teubner _ constitutionalizing polycontexturality

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2011 20: 209Social & Legal StudiesGunther Teubner, Hans Lindahl, Emilios Christodoulidis and Chris Thornhill

Debate and Dialogue: Constitutionalizing Polycontexturality

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Dialogue & Debate

ConstitutionalizingPolycontexturality

Introduction

Emilios ChristodoulidisUniversity of Glasgow, UK

The Dialogue and Debate section that follows emerged from a series of meetings that took

place at the School of Law of the University of Glasgow in the autumn of 2009. The theme

of the seminar series was the ‘constitutionalization of employment relations’ and the aim

was to discuss the increasingly precarious protection afforded to workers and more gener-

ally issues of regulation of the workplace, from the perspective of Constitutional Law.

Some of the papers presented and discussions, which involved academics from the UK,

Europe and Canada, have already been published in this journal (Supiot in 2010, Vol.

19(2), Arthurs in 2010, Vol. 19(4)). The current section is the final instalment in that series.

This section focuses specifically on the question of constitutionalization. The mean-

ing of the term itself is one that invites controversy. If the term constitutional connotes a

framing function, the Constitution as a system of meta-rules that allow law to be recog-

nized as valid and frame the contours of what can be contested legally, what does it mean

to talk of constitutionalization as an ongoing process? And what does it mean to talk of

constitutionalization at the global level, where the familiar structures on nation-state

constitutionalism can no longer claim exclusivity in performing the constitutional func-

tion? If constitutionalism traditionally denotes a certain articulation of the political and

the legal, where might one look for the political register under conditions of globaliza-

tion, and the weakening or collapse of political opportunities of framing or intervention?

Finally, does the age of crisis signal a sobering of sorts, a tipping point that might return

us to a different, adequate, constitutional dispensation?

These are all questions that Gunther Teubner’s very rich article engages with, and

which are asked and variously answered by the respondents. Teubner’s work has for a

long time been at the forefront of these debates, provocative and inspiring. ‘Contextua-

lizing polycontexturality’ is an important paper and thanks are due to the Journal for

hosting the debate and funding the event from which it originates. The Modern Law

Review also provided funding and we are grateful for its generosity. Personally I would

like to thank all those who came to Glasgow to participate in the memorable debate that

day, and especially to Ruth Dukes who co-organized the event with me.

Social & Legal Studies20(2) 209–252

ª The Author(s) 2011Reprints and permission:

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Constitutionalizing Polycontexturality

Gunther Teubner

University of Frankfurt, Germany

I The New Constitutional Question

Over the past few years, a series of political scandals have raised the ‘new constitutional

question’. Multinational corporations have violated human rights; the World Trade Organi-

zation has made decisions that endangered the environment and human health in the name of

global free trade; private intermediaries on the internet have threatened freedom of opinion,

and, recently, and with particular impact, the global capital markets have unleashed cata-

strophic risks – all these pose constitutional problems in the strict sense. At stake, here, are

not just policies of state regulation, but foundational processes of social dynamics. Today’s

constitutional questions are different, but no less important, from those of the eighteenth and

nineteenth centuries. Then the concern was to release the energies of political power in

nation-states and, at the same time, to limit that power effectively, according to the rule

of law. In the new constitutional question, the concern is to release quite different

social energies, and to limit these effectively. Today, these energies – productive and

destructive – are unleashed in social spaces beyond the nation-state. This means that consti-

tutional problems arise outside the limits of the nation-state in transnational politics and, at

the same time, outside institutionalized politics, in the ‘private’ sectors of global society.

The political scandals mentioned above have sparked a debate which diagnoses a crisis

in modern constitutionalism, and lays the blame at the door of transnationalization and pri-

vatization. The debate involves arguments pro and contra a transnational constitutionalism,

the status of which – social theory, issue of constitutional law, political manifesto, social

utopia – remains unclear. Broadly speaking, the terms of the debate are as follows. One

side heralds the decline of modern constitutionalism (Grimm, 2005; Loughlin, 2010).

Modern constitutionalism, so the argument goes, took its historically fully-developed form

in the political constitutions of the nation-state. While its foundations have been shaken

through European Union and transnational regimes on the one hand, and through the trans-

ferral of political power to private actors on the other, alternatives to the national consti-

tution cannot be found in the transnational space. As transnational politics suffers from

chronic deficiencies – from the non-existence of a demos, cultural homogeneity, a delib-

erating public, political parties – it is even said that such alternatives are structurally

impossible. If this double crisis of constitutionalism can be counteracted at all, then it is

at most through its re-nationalization and re-politicization.

The opposing side in the debate juxtaposes a similar story of decline with the demand

for a compensatory constitutionalization of world society itself (de Wet, 2006; Frowein,

2000; Habermas, 2008: 322 ff.; Peters, 2006). Trends towards globalization and privatiza-

tion are again held accountable for the crisis of the nation-state, and a weakening of the

nation-state’s constitutional institutions is, again, asserted. It is argued that a new demo-

cratic constitutionalism could function in a compensatory mode, if it brought the unbridled

dynamics of global capitalism under the domesticating power of a constitutionalized glo-

bal polity. A constitutionalized international law, a deliberative global public, a policy

210 Social & Legal Studies 20(2)



formulation on a global scale, a transnational system of negotiation between collective

actors, the limitation of social power by global politics; each of these is said to open up

possibilities for realizing new forms of democratic constitutionality.

But the constitution is too important to be left to constitutional lawyers and political

philosophers alone. In opposition to these two sides of the debate, a third position ought

to be staked out – by no means a middle position. This third position casts doubt on the

premises of the first two and formulates the new constitutional question in a different

way. The obstinate state-and-politics-centricity of the first two positions can be counter-

acted by sociological theories which, so far, have remained unheard in the constitutional

debate. These theories project the constitutional question not only onto the relationship

between politics and law, but also onto the whole society. In doing so, they change the

whole problematic: in addition to the role which constitutions play in international pol-

itics, they play a role in other sectors of world society. Constitutionalism has the poten-

tial to react not only to the expansionist tendencies of the global political system, but also

to those of other subsystems when they endanger individual or institutional autonomy.

For these questions, which arise with trends towards globalization and privatization,

sociological theories cast doubt over the basic assumptions of the first two positions

in the constitutional debate. They replace these assumptions with others capable of iden-

tifying new problematics and suggesting different practical consequences.

II False Premises in the Current Debate

What are the questionable premises which set the debate about transnational constitu-

tionalism off in the wrong direction? With which assumptions should they be replaced?

Societal Constitutionalism as a Consequence of Globalization?

The uncontrollable dynamic of global capital markets, the obvious power of TNCs and the

unchecked activities of epistemic communities in the law-free spaces of globality lead both

advocates and opponents of transnational constitutionalism to the false assumption that

the constitutional deficiencies of transnational institutions can be explained, for the most

part, with reference to globalization. Particularly, the weakness of politics in transnational

relationships is said to be responsible for the disarray that governs global society. Three

phenomena are prominent: (1) nation-states are ‘de-constitutionalized’ by the transferral

of governmental functions to the transnational level, and, at the same time, the partial

assumption of these functions by non-state actors; (2) the extra-territorial effects of

nation-state actions create a law without democratic legitimation; and (3) there is no demo-

cratic mandate for transnational governance (Peters, 2006). To compensate for this deficit,

interventions of transnational politics are discussed, but are then assessed as having diame-

trically opposed odds.

In truth, what we are concerned with here is the basic failure of modern constitutional-

ism, which even at the time of its nation-state beginnings was faced with the unanswered

question: whether and how the political constitution should also capture non-state sectors

of society. Are economic, scientific, educational, medical and other social activities to be

subjected to the normative parameters of the state constitution? Or should social

Dialogue & Debate 211



institutions act autonomously to develop their own constitutions? Since its beginning,

modern constitutional praxis has oscillated between these two poles. At the same time, the

question arises – in empirical analysis and in normative programmes – about the aims of

social sub-constitutions: are they intended to allow state regulation of society, or to defend

their own autonomy? Or to assimilate social decision-making processes with political

decision-making processes? Or to render social institutions politically capable?

It is at this point that sociological theories intervene, seeking the source of the con-

stitutional question in processes of societal differentiation. The problematic of societal

constitutionalism was not caused by globalization, but rather, earlier, by the fragmen-

tation of the social whole and by the autonomization of these fragments during the hey-

day of the nation-state. It was then aggravated by globalization. Analysing various

concepts of societal constitutionalism can help to explain why it is that, in the era of

the nation-state, institutional solutions remain in a peculiar condition of latency. In

light of the enormous draw of the state and its constitution, social sub-constitutions

always appear in a strange twilight, though the reasons for this can differ. Liberal

constitutionalism concealed the question in the shadow of individual rights. In sharp

contrast, totalitarian political systems of the twentieth century attempted to eliminate

the autonomy of social sub-constitutions. By subjecting all areas of social life to the

state’s authority, they concealed the question of independent social constitutions. The

welfare states of the late twentieth, in turn, never officially recognized autonomous

social sub-constitutions; but, at the same time, they achieved a peculiar balance

between a state constitutionalism, which progressively extended the principles of the

political constitution to social spheres, and a constitutional pluralism, in which the

state, as a matter of fact, respected social sub-constitutions.

Globalization did not, then, create the problem of societal constitutionalism. But it did

dramatically change it. It destroyed its latency. In light of the much weaker draw of

transnational politics, compared to that of the nation-state, the acute constitutional

problems of other global social sectors appear now in a much harsher light. On what

legitimating basis do transnational regimes regulate whole spheres of social activities,

right down to the detail of daily life? What are the limits of global capital markets in their

impact on the real economy and other social sectors? Can fundamental rights and human

rights claim validity in the state-free spheres of the global economy, particularly as

against transnational organizations? Contrary to the terms of the current debate, then,

it is absolutely not the case that the emergence of the global economy brings with it a

wholly new constitutional problematic. In fact, there has been a real existing societal

constitutionalism within nation-states for a long time. However, today this societal con-

stitutionalism is faced with the question, whether and how it must transform itself under

conditions of globality. The continuity of the problematic has to do with the advanced

functional differentiation of society. Its discontinuity can be attributed to globalization

which has developed specific structures unknown to the nation-state. The normative

question, then, is no longer how to compensate for the failures of national constitutions;

in other words, how hitherto constitution-free social spheres might be constitutionalized.

Rather the question is how the experiences of nation-states with institutions of societal

constitutionalism can be transformed under the essentially different conditions of global-

ity. In particular: how is the role of politics for transnational sub-constitutions to be




formulated in the magical triangle of politics, law and social sector? Resignation?

Guidance? Supervision? Complementarity?

Constitutional Emptiness of the Transnational?

The current debate is marked not only by false tabula-rasa assumptions in respect of

societal constitutionalism within the nation-state, but also by its existence in the trans-

national space. While modern constitutionalism was able to take root in almost all

nation-states, it was weakened, so it is said, by the increasing transferral of governmen-

tal responsibilities from nation-states to new transnational organizations, regimes and

networks. At this transnational level, however, a constitutional emptiness is supposed

to prevail. And it is only against the background of this supposedly constitution-free

global space that the argument arises, whether constitutionalism is at an end or, alter-

natively, is experiencing a renaissance.

I want now briefly to sketch out why it is wrong to assume a constitutional empti-

ness of the transnational, and, accordingly, to assume that it is to be constitutionalized

from scratch. Social scientific analyses of a ‘new constitutionalism’, together with

long-standing investigations by economists and commercial lawyers of an emerging

global economic constitution, show exactly the opposite. Already, today, constitutional

institutions have established themselves in the transnational sphere with an astounding

density (Behrens, 2000; Tully, 2007: 328 ff.). That the European Union has its own inde-

pendent constitutional structures – despite the failure of the constitutional referendum –

is now only rarely disputed (Walker, 2007; Weiler, 1999; Weiler and Wind, 2003). But it

is also the case that other international organizations, transnational regimes and their

networks are, in the meantime, significantly juridified, and, moreover, have become part

of a global – if thoroughly fragmented – constitutional order. The global institutions that

emerged from the agreements of the 1940s – the Havana Charter, GATT, Bretton

Woods; the new arrangements of the Washington consensus – the IMF, the World Bank,

the WTO; and the recently initiated public debate concerning a ‘global finance market

constitution’, all speak the language of a real existing global societal constitutionism

which is undergoing a process of change.

The new constitutional question must be reformulated, then, for a second time. Not

only have social sub-constitutions already emerged in the nation-states, as discussed

above, it is also the case that constitutional structures have long existed in the transna-

tional sphere. In this respect too, then, it is not the creation ab ovo of new constitutions in

a constitution-free globality which is at stake, but rather the transformation of an already

existing transnational constitutional order. These transformative processes are not

directed toward a stable balance, but follow, rather, the chaotic pattern of a ‘dynamic

disequlibrium’ between contradictory developments – between the liberalization and the

limitation of the inner dynamics of subsystems (Polanyi, 1991/1944; Wietholter, 2005).

To date, the new global constitutional orders have, for the most part, devised only con-

stitutive rules, which have supported the freeing up of various systemic rationalities at

the global level. Only after historical experience with their grave effets pervers, are

counter-movements now appearing, which formulate limitative rules, in order to

counteract self-destructive tendencies and to limit damage to social, human and natural




environments. It is true that the manner in which limits had been imposed on the new

global regimes, in ‘vertical’ relation to nation-states, was, from the outset, strongly con-

tested. But the more serious ‘horizontal’ constitutional problem was not even considered:

‘whether the autonomy of the function systems might not lead to mutual burdens to the

limits of their structural adaptability with their very differentiation’ (Fischer-Lescano

and Teubner, 2004; Luhmann, 1997a: 1087).

