Societal Constitutionalism: Alternatives to State-Centered Constitutional Theory?
CONSTITUTIONALISM AND TRANSNATIONAL GOVERNANCE, Christian Joerges, Inge-Johanne Sand and Gunther Teubner, eds., Oxford Press, pp. 3-28, 2004
24 Pages Posted: 24 Jan 2006 Last revised: 3 Sep 2009
How is constitutional theory to respond to the challenge arising from three current major trends - digitisation, privatisation and globalisation - for the problem of inclusion/exclusion of whole segments of the population in processes of global communication? That is how today's "constitutional question" ought to be formulated, by contrast with the 18th and 19th century question of the constitution of nation-states. While the old constitutions were simultaneously liberating the dynamics of democratic politics and disciplining repressive political power by law, the point today is to liberate and to discipline quite different social dynamics. The question is how constitutional theory will manage to generalise its nation-state tradition in contemporary terms and re-specify it.
The main thesis is that within global society a multiplicity of civil constitutions outside institutionalized politics is emerging. The constitution of world society is coming about not exclusively in the representative institutions of international politics, nor can it take place in a unitary global constitution overlying all areas of society, but will emerge incrementally in the constitutionalisation of a multiplicity of autonomous subsystems of world society.
Three major changes render a global constitutional pluralism plausible. First, societal constitutionalism is a normative consequence of the dilemmata of societal rationalisation. The evolutionary drift of global rationalisation processes makes it necessary to guarantee institutionally spheres of autonomy for reflexion. Second, it is a consequence of polycentric globalisation that international politics can at best pursue its own constitutionalisation, but not that of the whole world society. Third, the necessary connection between juridification and constitutionalisation implies that autonomous sectors of global society possess the potential for constitutions of their own.
What basic features must be present for demonstrating constitutional elements in the various global sectors? In fact, the political constitution of the nation-state may serve as the great historical model for civil constitutions. Here a stock of historical experience, of procedures, terms, principles, and norms, is available as an analogy for the present situation. Yet analogies must be handled with extreme caution, since they can be over-hastily transposed, ignoring the specific features of globalised social sectors. The lecture focuses on the following basic features of civil constitutions: (1) structural coupling between a social sector and law (2) hierarchy of norms: constitutional versus ordinary law; (3) judicial review of norms; (4) dual constitution of organised and spontaneous sectors.
Keywords: legal theory, system theory
JEL Classification: K10, K40
Suggested Citation: Suggested Citation