Constitutionalizing Polycontexturality

Introduction
Emilios Christodoulidis University 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 generally 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 meaning 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
recognized 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 function? If constitutionalism traditionally denotes
a certain articulation of the political and the legal, where might one look for the
political register under conditions of globalization, 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. ‘Contextualizing
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.

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 Organization 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 catastrophic 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 constitutional
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 privatization. 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 transferral of political power to private actors on the other,
alternatives to the national constitution cannot be found in the transnational
space. As transnational politics suffers from chronic deficiencies – from the non-
existence of a demos, cultural homogeneity, a deliberating 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
privatization 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 democratic constitutionalism could function in a compensatory
mode, if it brought the unbridled dynamics of global capitalism under the
domesticating power of a constitutionalized global polity. A constitutionalized
international law, a deliberative global public, a policy 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 counteracted 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
politics, they play a role in other sectors of world society. Constitutionalism has
the potential 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 identifying 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
constitutionalism 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 democratic mandate for transnational governance
(Peters, 2006). To compensate for this deficit, interventions of transnational
politics are discussed, but are then assessed as having diametrically opposed odds.
In truth, what we are concerned with here is the basic failure of modern
constitutionalism, 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 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 constitutional question in processes of societal differentiation. The
problematic of societal constitutionalism was not caused by globalization, but
rather, earlier, by the fragmentation of the social whole and by the autonomization
of these fragments during the heyday 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 constitutionalism 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
globality. 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 transnational 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 governmental 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, alternatively, is experiencing a
renaissance. I want now briefly to sketch out why it is wrong to assume a
constitutional emptiness 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 independent 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
transnational 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 constitutive 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 contested. 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 essentially 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
nationstates 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 constitutionalization. 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 networking 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
particularity 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 transnational 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 processes of global governance, but also establish
their own global regimes outwith institutionalized 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 difficult 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 generalize the
principles of political constitutions, in order to avoid the pitfalls of
‘methodological 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 of Care 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 thematizes 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
community 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, misinterprets 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 constitutional 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 unrealistic. 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
international 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 analyses, causes real problems for such a unitary constitutionalism.
In the debate, fragmentation 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 constitutionalization 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 constitutions of nation-states. Moreover, unitary standards
of a global constitution are rendered 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
constitutional 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 network 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 overlayered with trans-
national political and legal processes. Because of this staggered nature of
globalization, the pressure for the constitutionalization of the globalized
subsystems is all the greater. The difference in degrees of globalization
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 supporting 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
globalization 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,
selfconstitution 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 autonomy 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 constitutionmaking? Which internal
qualities are assumed by the constitutional legal norms developed in this process?
Claims to lead the constitutionalization of world society in toto have been made
primarily 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 international 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 International 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 relevance. 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 cosmopolitan 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’ formulated in
codes of conduct for various global institutions is not comparable with binding
constitutional norms, such as those provided by nation-state parliaments and
constititutional courts for societal sub-spheres. On the merits, we are dealing
here with mere constitutional impulses which are sent by an – admittedly
influential – international organization towards the global social sub-spheres
involved. Whether they become consolidated 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 private 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 constitutionalism
(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 ‘private ordering’ are activated, which are not encompassed by traditional
‘public’ administrative 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 political
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 couplings as and when social problems demand.
Constitutional norms are developed ad hoc when current conflict assumes
constitutional dimensions, demanding constitutional decisions. 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
international law and administrative law. Now more than ever, however, the
transferral of political constitutional claims to other social sub-spheres, as
achieved by the nationstate, 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
constitutionalization? 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 stabilization 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 occasional 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 individual 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, tendencies 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 constitutional 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
powers, 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 internet; 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 equivalent 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 discourse, 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 constitutionalization 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 capacity to take action, to become organized and, therefore to be
constitutionalized. The various 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 constitutionalized, but also their
external relations with various constituencies. To understand 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, negotiates
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
contractual 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 emerging 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 organizations. Admittedly, the
nature of this added value, in comparison to formal organizations, 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
professional 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 organizations) and the external relations in their relevant environmental
sectors (the interactions 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 guaranteeing 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 constitutional priority. At present, world societal
constitutionalism has two prominent goals: to break apart the national boundaries
of function systems; and to dismantle regulatory 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
economic 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 legally 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 onesided rationality-maximization of one social
sector collides with other social dynamics. Without being significantly hindered by
nation-state countervailing programmes, the globalized function systems now burden
themselves, society and the environment with serious ‘consequential problems of
their own complete differentiation, 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 society; 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 feedback 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 attention to
the impending danger with warnings and incantations. In the self-energizing
processes 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 suffering 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 political scandal unfolds –
and then reacts frantically. The Kuhnian paradigm shift in science appears to be a
similar phenomenon, where aberrations from the current dominant paradigms 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 central, then the second option is preferable.
This is the core message of societal constitutionalism. A global constitutional
order must face the challenge: how can sufficient external pressure be brought to
bear on the subsystems so that the selflimitation 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 interventions 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 selflimitations 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 transformed 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.