Thus, the agenda of a transnational constitutionalism is transformed in this context,

too: the concern is not to create something new, but rather to transform what is essen-

tially an already existing constitutional order. To limit the societal dynamics freed up

by the constitutive rules is of particular urgency. The task, then, is to identify the real

structures of the existing global constitutionalism, to criticize its shortcomings and to

formulate realistic proposals for limitative rules.

Reducing Transnational Governance to Institutionalized Politics?

The first two theses attempted to correct two prevalent misconceptions – that nation-

states recognized no societal constitutionalism, and that transnational spheres are

constitution-free. The third thesis is concerned with a further misconception, on the basis

of which the current debate underestimates the radicality of a societal constitutionaliza-

tion. The need for a constitution is attributed, in principle, only to particular forms of

political ‘governance’ which have emerged in the global economy, quite different to

‘government’, to traditional nation-state governmental practices. In particular, the net-

working of specialized bureaucracies from various nation-states with actors from the

global community, transnational corporations, trade associations, NGOs and hybrid

regimes is understood as the novel problematic of global governance, which must now

be surmounted with constitutional institutions (Grande et al., 2006; Neyer, 2004). The

constitutional limitation of political power stands, then, in the foreground; its particular-

ity consisting in the fact that it is partially ‘privatized’.

Doubtless this partial privatization of political power is one of the central elements of

global governance; nonetheless, the analysis does not go far enough. In suggesting that the

power constellations of global governance, comprising novel private actors, can be limited

with constitutional norms, one trivializes the problem. Here, again, the blinkered nature of

political-legal constitutional theories becomes apparent, focused even in respect of trans-

national relationships only on political phenomena in the narrow sense. In contrast, a

sociological view shows that the constitution of particular global social spheres of activity

must be thematized outwith international politics and the constitutional role of legal norms

in the process. The problems associated with a societal constitutionalism in the strict sense

only become visible when we transcend transnational political processes in the narrow

sense; when it is made clear that societal actors not only participate in political power pro-

cesses of global governance, but also establish their own global regimes outwith institutio-

nalized politics. These regimes can, of course, then themselves become political actors,

impacting on politics.

The differences between social sub-constitutions and a political constitution come,

then, to the foreground. It is not the case that the constitutionalization of transnational

political processes needs only be modified in relation to national constitutions, because




they also integrate private actors in political processes. Rather, a sociological analysis of

the global subsystems – the economy, science, culture and mass media – raises more dif-

ficult questions: Are there analogies, in this context, with the dynamics of the pouvoir

constituant and pouvoir constitue, with the self-constitution of a collective, with the

political separation of powers? At a more basic level still: to what extent must we gen-

eralize the principles of political constitutions, in order to avoid the pitfalls of ‘metho-

dological nationalism’? How must we re-specify those principles for the particularities

of a social institution in the global sphere?

Reducing Horizontal Effects of Fundamental Rights to Bare Duties ofCare of The Community of States?

The debate about the horizontal effect of fundamental rights within transnational social

spaces suffers from similar deficiencies as the debate about global governance. It thema-

tizes fundamental rights within the private sector but remains, at the same time, fixated

with the state. The scandals outlined at the beginning of the article, triggered by breaches

of fundamental rights by transnational corporations, are usually analysed as a problem

of the horizontal effect of fundamental rights. Fundamental rights guaranteed initially

against the state are supposed to become effective against breaches by ‘third parties’ –

private transnational parties – if duties of care are imposed on the international commu-

nity of states (Anderson, 2005: 126 ff.; Clapham, 2006).

This approach misinterprets, in several respects, the problematic of fundamental

rights in ‘private’ contexts. In its typical fixation with the state, it puts the cart before

the horse. Instead of imposing duties on the transnational private actors who breach

fundamental rights, it obliges the community of states alone to protect private actors

from breaches of such rights. The contentious question of whether private actors are

themselves bound by fundamental rights is thereby obscured. And all this is done as if

it were a question of the states’ political power of definition, whether fundamental

rights exist in social spheres, and who they are intended to protect. Ultimately, the

most significant false assumption views the horizontal effect of fundamental rights

as purely a problem of political power within society and, for that reason, misinter-

prets its real tasks: the limitation by means of rights of all expansionist tendencies

of social subsystems, including those which do not function through the medium of

power.

The real difficulty with fundamental rights in the social sphere becomes apparent only if

we free ourselves from the fixation with the state. If the task is to use constitutional means

to limit the expansionist tendencies of the particular logics of social subsystems, it is no

longer possible to sustain the state-centricity of fundamental rights, their assignation to

individual actors, their exclusive focus on social power, their definition as spheres of

autonomy protected by subjective rights. The task at hand is to develop a perspective

whereby fundamental rights are effective against social communicative media themselves,

rather than against individual or collective actors. The concern is not only to protect the

fundamental rights of individuals, but also those of social institutions against expansive

social media. The horizontal effect of fundamental rights needs to be implemented through

organization and procedures, rather than through subjective rights.




A Unitary Global Constitution?

The final problem with the new constitutional debate concerns the unitary bias; a bias

which stems from an uncritical transfer of national constitutional concepts to world

society. In international law, as in political philosophy, the notion is advanced that the

constitutionalization of international law would be capable of providing a unitary con-

stitutional order for the whole world (Fassbender, 2007: 281 ff.; Hoffe, 2005). It is true

that a unitary world state as the substrate of a unitary constitution is rejected as unrea-

listic. Instead, however, the ‘international community’ is presented as the reference point

for an emerging global constitutional law: no longer, as in traditional international law,

merely a community of sovereign states but now, rather, an ensemble of political and

societal actors, and a legal community of individuals. The constitutionalization of inter-

national law is conceived of in parallel with nation-state constitutional law: a hierarchy

of constitutional norms relative to lower-order legal norms, with the whole globe as a

unitary jurisdiction, encompassing all national, cultural and social spheres.1

The very marked fragmentation of world society, emphasized by sociological analy-

ses, causes real problems for such a unitary constitutionalism. In the debate, fragmenta-

tion is viewed, if at all, as a shortcoming to be addressed, not as a factor necessitating the

redefinition of the constitutional problems. The alternative view is this: if constitutiona-

lization must be limited to fragments of global society, then the idea of a unitary global

constitution needs to be abandoned in favour of a global ‘conflict of laws’.2 The social

conditions which allowed the nation-state to establish a unitary constitution, in principle,

do not obtain in the transnational sphere. A transnational constitutionalism will have to

conform to the requirements of a doubly fragmented world society (Teubner and Korth,

forthcoming). As a result of the first fragmentation, the autonomous global social sectors

of modernity insist stubbornly on their own constitutions which compete with the con-

stitutions of nation-states. Moreover, unitary standards of a global constitution are ren-

dered illusory by the second fragmentation into various regional cultures, each based

upon sets of social principles of organization different to those of the western world.

If one wishes to conceive at all of ‘global constitution’, the only possible blueprint is that

of particular constitutions for each global fragment – nations, transnational regimes,

regional cultures – and the legal interrelation of these constitutions by means of a con-

stitutional conflict of laws.

III Self-Constituting Systems Without Constitutionalization?

Globalization means, above all, that the dynamics of functional differentiation, which

historically were first realized in the nation-states of Europe and North America, now

encompass the whole world. That is not to say, however, that all subsystems globalize

simultaneously, and with the same intensity, the world over. Religion, science, and the

economy are all well established as global systems, while politics and law remain mainly

focused around the nation-state (Luhmann, 1997a: 145 ff., 806 ff.). Their cross-border

communications are organized for the most part through inter-national relationships.

Genuinely trans-national political and legal processes, in which communications net-

work themselves globally directly with one another, without the need for intercession




by nation-states, are emerging only incrementally. Inter-national political relations,

inter-national public law and inter-national private law are only slowly being over-

layered with trans-national political and legal processes.

Because of this staggered nature of globalization, the pressure for the constitutionaliza-

tion of the globalized subsystems is all the greater. The difference in degrees of globaliza-

tion exacerbates the coordination problematic. When the function systems go global and

free themselves from the dominance of nation-state politics, there is no means of checking

their centrifugal tendencies or regulating their conflicts. The problems do not end with the

question of coordination, however. As Prandini has shown, the question of coordinating

autonomous systems (which results in the forced limitation of their options) is only part

of the more comprehensive constitutional problematic, resulting from their high degree

of autonomy (Prandini, 2010: 312). The prior question is how subsystems will achieve

autonomy at the global level when there are no political-legal institutions capable of sup-

porting this process and when, at the same time, nation-state-organized politics and law act

to hinder the process with their territorial validity claims. Here, the staggered nature of glo-

balization is the cause of an emerging hiatus between self-constituting autonomous global

social systems, and their political-legal constitutionalization.

In the nation-state, self-constitution and political-legal constitutionalization occurred

simultaneously. Through long historical processes of self-organization, autonomously

operating closed subsystems developed. The growing independence of social subsystems

was accompanied by their constitutionalization through the politics and law of the

nation-state; it was stabilized and strengthened by that constitutionalization and, at the

same time, limited in its effects. The constitutional laws of politics, of the economy,

of social security, of the press, of public health and, to an extent, of science and religion

each raised their validity claim in the territorial framework of the nation-state and, at the

same time, limited it to that framework. Under conditions of globalization, self-

constitution and constitutionalization are drifting apart. The triangular constellation of

politics/law/subsystem, which in the nation-state produced societal sub-constitutions, finds

no counterpart in the global context. Its role in both enabling and limiting systemic auton-

omy remains unfulfilled.

This is decidedly the case for the neo-corporatist variety of societal constitutionalism

which has dominated European welfare states. Because it effectively limited options for

action for the social sectors involved, it was simultaneously able to release a larger

measure of their autonomy. However, what was provided, in this context, by way of

fine-tuning between societal organizations and political institutions, cannot be

repeated on a global scale today. Moreover, the necessary degree of mutual trust and

socio-cultural norm-consensus cannot be globalized (Streeck, 2009: 93 ff.). Even at the

European level, where experiments are conducted in ‘social dialogue’ between the

institutions of the European Commission, the European Trade Union Confederation

and the European trade associations, the transfer of the neo-corporatist model beyond

the nation-state has proven to be of only limited success (Streeck and Schmitter, 1991).

At the global level, neo-corporatist arrangements are bound to fail. The contradiction

remains: the self-constitution of social subsystems takes a global course while only

nation-state institutions are available for their political-legal constitutionalization.

The consequence is a shift in balance, on a global scale, in the triangle politics-law-




subsystem as the bearer of societal constitutionalism. Are there new configurations

emerging, which advance constitutionalization in place of nation-state constitution-

making? Which internal qualities are assumed by the constitutional legal norms devel-

oped in this process?

Claims to lead the constitutionalization of world society in toto have been made pri-

marily by the United Nations. The basis for such claims is found in the UN Charter.

According to Jurgen Habermas, the Charter has established a new constitutional order

in which member states no longer understand themselves exclusively as partners in inter-

national treaties, but rather, ‘together with their citizens, as constitutive elements of a

politically constitutionalised world society’ (Habermas, 2004: 159; Hoffe, 2005).

According to this view, the UN Charter has developed beyond its original character as

a mere treaty. Together with other fundamental international law treaties – the Interna-

tional Convention of Human Rights, the Convention against Race Discrimination, and

the Rome Statute of the International Criminal Court – it has been transformed into a

genuine constitution of the international community (Dupuy, 1997, 2002; Fassbender,

2005, 2007). For our purposes, the claim of the United Nations to constitutionalize not

only international politics, but also the major world societal sectors, is of particular rele-

vance. The International Labour Organization (ILO), the World Health Organization

(WHO), UNICEF and other suborganizations of the UN have made significant advances

in developing constitutional norms for world societal sub-spheres.

A polemical critique of these ambitions has revealed that they are nothing more than

‘constitutional illusions’ – phantasms of a global state constitution (Fischer-Lescano,

2005: 247 ff.). Nation-state conceptions of a constitution are transferred, here, uncritically

to global relations, when the UN is assigned the impossible task of producing a cosmopo-

litan constitution more or less as an inflated nation-state collective. Here, ‘methodological

nationalism’, which as an element of international relations only recognizes states and their

associations, functions as an epistemological obstacle. Even for global relations, it cannot

overcome the state-centricity of constitutions (Beck and Sznaider, 2006; Wimmer and

Glick-Schiller, 2002: 302). A realistic appraisal will check such exaggerations. While it

cannot be ignored that the UN has gone through a constitutionalization process, the result

is absolutely not a world constitution, but, rather, a much more limited constitution of

formal organizations. An organizational constitution, not a cosmopolitan constitution –

that is the reality of the UN. When it tries to realize greater ambitions, then these are at

best political impulses for constitutionalization processes, which play out elsewhere. This

is particularly so in the case of the norms which the ILO, WHO, UNICEF and the Human

Rights Commission adopt for their spheres of authority. The international ‘soft law’ for-

mulated in codes of conduct for various global institutions is not comparable with binding

constitutional norms, such as those provided by nation-state parliaments and constititu-

tional courts for societal sub-spheres. On the merits, we are dealing here with mere con-

stitutional impulses which are sent by an – admittedly influential – international

organization towards the global social sub-spheres involved. Whether they become conso-

lidated there as constitutional norms is decided in accordance with their internal processes.

The same goes for the much discussed ‘constitutionalization of international law’

(de Wet, 2006; Frowein, 2000; Peters, 2006). Here, three bodies of norms stand in the

foreground – jus cogens, norms with erga omnes effect, and human rights – which




have, as a matter of fact, constitutional properties. It is true that doubts are often

raised, suggesting that they ought rather to be regarded as simply lower-order legal

limitations of state agreements. In respect of global human rights, however, Peters

has convincingly elaborated a constitutional legal quality with respect to five criteria.

