Societal Constitutionalism: Nine Variations on a Theme by David Sciulli

Abstract

Constitutionalization beyond the nation state can be observed as an evolutionary process that leads in two quite different directions: (1) constitutions evolve in transnational political processes outside the nation state; (2) simultaneously, constitutions evolve outside international politics in global society’s ‘private’ sectors. What, however, is the specifically societal element in societal constitutionalism? This is currently the object of a controversy regarding the subjects of non-state constitutions, their origin, their legitimization, their scope, and their internal structures. This article interprets the controversy as a theme with a number of variations. What is the distinctive ‘compositional principle’ in each particular variation? Which problems become evident in its ‘development’? What are its most valuable ‘motifs’? The article starts with David Sciulli’s theme of societal constitutionalism. Then it presents six variations on Sciulli. In a first group, constitutionalization is perceived as the expansion of a single rationality into all spheres of society. In a second group, the motif of the unity of the constitution can still be heard, despite the essential pluralism of societal constitutionalism. In the final movement, three further variations will then reprise and develop further the most important motifs, in a resumption of the original theme.

Keywords: Constitutionalization, global constitution, transnational constitutionalism, societal constitutionalism, Sciulli, nation state, transnational constitutional pluralism

JEL Classification: K00, K10