Societal Constitutionalism: Background, Theory, Debates
Final version available open access at: ICL Journal, vol. 15, no. 4, 2021, pp. 357-411. https://doi.org/10.1515/icl-2021-0023
46 Pages Posted: 15 Mar 2021 Last revised: 18 Jan 2022
Date Written: March 14, 2021
The paper provides an outline and systematisation of societal constitutionalism (SC), one of the main frameworks emerged in contemporary legal theory to analyse constitutional phenomena. After a general introduction in section A, section B recalls SC’s theoretical background, namely the Economic Constitution (B.I), legal pluralism (B.II), systems theory (B.III), and the work of David Sciulli (B.IV). Section C explains SC’s analytical limb, which on the one hand de-constructs some tenets of state-centred constitutionalism (C.I); and on the other hand individuates the functions, arenas, processes, and structures of a constitutionalised system (C.II). Section D turns to SC’s normative limb, pointing to some legal policy proposals, aimed at the increase of social systems’ capacities of self-limitation (D.I); and at the development of a law of inter-systemic collisions (D.II). Section E concludes addressing some of the main competing approaches and criticisms, namely those coming from the proponents of state-centred constitutionalism (E.I); of international/global constitutionalism (E.II); and of contestatory/material constitutionalism (E.III).
Keywords: Legal theory, legal pluralism, sociological constitutionalism, global law, systems theory, democracy beyond the state
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