Constitutional Fragments: Societal Constitutionalism and Globalization

226 Pages·2012·1.176 MB·English

by  Gunther Teubner

Constitutional Fragments
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OXFORD CONSTITUTIONAL THEORY
Series editors:
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One consequence of the increase in interest in constitutions and
constitutional law in recent years is a growing innovative literature in
constitutional theory. The aim of Oxford Constitutional Theory is to provide
a showcase for the best of these theoretical refl ections and a forum for fur-
ther innovation in the fi eld.
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constitutional theory.
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Constitutional Fragments:
Societal Constitutionalism
and Globalization
Gunther Teubner
Translated by
Gareth Norbury
(cid:1)(cid:2)
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3
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First published 2012
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Preface
‘. . . let thy company bind thee hand and foot to the mast’—Ulysses followed Circe’s
advice and was able to enjoy the sirenes’ singing without falling for their deadly temp-
tation. Freedom through self-restraint is Ulysses’ constitutional message which has
been echoed by political constitutions once they began to constrain the power of the
nation state. In this book the message is applied to constitutions beyond the nation
state, to the constitutions of transnational regimes which govern more and more our
daily lives. Their expansive tendencies are in urgent need of being constrained by
constitutional rules.¹
This book grew out of the lively debates of the ‘constitutionalists’, a discussion group
at the Wissenschaftskolleg zu Berlin. Petra Dobner, Dieter Grimm, Martin Loughlin,
Fritz Scharpf, Alexander Somek, and Rainer Wahl had such powerful objections to the
concept of ‘constitutionalism beyond the nation state’ that I thought I needed to write
a book to deal with them adequately. I benefi ted from the institutional support and
the intellectual climate of the Exzellenzcluster ‘Normative Ordnungen’ in Frankfurt,
the Hague Institute of International Law, and the International University College
in Turin. In preparing this book I co- operated closely with Poul Kjaer, whose forth-
coming monograph on ‘The Structural Transformation of Democracy: Elements of
a Theory of Transnational Constitutionalism’ develops complementary analyses on
transnational societal constitutionalism from the political sciences perspective. Anna
Beckers and Soo-H yun Oh supported the whole process from the beginning with
substantive assistance and constructive critique. Last but not least, I should mention
the discussions of the seminar on private law theory which I held in Frankfurt for
several years together with Rudolf Wiethölter. His ideas on Rechtsverfassungsrecht
inspired me more than the text can tell.
¹ Homer, Odyssey tr. by Samuel Butler (1900).
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Contents
Abbreviations xi
1: The New Constitutional Question 1
I. A Crisis in Modern Constitutionalism? 1
1. Nation- state constitution versus global constitution 2
2. Impulses from constitutional sociology 3
I I. False Premises 5
1. Societal constitutionalism as a genuine problem of
globalization? 5
2. Constitutional emptiness of the transnational? 7
3. Reducing transnational governance to political processes? 8
4. Reducing the third- party eff ects of fundamental rights
to the states’ duties of care? 11
5. A unitary, cosmopolitan global constitution? 13
2: Sectorial Constitutions in the Nation State 15
I. Societal Institutions under Liberal Constitutionalism 15
1. Constitution- free spheres of individual freedom 15
2. Autonomous societal orders 17
II. Totalitarian Societal Constitutions 21
III. Sub- constitutions in the Welfare State 24
1. Historical lessons 24
2. Statist societal constitutionalism 25
3. Politicization of social sectors 26
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viii (cid:1) Contents
IV. Economic Constitutionalism for the
Whole Society 30
1. Ordoliberal constitutionalism 30
2. Constitutional economics 33
V. Constitutional Pluralism 35
1. Neo- corporatist arrangements 36
2. Societal constitutionalism 38
3: Transnational Constitutional Subjects: Regimes,
Organizations, Networks 42
I. Global Structures 42
II. Social Constitutionalization by the States? 45
1. The UN Charter 45
2. Soft law of the states 46
3. International public law and global administrative law 49
III. The Independent Constitutions of Global Institutions 51
1. Constitutional fragmentation 51
2. Constitutions of international organizations 54
3. Regime constitutions 57
IV. Transnational Regimes as Constitutional Subjects? 59
1. Pouvoir constituant/constitué 61
2. Collective identity 66
4: Transnational Constitutional Norms: Functions,
Arenas, Processes, Structures 73
I. Constitutional Functions: Constitutive/Limitative 75
1. Self- foundation of social systems 75
2. ‘Double movement’ of global constitutionalism 78
3. Self- constraint of growth pressures 81
4. ‘Capillary constitutions’ 83
5. Devil and Beelzebub 86
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Contents ix
II. Constitutional Arenas: Internal Diff erentiation
in Social Systems 88
1. Spontaneous sphere 89
2. Organized- professional sphere 92
3. The self- regulatory sphere of the
communicative medium 96
III. Constitutional Processes: Double Refl exivity 102
1. Refl exivity of the social system 103
2. Refl exivity of the legal system 105
IV. Constitutional Structures: Hybrid Meta- codes 110
1. Coding and meta- coding 110
2. Hybridity 111
V. The Politics of Societal Constitutionalism 114
1. La politique versus le politique 114
2. In the shadow of politics 117
3. Internal politics of social subsystems 119
5: Transnational Fundamental Rights: Horizontal Eff ect 124
I. Fundamental Rights Beyond the Nation State 124
1. Extraterritorial eff ect of national constitutional rights? 125
2. Global colère publique 127
3. Regime- specifi c standards of fundamental rights 128
II. Fundamental Rights Binding ‘Private’ Transnational Actors 131
1. Beyond state action 131
2. Generalization: communicative media instead of
general values 132
3. Respecifi cation in diff erent social contexts 134
III. Inclusionary Eff ect of Fundamental Rights: Right to Access 136
IV. Exclusionary Eff ect of Fundamental Rights 139
V. The Anonymous Matrix 142
VI. Justiciability? 146
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