leviathan or world super-state – but the introduction of functions and institutions of guarantee capable of implementing the constitutionally established principles. The functions and institutions of government, being legitimized by political representation, should remain as much as possible the responsibility of the nation states, closer to the voters, since the current institutions of government of the UN, obviously democratized, are sufficient, at the global level. On the contrary, the functions and institutions of primary guarantee of peace, the environment and fundamental rights, and in particular of the social rights to health, education and subsistence, being legitimized by the constitutional principles stipulated in the interests of all, even against majorities, must be introduced at the international level in order to remedy their possible absence or insufficiency at the local level” (p. 32).
Ferrajoli identifies five global emergencies that should be regulated by an Earth Constitution. The first is the nuclear emergency and the use of war. The guarantee of peace can only come from norms that prohibit war and the use of armed violence by states and terrorist organizations. All weapons must be considered as illicit goods and therefore their possession by anyone must be considered as a crime against humanity.
The second global emergency is the environmental one. To signal this emergency, scientists have proposed defining the “Anthropocene” as the phase of history in which humanity acquired the power to destroy life on the planet. To deal with this emergency, Ferrajoli recalls that it is necessary to establish a planetary state property, that is, to remove from the market the properties and vital assets of nature such as drinking water, glaciers, seas and large forests.
The third planetary emergency concerns global inequalities, i.e. the differences in per capita income between rich and poor countries. In this regard, it is necessary to ensure that every inhabitant of the planet has the right to health, the right to education and the right to subsistence.
The fourth planetary emergency is work, which the process of globalization has made precarious, unstable and insufficiently remunerated even in rich countries. The Constitution of the Earth should provide rules to guarantee all workers, in whatever state they live, a minimum wage, the length of the working day, the protection of their health, a period of vacation and freedom of association.
Finally, the fifth global emergency concerns emigration, which today is considered in many countries as a threat caused by the invasion of barbarian peoples, in some cases, considered as belonging to inferior races. Ferrajoli states that “citizenship, which at the origins of constitutionalism was a factor of inclusion, as a negation of the differences in status proper to the ancien régime, has now turned into the last accident that differentiates people because of their birth. … the Constitution of the Earth will have to guarantee the right to emigrate from one’s own country by providing for the obligation, logically implied by it, to satisfy it with the right to immigrate to some other country. … it is necessary to confer on all human beings a universal citizenship as citizens of the Earth” (pp. 46-7).
I conclude this very brief review by recalling that, as an Appendix, Ferrajoli publishes a draft of the “Constitution of the Earth”, in 100 articles, which allows us to examine in detail the strictly legal aspects of his political proposal.
I would now like to draw attention to the process of European unification, although it has not yet been based on a European Constitution. In this regard, I recall that the opportunity to found the European Union on a Constitution has presented itself on at least three occasions. The first was in 1952, when the Six countries of the ECSC discussed the project of the EDC (European Defence Community) together with that of the European Political Community. The second was when the European Parliament, elected by universal suffrage for the first time, approved in 1984 the draft Treaty establishing the European Union, also known as the Spinelli Project; finally, after a long campaign by European federalists for the European Constitution, the “Treaty establishing a Constitution for Europe” was approved by the European Convention in 2003. All these projects were rejected due to opposition from the Council of Heads of State and Government, where a government’s veto can block any decision. However, these events are enough to understand why the European Union is not yet a state and does not have its own strategic autonomy in international politics. Furthermore, they allow us to understand how the history of European unification took place within a political-constitutional context that can also be relevant for the understanding of current international problems.
In the course of the federalist campaign for the creation of the European Monetary Union, after the US announcement in 1971 of the inconvertibility of the dollar into gold, and the subsequent crisis of the Common Market, European federalists were faced with the problem of justifying the demand for a European currency. It was a question of creating an alternative institution to national monetary sovereignty, while it was not yet possible to claim a “European Federal Sovereignty”, because the time was not ripe for the creation of a European defense. In a 1976 essay, Mario Albertini stated: “Because of its very nature, the European constituent effort cannot correspond to the work of a constituent assembly … In Europe, there is no European state to which to give a constituent form. In Europe, the state still has to be created, literally … it is only from an initial form of European state … that we can begin the process of forming a European state that we might call definitive. This paradox of ‘creating a state to create a state’ need not worry us. Kant faced a similar paradox (a state of states), but this did not prevent him from formulating, through this paradox, his theory of perpetual peace” (Albertini 2017, 233).
This approach to the European constitutional problem, known as “constitutional gradualism” is the one I have adopted in my work on the problem of the crisis of the contemporary international order and on the possible remedies. In my book Anthropocene and Cosmopolitan Citizenship. Europe and the New International Order, I propose two “constitutional” reforms of the international system: the transformation of the International Monetary Fund into a world Central Bank, through the adoption of Special Drawing Rights as the world currency, and the Constitution of the Earth, understood in a more limited sense than that proposed by Ferrajoli, that is, a Pact between humanity and nature, to address the problem of pollution of the planet in a direct and radical way. These are two proposals that make sense in the context of a process of “partial” reform of the international order that is currently in crisis. The preliminary objective is to start a process of pacification of the international system in crisis, not to build “perpetual peace”.
I am aware that the comparison between the methodology of global constitutionalism proposed by Ferrajoli and that of constitutional gradualism adopted by me will require new debates and insights. However, the future of humanity is at stake and federalists, as well as professional politicians, should address these problems openly, because the two approaches should not be considered as alternatives. Every step forward towards the federal unification of Europe can allow the European Union to act as a “peacemaker” of humanity, and every step forward of global constitutionalism, to save what is left of the UN, can allow the European Union and all continents where processes of supranational unification are underway, such as in Africa, to act with greater force to affirm peace within and outside their political community.