Global human rights:

(i) limit the sovereignty of individual states;

(ii) make a catalogue of fundamental values universally binding;

(iii) establish a hierarchy of norms, according to which binding higher-order law is

superior to lower-order law;

(iv) are not only programmatic, but have the status, rather, of positive international law

with constitutional priority; and

(v) as constitutional legal dogma, provide a basis for argumentation in favour of the

judicial extension of international constitutional law (Peters, 2006: 585 ff.).

Such genuine constitutional norms emerge in the transformation of international law

from merely a treaty-order of sovereign states to an independent legal order which, in

the ordre publique international, creates its own foundations with legal constitutional

norms. This constitutionalization allows international law to do what would have been

unthinkable for a mere treaty-order: to establish binding norms even against the will

of the parties to the treaty, legitimated with reference not only to the state treaties, but

also to the orientation of the legal order to the public good. But for all the indisputable

significance of this ‘constitutional law in the making’, one must bear in mind the sectoral

nature of the development. The three bodies of norms mentioned are constitutional

limitations of international agreements and, as such, function only within international

politics in the narrow sense. No wonder, then, that international law has a peculiarly

indifferent attitude to the lex mercatoria and other global normative orders based on pri-

vate autonomy. International constitutional law is simply not capable of achieving the

equivalent of welfare-state concepts in nation-states, namely, the constitutionalization

of other global social spheres.

Global administrative law is the newest candidate for global societal constitution-

alism (Kingsbury et al., 2005). In comparison to the organizational law of the UN and

to international law generally, which functions in the sphere of institutional politics,

administrative law norms regulate the relevant global subsystem directly. The ‘social’

quality of global administrative law has been clearly demonstrated by Kingsbury

(2009). In the regulation of transnational social spheres, more and more forms of ‘pri-

vate ordering’ are activated, which are not encompassed by traditional ‘public’ admin-

istrative law. However, one must bear in mind, here, too, that the norms being

developed, of constitutional character – due process in regulation, notice and comment

rules, obligations to consult experts, the proportionality principle, respect for human

rights (Kumm, 2007) – are concerned, ultimately, with the internal constitutions of the

regulatory agencies: they cannot function as constitutional norms in the regulated

spheres.

In all three areas it becomes clear that the conceptual demands for global processes of

constitutionalization (made, in particular, by Dieter Grimm) will not be met (Grimm,




2005). At the same time, however, it becomes apparent, too, that the demands

themselves misinterpret the nature of these processes. For the developed constitutions

of nation-states, it is certainly the case that we can only speak of a constitution in the full

sense when constitutional norms raise a comprehensive claim for the creation of a polit-

ical community. In the discrepancy between globally established social subsystems and a

politics stuck at the inter-national level, however, the constitutional totality breaks

apart and is dissolved by a type of constitutional fragmentation (Fischer-Lescano,

2005: 247 ff.; Walker, 2002; Walter, 2001). In the sea of globality there are only islands

of constitutionality. The comprehensive structural coupling between politics and law,

which Luhmann observed in the constitutions of nation-states, has no counterpart at the

level of world society (Luhmann, 2004: 487 ff.). Here, it is dissolved by occasional cou-

plings as and when social problems demand. Constitutional norms are developed ad hoc

when current conflict assumes constitutional dimensions, demanding constitutional deci-

sions. The comprehensive societal claim for the creation of a community is reduced in

two ways. Even the political system of world society has no comprehensive constitution

– constitutional fragments are developed for particular segments – the UN, parts of inter-

national law and administrative law. Now more than ever, however, the transferral of

political constitutional claims to other social sub-spheres, as achieved by the nation-

state, is not recognizable. As stated above, one can speak at most only of constitutional

impulses, which emanate from the political system of world society in the direction of

other global societal spheres.

IV Sectoral Constitutions in World Society?

Are we stuck, then, with self-constituting global systems without political-legal consti-

tutionalization? Will the global villages that have been built in the economy, science,

health, communicative media, exist in the long run without the stability provided by

legal-political constitutionalization? Will their autonomy remain consequently at a

rather underdeveloped level? Or will they have to rely for their constitutional stabiliza-

tion on nation-state legislation and judicial precedent – even though these can provide

only a confusing variety of territorially-specific constitutional norms with competing

claims? Or will they have to wait for a unification of laws, for a gradual harmonization

of the constitutional standards of nation-states? Here, we come up against an intriguing

new phenomenon – that of ‘self-constitutionalization without a state’ (Brunkhorst, 2002:

203 ff.; Calliess, 2002; Calliess and Zumbansen, 2009; Kjaer, 2010; Teubner, 2003).

Sectors of world society begin to develop step-by-step their own constitutional norms.

Pressing social problems that accrue within autonomous world systems produce social

conflicts which result in legal norms of a constitutional quality. These norms then

become aggregated, over time, into sectoral constitutions of world society.

This analysis is not merely the result of theoretical deliberations arising from occa-

sional observations, but is based on empirical observations. A large-scale empirical

study into the global creation of law was conducted over several years by means of indi-

vidual studies of non-state institutions. It was summarized as follows by the project

leader, with barely concealed surprise:




In some respects, the quasi-legal orders of world society themselves show constitutional

characteristics. In addition to different social and ecological standards and to existing

mechanisms of control and implementation, superior norms develop that define where the

decision making power should be located, how violations should be handled, and how third

parties should be included. By analogy to state constitutions, private regulations embody

mechanisms of self-restraint to reduce intrusions on other actors and other domains. Is

world society thus about to develop functional equivalents to the classical constitutional

state, and will the latter gradually become marginal? (Dilling et al., 2008: 8)

The primary candidates for such constitutions are international organizations. Regardless

of whether the organizations were formed through international treaties, such as the

WTO, or, alternatively, through private ordering, like multinational corporations, ten-

dencies towards constitutionalization can be observed everywhere, as the organizations

continually free themselves from the consensus of the founding members. In the case of

the WTO, this kind of constitutional emancipation has emerged in respect of panels set

up to mediate conflicts between member states and the WTO regarding the interpretation

of the Treaty. Though the panels were intended, originally, to mediate only through

negotiations, they have developed, over time, into genuine ‘courts’ with extensive

decision-making powers (see e.g. Carmody, 2008; Dunoff, 2006; Petersmann, 2006).

Decisions are made concerning not only straightforward questions of law, but also con-

stitutional questions regarding the external relations of the WTO to nation-states. The

regulatory body of the internet, ICANN (the Internet Corporation for Assigned Names

and Numbers), established under Californian law as a private association, has developed,

over time, functional and territorial representative structures, forms of separation of pow-

ers, and an effective jurisdiction over questions of domain-name allocation. In this context,

governance questions of constitutional significance arise (Post, 1996). When questions of

fundamental rights in the internet have been raised, there has not been a reversion to

diverse national constitutions, which would work only for national segments of the inter-

net; instead, internet-specific fundamental rights standards have been developed with a

claim to global validity (Karavas, 2006: 136 ff.). Multinational corporations formed under

rules of national company law go on to develop codes of conduct through disputes with

local organizations, social movements and NGOs, which act as the transnational equiva-

lent of national corporate constitutions (Abbott and Snidal, 2009; Herberg, 2007). Global

standards organizations, such as the ISO, free themselves from their national counterparts

and develop principles of constitutional law. They produce rules for the representation of

national bodies, experts and interest groups, norms of due process and institutionalized dis-

course, and principles of material decision-making (Schepel, 2005: 403 ff.). And in the lex

mercatoria, the self-created law of the global economy, a hierarchy of norms has gradually

developed, at the top of which stand constitutional legal norms, procedural principles and

fundamental rights standards (Dalhuisen, 2006; Voser, 1996).

Although these processes are set in motion by functional differentiation, the constitu-

tionalization process is not directed towards the major function systems themselves.

Finance and product markets are globalized, scientific communication takes place at

a global level, and the system of communicative media, news agencies, TV, internet,

transmits news across the whole globe. Despite the operational closure of these world




systems, however, there is no sign of a unified global economic constitution, a scientific

constitution, or a media constitution sui generis. As neo-corporatist constitutions within

nation-states have already experienced, the function systems themselves lack the capac-

ity to take action, to become organized and, therefore to be constitutionalized. The var-

ious attempts at global constitutionalization are directed rather at social processes

‘beneath’ the function systems, at formal organizations and at formalized transactions

that are not tied to the territorial borders of nation-states.

It would nonetheless be overhasty to understand these as just internal constitutions

of international organizations; a mistake made in most of the literature dealing with

international institutions (Schermers and Blokker, 2004). It is not only the internal

decision-making processes of international organizations, private or public, that are con-

stitutionalized, but also their external relations with various constituencies. To under-

stand the private ordering of ICANN, it is not enough to take into account only its

formal organization as a private association under Californian law. Its external relations

must also be considered. A whole network of contracts has been built up, which has

enabled ICANN to create a comprehensive regulatory system. ICANN contracts with the

organization VeriSign for the latter to act as domain administrator and it, in turn, negoti-

ates contracts with national domain administrators. The national domain administrators

stipulate the details of domain name allocation by means of standard contracts with

internet users, which refer to the internet regulation of the UDRP (Uniform Dispute

Resolution Policy). Moreover, ICANN is associated with public law bodies via contrac-

tual relations, which allows the US Government to secure a means of influencing this

otherwise private governance. The arrangement involves, then, a complex combination

of contracts which cannot be equated with either one formal organization, or with the

sum of bilateral contracts. Individual contracts and formal organizations are aimed at the

achievement of one overriding purpose and create a regulatory framework at the emer-

ging level (Hutter, 2003; Viellechner, 2007: 42 ff.).

Therefore it is not sufficient to talk only of the constitutionalization of international

organizations. The concept of a ‘regime constitution’ is rather more inclusive. Global

regimes, commonly defined as a ‘set of principles, norms, rules, and decision-making

procedures around which actors’ expectations converge in a given cause-area’ (Keohane

and Nye, 2001: 5; Krasner, 1983: 1) encompass substantially more than formal organi-

zations. Admittedly, the nature of this added value, in comparison to formal organiza-

tions, is not made entirely clear in the course of the unsystematic debate about

regimes. The regimes are referred to, appropriately, as complex and variable ‘ensembles

of – formal and informal – institutions, organisations, actors, relations, norms and rules’

(Grande et al., 2006: 123). Further aspects are captured by the following description:

A regime within the political or the physical comprises a set of conditions or measures,

which fit in and work within a certain environment without necessarily being completely

understood or even spelled out. A regime combines formal and informal rule, or outspoken

and silent expectations and commitments. It is both an institution and a style, or even a

‘combination of styles around institutions’, and it makes use of this combination in order

to be able to float with respect to both its range and its core. (Baecker, 2009: 673, with

reference to White, 1992: 226)




It is helpful to distinguish between the centre and the periphery of a regime. At the

centre, there is often a formal organization (or several formal organizations) with pro-

fessional core competencies. But the regime also has a periphery, consisting of the

interactions of the centre with its constituencies. A regime constitution normalizes

both the internal relations of the formal organization (or network of formal organiza-

tions) and the external relations in their relevant environmental sectors (the interac-

tions with their publics).

V Constitutionalization in a Dynamic Disequilibrium

The fragmented constitutions of the current global regimes are markedly one-sided in

their normative quality. Only the constitutive function is prominent, directed at guar-

anteeing the institutional conditions for subsystem autonomy. The constitutions focus

on the problem that the segmentary internal differentiation of nation-state entities

creates obstacles for cross-boundary communication in the spheres of the economy,

ecology, science, education, health and media. The politics and law of nation-states

have created a tight structural coupling with other function systems in the form of

national production regimes.3 The global regimes regard the dismantling of such

nation-state production regimes in the most varied spheres as an uppermost constitu-

tional priority. At present, world societal constitutionalism has two prominent goals:

to break apart the national boundaries of function systems; and to dismantle regula-

tory structures to the extent necessary for global function-specific communications.

Constitutive norms of this type serve to release the particular dynamics of function

systems at the global level.

Both theorists of the ‘new constitutionalism’, and/or liberal advocates of a global eco-

nomic constitution, identify in those global regimes a genuine global constitutional

order, though they evaluate this, politically, in diametrically opposed ways (Behrens,

2000; Tully, 2007: 328 ff.). The regimes of the International Monetary Fund and the

World Bank are orientated to the opening of national capital markets. The regime of the

WTO, like that of the Single European Market, NAFTA, the Mercado Comun del Cono

Sur (MERCOSUR) and the Asia Pacific Economic Cooperation (APEC), is aimed at a leg-

ally guaranteed constitution of free world trade, and the facilitation of direct investment.

The lex mercatoria has developed a layer of constitutional norms which enforce property

and freedom of contract legally and globally. International standards organizations aim

to harmonize national standards globally by combining public and private law-making

(Schepel, 2005: 11 ff., 177 ff.).

In the long run, however, the one-sided limitation of societal constitutionalism to its

constitutive function cannot be sustained. It is only a matter of time until, in addition to

their positive effects, the freed-up systemic energies have negative consequences of such

proportions that the resulting societal conflicts push for drastic change of constitutional

politics. In the ‘dynamic disequlibrium’ between simultaneous autonomization and the

limitation of the logic of subsystems, a tipping point is reached. It is no longer constitutive

constitutional norms, but now limitative constitutional norms that are sought.

This is the situation after dismantling nation-state regulations at a transnational level.

