Professional Documents
Culture Documents
Constitutionalizing Polycontexturality: June 2011
Constitutionalizing Polycontexturality: June 2011
Constitutionalizing Polycontexturality: June 2011
net/publication/290751732
Constitutionalizing Polycontexturality
CITATIONS READS
13 89
1 author:
Gunther Teubner
Goethe-Universität Frankfurt am Main
247 PUBLICATIONS 4,958 CITATIONS
SEE PROFILE
Some of the authors of this publication are also working on these related projects:
All content following this page was uploaded by Gunther Teubner on 05 January 2021.
Published by:
http://www.sagepublications.com
Additional services and information for Social & Legal Studies can be found at:
Subscriptions: http://sls.sagepub.com/subscriptions
Reprints: http://www.sagepub.com/journalsReprints.nav
Permissions: http://www.sagepub.com/journalsPermissions.nav
Citations: http://sls.sagepub.com/content/20/2/209.refs.html
Polycontexturality sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/0964663911400245
sls.sagepub.com
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 gener-
ally issues of regulation of the workplace, from the perspective of Constitutional Law.
Some of the papers presented and discussions, which involved academics from the UK,
Europe and Canada, have already been published in this journal (Supiot in 2010, Vol.
19(2), Arthurs in 2010, Vol. 19(4)). The current section is the final instalment in that series.
This section focuses specifically on the question of constitutionalization. The mean-
ing of the term itself is one that invites controversy. If the term constitutional connotes a
framing function, the Constitution as a system of meta-rules that allow law to be recog-
nized as valid and frame the contours of what can be contested legally, what does it mean
to talk of constitutionalization as an ongoing process? And what does it mean to talk of
constitutionalization at the global level, where the familiar structures on nation-state
constitutionalism can no longer claim exclusivity in performing the constitutional func-
tion? If constitutionalism traditionally denotes a certain articulation of the political and
the legal, where might one look for the political register under conditions of globaliza-
tion, and the weakening or collapse of political opportunities of framing or intervention?
Finally, does the age of crisis signal a sobering of sorts, a tipping point that might return
us to a different, adequate, constitutional dispensation?
These are all questions that Gunther Teubner’s very rich article engages with, and
which are asked and variously answered by the respondents. Teubner’s work has for a
long time been at the forefront of these debates, provocative and inspiring. ‘Contextua-
lizing polycontexturality’ is an important paper and thanks are due to the Journal for
hosting the debate and funding the event from which it originates. The Modern Law
Review also provided funding and we are grateful for its generosity. Personally I would
like to thank all those who came to Glasgow to participate in the memorable debate that
day, and especially to Ruth Dukes who co-organized the event with me.
Constitutionalizing Polycontexturality
Gunther Teubner
University of Frankfurt, Germany
institutions act autonomously to develop their own constitutions? Since its beginning,
modern constitutional praxis has oscillated between these two poles. At the same time, the
question arises – in empirical analysis and in normative programmes – about the aims of
social sub-constitutions: are they intended to allow state regulation of society, or to defend
their own autonomy? Or to assimilate social decision-making processes with political
decision-making processes? Or to render social institutions politically capable?
It is at this point that sociological theories intervene, seeking the source of the con-
stitutional question in processes of societal differentiation. The problematic of societal
constitutionalism was not caused by globalization, but rather, earlier, by the fragmen-
tation of the social whole and by the autonomization of these fragments during the hey-
day of the nation-state. It was then aggravated by globalization. Analysing various
concepts of societal constitutionalism can help to explain why it is that, in the era of
the nation-state, institutional solutions remain in a peculiar condition of latency. In
light of the enormous draw of the state and its constitution, social sub-constitutions
always appear in a strange twilight, though the reasons for this can differ. Liberal
constitutionalism concealed the question in the shadow of individual rights. In sharp
contrast, totalitarian political systems of the twentieth century attempted to eliminate
the autonomy of social sub-constitutions. By subjecting all areas of social life to the
state’s authority, they concealed the question of independent social constitutions. The
welfare states of the late twentieth, in turn, never officially recognized autonomous
social sub-constitutions; but, at the same time, they achieved a peculiar balance
between a state constitutionalism, which progressively extended the principles of the
political constitution to social spheres, and a constitutional pluralism, in which the
state, as a matter of fact, respected social sub-constitutions.
Globalization did not, then, create the problem of societal constitutionalism. But it did
dramatically change it. It destroyed its latency. In light of the much weaker draw of
transnational politics, compared to that of the nation-state, the acute constitutional
problems of other global social sectors appear now in a much harsher light. On what
legitimating basis do transnational regimes regulate whole spheres of social activities,
right down to the detail of daily life? What are the limits of global capital markets in their
impact on the real economy and other social sectors? Can fundamental rights and human
rights claim validity in the state-free spheres of the global economy, particularly as
against transnational organizations? Contrary to the terms of the current debate, then,
it is absolutely not the case that the emergence of the global economy brings with it a
wholly new constitutional problematic. In fact, there has been a real existing societal
constitutionalism within nation-states for a long time. However, today this societal con-
stitutionalism is faced with the question, whether and how it must transform itself under
conditions of globality. The continuity of the problematic has to do with the advanced
functional differentiation of society. Its discontinuity can be attributed to globalization
which has developed specific structures unknown to the nation-state. The normative
question, then, is no longer how to compensate for the failures of national constitutions;
in other words, how hitherto constitution-free social spheres might be constitutionalized.
