Against Constitutional Excess: Tocquevillian Reflections on International Investment Law

Contributing to democratic malaise in operative democracies are transnational constitution-like commitments such as those found in international investment law. Among its constraints, citizens are legally discouraged from initiating policy innovations that will upset investment expectations. Yet, one of the great virtues of democratic society, according to Tocqueville, is the capacity to change minds: an ability to repair mistakes. Though the threat of continual legislative innovation resulted in costly instability, it served as a catalyst for an energetic public and private life. So as to tame the threat of intemperate change, Tocqueville looked to the guiding hand of lawyers and judges – the functional equivalent of an aristocracy – to moderate majoritarian excess. International investment lawyers have lost sight of the equilibrium that Tocqueville envisaged, privileging legal disciplines over the ability of democratic polities to experiment and innovate. For Tocqueville, democratic life would be intolerable and citizens reduced to a ‘herd of timid animals’ if too many constraints were placed upon legislative energy. This paper brings Tocqueville’s lessons to bear on the field of international investment law. It pleads for a reduction in the influence of lawyers and their legal disciplines, beyond those contained in national constitutional systems, on democratic practice.