While global function-specific communication is no longer hindered by nation-state




production regimes, the constitutive constitutional politics of the Washington consensus

has overriden many of the limitations that nation-states placed on the dynamics of the

function systems. Unburdened by nation-state restrictions, the systems are now placed

to follow, globally, a programme of maximizing their partial rationality. Despite their

many differences, sociological analyses in the tradition of Karl Marx, Max Weber and

Niklas Luhmann all agree on the consequences of this diagnosis. The laws of motion of

capital, or the rationalization of spheres of social action, or the dynamics of functional

differentiation – all identify destructive energies created by the one-sided function

orientation of a social sector. The dismantling of national production regimes releases

destructive dynamics in the global systems; destructive dynamics in which the one-

sided rationality-maximization of one social sector collides with other social

dynamics. Without being significantly hindered by nation-state countervailing pro-

grammes, the globalized function systems now burden themselves, society and the

environment with serious ‘consequential problems of their own complete differentia-

tion, specialisation and high achievement orientation’ (Luhmann, 1997a: 802). Three

fields of collision can be identified: (1) the collision of a particular sub-rationality with

other sub-rationalities; (2) the collision with a comprehensive rationality of world soci-

ety; and (3) the collision of the function-maximization with its own self-reproduction.

The evolutionary dynamics of these three collisions certainly has the potential to result

in a societal catastrophe. But there is nothing necessary about the collapse, as Karl

Marx postulated, and nothing necessary about Max Weber’s ‘iron cage’ of modernity.

Niklas Luhmann is more plausible: the occurrence of catastrophe is contingent. It

depends on whether countervailing structures emerge which prevent the positive feed-

back catastrophe.

Where it becomes concrete, this contingency experience of the catastrophe may be

regarded as the ‘constitutional moment’ (Ackerman, 2000). This is not yet the moment

when the structurally applied self-destructive dynamic makes the abstract danger of a

collapse appear – that is the normal state of things. Rather, it is the moment when the

collapse is directly imminent. The functionally differentiated society appears to ignore

earlier chances of self-correction; to ignore the fact that sensible observers draw atten-

tion to the impending danger with warnings and incantations. In the self-energizing pro-

cesses of maximizing sub-rationalities, self-correction seems to be possible only at the

very last minute. The similarity with individual addiction therapies is obvious: ‘Hit the

bottom!’; it must be one minute before midnight. Only then, today’s addiction society

has a chance of self-correction. Only then is the understanding lucid enough, the suffer-

ing sufficiently severe enough, the will to change strong enough, to allow a radical

change of course. And that goes not only for the economy, where warnings about the

next crisis are regularly ignored; it goes too for politics, which does not react when

experts criticize undesirable developments, but waits instead until the drama of a polit-

ical scandal unfolds – and then reacts frantically. The Kuhnian paradigm shift in science

appears to be a similar phenomenon, where aberrations from the current dominant para-

digms are dismissed as anomalies until the point where the ‘theory-catastrophe’ forces a

paradigm shift.

When processes in a social subsystem spin out of control in this manner, a choice

must be made between state intervention and constitutionalization. After the




experience of political totalitarianism during the last century, permanent subordination

to the state is not an option which is seriously discussed. The political regulation of

social processes by means of global regulatory regimes is a possibility, but its meaning

is ambivalent. What are the options, then? Either administrative steering of global

communication processes, or external pressure for a self-limitation of the system’s

choices. If it is correct that the defence of the three collisions mentioned above is cen-

tral, then the second option is preferable. This is the core message of societal consti-

tutionalism. A global constitutional order must face the challenge: how can

sufficient external pressure be brought to bear on the subsystems so that the self-

limitation of their possible courses of action becomes effective?

But why self-limitation and not external limitation? Doesn’t past experience show

that self-limitation strategies put the fox in charge of the henhouse; that excesses can

only be prevented by the external exercise of control, backed by massive sanctions? Yet

doesn’t it also show that attempts to steer internal processes by means of external inter-

ventions are bound to misfire? Societal constitutionalism attempts to steer a difficult path

between external interventions and pressures towards self-limitation.4 What is required

is a form of ‘hybrid regulation’: the exercise of state power, the enforcement of legal

rules, the strong influence of social countervailing power from other spheres – media,

public discussion, spontaneous protest, intellectuals, social movements, NGOs, trade

unions – must apply such massive external pressure to the function systems that self-

limitations become truly effective. However, this can only work within, and not outwith,

the logic specific to a subsystem. Political-legal regulation and external social influence

can only succeed if they are transformed into the self-regulation of systemic dynamics.

This requires massive interventions from politics, law and civil society: interventions,

however, which, as a matter of fact, are translated into self-limiting impulses and trans-

formed into a regime constitution.

The challenge is to combine external – political, legal and social – impulses with

internal self-limitation. How that might be achieved, concretely, cannot be known in

advance. Ex-ante prognoses are impossible. For that reason, there is no alternative but

to experiment with constitutionalization. The application of external pressure means that

the impulses of politics, or law, or other subsystems, create such irritations of the focal

system, that ultimately the external and internal programmes play out together along the

desired course. And that cannot be planned for, but only experimented with. The desired

course of constitutional politics is: limitations of the tendencies towards self-destruction

and environmental damage.

Acknowledgements

This article was translated from the German by Ruth Dukes, with thanks to Emilios

Christodoulidis. For critical comments I would like to thank Anna Beckers.

Notes

1. For a critique of such constitutional illusions, see Fischer-Lescano (2005: 247 ff.).

2. For a first step in this direction, see Fischer-Lescano and Teubner (2004: 1018 ff.).




3. On differing production regimes as stable configurations of economics, politics and law, respon-

sible for the varieties of capitalism, see Hall and Soskice (2005). On the generalization of the

terms as structural coupling between different subsystems, see Teubner (2001) and Teubner and

Zumbansen (2000: 197 ff).

4. The usual formulation, regulation through self-regulation, is the result of a debate about the

chances of social steering by politics and law (see Hoffmann-Riem, 2001). The formula must

be clarified, however, in so far as it only promises success where external irritations and internal

reactions converge in the direction of a common difference-minimization (see Luhmann, 1989,

1990, 1997b).

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Societal Constitutionalism as Political Constitutionalism:Reconsidering the Relation between Politics and GlobalLegal Orders

Hans Lindahl

University of Tilburg

At least as far back as his paper on ‘Global Bukowina’ (1997), Gunther Teubner has

repeatedly argued that the methodological nationalism of modern legal theory is neither

capable of conceptualizing the specificity of global legal orders nor up to the task of pro-

viding adequate normative orientation in the face of the transformed set of conditions

confronting contemporary law and politics. The key transformation which legal theory

must be prepared to make is, in Teubner’s opinion, to loosen the bonds between

the state and constitutionalism, and embrace ‘societal constitutionalism’. If law is

no longer simply state law (or its correlate – international law), so also constitution-

alism has ceased to be state constitutionalism. Societal constitutionalism opens up

novel conceptual, normative, and institutional perspectives for a theory of legal orders

which refuses to view contemporary developments simply as a story of decay. Indeed,

and this is a thesis that Teubner develops at length in his paper ‘Constitutionalizing

polycontexturality’, a theory of societal constitutionalism can call attention to the

dangers of self-destruction inherent in contemporary social developments, while also

suggesting how they could be parried without having to fall back on variations on

state-centred conceptions of law.

I endorse Teubner’s move to disconnect statism and constitutionalism, or as he also

puts it, ‘state-centred constitutionalism’, in so far as he means by such the modern

nation-state and its specific institutionalization of the relation between politics and law.

But need this move imply committing to the further thesis that societal constitutionalism

can or should sever the link between politics and constitutionalism? To borrow a terse

expression of an earlier paper of Teubner’s, need we accept that giving account of glo-

bal legal orders requires moving beyond ‘politics-centred constitutional thinking’

(Teubner, 2006: 12)? To be sure, whoever reads ‘Constitutionalizing polycontexturality’

with this question in mind will notice what seems to be a certain shift in Teubner’s

position on politics, as compared to the trenchant views espoused in earlier pieces. The

paper seems to concede an important role to politics with respect to global legal orders,

when, for instance, Teubner asks ‘how is the role of politics for transnational sub-

constitutions to be formulated in the magical triangle of politics, law and social sector?’

(see Teubner’s ‘Constitutionalizing polycontexturality’, above) I’m not sure Teubner

would want to follow me on this, but I’ll assume that this question raises a strongly

conceptual issue: can we at all make sense of societal constitutionalism as constitution-

alism unless it is a mode of political constitutionalism? To put the question in another,

perhaps more pointed way: might Teubner’s suggestion that we need to move from

political to societal constitutionalism, if legal theory is to cast off its bondage to

state-centred constitutionalism, be self-defeating because the notion of ‘societal consti-

tutionalism’ is a particularly subtle manifestation and reinforcement of the presupposi-

tions about politics that have governed state-centred constitutionalism? I hasten to add




that by raising these questions I am not assuming that law can ever absorb politics, such

that societal constitutionalism is not only always a form of political constitutionalism,

but also that politics is such if and only if it is constitutional politics. As indicated,

my question is more limited in scope. It concerns whether it makes sense to vindicate

the double gesture of ‘generalizing’ and ‘re-specifying’ state-centred constitutionalism

in terms of an abstractive movement that seeks to capture a purely legal essence of con-

stitutionalism that can then be redeployed in a non-political setting.

Politics and Political Constitutionalism in Systems Theory

To get started, let me first quickly summarize the main contours of Teubner’s case for

‘societal’ constitutionalism as a non-political mode of constitutionalism:

1. Nation-state constitutions claim to discipline all social sectors rather than

only political processes. Accordingly, the emergence of the nation-state is pro-

foundly ambiguous: while it witnesses and even contributes to the differentiation

of society into sectors such as the economy, politics, law, science, religion, the

media and art, nation-state constitutionalism also colonizes this process of social dif-

ferentiation by subordinating all sectors to political decision-making.

2. Retrospectively, the globalization of various social sectors, such as the economy,

science, media and law, reveals the subordination of social sectors by political

constitutionalism, while also attesting, more or less prospectively, to their eman-

cipation from political constitutionalism, by means of processes of sectorial self-

constitutionalization.

3. The globalization of certain social systems makes it possible to generalize from polit-

ical constitutionalism, identifying a formal and abstract legal structure that defines con-

stitutions as such, and to re-specify this legal structure in the framework of non-political

social systems. At their most formal and abstract level, constitutions are sets of legal

rules that enable and limit social activities. As Teubner puts it, ‘the concern’, in

state-centred constitutionalism, ‘was to release the energies of political power in

nation-states and, at the same time, to limit that power effectively, according to the rule

of law. In the new [i.e. societal, HL] constitutional question, the concern is to release

quite different social energies, and to limit these effectively’ (Teubner above).1

4. If societal constitutionalism has hitherto aimed primarily at enabling or liberating

non-political forms of social self-regulation, its main concern now is to limit or

check the expansiveness of these social forms of self-regulation, thereby curbing

their destructive potential.2

What, on Teubner’s view of the matter, determines the political constitutionalism of the

nation state as political? The short answer is, I think, a specific institutionalization of the

enabling feature of constitutions. In particular, the main features of what Teubner calls

political constitutionalism seem to be the centralization of decision-making, coupled

with a hierarchical structure of norm-production (legislation and judicial rulings). In its

democratic form, political constitutionalism identifies a specific subject of legitimate

decision-making: the people–popular sovereignty.




In itself, this is of course a rather meagre development of the notion of politics

implied in political constitutionalism, so I take it that the notion of politics developed

by Luhmann’s systems theory provides the conceptual background of Teubner’s views

on the matter. The question, then, becomes the following: what is, for systems theory,

the function of politics, and how does this impinge on political constitutionalism?

The function of politics, or more properly of the political subsystem, is, according to

Luhmann, ‘to hold ready the capacity for collectively binding decisions’ (Luhmann,

2002/2000: 84). Although it is tempting to consider all the aspects of this characterization,

I will largely concentrate, for the purpose of this response, on the notion of ‘binding’

decisions, although I will have something to say in the final section about the concept of

‘collective’ which remains presupposed and never quite elucidated in Luhmann’s (and

Teubner’s) characterization of politics. In Luhmann’s view, political decisions are bind-

ing to the extent that they operate as authoritative premises for further decisions. More-

over, and this is crucial, decisions must be effectively binding. As he puts it, ‘[i]n all

these questions that could lead to controversies and conflict, what is at stake is the

enforcement [Durchsetzung] of the decision concerning the premises of decisions’

(Luhmann, 2002/2000: 85). Luhmann argues that power, in the form of a negative

sanction when a decision fails to bind those to whom it is directed, is not simply

one possible element of politics among others, but its very ‘quintessence’ (Luh-

mann, 2002/2000: 75). In contrast with the economy, which influences behaviour

by relying on positive sanctions in the form of payment, politics depends on nega-

tive sanctions. While there are a variety of forms of negative sanctions, the consti-

tutive form thereof for politics, and which it must be able to actualize, if all other

forms of positive or negative sanctions fail, is physical power.

Physical power is the instrument of threat [Drohmittel] that best lends itself for the creation

of the symbolically generalized medium of communication [called] power and, at the same

time . . . for the differentiation of a specific functional system for politics, which later bears

the name ‘state’. (Luhmann, 2002/2000: 55)

Against all attempts by those theories of democracy that would transform political

decisions into consensual decisions, Luhmann insists that the function of politics is to

decide and enforce decisions despite – and because – of the fact that there is no consen-

sus. Politics would forfeit its raison d’etre if it ceased to be ‘power politics’, that is, hav-

ing the capacity, even though usually held in reserve, to enforce decisions. In terms of

evolutionary theory, politics evolves into an autonomous functional system because,

it deals with a problem that society must resolve, with or without the differentiation

of politics, namely the necessity to establish what counts as collectively binding, even

in the face of differences of opinion between or changes of heart by the concerned parties.

