On October 30, the Brazilian Chapter of the ICON-S promoted an international conference on the theme of Megacities and Constitutional Law. Presenting his novel academic contribution Prof. Ran Hirschl provided a keynote address regarding his perspective on the necessary changes in constitutional theory and political discourse concerning the rising of megacities, both in the global south and north. To change the classical public law focus from the state to the new arrangements of megacities offers a new paradigm for the role of constitutionalism and its relationship to promoting human rights at different possible levels of governance.
The topic is particularly impressive considering the Brazilian predicament of urbanization and the demise of democratic figures in our political landscape. There is a perceived democratic erosion and rise of conservative and even authoritarian regimes globally. Separatist movements, anti-refugees, and anti-human rights discourses have become prevalent all around the world. Prof. Hirschl’s new book City, State argues that the sub representation of urban people in the National Congress gives conservatives an advantage in the political process. In Brazil, the example of São Paulo in the Federal Senate (upper house in Brazilian National Congress) is an example: each senator of this state represents 15 million people, while in Roraima, a state in the North of Brazil, a senator represents 170,000 voters. This underrepresentation also occurs in the House of Representatives (lower house), as the proportional representation is limited by a minimum of eight and a maximum of seventy deputies from each state, hindering an accurate proportional system of representation for the states that harbor large urban centers.
The Brazilian constitution has a direct statutory reference to managing urban space in its constitutional text. Articles 182 and 183 establish the obligation for each municipality with more than 20,000 citizens to codify their urban planning regulatory framework. This municipal legislation takes care of cities’ territorial ordering, their process of creation and renovation, establishing spaces for public use, the provision of public services, and access to electricity, water, and waste collection. A mislaid urban policy would interfere drastically in the urban fabric’s development, causing problems such as the removal of landscape, poor ventilation, the creation of heat zones, and privacy issues.
Although this constitutional mandate highlights the importance of urban policy in large city centers, its implementation in many ways fails to translate the increased significance of the city in the promotion of the well-being of its inhabitants, considering the political meanderings of promoting social and individual rights in detriment of the economic interests of property owners, contractors, builders, and land developers. This constitutional provision also maintains the federalist assumption that subjugates the city to the state’s jurisdiction, neglecting the rise of importance of the megacity as a center of constitutional and human rights.
In his latest book, N.W. Barber argues for the concept of positive constitutionalism. One of its main arguments is that constitutionalism should not be understood merely as a synonym for the legal enforcement of limits on the state, but instead as a derivative of our conception of the state per se. Thus, Barber diverges from the Weberian conception of the state (the state is ‘a human community that claims the monopoly of the legitimate use of physical force within a given territory’) to derive constitutional principles from an Aristotelian account, in which the state’s existence is bound to its capability and obligation to advance the well-being of its members. Following this perspective, the sole purpose and raison d’etre of the state is to enlarge its citizens’ well-being and security.
Barber’s interpretation of the role of the state and its relation to its citizens implies new obligations for democratic constitutional states regarding individual and social rights. It follows from this perspective that the state is constitutionally obliged to provide efficient assistance and medical care, advancing its citizens’ well-being and taking active steps to protect communities. This consideration can also be affiliated with the prognosis developed by Prof. Ran Hirschl, extending the constitutional standing of the megacity and its responsibilities towards citizens.
Thus, focusing on the megacity as a locus for new constitutional significance, Hirschl extends the reach of the debate concerning the multiplication of levels of governance that allow for the actualization of human rights. This argument transposes the consideration of globalization into reflections on constitutional theory. It extends a sociological conception of globalization, defined not as the strict division and contrast between the national and the global, or the sovereign state and the international level, but as the multiplication of governance orders. As Saskia Sassen acknowledges, this allows the understanding that the
global can also be constituted inside the national (i.e., global city), and those particular components of the state have actually gained more power because they have to do the work of implementing policies necessary for global corporate economy.
A similar consideration is made from a socio-technical perspective elaborated by Benjamin Bratton. Globalization does not entail the decline of the state, but merely the ‘debordering perforation and liquefaction of this system’s ability to maintain a monopoly on political geography.’ The end of this monopoly is concurrent with ‘an overbordering manifest as an unaccountable proliferation of new lines, endogenous frames, anomalous segments, medieval returns, infomatic interior, ecological externalities, megacity states, and more.’
Even though it includes provisions focused on urban policy, the Brazilian Constitution still suggests the constitutional silence towards the importance of megacities that Ran Hirschl problematizes. The consideration of constitutionalism from a human rights standpoint reframes the role of megacities in protecting vulnerable citizens and immigrants and better accommodates their new importance in the constitutional paradigm. Given the need to rethink democratic theory and liberal constitutionalism, emphasizing the constitutional role of megacities may become a new way to promote fundamental values. Indeed, in the modern world it may be cities that are most invested in promoting policies that enforce human rights in diverse, plural and complex public spaces.
Suggested citation: Estefânia Maria de Queiroz Barboza and Lucas Henrique Muniz da Conceição, Constitutionalism and Multi-Level Governance: Ran Hirschl on Megacities in Constitutional Democracies, Int’l J. Const. L. Blog, Nov. 15, 2020, at: http://www.iconnectblog.com/2020/11/constitutionalism-and-multi-level-governance-ran-hirschl-on-megacities-in-constitutional-democracies/
Barber NW, The Principles of Constitutionalism (OUP Oxford 2018)
Bratton BH, The Stack: On Software and Sovereignty (The MIT Press 2016)
Hirschl R, City, State: Constitutionalism and the Megacity (Oxford University Press 2020)
Sassen S, ‘Neither Global nor National: Novel Assemblages of Territory, Authority, and Rights’ (2008) 1 Ethics and Global Politics 61
Weber M, ‘Politics as a Vocation’ in HH Gerth and C Wright Mills (eds), From Max Weber: Essays in Sociology (Routledge 2014)
 Ran Hirschl, City, State: Constitutionalism and the Megacity (Oxford University Press 2020).
 Hirschl (n 1) 119–150.
 NW Barber, The Principles of Constitutionalism (OUP Oxford 2018) 1–19.
 Max Weber, ‘Politics as a Vocation’ in HH Gerth and C Wright Mills (eds), From Max Weber: Essays in Sociology (Routledge 2014) 78.
 Saskia Sassen, ‘Neither Global nor National: Novel Assemblages of Territory, Authority, and Rights’ (2008) 1 Ethics and Global Politics 61, 63.
 Benjamin H Bratton, The Stack: On Software and Sovereignty (The MIT Press 2016).
 Bratton (n 6) 6.