Rather the question is how the experiences of nation-states with institutions of societal
constitutionalism can be transformed under the essentially different conditions of global-
ity. In particular: how is the role of politics for transnational sub-constitutions to be
formulated in the magical triangle of politics, law and social sector? Resignation?
Guidance? Supervision? Complementarity?
environments. It is true that the manner in which limits had been imposed on the new
global regimes, in ‘vertical’ relation to nation-states, was, from the outset, strongly con-
tested. But the more serious ‘horizontal’ constitutional problem was not even considered:
‘whether the autonomy of the function systems might not lead to mutual burdens to the
limits of their structural adaptability with their very differentiation’ (Fischer-Lescano
and Teubner, 2004; Luhmann, 1997a: 1087).
Thus, the agenda of a transnational constitutionalism is transformed in this context,
too: the concern is not to create something new, but rather to transform what is essen-
tially an already existing constitutional order. To limit the societal dynamics freed up
by the constitutive rules is of particular urgency. The task, then, is to identify the real
structures of the existing global constitutionalism, to criticize its shortcomings and to
formulate realistic proposals for limitative rules.
they also integrate private actors in political processes. Rather, a sociological analysis of
the global subsystems – the economy, science, culture and mass media – raises more dif-
ficult questions: Are there analogies, in this context, with the dynamics of the pouvoir
constituant and pouvoir constitue´, with the self-constitution of a collective, with the
political separation of powers? At a more basic level still: to what extent must we gen-
eralize the principles of political constitutions, in order to avoid the pitfalls of ‘metho-
dological nationalism’? How must we re-specify those principles for the particularities
of a social institution in the global sphere?
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:
2005). At the same time, however, it becomes apparent, too, that the demands
themselves misinterpret the nature of these processes. For the developed constitutions
of nation-states, it is certainly the case that we can only speak of a constitution in the full
sense when constitutional norms raise a comprehensive claim for the creation of a polit-
ical community. In the discrepancy between globally established social subsystems and a
politics stuck at the inter-national level, however, the constitutional totality breaks
apart and is dissolved by a type of constitutional fragmentation (Fischer-Lescano,
2005: 247 ff.; Walker, 2002; Walter, 2001). In the sea of globality there are only islands
of constitutionality. The comprehensive structural coupling between politics and law,
which Luhmann observed in the constitutions of nation-states, has no counterpart at the
level of world society (Luhmann, 2004: 487 ff.). Here, it is dissolved by occasional cou-
plings as and when social problems demand. Constitutional norms are developed ad hoc
when current conflict assumes constitutional dimensions, demanding constitutional deci-
sions. The comprehensive societal claim for the creation of a community is reduced in
two ways. Even the political system of world society has no comprehensive constitution
– constitutional fragments are developed for particular segments – the UN, parts of inter-
national law and administrative law. Now more than ever, however, the transferral of
political constitutional claims to other social sub-spheres, as achieved by the nation-
state, is not recognizable. As stated above, one can speak at most only of constitutional
impulses, which emanate from the political system of world society in the direction of
other global societal spheres.
In some respects, the quasi-legal orders of world society themselves show constitutional
characteristics. In addition to different social and ecological standards and to existing
mechanisms of control and implementation, superior norms develop that define where the
decision making power should be located, how violations should be handled, and how third
parties should be included. By analogy to state constitutions, private regulations embody
mechanisms of self-restraint to reduce intrusions on other actors and other domains. Is
world society thus about to develop functional equivalents to the classical constitutional
state, and will the latter gradually become marginal? (Dilling et al., 2008: 8)
The primary candidates for such constitutions are international organizations. Regardless
of whether the organizations were formed through international treaties, such as the
WTO, or, alternatively, through private ordering, like multinational corporations, ten-
dencies towards constitutionalization can be observed everywhere, as the organizations
continually free themselves from the consensus of the founding members. In the case of
the WTO, this kind of constitutional emancipation has emerged in respect of panels set
up to mediate conflicts between member states and the WTO regarding the interpretation
of the Treaty. Though the panels were intended, originally, to mediate only through
negotiations, they have developed, over time, into genuine ‘courts’ with extensive
decision-making powers (see e.g. Carmody, 2008; Dunoff, 2006; Petersmann, 2006).