(Luhmann, 2002/2000: 87)

Having looked at the function of politics, let’s turn to consider very briefly how it

impinges on political constitutionalism. In an important passage of the Politics of

Society, Luhmann summarizes the relation between politics and constitutionalism in

terms of the general principle of the ‘Rechtsstaat’:




physical power could only be applied in the sense of law, only on the basis of legal status

(Rechtslage), and this presupposed a political control of legislation, which, for its part, was

subordinated to the constitution and, possibly, judicial control by a constitutional court.

(Luhmann, 2002/2000: 79)3

Democracy, for its part, consists in ‘the inclusion, as a matter of principle, of the entire

population . . . in the political system’ (Luhmann, 2002/2000: 97). That is, it consists in

a further specification of the political control of legislation: suffrage. Moreover, to the

extent that democratic conflicts consist in different prioritizations of values and interests,

political constitutionalism institutionalizes the contingency of decisions and the possibil-

ity of accounting for them politically and legally.

Repoliticizing Societal Constitutionalism

Although far too abridged to do any justice to the wealth of issues raised by a systems-

theoretical approach to politics, this description of politics and political constitutionalism

suffices for the purpose of reconsidering what is at stake and – above all – what seems to

get lost in Teubner’s recommendation that legal theory abandon political constitutional-

ism and resolutely embrace societal constitutionalism – that is, that it reject ‘a politics-

centred constitutional thinking’. Indeed, and to repeat the point, the problem for which

nation-state politics is one particular institutional response remains unchanged in global

society, namely, the problem of having to be able to take collectively binding decisions

in the face of conflicts about interests and values, and to enforce them, when necessary.

I am reminded, at this point, of Carl Schmitt’s strong thesis about politics: to the

extent that no society is conceivable without politics, any attempt to depoliticize society

simply displaces politics to another field of social activity, primarily to the economy and

ethics. Referring to liberalism’s conceptual attempts to neutralize politics, he

notes:‘with the help of such definitions and constructions, all of which finally circle

around the polarity of ethics and economy, one cannot eradicate the state and politics,

nor is the world depoliticized’ (Schmitt, 1991/1932: 76). And he immediately adds:

‘That economic contradictions have become political . . . only shows that one can reach

the point of the political from the economy as well as from any other field’ (Schmitt,

1991/1932: 76). While Luhmann takes issue with Schmitt’s definition of the political

in terms of the friend/foe distinction, he does seem to concur on at least two points with

Schmitt: first, on the inevitability of the problem of politics; second, on the possibility

that the economic system can, in a sense, become politicized. Indeed, as Luhmann points

out, although positive sanctions are constitutive for the economy, for example in the

form of payment (for goods, services, etc.), these sanctions can become a form of neg-

ative sanctions when they are withheld, even though the functionality of the economy

remains irreducible to that of politics. In other words, when a political effect has been

displaced to the economic system, what gets lost, first and foremost, is the possibility

of submitting that political effect to forms of political accountability. It seems to me that

a danger Teubner has not sufficiently dealt with in his account of societal constitution-

alism is, to borrow Schmitt’s acute turn of phrase, the multiplication of ‘apocryphal acts

of sovereignty’ (Schmitt, 1989/1928: xiv). But the apocryphal acts by anonymous civil




servants which Schmitt feared, when writing in 1928, seem relatively harmless when, in

light of the globalization of the economy, acts of sovereignty are apocryphal because

there is no longer even a civil servant to whom they could be ascribed, or who could

be held politically responsible.

Notice that this problem is not solved by appealing to the ‘limiting’ function of soci-

etal constitutionalism, in particular the notion of fundamental rights, to which

Teubner appeals. To repeat the central point of ‘Constitutionalizing polycontexturality’,

Teubner argues that if societal constitutionalism has focused heretofore on the enabling

function of global legal orders, that is, on institutionalizing sectorial decision-making pro-

cesses, it is now necessary to urgently set up limits that restrain the destructive potential

inherent in rationalities deployed in those social sectors. While I certainly agree with

Teubner that positivizing fundamental rights in the framework of ‘societal constitutions’

could be an important step, their mere enactment in a legal order does not solve the

political problem of their enforcement. Nor, more generally, does creating new funda-

mental rights address the problem of enforcing political decisions about, say, how to deal

with the globalization of capitalism: how, if necessary, can physical power be brought to

bear on the regulation of economic processes in a way that addresses their properly global

character? This means that the main problem confronting societal constitutionalism

resides in its enabling function: if global sectors call for global legal regulation, then such

regulation, to be credible as legal regulation, depends on the possibility that those norms

be enforced, that is, on a global form of the general function of politics. In short, I don’t see

how law, on its own, could impede or rein in the destructiveness and self-destructiveness

of global sectorial systems. Societal constitutionalism, if it is at all to succeed in its

‘limiting’ function, must become a global form of political constitutionalism.

This, it seems, is what Teubner acknowledges when discussing the example of a glo-

bal constitution for science:

If the constitution of global science were able not just to norm the multiplicity of differing

mutually competing funding sources for research, but also de facto to guarantee them, then

this would have effects on the autonomy of science that need not be shy of the comparison

with the effect of traditional subjective rights against political interference. (Teubner, 2006:

16, emphasis added)

What else can it mean to ‘de facto guarantee’ a multiplicity of funding sources for

research other than to be able, when necessary, to bring physical power to bear on –

to exercise political power with respect to – those who would hinder that multiplicity

of funding sources? If, then, a constitution for global science that could effectively pro-

vide such a guarantee need not be shy of comparison with subjective rights in a nation-

state, this is because both would be forms of political constitutionalism that provide for

political rights and their enforcement.

There is, of course, a second way of interpreting societal constitutionalism, a possi-

bility that Teubner sometimes hints at, or at least seems to hold open. Indeed, as noted

at the outset, the burning question confronting constitutionalism today is what role pol-

itics should play in the differentiation of global society, that is what would be the appro-

priate articulation of the ‘magical triangle’ of politics, law and a sectorial system. This




second approach would have Teubner concede that societal constitutionalism is political

constitutionalism in the sense noted above, but not in the sense that what would be required

is political constitutionalism in the form of a constitution that organizes and controls a

world state. What would be required, if one follows this second line of constitutional think-

ing, is that each social sector organize itself legally and politically, which would mean that

political power, hitherto concentrated in the nation-state, would need to be disaggregated

into and parcelled out along the lines of the distinct sectorial systems that configure global

society. While the sectorial institutionalization of global political power would be very

different from the institutionalization of political power in the nation-state, one would

still have to speak of world sectorial polities (in the plural), where the term ‘polity’ refers

to institutionalized politics, even if not in the form of nation-state politics.4 In short, soci-

etal constitutionalism is a thoroughly ‘politics-centred constitutionalism’, but then in

the institutional form of ‘polity-centred constitutionalism’, rather than one of its species,

‘state-centred constitutionalism’.

In assessing this second line of thinking about ‘societal’ constitutionalism, let me

say straightaway that I share Teubner’s qualms about the cosmopolitan enthusiasm

surrounding the idea of what Habermas calls a ‘world domestic politics’ (Weltinnenpolitik),

although my own qualms arise from a very different problematization of cosmopolitanism.5

But I remain unsure that the disaggregation of political power along the lines of sectorial

global polities will do the trick. For if it is the case that societal constitutionalism would need

to become political constitutionalism, in the sense noted above, then the globalization of

legal orders not only unleashes a ‘global ‘‘conflict of laws’’’, as Teubner asserts (above); the

emergence of world sectorial polities would also give rise to global political conflicts, where

the conflict is drawn along sectorial lines. And to the extent that global conflicts are political,

this means, in line with the function of politics, that they involve the possibility of deploying

physical power to enforce decisions. Succinctly, sectorial political constitutionalism would

entail the possibility of global sectorial wars. This has ceased to be a merely hypothetical

scenario if one bears in mind that some multinational companies, including large oil com-

panies, are systematically hiring mercenaries to enforce their decisions against indigenous

or environmental groups which violently oppose the destruction of their ancestral lands or of

nature. This is by no means surprising: the emergence of global private self-regulation, in the

face of the decline of the nation-state, opens up the possibility of the private enforcement of

global self-regulation. By the same token, the emerging tandem between private self-

regulation and the private enforcement of private regulations allows for compounding neg-

ative sanctions to marvellous effect: withholding (appropriate) payment for the use of nat-

ural resources, for example, while also applying physical force in the face of opposition to

the absence of (appropriate) payment.

At least part of this problem could be addressed by a democratization of sectorial poli-

ties, whereby, as Teubner nicely formulates it in an earlier paper, the question ‘Who are the

legitimate actors and what are the legitimate procedures for producing law?’ (2006: 19), is

constitutionalized.6 Notice, if I may be allowed a brief digression, that this question neatly

exposes what is perhaps the crucial reductive move in the functional concept of politics

available to systems theory. Remember that for Luhmann, the function of politics is ‘to

hold ready the capacity for collectively binding decisions’. While I have concentrated

heretofore on the problem of physical force as the properly political manifestation of




collectively binding decisions, the crucial political question – and one to which Teubner

indirectly points by invoking the question ‘who belongs?’ – is of course this: under what

conditions can a manifold of individuals view themselves as a collective, and, as such,

capable of enacting binding decisions, which, if necessary, can be physically enforced?

It is here that Lefort’s notion of the political, which he contrasts to politics, provides a pow-

erful corrective to a merely functional theory of politics:

power makes a gesture towards an outside [un dehors], whence [society] defines itself.

Whatever its form, [political power] always refers to the same enigma: that of an

internal-external articulation . . . of a movement of the externalization of society which

goes hand in hand with its internalization. (Lefort, 1988: 225)

While Luhmann and Teubner are no doubt right in insisting on the importance of pol-

itics (la politique, in Lefort’s vocabulary), the enforcement of binding collective deci-

sions, even if held in abeyance for the time being, presupposes a reference by political

power to a point outside the collective, absent which a manifold of individuals could

not view themselves as a collective; could not engage in collectively binding deci-

sions; and could not raise nor constitutionalize the question about who belongs and

who doesn’t. The defence of societal constitutionalism as a form of non-political con-

stitutionalism is only plausible as long as systems theory factors out le politique of its

account of politics, a move, to belabour the point, it cannot sustain without leaving

unexplained the key concept of a collectively binding decision.

Returning to the problem of global political conflicts confronting Teubner, it might be

possible to temper the potential for such conflicts if – although this is a very big ‘if’ –

global sectorial polities were to engage in a process of ‘mutual observation’, in which

each sectorial polity subordinates itself to an all-encompassing horizon, a common per-

spective, even if this perspective is only fictive. But an urgent problem remains: how to

deal with the inequalities of political power that would no doubt arise between sectorial

polities? The question that, as far as I can see, is neither posed nor answered in Teubner’s

vindication of societal constitutionalism is the following: if political power is ultimately

the physical power to ensure that collective decisions function as authoritative premises

for further decisions, to which global sectors will it migrate in the face of the waning

political power of the nation-state? Teubner’s example of the constitutionalization of

global science, to which I alluded earlier, is instructive in this respect. Would global sci-

ence really be able to ‘de facto guarantee’ the multiplicity of sources of funding? For

example, would global science be able to enforce funding by large multinationals, if

these decide to deny funds to those scientific institutions that do not engage in research

they are interested in? In general, isn’t there the real risk that realizing the global auton-

omy of some sectors, for example, the economy, would have to be paid for with the

subordination of other sectors, for example, science? To evoke Schmitt one last time,

doesn’t Teubner’s defence of societal constitutionalism run the risk of converting the

economy – the capitalist organization of the economy, in particular – into the political

‘fate’ (Schicksal) of global constitutionalism (Schmitt, 1991/1932: 77)?

If, as I suspect, this risk is inherent in the fact that societal constitutionalism cannot

but be political constitutionalism, if it is to be constitutionalism at all, then Teubner’s




defence of societal constitutionalism may well end up providing a powerful argument for

the votaries of a world state with a global constitution (in the singular).

Notes

1. Teubner insists on this double function of constitutions in other articles as well. For example, in

‘Societal constitutionalism’ he argues that ‘In constitutionalisation the point is to liberate the

potential of highly specialised dynamics by institutionalising it and, at the same time, to insti-

tutionalise mechanisms of self-restraint against its society-wide expansion’ (Teubner, 2006: 9).

In the article ‘Regime-collisions’, he reiterates that ‘[the] typical elements of a constitution

[are]: provisions on the establishment and exercise of decision-making (organizational and pro-

cedural rules) on the one hand, the definition of individual freedoms and societal autonomies

(fundamental rights) on the other’ (Fischer-Lescano and Teubner, 2004: 1016).

2. Although I will not discuss this issue here, notice the strong teleological reading of history

involved in this account: if the emergence of the modern nation-state both inaugurates and

arrests social differentiation, the constitutionalization of social subsystems heralds the comple-

tion of das unvollendete Projekt der Moderne. Not the realization of individual and collective

autonomy through the foundation of a global polity, as Habermas would have it, but rather the

autonomization of systems, that is, ‘the worldwide realization of functional differentiation’

(Teubner, 2006: 11) marks the historical completion of modernity.

3. See also Luhmann (1995/1993: Chapter 9), ‘Politik und Recht’, 407 ff.

4. This, in contrast to the characterization of the term ‘polity’ as ‘[non-institutionalized politics as

well as] non-political configurations of civil society, in the economy, in science, education,

health, art or sports . . . ’ (Fischer-Lescano and Teubner, 2004: 1015).

