The Concept of Constitutionalization and the Multi-Corporate Enterprise in the 21st Century

CPE Working Paper 6/1

28 Pages Posted: 8 Jul 2014

See all articles by Larry Catá Backer

Larry Catá Backer

Pennsylvania State University, Penn State Law

Date Written: June 25, 2014

Abstract

This paper considers the conception of constitutionalization as a structure for theorizing a space within which constitutionalized entities may interact in accordance with the ideological principles of legitimizing constitutionalism. Constitutions have been the means through which states have expressed their organization and ruling ideologies. Constitutionalism provides the normative ideology for expressing the core rules and values that determine the legitimacy of variations in constitutional embodiment. Once associated with the construction of political “persons” the normative structures in constitutionalism have opened the possibility of using its frameworks for the embodiment of any organized group that wants to govern itself. It provides the structure for incarnating an institutional entity that is "ensouled" in the sense that it is separate and autonomous from its creators, though operated through them. In globalization all self governing groups interact beyond the territorial borders of states. That interaction requires a common platform for intermeshing among quite different classes of constitutional entities. Constitutionalization is the way one understands the science of that search for a common communicative platform among self governing groups related by their interactions. But it also suggests an obligation to constitutionalize along its terms — there is an aspect of ministry in constitutionalism that is manifested through its works — what it offers constitutional actors and their constituent members that is deemed “good” as a guide to behavior. Thus the paper considers the concept of constitutionalism as incarnation (constitutional formation), "ensoulment" (constitutionalism and values) and community and ministry (constitutionalization). It is the form of constitutions that now serve as the basis for institutional formation. It is the normative structures of constitutionalism that provides the “soul” of those institutional forms, that serve as the basis of their autonomy from their creators and operators and that guide them between right and wrong. And it is constitutionalization that serves as the foundation for a common language of interaction among an increasingly diverse set of constitutional creatures. The paper thus ends with a brief view toward application — what does all this theory mean for the way states and enterprises ought to act, that is ought to perform their constitutional roles in the world in which they occupy substantial positions of power over individuals, who now appear dwarfed by these institutional giants.

Keywords: corporate governance, states, constitutionalism, constitutionalization, globalization

JEL Classification: K22, K33, M14, P51, Z10

Suggested Citation

Backer, Larry Catá, The Concept of Constitutionalization and the Multi-Corporate Enterprise in the 21st Century (June 25, 2014). CPE Working Paper 6/1 . Available at SSRN: https://ssrn.com/abstract=2458965 or http://dx.doi.org/10.2139/ssrn.2458965

Larry Catá Backer (Contact Author)

Pennsylvania State University, Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

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