Decisions are made concerning not only straightforward questions of law, but also con-
stitutional questions regarding the external relations of the WTO to nation-states. The
regulatory body of the internet, ICANN (the Internet Corporation for Assigned Names
and Numbers), established under Californian law as a private association, has developed,
over time, functional and territorial representative structures, forms of separation of pow-
ers, and an effective jurisdiction over questions of domain-name allocation. In this context,
governance questions of constitutional significance arise (Post, 1996). When questions of
fundamental rights in the internet have been raised, there has not been a reversion to
diverse national constitutions, which would work only for national segments of the inter-
net; instead, internet-specific fundamental rights standards have been developed with a
claim to global validity (Karavas, 2006: 136 ff.). Multinational corporations formed under
rules of national company law go on to develop codes of conduct through disputes with
local organizations, social movements and NGOs, which act as the transnational equiva-
lent of national corporate constitutions (Abbott and Snidal, 2009; Herberg, 2007). Global
standards organizations, such as the ISO, free themselves from their national counterparts
and develop principles of constitutional law. They produce rules for the representation of
national bodies, experts and interest groups, norms of due process and institutionalized dis-
course, and principles of material decision-making (Schepel, 2005: 403 ff.). And in the lex
mercatoria, the self-created law of the global economy, a hierarchy of norms has gradually
developed, at the top of which stand constitutional legal norms, procedural principles and
fundamental rights standards (Dalhuisen, 2006; Voser, 1996).
Although these processes are set in motion by functional differentiation, the constitu-
tionalization process is not directed towards the major function systems themselves.
Finance and product markets are globalized, scientific communication takes place at
a global level, and the system of communicative media, news agencies, TV, internet,
transmits news across the whole globe. Despite the operational closure of these world
A regime within the political or the physical comprises a set of conditions or measures,
which fit in and work within a certain environment without necessarily being completely
understood or even spelled out. A regime combines formal and informal rule, or outspoken
and silent expectations and commitments. It is both an institution and a style, or even a
‘combination of styles around institutions’, and it makes use of this combination in order
to be able to float with respect to both its range and its core. (Baecker, 2009: 673, with
reference to White, 1992: 226)
It is helpful to distinguish between the centre and the periphery of a regime. At the
centre, there is often a formal organization (or several formal organizations) with pro-
fessional core competencies. But the regime also has a periphery, consisting of the
interactions of the centre with its constituencies. A regime constitution normalizes
both the internal relations of the formal organization (or network of formal organiza-
tions) and the external relations in their relevant environmental sectors (the interac-
tions with their publics).
Acknowledgements
This article was translated from the German by Ruth Dukes, with thanks to Emilios
Christodoulidis. For critical comments I would like to thank Anna Beckers.
Notes
1. For a critique of such constitutional illusions, see Fischer-Lescano (2005: 247 ff.).
2. For a first step in this direction, see Fischer-Lescano and Teubner (2004: 1018 ff.).
3. On differing production regimes as stable configurations of economics, politics and law, respon-
sible for the varieties of capitalism, see Hall and Soskice (2005). On the generalization of the
terms as structural coupling between different subsystems, see Teubner (2001) and Teubner and
Zumbansen (2000: 197 ff).
4. The usual formulation, regulation through self-regulation, is the result of a debate about the
chances of social steering by politics and law (see Hoffmann-Riem, 2001). The formula must
be clarified, however, in so far as it only promises success where external irritations and internal
reactions converge in the direction of a common difference-minimization (see Luhmann, 1989,
1990, 1997b).
References
Abbott K and Snidal D (2009) Strengthening international regulation through transnational
new governance: Overcoming the orchestration deficit. Vanderbilt Journal of Transnational
Law 42: 501–571.
Ackerman BA (2000) We the People: Transformations. Cambridge, MA: Harvard University
Press.
Anderson GW (2005) Constitutional Rights after Globalization. Oxford and Portland, OR: Hart
Publishing.
Baecker D (2009) The power to rule the world. In: Calliess G-P, Fischer-Lescano A, Wielsch D
and Zumbansen P (eds), Soziologische Jurisprudenz: Festschrift für Gunther Teubner. Berlin:
De Gruyter, 673–686.
Beck U and Sznaider N (2006) Unpacking cosmopolitanism for the social sciences: A research
agenda. The British Journal of Sociology 57(1): 1–23.
Behrens P (2000) Weltwirtschaftsverfassung. Jahrbuch für Neue Politische O¨konomie 19: 5–27.
Brunkhorst H (2002) Solidarität. Von der Bürgerfreundschaft zur globalen Rechtsgenossenschaft.
Frankfurt: Suhrkamp.
Calliess G-P (2002) Reflexive transnational law: The privatisation of civil law and the civilisation
of private law. Zeitschrift für Rechtssoziologie 24(2): 185–217.
Calliess G-P and Zumbansen P (2009) Rough Consensus and Running Code: A Theory of Trans-
national Private Law. Oxford: Hart.
Carmody C (2008) A theory of WTO law. Journal of International Economic Law 11: 527–557.
Clapham A (2006) Human Rights Obligations of Non-State Actors. Oxford: Oxford University
Press.
Dalhuisen JH (2006) Legal orders and their manifestations: The operation of the international
commercial and financial legal order and its lex mercatoria. Berkeley Journal of International
Law 24: 129–191.
de Wet E (2006) The international constitutional order. The International and Comparative Law
Quarterly 55(1): 51–76.
Dilling O, Herberg M and Winter G (eds) (2008) Responsible Business: Self-Governance and Law
in Transnational Economic Transactions. Oxford: Hart.