5. See e.g. Lindahl (2010).

6. See also Teubner (2003) on the notion of a ‘dual constitution’.

References

Fischer-Lescano A and Teubner G (2004) Regime-collisions: The vain search for legal unity in the

fragmentation of global law. Michigan Journal of International Law 25(4): 999–1045.

Lefort C (1988) Democracy and Political Theory, trans. David Macey. Cambridge: Polity Press.

Lindahl H (2010) A-legality: Postnationalism and the question of legal boundaries. Modern Law

Review 73(1): 30–56.

Luhmann N (1995/1993) Das Recht der Gesellschaft. Frankfurt: Surhkamp.

Luhmann N (2002/2000) Die Politik der Gesellschaft. Frankfurt: Suhrkamp.

Schmitt C (1989/1928) Verfassungslehre. Berlin: Duncker & Humblot.

Schmitt C (1991/1932) Der Begriff des Politischen. Berlin: Duncker & Humblot.

Teubner G (1997) ‘Global Bukowina’: Legal pluralism in the world society. In: Teubner G (ed.)

Global Law Without a State. Aldershot: Dartmouth, 3–28.




Teubner G (2006) Societal constitutionalism: Alternatives to state-centered constitutional theory?

Available at SSRN: http://ssrn.com/abstract¼876941.




Of Boundaries and ‘Tipping Points’: a Response to GuntherTeubner

Emilios Christodoulidis

University of Glasgow

Let me state from the outset that my short comment is intended as an internal critique

rather than a frontal attack on systems theory, the heuristic value of which I take to be

extraordinary. And yet in talking about critique within systems theory, one already

comes up against a limit. Within the fragmented world space of functional differentia-

tion, where the vast complexity of the social depends on system-specific reductions for

releasing opportunities for reflection, political space becomes reconfigured and the polit-

ical register for critique across social systems collapsed. One would thus need, first of

all, to identify within the differentiated terrain a purchase point for critique and its polit-

ical opportunity. I will make some tentative suggestions in this regard by taking up the

notion of reflexivity and its relation to critique; conscious all the time that as metaphors,

political space and political register can only be transitory devices for reflection that

themselves fold under the pressure of temporal perspectives and the deployment of dis-

tinctions other than spatial.

Gunther Teubner’s more recent work on the dynamics of constitutionalization and on

‘societal constitutionalism’ on a global scale has been influential, and a fair range of the

insights are collected in his contribution to this Dialogue & Debate. Teubner invites us

to think about constitutionalization as incremental, as an emergent property of global

social processes. Read against the background of his earlier work on modalities of

self-reference (Teubner, 1993, especially Chap. 2), one might speak here of constitutio-

nalization as the emergence of a recursive, self-referential modality of closure, as a

result of the way in which repeated operations crystallize and become entrenched as

self-descriptions that in turn acquire a guiding function within the legal system. There

is little room to elaborate this point here, except to say that systems theory in this con-

text offers a template to make sense of the multi-level articulation of legal orders in a

way that steers clear of the uncomfortable binarisms that much constitutional theory

either bypasses or surrenders to. It also offers a much needed critical rebuttal of the sup-

posed directive function of ‘international soft law’ (Teubner, above) and the exaggerated

expectations placed on what ‘loosely coupled’ guiding principles like those it contains

might actually constrain and curb. Instead the dynamic is turned on its head, internal

processes in the receiving fields driving the consolidation of soft law as ‘constitutional’.

Systems theory is at its core a phenomenology: in inviting a re-thinking of conditions

of openness and closure in the handling of complexity, it delimits what is thinkable insti-

tutionally against the vast terrains of that which is not. Institutional imagination releases

contingencies selectively. ‘Institution’ in the phenomenological tradition, as we know

from Merleau-Ponty, is the symbolic matrix that opens up a field, a dimensional future

that makes possible a common experience of the present, a common anticipation of the

future and a past history. Teubner’s suggestion is for a re-thinking of societal constitu-

tionalism in the direction of a reflexive constitutionalism, one that avoids the double

danger of, on the one hand, tying constitutionalism to a largely redundant framework of




the nation-state, and, on the other, of invoking a global constitutionalism that can claim

neither the resources nor the institutional density to get it meaningfully off the ground.

It is in connection to the reflexive dimension that I would like to raise two concerns.

The first has to do with the meaning of the ‘reflexive’; the second, pragmatic rather than

conceptual, has to do with what that reflexivity really alerts us to in the context of the

massive tasks and risks that the new constitutionalism is called upon to respond to and

redress. In both directions I find the suggestions offer up a hollowed-out constitutional-

ism, its reflexivity falling short of the task. This, one expects the retort, may be all that

we can hope for under conditions of globalization, and the consequent flattening of

traditional, more robust, constitutional protections in the global race to increase the rates

of return for capital. That it is false necessity that commits us to this form of surrender is

the injunction I will return to at the end.

To take things more gradually, my first concern is this: what is the relationship between

the normative and the functional dimensions of the new reflexive constitutionalism? My

concern, to put it briefly, is that the reflexivity that is constitutive of the ‘new’ constitution-

alism is torn between a functional and a normative dimension, the clash predominantly (it

seems to me) alleviated via the subsumption of the latter to the former. In this subsumption

what is functional re-orients and overdetermines what is normative. This has the result of

short-circuiting reflexivity to the operational requirements of the system to the detriment

of the system’s ‘performance’ in world society.

Let us take a step back to see why, and to identify what is at stake. In an early, much

quoted, contested and debated article (Teubner, 1983), Teubner introduced the terminol-

ogy of ‘reflexive law’ in the context of regulatory pathologies of the welfare state. This

was still the era of a weakly globalized society, and the problem that occupied sociolo-

gists of law working against the neoliberal assumptions that were sweeping the theoretical

as well as the political agenda was how to integrate some of the important insights regard-

ing the separateness and integrity of functional systems in order to salvage something of

the steering function of law and its ability to redress distributional injustices and social

need. At least that is how I interpret the normative priorities that underlie Teubner’s earlier

work. The reflexivity of ‘reflexive law’ had a meaning in terms of the ‘constellation pol-

itics/law/regulated field’ in which the reflexivity of the law was harnessed to its ‘perfor-

mance’ as navigating the triad of risks (the ‘regulatory trilemma’, Teubner called it)

that faced the legal scientist in her efforts to regulate society: those of ‘mutual indiffer-

ence’, juridification and regulatory capture. Reflexive law was about reciprocal adaptation

rather than direct intervention, or the convergence of ‘external irritations and internal reac-

tions in the direction of a common difference-minimization’ (above).

Reflexive constitutionalism, however, is about a different sense of reflexivity. The

maintenance of proper boundaries is no longer valued in the name of the political

objectives of redressing injustice and meeting needs, but valued as such. The discussion

shifts to ‘doing justice’ (the equivocation is interesting here) to proper logics and the

autonomy of spheres, valued per se or – what amounts to the same thing – in the name

of functional differentiation, and brought about through a kind of reflexive equilibrium

of constitutive and limitative rules. What is the meaning of this balance? And what is its

aim? The short answer is that the ‘constitutive’ moment, which marks the imperialistic




tendencies of partial rationalities to colonize and capture the whole, needs to be kept in

check through ‘limitative’ considerations about proper boundaries and spheres.

What, one is tempted to ask, makes the two logics – of the constitutive and the limitative –

commensurate and a balance possible at all, since the respective rationalities in fact operate

at different levels, one ‘sub-systemic’ and the other ‘social’? But I do not want to start at that

end of the systems-theoretical distinction of levels and meta-levels. Rather I will start with

what is undoubtedly one of Teubner’s most incisive insights in this context, his insistence on

the notion of an incremental, ‘organic’ process of constitutionalization, as true to the diverse

logics of social spheres. One may indeed be able to speak of an a posteriori rationalization,

an emerging layering of norms, as autonomous spheres develop and entrench constitutive

rules such that new norms are tested against what has only gradually emerged as the field’s

own benchmarks, and in terms of what emerge as its guiding distinctions.

To navigate the dynamic of this emergence, Teubner puts forward a dialectic of general-

ization and re-specification: What elements, Teubner asks, might be generalized from the

tradition of nation-state constitutionalism that might be re-specified in the global context

of advanced functional differentiation? Generalizations are of course as much selective sup-

pressions as they are selective actualizations. And here arises the concern. The danger is that

what is thus actualized may be over-determined in the direction – and by the requirements –

of its re-specification. And it may not always be constitutionalism’s most cherished achieve-

ments that survive the transplantation to the global level. Let me explain this further.

Inherent in the notion of reflexivity is a double movement of generalization (away

from the context of the nation-state) and re-specification (as appropriate to the receiving

fields). What guides this reflexivity is the handling of the tension between what is gen-

eralizable as constitutional (categorical, transcendent) and what is appropriate framing,

sensitive to the self-production of the field. I would suggest that it is impossible to nego-

tiate this tension. It immediately folds into self-reference and then collapses into the

second pole. It is in that sense that re-specification overdetermines what might be

generalizable in the first place. The process works back-the-way and the function of the

constitutional is reconfigured in the process.

But if that is the case, is it really true that there is any significant distinction to be drawn

here between juridification and constitutionalisation? Might one not see ‘self-descriptions’,

generalizations and other emerging concepts and rules as merely aggregation rules or simply

aggregations of rules whose constitutional function comes too late: as gathering rationaliza-

tions that lack the constitutional qualities of being able to perform a framing function or a

review function, that is, the hallmarks of the ‘constitutional’ function, all of which would

have required them to pre-exist the instance of their application (simply in order to perform

that function)? If the constitutional is to retain anything of the ‘constituent’-political dimen-

sion, of a society’s ability to act on what the various spheres, regimes or fields might present

as the necessary logic of their self-production, then constitutionalization needs to be pitted

against juridification and the ‘limitative’ pitted against the constitutive. But the possibility of

pitting anything against anything else, setting up any pair as oppositional, and with it the very

capacity of a society to draw political distinctions, has become increasingly difficult to sus-

tain under conditions of functional differentiation. And with it comes the inevitable substi-

tution of constitutionalization for self-limitation, which is the name of what ‘hardens’ into

concepts that acquire some form of orientation value for the system as it surges on along the




trajectory of its self-reproduction. That is what the collapse into the ‘re-specification’ pole of

what is ‘appropriate to the receiving field’ sacrifices: the possibility of drawing distinctions

on a political-societal register. In the face of this surrender, and as the subsumption of value

to the partial rationalities of the systems continues unabated, is it useful to grace the institu-

tional facilitation of the all-too-predictable trajectories of capital accumulation with the term

constitutional?

This is the point about the normative and the functional, and the reflexivity that uncom-

fortably straddles them both, that I began this response by identifying as problematic. We

have now reached other ways to ask the same question. What purchase point for the ‘limita-

tive’ in the differentiated, centrifugal processes of social reproduction? What pivot for a

reflexivity that will reflect on proper boundaries? What thresholds and benchmarks for that

‘proper’ other than ‘functional’, and what criteria for functional other than systemic equili-

bria that come in the form of ‘requisite variety’ and other successful forms of bringing com-

plexity under control?

I find no leverage in Teubner’s analysis for what might hoist constitutional reflexivity out

of the internal dynamics of partial rationalities and into a protective (‘limitative’) role for

society. Of course there have been much-discussed attempts to do this, but these are efforts

that I think Teubner too would find problematic. On the one hand, from Hart we have an

analysis of how the constitutional distinction that imports reflexivity operates as an unfold-

ing of self-reference: in The Concept of Law he famously defined the law as the union of

primary and secondary rules. Reflexivity for Hart, as for Teubner, has to do with the oper-

ation of containment that the deployment of this basic (both simple and fundamental) dis-

tinction allows. But Teubner attributes nothing like the importance that Hart does to this

distinction, and for him it certainly has little to do with societal reflexivity, let alone with

furnishing a society with the capacity to stand back from the operations of the system, to put

them to question or hold them up to scrutiny constitutionally (whereas for Hart, famously, it

involves the officials’/judges’ recognition and endorsement of what counts as law). At the

same time Teubner is critical of a human rights approach that advocates ‘the limitation by

means of rights of all expansionist tendencies of social subsystems including those which do

not function through the medium of power’ (Teubner, above). And he is surely right in the

limiting function he attributes (elsewhere) to human-rights-constitutionalism, as a compen-

satory (my term, not his) constitutionalism, with human rights as simply markers of excess,

signs that the ordinary operations of the system have imposed social costs beyond a threshold

of what the system deems bearable, or that it can usefully externalize.

But neither of these moments has anything to tell us about the possibility of the ‘lim-

itative’ constitutional moment, the point at which the system must yield before different

sets of values, or contract back to its proper limits. This would require a normative rather

than a functional register, and, ingenious as the attempt is to run these as congruent and

to navigate normativity via functional considerations, limit situations in particular

(Teubner calls them ‘tipping points’, below) stand them apart.

Let us attempt to salvage this normative question from the self-legitimating dynamics of

function systems and ask this: how might the distinction between politics and the political –

that to my mind is the guiding distinction of any politics worthy of the name ‘reflexive’ – be

unfolded productively in the direction of a certain redress of injustice? The question

is important because it concerns the available registers of political meaning, and I am not




persuaded that Teubner wants to give up on that question, for he asks, for example, ‘how

is the role of politics for transnational sub-constitutions to be formulated?’ (Teubner,

above). How, one might interject, is systems theory – as critical theory – poised at this

historical conjuncture, before the dynamics of societal subsystems running amok?