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 providing 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 constitutionalism 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
global 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 subconstitutions 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 constitutionalism
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 constitutionalism’ is a particularly subtle manifestation and
reinforcement of the presuppositions 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
constitutionalism 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 profoundly
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
differentiation by subordinating all sectors to political decision-making.
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
emancipation from political constitutionalism, by means of processes of sectorial
selfconstitutionalization. The globalization of certain social systems makes it
possible to generalize from political constitutionalism, identifying a formal and
abstract legal structure that defines constitutions 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 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. 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 binding to the extent that they operate as
authoritative premises for further decisions. Moreover, 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’ (Luhmann, 2002/2000:
75). In contrast with the economy, which influences behaviour by relying on
positive sanctions in the form of payment, politics depends on negative sanctions.
While there are a variety of forms of negative sanctions, the constitutive 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 consenˆtre sus. Politics would forfeit its raison d’e if it ceased to be
‘power politics’, that is, having 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)
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 possibility 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
systemstheoretical 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 constitutionalism and resolutely embrace societal
constitutionalism – that is, that it reject ‘a politicscentred 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 negative 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
constitutionalism 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 societal
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 processes, 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 fundamental 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
global 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 provide such a guarantee need not be shy of comparison with
subjective rights in a nationstate, 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 possibility 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 politics should play in the differentiation of
global society, that is what would be the appropriate 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 thinking, 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, societal 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 companies, 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 selfregulation and the private enforcement of private regulations
allows for compounding negative sanctions to marvellous effect: withholding
(appropriate) payment for the use of natural 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 polities, 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 powerful 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
politics (la politique, in Lefort’s vocabulary), the enforcement of binding
collective decisions, 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 decisions; 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 constitutionalism 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
perspective, 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
science 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 autonomy 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 institutionalise
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 procedural 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
completion 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’.

Emilios Christodoulidis University of Glasgow

Of Boundaries and ‘Tipping Points’: a Response to Gunther Teubner
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 differentiation, where the vast complexity of the social depends on
system-specific reductions for releasing opportunities for reflection, political
space becomes reconfigured and the political 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 political 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 distinctions 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
constitutionalization 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 context 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 supposed 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 institutionally 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 constitutionalism 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 constitutionalism, 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’ constitutionalism 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 terminology 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 sociologists 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 regarding
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 politics/law/regulated field’ in which
the reflexivity of the law was harnessed to its ‘performance’ 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 indifference’,
juridification and regulatory capture. Reflexive law was about reciprocal
adaptation rather than direct intervention, or the convergence of ‘external
irritations and internal reactions 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 generalization 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
suppressions 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 achievements 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
generalizable 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 negotiate 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 rationalizations 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 dimension, 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 sustain under conditions of
functional differentiation. And with it comes the inevitable substitution 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
institutional 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 uncomfortably 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 ‘limitative’ 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 equilibria that come in the form of ‘requisite variety’ and other
successful forms of bringing complexity 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 unfolding 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 operation of containment that the
deployment of this basic (both simple and fundamental) distinction 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
compensatory (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 ‘limitative’ 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 argument, and a warning, about preventing ‘catastrophe’. Teubner’s concern is
that freed up ‘energies’ 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
disembedding 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. ˇ ˇ On ‘catastrophes’ that don’t register, here
is Zizek on the recent debacle of the system ´ ˆ 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 decisions. 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 imagination was immediately found . . .
Saving the starving children can wait a bit, but ‘save the ˇ ˇ 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 implicitly, 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 ‘collect’ itself, and what
form of action would its response take? Which brings me, finally, to a disquieting
suggestion. There are economists, I understand, 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
responsibility, substituting self-control for co-determination, promising the
reining in of extravagant 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 ‘catastrophe’ 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 irreducibly 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
`la emergency that has been reached, we advocate not its internalization – a
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)

Chris Thornhill University of Glasgow

Constitutional Law from the Perspective of Power: A Response to Gunther Teubner
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 horizontal impact, re-commences
the original sociological desire to propose a contextsensitive, 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 normativity in society. The
claim that contemporary societies have an informal constitutionality that is
neither normatively nor directively centred on states and contain multivalent 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 simply
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) lacking a constititive legal/political and normative centre; (b) containing
normatively formative 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 sociological enough, and it does not pursue its evaluation of normatively
formative contingency 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 underlying 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
classicalmodern 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 autonomous 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 construction 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 statehood:
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 conditions 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)
observable ‘in the constitutions of nation-states’ is nothing more than a fiction –
it semantically 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 analyse 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 contingency of power and its precarious relation to
its own semantic forms (states) are substantially 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 function 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 different 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 ‘permanent
subordination’ of autonomous spheres. Totalitarianism was always societally
constituted: 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 exercise of state power, the enforcement of
legal rules, the strong influence of social countervailing power from other
spheres’ such as ‘media, public discussion, spontaneous protest, intellectuals,
social movements, NGOs, trade unions’ all play a role in the composition 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.
Methodologically, moreover, this perspective seems to deflect from consideration of
the social morphology 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 questions
of contemporary constitutionalism and to the normative fabric of modern society,
which might expand the sociological foundations of the analysis proposed here. An
alternative 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 – sociologically – 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
constitution 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 constitutional 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 endeavour
to construct the normative reserves of modern society in a paradigm that is
adequate 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 forefront of theoretical debate.

Gunther Teubner University of Frankfurt

Societal Constitutionalism Without Politics? A Rejoinder
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
politics: the political system of the world of states. In relation to this world,
the social subconstitutions ‘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 relation 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 constitutionalization 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
transnational relations. The matter raises itself as an aspect of democratic
theory, as the collective 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 fulfil 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 constitutionalized 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 decentred 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 processes of structure selection – processes of thinking about
thinking, or of loving love, of researching into research, regulating regulation,
financing the use of money or overpowering 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 parliamentarianism, called for the democratic potential of societal
processes outside institutionalized politics 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 global 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 discussion (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
subsystems, but it produces constitutional impulses for them. If institutionalized
politics, together with other actors, particularly civil-societal actors, exerts
massive external pressure 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 constitution, but rather
as external constitutional impulses. The most important external impulses from
politics are released during the foundational act of the relevant constitution, 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 illustration 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 convincingly 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
matters 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 constitution. 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 physical 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, depoliticizes, 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 reflection 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 corporations. 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 organizations, 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 energies 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 threatening 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