Dunoff JL (2006) Constitutional conceits: The WTO’s ‘constitution’ and the discipline of
international law. European Journal of International Law 17(3): 647–675.
Dupuy P-M (1997) The constitutional dimension of the Charter of the United Nations revisited.
Max Planck Yearbook of United Nations Law 1: 1–33.
Dupuy P-M (2002) L’unité de l’ordre juridique international. Recueil des Cours 9: 9–489.
Fassbender B (2005) The meaning of international constitutional law. In: Johnston DM and
Macdonald RS (eds) Towards World Constitutionalism: Issues in the Legal Ordering of the
World Community. Leiden: Nijhoff, 837–851.
Fassbender B (2007) ‘We the Peoples of the United Nations’: Constituent power and constitu-
tional form in international law. In: Walker N and Loughlin M (eds) The Paradox of Con-
stitutionalism: Constituent Power and Constitutional Form. Oxford: Oxford University
Press, 269–290.
Fischer-Lescano A (2005) Globalverfassung: Die Geltungsbegründung der Menschenrechte.
Weilerswist: Velbrück.
Fischer-Lescano A and Teubner G (2004) Regime-collisions: The vain search for legal unity
in the fragmentation of global law. Michigan Law Journal of International Law 25:
999–1045.
Frowein JA (2000) Konstitutionalisierung des Völkerrechts. In: Dicke K, Hummer W, Girsberger D,
Boele-Woelki K, Engel C and Frowein JA (eds) Völkerrecht und internationales Privatrecht
in einem sich globalisierenden internationalen System: Auswirkungen der Entstaatlichung
transnationaler Rechtsbeziehungen. Heidelberg: Müller, 427–447.
Grande E, König M, Pfister P and Sterzel P (2006) Politische Transnationalisierung: Die Zukunft
des Nationalstaats – Transnationale Politikregime im Vergleich. In: Schirm S (ed.) Globalisier-
ung. Forschungsstand und Perspektiven. Baden-Baden: Nomos, 119–145.
Grimm D (2005) The constitution in the process of denationalization, Constellations 12: 447–463.
Habermas J (2004) Hat die Konstitutionalisierung des Völkerrechts noch eine Chance? In:
Habermas J (ed.) Der gespaltene Westen. Frankfurt am Maine: Suhrkamp, 113–193.
Habermas J (2008) A political constitution for the pluralist world society? In: Habermas J (ed.)
Between Naturalism and Religion. Cambridge: Polity, 312–352.
Hall PA and Soskice D (eds) (2005) Varieties of Capitalism: The Institutional Foundations of
Comparative Advantage. Oxford: Oxford University Press.
Herberg M (2007) Globalisierung und private Selbstregulierung: Umweltschutz in multinationa-
len Unternehmen. Frankfurt: Campus.
Höffe O (2005) Vision Weltrepublik: Eine philosophische Antwort auf die Globalisierung. In:
Ruloff D, Bertram C and Frey B (eds) Welche Weltordnung? Zürich: Rüegger, 33–53.
Hoffmann-Riem W (ed.) (2001) Regulierte Selbstregulierung als Steuerungskonzept des Gewähr-
leistungsstaates. Berlin: Duncker & Humblot.
Hutter M (2003) Global regulation of the internet domain name system: Five lessons from the
ICANN case. In: Ladeur K-H (ed.) Innovationsoffene Regulierung des Internet: Neues Recht
für Kommunikationsnetzwerke. Baden-Baden: Nomos, 39–52.
Karavas V (2006) Digitale Grundrechte: Zur Drittwirkung der Grundrechte im Internet.
Baden-Baden: Nomos.
Keohane R and Nye J (2001) Power and Interdependence: World Politics in Transition. Boston:
Little Brown.
Kingsbury B (2009) International law as inter-public law. In: Richardson HR and Williams MS
(eds) NOMOS XLIX: Moral Universalism and Pluralism. New York: New York University
Press, 167–204.
Kingsbury B, Krisch N, Stewart RB and Weiner JB (2005) Symposium: The emergence of global
administrative law. Law and Contemporary Problems 68: 15–61.
Kjaer PF (2010) The metamorphosis of the functional synthesis: A continental European perspec-
tive on governance, law and the political in the transnational space. Wisconsin Law Review 2:
101–147.
Krasner SD (1983) Structural causes and regime consequences: Regimes as intervening variables.
In: Krasner SD (ed.) International Regimes. Ithaca, NY: Cornell University Press, 1–23.
Kumm M (2007) Constitutional democracy encounters international law: Terms of engagement.
In: Choudhry S (ed.) The Migration of Constitutional Ideas. Cambridge: Cambridge University
Press, 256–293.
Loughlin M (2010) What is constitutionalisation? In: Dobner P and Loughlin M (eds) The Twilight
of Constitutionalism. Oxford: Oxford University Press, 47–72.
Luhmann N (1989) Politische Steuerung: Ein Diskussionsbeitrag. Politische Vierteljahresschrift
30: 4–9.
Luhmann N (1990) Steuerung durch Recht? Einige klarstellende Bemerkungen. Zeitschrift für
Rechtssoziologie 11: 137–160.