There is a hint towards the end of Teubner’s article that the limitative has an important role

to play when tipping points are reached. In the face of impeding catastrophe, the constitutive

dynamics of systemic augmentation will be reined in, and sub-rationalities – systemic, partial

– will yield to the requirements of an overall limit. The article, in fact, culminates on an argu-

ment, and a warning, about preventing ‘catastrophe’. Teubner’s concern is that freed up ‘ener-

gies’ may ‘spin out of control’, to have corrupting or even destructive social effects when a

‘tipping point’ may be reached (Teubner, above) at which we may even have a ‘collision’

between the reproduction of function systems and a ‘comprehensive rationality of world

society’ (Teubner, above). ‘This requires massive interventions’, most effective when ‘they

are translated into self-limiting impulses and transformed into a regime constitution’.

I would ask this question: How would we even know that tipping points have been

reached, that destructive energies can no longer be tolerated? What societal register

would carry that message? Not just from Marx, but from Polanyi too, we know that the

market system has in the past had a series of massive collisions with society, and what in

Marx’s analysis of capitalism’s early clearing exercise of ‘primitive accumulation’ is a

history of pillage, exaction and devastation, Polanyi describes as the radical disembed-

ding of the market system from the society that harboured it, a violent extraction that

marks social devastation. Worlds have been lost in these collisions, and not only was

no ‘tipping point’ reached or registered, but in some cases, in the colonial context, for

example, there is not even a trace of the language that the vanquished used to describe

the loss of their worlds. That is all to say that functional sub-systems not only outlive

catastrophic events but feed off them, turning them productive.

On ‘catastrophes’ that don’t register, here is Zizek on the recent debacle of the system

that ran itself into the ground, unable to sustain the logic of its own reproduction.

The financial meltdown has made it impossible to ignore the blatant irrationality of global

capitalism. In the fight against AIDS, hunger, lack of water or global warming, we may

recognize the urgency of the problem, but there is always time to reflect, to postpone deci-

sions. The main conclusion of the meeting of world leaders in Bali to talk about climate

change, hailed as a success, was that they would meet again in two years to continue the

talks. But with the financial meltdown the urgency was unconditional; a sum beyond imag-

ination was immediately found . . . Saving the starving children can wait a bit, but ‘save the

banks!’ is an unconditional imperative. (Zizek, 2008)

If anything, this is a ‘tipping point’ that is re-integrated into business-as-usual, giving

those responsible for the crisis yet another financial instrument to play with, recycling

catastrophe into the vortex of profit, as another toxic commodity to be sold. This is too

depressing and familiar a point to develop at any length. But it is also an argument that

resonates all too disturbingly with how ‘systems think’.

It is counter-intuitive that Teubner brings in Polanyi at this point, sometimes impli-

citly, sometimes explicitly. Polanyi, as is well known, indeed identifies a reactive double




movement at the ‘tipping point’, with social forces storming the market as a result of a

radical disembedding of the economy from society. But what would ‘disembedding’

mean under conditions of functional differentiation? Where will society draw the

resources for that storming with the purchase point for a society-wide response dispersed

and its ability to respond to market excess undone? In what modality would society ‘col-

lect’ itself, and what form of action would its response take?

Which brings me, finally, to a disquieting suggestion. There are economists, I under-

stand, who confirm that there are states of allocative efficiency perfectly consistent with

the poor starving and the economy’s productive activity channelled into the manufacture

of luxury goods. We are depressingly familiar with how multinational companies react to

turbulence by forms of self-binding that see out the storm, in inculcating forms of respon-

sibility, substituting self-control for co-determination, promising the reining in of extra-

vagant greed. Teubner’s ‘tipping point’ here must be the point at which the self-binding

comes undone as radically inadequate, and that ushers in a whole new set of reasons and

a societal register other than the market. It is the very thing that Luhmann insisted cannot

and should not be done, in Ecological Communication, and in practically everything else,

but then this is not the first time that Teubner has broken with Luhmann. What if – this is the

disquieting bit – we have reached the point where the only possible reaction to ‘cata-

strophe’ is ‘catastrophic’? And I mean it in the devastating sense that Georges Sorel used

the term to describe that which introduces a radical break with the logic of the situation (the

mass strike in his case). After all, that which ushers in radical change (as Teubner himself

describes the Kuhnian paradigm shift above) does not do so because it is read by the theory

it challenges but precisely because it cannot be: it breaks into a certain economy as irre-

ducibly uninterpretable, incongruent, resistant, undecipherable and yet un-ignorable.

Could it be then that at the threshold of the catastrophic, it is no longer the system that has

brought us to the brink that needs to be tapped or resourced? That in the face of the state of

emergency that has been reached, we advocate not its internalization – a la Luhmann – and

functionalization in the direction of new systemic operations and a renewed impetus, but a

radicalization of a different order? And one might imagine Gunther Teubner, at this

moment, turning away from Luhmann and towards another great compatriot of his:

The tradition of the oppressed teaches us that the ‘state of emergency’ in which we live is

not the exception but the rule. We must attain to a conception of history that is in keeping

with this insight. Then we shall clearly realize that it is our task to bring about a real state of

emergency. (Benjamin, 1940: XVIII)

References

Benjamin W (1940) Theses on the Philosophy of History or On the Concept of History.

Teubner G (1983) Substantive and reflexive elements in modern law. Law & Society Review

17(2): 239–286.

Teubner G (1993) Law as an Autopoietic System, trans. Anne Bankowska and Ruth Adler, ed.

Zenon Bankowski. Oxford: Blackwell.

Zizek S (2008) Use your illusions. The London Review of Books, 14 November 2008. Available at:

http://www.lrb.co.uk/2008/11/14/slavoj-zizek/use-your-illusions.




Constitutional Law from the Perspective of Power:A Response to Gunther Teubner

Chris Thornhill

University of Glasgow

Gunther Teubner’s work stands as one of the most highly evolved positions in the

contemporary sociology of law and legal-political norms, and it demands the deepest

respect. Above all, his work has this distinction because it is very serious about the formative

theoretical problem underlying sociology as an academic discipline. That is to say, it aims to

examine law as an aggregate of highly contingent and interdependent societal facts whose

normative dimensions have variable causality (that is, they are inseparably interwoven with

other social functions, they cannot be reduced to any natural or deductive/prescriptive

source, and they are not simply or formally counterposed to other institutions), and it seeks

to develop a methodological model that is able to capture the emergent and multi-centric

reality of society’s legal fabric. To a large degree, the question of society’s unstructured

and interwoven normativity was at the formative centre of theoretical sociology in its

very first emergence, and Teubner re-visits this question in deeply penetrating and

unusual fashion. His analysis of constitutions as arising from interdependent ‘processes

of societal differentiation’, linked to his description of constitutional rights as societally

contingent and subject to varied extensions of validity and changes in vertical and hor-

izontal impact, re-commences the original sociological desire to propose a context-

sensitive, multi-causal and institutionally inclusive account of the dominant normative

and political legitimating structures of modern societies. His emphasis on recent and

contemporary transformations of statehood, and on the altered status of constitutions

and constitutional rights resulting from the end of society’s ‘state-centricity’, including

his analysis of the quasi-constitutional force attaching to (formally constructed) private

rights, can also be seen in this light. This aspect of his work also marks a vital attempt to

actualize the original potentials of theoretical sociology in contemporary society, and to

push theory to such a level that it can reflect and explain the multiple sources of norma-

tivity in society. The claim that contemporary societies have an informal constitution-

ality that is neither normatively nor directively centred on states and contain multi-

valent and multi-layered legal structures appears to me to represent a key position in the

legacy of the original sociological project of establishing a complex, non-naturalized

and post-ontological conception of society and society’s norms.

The new sociology of simultaneously public and private, vertical and horizontal or sim-

ply hybrid law proposed by Teubner culminates in a sociological view which attributes the

following features to modern society. Contemporary global society is viewed as: (a) lack-

ing a constititive legal/political and normative centre; (b) containing normatively forma-

tive and legally restrictive impulses that are not concentrated in national or even

state-centred constitutions; and (c) drawing normative order from a multiplicity of legal

forms, often (but not necessarily) articulated as rights. I strongly applaud the sociological

focus on highly varied patterns of constitutional formation in this line of inquiry, and

I greatly welcome its attempt to produce a sociological theory of legal-constitutional

formation adequate to describing the realities of a normatively ‘fragmented world society’.




In my opinion, however, the approach to constitutional analysis, both at national and

global level which is advanced in this article has the weakness that it is not yet socio-

logical enough, and it does not pursue its evaluation of normatively formative contin-

gency to a sufficiently refined degree of distillation. This is the case, in my opinion, on

two separate counts.

First, the discussion of socio-functional differentiation as a dominant dynamic under-

lying social structure diagnoses a transformative fragmentation in modern society and

some of its subsystems, and it views the polycontextural constitutionality of society as

an overarching reaction to the political consequences of the erosion of the classical-

modern patterns of convergence and differentiation between distinct systems: especially

between the state and the economy and the state and the law. However, this analysis does

not adequately accentuate transformations that occur within political power as an auton-

omous medium of social exchange, and it does not fully assess the fragmentation of

political regimes, and resultant changes in the constitutional relation between power and

law, as an occurrence whose causes can be located within political power itself. The con-

struction of power in fact, although its growing diffusion and secondarization in modern

society are clearly reflected, remains rather static. There is, above all, no conceptual

attempt either to disarticulate power from the state, or to render meaningful the semantic

relation between politics (that is, social exchanges having to do with power) and state-

hood: in consequence, while at the level of state theory Teubner’s view of diffuse

societal-constitutional formation in modern world society is admirably sociological and

highly sensitive to the status of constitutions in rapidly evolving societies, at the level of

power theory it is somewhat less so. Although the article proceeds from the premise that

classical constitutionalism is discredited because it remains ‘fixated with the state’ and

that this fixation must be abandoned, the article itself is also guilty of a semantically

over-literal and historically simplifed view of statehood: it might be challenged to offer

a more reflected analysis of the state, and it might be pressed to observe classical con-

ditions of statehood, not as a ‘constitutional totality’, but as one incidental or semantic

moment in the wider history of the formation of political power in modern societies. In

particular, we might reflect that the construction of the national state, enshrined within a

formal constitution, made (if – which is debatable – it existed at all) only a very short

appearance on the stage of European history, and both throughout the nineteenth century

and since the aftermath of World War I, European states existed for most of their history

in a condition in which they were either not yet or no longer states in the classical sense

of an aggregate of clearly public institutions possessing national/territorial sovereignty.

The classical idea of the state used as evidence here, therefore, requires a sociologically

internal and historical relativization, and it cannot be used as a standard against which

levels or processes of constitutional fragmentation in contemporary society might be

reliably identified or measured. Tentatively, in fact, I am inclined to propose the view

that the ‘comprehensive structural coupling between politics and law’ (allegedly) obser-

vable ‘in the constitutions of nation-states’ is nothing more than a fiction – it semanti-

cally duplicates a societal condition which never factually existed. In consequence,

we should not be surprised that this structural coupling has no ‘counterpart at the level

of world society’, and we should not observe this as a crisis dimension of modern society

or as enacting a process of unique, unprecedented or structurally decisive fragmentation.




We might perceive the erosion of this coupling, rather, as one new expression in the

loose and eternally fraught semantic between state and power, and we might seek to ana-

lyse it by rejecting all sense of an original homology between statehood and society’s

politicality. In short, although in this article, theory construction is refined to account for

ultra-contingent variations in the formation of law, the sensibility of theory to the con-

tingency of power and its precarious relation to its own semantic forms (states) are sub-

stantially less evolved.

Second despite its admirable sociological impetus, the article at times also contains

evidence that power is approached through a perspective that is residually derived from

the classical-normative law/power antinomy, which, in its founding self-definitions,

sociology (especially, and most seminally, Durkheim) sought to surpass (see Durkheim,

1950: 70–71). At one point, for example, legal/constitutional rights are ascribed the func-

tion of limiting power and placing restrictive normative checks on ‘expansive social

media’. Subsequently, states are seen as institutions that are in some circumstances

avidly intent on annexing society’s other subsystems: this, it is argued, was particularly

the case under totalitarian regimes. This view is questionable. Germany, Italy, Spain

and Portugal in the 1930s and beyond were all examples of polities that specifically

acknowledged their inability to perform even minimal regulatory functions across differ-

ent societal subsystems and that opted to shore up their reserves of power by co-opting

private or even neo-patrimonial actors into the peripheries of government. Extrapolating

from this, then, we might observe that even (or especially) in the moment of their greatest

structural over-potentiation, states could not effect a condition even close to the ‘perma-

nent subordination’ of autonomous spheres. Totalitarianism was always societally con-

stituted: i.e. not centred on the state. In fact, to push this claim further, I suggest weak

statehood instead of strong statehood as a paradigm for analysing totalitarianism (see

Gunther, 1980: 259; Gunther, 1996: 167; Palla, 2001: 8; Sarti, 1971: 2). In extension

of this, then, I suggest that the diffusely acentric reality of societal constitutionalism

urged by Teubner – that is, the idea of a ‘hybrid constitutionalization’ in which ‘the exer-

cise of state power, the enforcement of legal rules, the strong influence of social counter-

vailing power from other spheres’ such as ‘media, public discussion, spontaneous

protest, intellectuals, social movements, NGOs, trade unions’ all play a role in the com-

position and exercise of power – is in fact merely a variation on a socio-political reality

that has long been typical of European societies. Further, at a later point, the article

observes that states are called upon to exercise ‘external pressure’ in order to facilitate

the self-limitation of global subsystems, and that, even in politically de-centred societies,

states might exceptionalistically annex and regulate other spheres of social exchange. In

each of these examples, albeit for conflicting motives, the discussion of power and states

appears at once implicitly to replicate classical (Weberian) accounts of the state as a

centre of power and of power as a static, monopolistic and violating societal commodity,

and to reconstruct classical (Kantian) accounts of power as founded in an antinomical or

dualistic relation to law. In consequence, in its practical implications, this argument still

ascribes exaggerated force to states, and it even (against its intentions) preserves high

expectations regarding the regulatory functions that states might perform. Methodologi-

cally, moreover, this perspective seems to deflect from consideration of the social mor-

phology of power, to pay limited attention to the inner articulation of constitutional




forms and power per se, and, in consequence, to reproduce a binary (pre-sociological)

pattern for analysing the relation of power to law.