Luhmann N (1997a) Die Gesellschaft der Gesellschaft. Frankfurt: Suhrkamp.
Luhmann N (1997b) Limits of steering. Theory, Culture & Society 14: 41–57.
Luhmann N (2004) Law as a Social System. Oxford: Oxford University Press.
Neyer J (2004) Postnationale politische Herrschaft: Vergesellschaftung und Verrechtlichung
jenseits des Staates. Baden-Baden: Nomos.
Peters A (2006) Compensatory constitutionalism: The function and potential of fundamental
international norms and structures. Leiden Journal of International Law 19: 579–610.
Petersmann E-U (2006) Human rights, constitutionalism and the World Trade Organization:
Challenges for the World Trade Organization jurisprudence and civil society. Leiden Journal
of International Law 19: 633–667.
Polanyi K (1991/1944) The Great Transformation: The Political and Economic Origins of Our
Time. New York: Beacon.
Post DG (1996) Governing cyberspace. Wayne Law Review 43(1): 155–171.
Prandini R (2010) The morphogenesis of constitutionalism. In: Loughlin M and Dobner P (eds)
The Twilight of Constitutionalism? Oxford: Oxford University Press, 309–326.
Schepel H (2005) The Constitution of Private Governance: Product Standards in the Regulation of
Integrating Markets. Oxford: Hart Publishing.
Schermers HG and Blokker NM (2004) International Institutional Law: Unity within Diversity.
Leiden: Martinus Nijhoff.
Streeck W (2009) Re-Forming Capitalism: Institutional Change in the German Political Economy.
Oxford: Oxford University Press.
Streeck W and Schmitter PC (1991) From national corporatism to transnational pluralism:
Organized interests in the single European market. Politics and Society 19: 133–164.
Teubner G (2001) Rechtsirritationen: Zur Koevolution von Rechtsnormen und Produktregimes. In:
Dux G and Welz F (eds) Moral und Recht im Diskurs der Moderne: Zur Legitimation
gesellschaftlicher Ordnung. Opladen: Leske und Budrich, 351–381.
Teubner G (2003) Global private regimes: Neo-spontaneous law and dual constitution of autono-
mous sectors? In: Ladeur K-H (ed.) Globalization and Public Governance. Oxford: Oxford
University Press, 71–87.
Teubner G and Korth P (forthcoming) Two kinds of legal pluralism: Collision of laws in the double
fragmentation of world society. In: Young M (ed.) Regime Interaction in International Law:
Theoretical and Practical Challenges. Cambridge: Cambridge University Press. Available at:
http://ssrn.com/abstract¼1416041.
Teubner G and Zumbansen P (2000) Rechtsentfremdungen. Zum gesellschaftlichen Mehrwert des
zwölften Kamels. In: Teubner G (ed.) Die Rückgabe des zwölften Kamels: Niklas Luhmann in
der Diskussion über Gerechtigkeit. Stuttgart: Lucius & Lucius, 189–215.
Tully J (2007) The imperialism of modern constitutional democracy. In: Walker N and Loughlin M
(eds) The Paradox of Constitutionalism: Constituent Power and Constitutional Form. Oxford:
Oxford University Press, 315–338.
Viellechner L (2007) Können Netzwerke die Demokratie ersetzen? Zur Legitimation der
Regelbildung im Globalisierungsprozess. In: Boysen S, Bühring F, Franzius C, Herbst T,
Kötter M, Kreutz A, Lewinski K von, Meinel F, Nolte J and Schönrock S (eds) Netzwerke:
47. Assistententagung O¨ffentliches Recht. Baden-Baden: Nomos, 36–57.
Voser N (1996) Mandatory rules of law as a limitation on the law applicable in international
commercial arbitration. The American Review of International Arbitration 7: 319–358.
Walker N (2002) The idea of constitutional pluralism. Modern Law Review 65: 317–359.
Walker N (2008) Post-constituent constitutionalism: The case of the European Union. In: Loughlin M
and Walker N (eds) The Paradox of Constitutionalism: Constituent Power and Constitutional
Form. Oxford: Oxford University Press, 247–268.
Walter C (2001) Constitutionalizing (inter)national governance: Possibilities for and limits to the
development of an international constitutional law. German Yearbook of International Law 44:
170–201.
Weiler JH (1999) The Constitution of Europe: ‘Do the New Clothes Have an Emperor?’ and Other
Essays on European Integration. Cambridge: Cambridge University Press.
Weiler JH and Wind M (eds) (2003) European Constitutionalism Beyond the State. Cambridge:
Cambridge University Press.
White HC (1992) Identity and Control: A Structural Theory of Action. Princeton, NJ: Princeton
University Press.
Wiethölter R (2005) Just-ifications of a Law of Society. In: Perez O and Teubner G (eds) Paradoxes
and Inconsistencies in the Law. Oxford: Hart, 65–77.
Wimmer A and Glick-Schiller N (2002) Methodological nationalism and beyond: Nation state
building, migration and the social sciences. Global Networks: A Journal of Transnational
Affairs 2: 301–334.
that by raising these questions I am not assuming that law can ever absorb politics, such
that societal constitutionalism is not only always a form of political constitutionalism,
but also that politics is such if and only if it is constitutional politics. As indicated,
my question is more limited in scope. It concerns whether it makes sense to vindicate
the double gesture of ‘generalizing’ and ‘re-specifying’ state-centred constitutionalism
in terms of an abstractive movement that seeks to capture a purely legal essence of con-
stitutionalism that can then be redeployed in a non-political setting.
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.
Against all attempts by those theories of democracy that would transform political
decisions into consensual decisions, Luhmann insists that the function of politics is to
decide and enforce decisions despite – and because – of the fact that there is no consen-
sus. Politics would forfeit its raison d’eˆtre if it ceased to be ‘power politics’, that is, hav-
ing the capacity, even though usually held in reserve, to enforce decisions. In terms of
evolutionary theory, politics evolves into an autonomous functional system because,
it deals with a problem that society must resolve, with or without the differentiation
of politics, namely the necessity to establish what counts as collectively binding, even
in the face of differences of opinion between or changes of heart by the concerned parties.
(Luhmann, 2002/2000: 87)
Having looked at the function of politics, let’s turn to consider very briefly how it
impinges on political constitutionalism. In an important passage of the Politics of
Society, Luhmann summarizes the relation between politics and constitutionalism in
terms of the general principle of the ‘Rechtsstaat’:
physical power could only be applied in the sense of law, only on the basis of legal status
(Rechtslage), and this presupposed a political control of legislation, which, for its part, was
subordinated to the constitution and, possibly, judicial control by a constitutional court.
(Luhmann, 2002/2000: 79)3
Democracy, for its part, consists in ‘the inclusion, as a matter of principle, of the entire
population . . . in the political system’ (Luhmann, 2002/2000: 97). That is, it consists in
a further specification of the political control of legislation: suffrage. Moreover, to the
extent that democratic conflicts consist in different prioritizations of values and interests,
political constitutionalism institutionalizes the contingency of decisions and the possibil-
ity of accounting for them politically and legally.
servants which Schmitt feared, when writing in 1928, seem relatively harmless when, in
light of the globalization of the economy, acts of sovereignty are apocryphal because
there is no longer even a civil servant to whom they could be ascribed, or who could
be held politically responsible.
Notice that this problem is not solved by appealing to the ‘limiting’ function of soci-
etal constitutionalism, in particular the notion of fundamental rights, to which
Teubner appeals. To repeat the central point of ‘Constitutionalizing polycontexturality’,
Teubner argues that if societal constitutionalism has focused heretofore on the enabling
function of global legal orders, that is, on institutionalizing sectorial decision-making pro-
cesses, it is now necessary to urgently set up limits that restrain the destructive potential
inherent in rationalities deployed in those social sectors. While I certainly agree with
Teubner that positivizing fundamental rights in the framework of ‘societal constitutions’
could be an important step, their mere enactment in a legal order does not solve the
political problem of their enforcement. Nor, more generally, does creating new funda-
mental rights address the problem of enforcing political decisions about, say, how to deal
with the globalization of capitalism: how, if necessary, can physical power be brought to
bear on the regulation of economic processes in a way that addresses their properly global
character? This means that the main problem confronting societal constitutionalism
resides in its enabling function: if global sectors call for global legal regulation, then such
regulation, to be credible as legal regulation, depends on the possibility that those norms
be enforced, that is, on a global form of the general function of politics. In short, I don’t see
how law, on its own, could impede or rein in the destructiveness and self-destructiveness
of global sectorial systems. Societal constitutionalism, if it is at all to succeed in its
‘limiting’ function, must become a global form of political constitutionalism.
This, it seems, is what Teubner acknowledges when discussing the example of a glo-
bal constitution for science:
If the constitution of global science were able not just to norm the multiplicity of differing
mutually competing funding sources for research, but also de facto to guarantee them, then
this would have effects on the autonomy of science that need not be shy of the comparison
with the effect of traditional subjective rights against political interference. (Teubner, 2006:
16, emphasis added)
What else can it mean to ‘de facto guarantee’ a multiplicity of funding sources for
research other than to be able, when necessary, to bring physical power to bear on –
to exercise political power with respect to – those who would hinder that multiplicity
of funding sources? If, then, a constitution for global science that could effectively pro-
vide such a guarantee need not be shy of comparison with subjective rights in a nation-
state, this is because both would be forms of political constitutionalism that provide for
political rights and their enforcement.
There is, of course, a second way of interpreting societal constitutionalism, a possi-
bility that Teubner sometimes hints at, or at least seems to hold open. Indeed, as noted
at the outset, the burning question confronting constitutionalism today is what role pol-
itics should play in the differentiation of global society, that is what would be the appro-
priate articulation of the ‘magical triangle’ of politics, law and a sectorial system. This
second approach would have Teubner concede that societal constitutionalism is political
constitutionalism in the sense noted above, but not in the sense that what would be required
is political constitutionalism in the form of a constitution that organizes and controls a
world state. What would be required, if one follows this second line of constitutional think-
ing, is that each social sector organize itself legally and politically, which would mean that
political power, hitherto concentrated in the nation-state, would need to be disaggregated
into and parcelled out along the lines of the distinct sectorial systems that configure global
society. While the sectorial institutionalization of global political power would be very
different from the institutionalization of political power in the nation-state, one would
still have to speak of world sectorial polities (in the plural), where the term ‘polity’ refers
to institutionalized politics, even if not in the form of nation-state politics.4 In short, soci-
etal constitutionalism is a thoroughly ‘politics-centred constitutionalism’, but then in
the institutional form of ‘polity-centred constitutionalism’, rather than one of its species,
‘state-centred constitutionalism’.