There might, in consequence, be an alternative systems-theoretical approach to ques-

tions of contemporary constitutionalism and to the normative fabric of modern society,

which might expand the sociological foundations of the analysis proposed here. An alter-

native approach to these matters might examine constitutions and constitutional rights,

from the outset, not (or not solely) as institutions designed to ‘limit power effectively’,

but also as reflexively internal articulations of law and power that are generated – socio-

logically – from within power, and that create an adequately abstracted medium for the

societal circulation of power. The structural coupling of law and power in a constitution,

thus, might be seen as an element of power’s own internal differentiation, displacement

and transmission within a certain socio-historical conjuncture, responding to and

expressing power’s specific resources of societal adaptivity. This view of the constitu-

tion would allow us to step outside both the presumptive state/power homology and the

law/power antinomy (discussed above) and it would make it possible to observe the

constitutional framing of power, not as a process marked by radical caesura or crises, but

as expressing momentary, evolving and contingent semantic patterns for the transfusion

of modern society with power. There is in fact a wealth of historical evidence to sustain

this view of constitutions and constitutional rights as dimensions of power’s adaptivity

and internal abstraction. If pursued, this approach might throw up a different account of

new processes of constitutionalization; it might construe transformations in constitu-

tional rule as correlated with internal transformations in the substance of power and as

adjusted to new conditions of society’s power; and it might allow us to observe the

‘dismantling’ of ‘nation-state regulations’ in a different light.

A highly reflected sociological theory of law, to conclude, needs and presupposes

an equally highly reflected and equally sociological theory of power and politicality.

Indeed, we might observe that if sociology is to bring to conclusion its original endea-

vour to construct the normative reserves of modern society in a paradigm that is ade-

quate to the spontaneous norm-constitutive structures of this society, a revision of

deductive analysis of law only wins half the battle. The coupling of law and

power also needs to be re-examined and the internal/evolutionary interdependence

of power, law, constitutions and constitutional rights needs to be placed in the fore-

front of theoretical debate.

References

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Universitaires de France.

Gunther R (1980) Public Policy in a No-Party State: Spanish Planning and Budgeting in the

Twilight of the Franquist Era. Berkeley: University of California Press.

Gunther R (1996) The impact of regime change on public policy: The case of Spain. Journal of

Public Policy 16(2): 157–201.

Palla M (ed.) (2001) Lo stato fascista. Florence: La Nuova Italia.

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Private Power under Fascism. Berkeley: University of California Press.




Societal Constitutionalism Without Politics? A Rejoinder

Gunther Teubner

University of Frankfurt

There is one overriding concern in all three responses. While they raise many issues of

constitutionalizing polycontexturality, they ask again and again one question: What is the

role of politics in societal constitutionalism? Does societal constitutionalism aiming at

extensive autonomy of the social subsystems not imply an extensive de-politicization of

society? Does giving account of global legal orders really require moving beyond

politics-centred constitutional thinking? Do not state constitutions have to play a role in

constitutionalizing social sectors? And will not a societal constitutionalism in the end

depend on the primacy of the political in society? The following remarks will concentrate

on this aspect, on the politics of societal constitutionalism.

Societal constitutions are paradoxical phenomena. They are not part of the political

constitution of society but, at the same time, they involve highly political concerns. The

paradox can be solved with the help of a double conception of the political. This is a

widespread idea and the difference between le politique and la politique is understood

in a variety of ways (Christodoulidis, 2007: 191 ff.), but here, the double meaning of the

political is interpreted as follows. First, by ‘the political’ is meant institutionalized pol-

itics: the political system of the world of states. In relation to this world, the social sub-

constitutions ‘go the distance’; they require extensive autonomy against the constitution

of international politics. And with regard to the participation of the political system in the

process of the social sub-constitutions, particular ‘political restraint’ is required. Second,

the concept can also indicate the political in society outside institutionalized politics. It

can indicate, in other words, the politicization of the economy itself and of other social

spheres; the politics of reflection on the social identity of the social system involved. In

this respect, the particular social constitutions are highly political, but beyond the state.

With this argument I react to Chris Thornhill’s observation that political power as an

autonomous medium of social exchange has been fundamentally transformed and that

political regimes have been fragmented with resultant changes in the constitutional rela-

tion between power and law. Thornhill seems to integrate these transformations within a

broadened but still unitary conception of the political while I would argue for a clear-cut

distinction between institutionalized politics in the political system and the emergence of

autonomous political dynamics within other social sectors.

But why should not the political constitution regulate the fundamental structures of

social sub-spheres? This would be the consequence of conceptions of constitutionaliza-

tion which identify a variety of social sub-constitutions, but then postulate a primacy of

the political constitution of the state (e.g. Joerges and Rodl, 2009: 775 ff.). For the

nation-state this primacy might be more or less realistic, but it is no longer so for trans-

national relations. The matter raises itself as an aspect of democratic theory, as the col-

lective accountability of democratic politics to society. If it is ultimately the greatest

privilege of the democratic sovereign to grant a constitution to society, why favour

auto-constitutionalization of social sectors and not a collective decision by the whole

body politic? The answer can only be alluded to. The basic social structures of modernity




make it necessary to re-define the relationship between representation, participation and

reflection. In the functionally differentiated society, the political constitution cannot ful-

fil the role of defining the fundamental principles of other sub-systems without causing a

problematic de-differentiation – as occurred in practice in the totalitarian regimes of the

twentieth century (Thornhill, 2008: 188 ff.). In modernity, society can be constitutiona-

lized only in such a way that every sub-system acts reflexively to develop its own

constitutional principle for itself, and these cannot be prescribed by politics. Such de-

centred reflexivity is necessary since it is no longer the case, as in the old society, that

the maiores partes represent the whole, while the minores partes participate. Instead,

modern society regards participation and representation as identical and, at the same

time, abolishes them. We must give up the notion that, in the state, politics represents

society and that other social spheres participate therein. No social sub-system, not even

politics, can represent the whole society. Instead, it is characteristic of the condition of

development that ‘ . . . psychic and social systems must develop their own reflexive pro-

cesses of structure selection – processes of thinking about thinking, or of loving love, of

researching into research, regulating regulation, financing the use of money or overpow-

ering the powerful’ (Luhmann, 1997: 101).

Democratic legitimation must, indeed, deliver in relation to society as a whole – though it

need not proceed through the channels of institutionalized politics. This would correspond

with the views of the early Habermas, who after a fundamental critique of parliamentarian-

ism, called for the democratic potential of societal processes outside institutionalized poli-

tics to be tested. Apparently this insight has been lost by the later Habermas (1992) and his

followers. Space does not allow me to elaborate further on the democratic potential of social

processes outside institutionalized politics. It must suffice to point to participation of the

general public in the decision-making of transnational private regimes. For example, the

Aarhus Convention made an impact by declaring three principles of public participation:

(1) access to information; (2) public participation in decision-making procedures; and (3)

access to justice in environmental matters. The collaboration of the administrative apparatus

of public and private regimes is thereby:

to be integrated into the creation of forms of action in the social substrate, that is, in the glo-

bal economy itself (and not its political system, i.e. the international community [of states]).

Similarly decision-making (in the legislative, executive and juridical apparatuses) and dis-

cussion (in the global sub-publics) have to be structurally coupled with one another, such

that the democratic-theoretically meaningful duality of spontaneous and organised spheres

of the creation of the social constitution can be established. (Fischer-Lescano and Renner,

2011: 15)

The world state does not prescribe the constitution of the economy and other social sub-

systems, but it produces constitutional impulses for them. If institutionalized politics,

together with other actors, particularly civil-societal actors, exerts massive external pres-

sure in order to compel changes in fundamental social structures, for example, in the

capillaries of the payment cycle of the economy, that would be the appropriate division

of labour. Social systems have the best constitutional chances where they can develop

their own constitutions in the shadow of institutionalized politics (Grimm, 2009: 81).




Political interventions in the economic and other societal constitutions, which do exist

of course, ought not to be understood, then, as genuine operations within a civil consti-

tution, but rather as external constitutional impulses. The most important external

impulses from politics are released during the foundational act of the relevant constitu-

tion, but usually transmitted by the legal system. To establish a financial constitution

would require political impulses, which would have to work their way into the internal

structure of the economy. Generally it is the case that an autonomous economy requires a

strong political system. The Mafiosi conditions in Russia after 1989 offer ample illustra-

tion of the negative effects when a capitalist economy is introduced by a ‘big bang’

without rule of law constraints. To date, transnational politics have reacted most con-

vincingly when in the moment of the financial crisis an international coordination of

‘first aid’ measures was put into effect. To that extent, it can be concluded that social

constitutions are politically imposed.

However, it is the internal reconstruction of the external political impulses which mat-

ters and that is what is decisive for the sustained transformation of a civil constitution.

Without this, the constitutional impulses of politics and society fade. But it is also true

that without them, there is no chance of a sustained transformation of the civil constitu-

tion. It is not the ‘big decision’, the mythical foundational act, that is relevant for the

existence of a constitution, but rather ‘long standing chains of communicative acts,

bound to one another, of the successful anchoring of a constitution as the ‘‘highest

authority’’’ (Vesting, 2009: 613). The political impulse limits itself to the formative act

and fundamental changes; over and above that, high constitutional autonomy is required

in relation to politics.

The phrase ‘in the shadow of institutionalized politics’ has an additional meaning.

Societal constitutionalism always depends on law; law, for its part, depends on the phys-

ical monopoly that politics has over power. Economic and social sanctions alone are not

sufficient to stabilize constitutional norms. Hans Lindahl, in his response, sees here the

main problem confronting societal constitutionalism: global legal regulation depends on

the possibility that those norms be enforced and, thus, law on its own cannot impede the

destructiveness of global sectorial systems. Indeed, societal constitutionalism, if it is at

all to succeed in its ‘limiting’ function, depends upon political constitutionalism. Such

political support, however, does not transform the economic constitution into a part of

the state constitution. It is only the instruments of state power which law uses, depoliti-

cizes, and places at the disposal of the societal constitution.

While societal constitutionalism keeps its relative distance from institutionalized

politics, the politicization itself of the economy and other social sectors is high on its

agenda. Politicizing a social sector involves intense and conflictual processes of reflec-

tion which deal with the social consequences of the extension or limitation of its

medium. The politicization is carried on by ‘collegial institutions’ in the general public,

citizen groups, NGOs, labour unions, professional associations, universities and corpo-

rations. A strengthened politics of reflection is required within the economy and other

social spheres that at the same time needs to be supported by constitutional norms.

Historically, collective bargaining, codetermination, and the right to strike enabled new

forms of societal dissensus (Luhmann, 1973: 182). In today’s transnational organiza-

tions, ethic committees of conduct fulfil a similar role. Societal constitutionalism sees




its point of application wherever it turns the existence of a variety of ‘reflection centres’

within society, and in particular within economic institutions, into the criterion of a

democratic society (Sciulli, 1992, 2001). Candidates for a capillary constitutionalization

exist not only in the organized sector of the global society, in corporations and banks, but

also in its spontaneous spheres (on this difference, see Teubner, 2003: 82 ff.). In these

reflection centres it is fiercely discussed and finally decided whether, in a concrete

situation, the growth compulsions of the social sector are excessive or not.

The dynamics of external political impulses and the internal politics of the ‘capillary

constitution’ are not an automatic consequence of functional imperatives. In his response,

Emilios Christodoulidis seems to assume that in the relation between ‘normative’ and

‘functional’ demands on social systems, functional imperatives will always prevail in a

way that renders normative concerns illusory. I suggest a distinction: while the differential

rationality of social systems necessitates that normative institutions differ from system to

system, the balance of strength between normative and functional demands is contingent

upon historical constellations. The history of nation-state constitutionalism gives ample

evidence of the changing balance between a (functional) realpolitik and a (normative)

‘common good’ orientation. It is safe to assume that in societal constitutionalism a similar

experience will be generated. It develops only in crisis phases, caused themselves by

excessive growth compulsions. These are the constitutional moments, when social ener-

gies of such intensity are activated that catastrophe is averted. From an historical point

of view, it is clear that the Great Depression in 1929 was such a moment. At the time the

nation-states were faced with a constitutional decision: to abolish the autonomy of

the economy via totalitarian politics of either a socialist or fascist bend, or to inaugurate

the ‘New Deal’ and the welfare state as a limitative constitutionalization of the national

economies. And today? Did the banking crisis of 2008 resonate systemically? Was it threa-

tening enough to amount to a new constitutional moment – this time of the global economy

– establishing, within the realm of possibility, a self-limitation through a global financial

constitution? Or has ‘the bottom’ not yet been reached? In which case will the fading of the

crisis herald the global return to the old addictive behaviour, untreatable with nation-state

withdrawal cures?1

Acknowledgement

This article was translated from the German by Ruth Dukes.

Note

1. For the interpretation of the recent financial crisis in terms of an addictive growth compulsion

and the potential role of constitutional limitations, see Teubner (2011).

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