In assessing this second line of thinking about ‘societal’ constitutionalism, let me
say straightaway that I share Teubner’s qualms about the cosmopolitan enthusiasm
surrounding the idea of what Habermas calls a ‘world domestic politics’ (Weltinnenpolitik),
although my own qualms arise from a very different problematization of cosmopolitanism.5
But I remain unsure that the disaggregation of political power along the lines of sectorial
global polities will do the trick. For if it is the case that societal constitutionalism would need
to become political constitutionalism, in the sense noted above, then the globalization of
legal orders not only unleashes a ‘global ‘‘conflict of laws’’’, as Teubner asserts (above); the
emergence of world sectorial polities would also give rise to global political conflicts, where
the conflict is drawn along sectorial lines. And to the extent that global conflicts are political,
this means, in line with the function of politics, that they involve the possibility of deploying
physical power to enforce decisions. Succinctly, sectorial political constitutionalism would
entail the possibility of global sectorial wars. This has ceased to be a merely hypothetical
scenario if one bears in mind that some multinational companies, including large oil com-
panies, are systematically hiring mercenaries to enforce their decisions against indigenous
or environmental groups which violently oppose the destruction of their ancestral lands or of
nature. This is by no means surprising: the emergence of global private self-regulation, in the
face of the decline of the nation-state, opens up the possibility of the private enforcement of
global self-regulation. By the same token, the emerging tandem between private self-
regulation and the private enforcement of private regulations allows for compounding neg-
ative sanctions to marvellous effect: withholding (appropriate) payment for the use of nat-
ural resources, for example, while also applying physical force in the face of opposition to
the absence of (appropriate) payment.
At least part of this problem could be addressed by a democratization of sectorial poli-
ties, whereby, as Teubner nicely formulates it in an earlier paper, the question ‘Who are the
legitimate actors and what are the legitimate procedures for producing law?’ (2006: 19), is
constitutionalized.6 Notice, if I may be allowed a brief digression, that this question neatly
exposes what is perhaps the crucial reductive move in the functional concept of politics
available to systems theory. Remember that for Luhmann, the function of politics is ‘to
hold ready the capacity for collectively binding decisions’. While I have concentrated
heretofore on the problem of physical force as the properly political manifestation of
collectively binding decisions, the crucial political question – and one to which Teubner
indirectly points by invoking the question ‘who belongs?’ – is of course this: under what
conditions can a manifold of individuals view themselves as a collective, and, as such,
capable of enacting binding decisions, which, if necessary, can be physically enforced?
It is here that Lefort’s notion of the political, which he contrasts to politics, provides a pow-
erful corrective to a merely functional theory of politics:
power makes a gesture towards an outside [un dehors], whence [society] defines itself.
Whatever its form, [political power] always refers to the same enigma: that of an
internal-external articulation . . . of a movement of the externalization of society which
goes hand in hand with its internalization. (Lefort, 1988: 225)
While Luhmann and Teubner are no doubt right in insisting on the importance of pol-
itics (la politique, in Lefort’s vocabulary), the enforcement of binding collective deci-
sions, even if held in abeyance for the time being, presupposes a reference by political
power to a point outside the collective, absent which a manifold of individuals could
not view themselves as a collective; could not engage in collectively binding deci-
sions; and could not raise nor constitutionalize the question about who belongs and
who doesn’t. The defence of societal constitutionalism as a form of non-political con-
stitutionalism is only plausible as long as systems theory factors out le politique of its
account of politics, a move, to belabour the point, it cannot sustain without leaving
unexplained the key concept of a collectively binding decision.
Returning to the problem of global political conflicts confronting Teubner, it might be
possible to temper the potential for such conflicts if – although this is a very big ‘if’ –
global sectorial polities were to engage in a process of ‘mutual observation’, in which
each sectorial polity subordinates itself to an all-encompassing horizon, a common per-
spective, even if this perspective is only fictive. But an urgent problem remains: how to
deal with the inequalities of political power that would no doubt arise between sectorial
polities? The question that, as far as I can see, is neither posed nor answered in Teubner’s
vindication of societal constitutionalism is the following: if political power is ultimately
the physical power to ensure that collective decisions function as authoritative premises
for further decisions, to which global sectors will it migrate in the face of the waning
political power of the nation-state? Teubner’s example of the constitutionalization of
global science, to which I alluded earlier, is instructive in this respect. Would global sci-
ence really be able to ‘de facto guarantee’ the multiplicity of sources of funding? For
example, would global science be able to enforce funding by large multinationals, if
these decide to deny funds to those scientific institutions that do not engage in research
they are interested in? In general, isn’t there the real risk that realizing the global auton-
omy of some sectors, for example, the economy, would have to be paid for with the
subordination of other sectors, for example, science? To evoke Schmitt one last time,
doesn’t Teubner’s defence of societal constitutionalism run the risk of converting the
economy – the capitalist organization of the economy, in particular – into the political
‘fate’ (Schicksal) of global constitutionalism (Schmitt, 1991/1932: 77)?
If, as I suspect, this risk is inherent in the fact that societal constitutionalism cannot
but be political constitutionalism, if it is to be constitutionalism at all, then Teubner’s
defence of societal constitutionalism may well end up providing a powerful argument for
the votaries of a world state with a global constitution (in the singular).
Notes
1. Teubner insists on this double function of constitutions in other articles as well. For example, in
‘Societal constitutionalism’ he argues that ‘In constitutionalisation the point is to liberate the
potential of highly specialised dynamics by institutionalising it and, at the same time, to insti-
tutionalise mechanisms of self-restraint against its society-wide expansion’ (Teubner, 2006: 9).
In the article ‘Regime-collisions’, he reiterates that ‘[the] typical elements of a constitution
[are]: provisions on the establishment and exercise of decision-making (organizational and pro-
cedural rules) on the one hand, the definition of individual freedoms and societal autonomies
(fundamental rights) on the other’ (Fischer-Lescano and Teubner, 2004: 1016).
2. Although I will not discuss this issue here, notice the strong teleological reading of history
involved in this account: if the emergence of the modern nation-state both inaugurates and
arrests social differentiation, the constitutionalization of social subsystems heralds the comple-
tion of das unvollendete Projekt der Moderne. Not the realization of individual and collective
autonomy through the foundation of a global polity, as Habermas would have it, but rather the
autonomization of systems, that is, ‘the worldwide realization of functional differentiation’
(Teubner, 2006: 11) marks the historical completion of modernity.
3. See also Luhmann (1995/1993: Chapter 9), ‘Politik und Recht’, 407 ff.
4. This, in contrast to the characterization of the term ‘polity’ as ‘[non-institutionalized politics as
well as] non-political configurations of civil society, in the economy, in science, education,
health, art or sports . . . ’ (Fischer-Lescano and Teubner, 2004: 1015).
5. See e.g. Lindahl (2010).
6. See also Teubner (2003) on the notion of a ‘dual constitution’.
References
Fischer-Lescano A and Teubner G (2004) Regime-collisions: The vain search for legal unity in the
fragmentation of global law. Michigan Journal of International Law 25(4): 999–1045.
Lefort C (1988) Democracy and Political Theory, trans. David Macey. Cambridge: Polity Press.
Lindahl H (2010) A-legality: Postnationalism and the question of legal boundaries. Modern Law
Review 73(1): 30–56.
Luhmann N (1995/1993) Das Recht der Gesellschaft. Frankfurt: Surhkamp.
Luhmann N (2002/2000) Die Politik der Gesellschaft. Frankfurt: Suhrkamp.
Schmitt C (1989/1928) Verfassungslehre. Berlin: Duncker & Humblot.
Schmitt C (1991/1932) Der Begriff des Politischen. Berlin: Duncker & Humblot.
Teubner G (1997) ‘Global Bukowina’: Legal pluralism in the world society. In: Teubner G (ed.)
Global Law Without a State. Aldershot: Dartmouth, 3–28.
Teubner G (2003) Global private regimes: Neo-spontaneous law and dual constitution of autono-
mous sectors? In: Ladeur K-H (ed.) Globalization and Public Governance. Oxford: Oxford
University Press, 71–87.
Teubner G (2006) Societal constitutionalism: Alternatives to state-centered constitutional theory?
Available at SSRN: http://ssrn.com/abstract¼876941.
the nation-state, and, on the other, of invoking a global constitutionalism that can claim
neither the resources nor the institutional density to get it meaningfully off the ground.
It is in connection to the reflexive dimension that I would like to raise two concerns.
The first has to do with the meaning of the ‘reflexive’; the second, pragmatic rather than
conceptual, has to do with what that reflexivity really alerts us to in the context of the
massive tasks and risks that the new constitutionalism is called upon to respond to and
redress. In both directions I find the suggestions offer up a hollowed-out constitutional-
ism, its reflexivity falling short of the task. This, one expects the retort, may be all that
we can hope for under conditions of globalization, and the consequent flattening of
traditional, more robust, constitutional protections in the global race to increase the rates
of return for capital. That it is false necessity that commits us to this form of surrender is
the injunction I will return to at the end.
To take things more gradually, my first concern is this: what is the relationship between
the normative and the functional dimensions of the new reflexive constitutionalism? My
concern, to put it briefly, is that the reflexivity that is constitutive of the ‘new’ constitution-
alism is torn between a functional and a normative dimension, the clash predominantly (it
seems to me) alleviated via the subsumption of the latter to the former. In this subsumption
what is functional re-orients and overdetermines what is normative. This has the result of
short-circuiting reflexivity to the operational requirements of the system to the detriment
of the system’s ‘performance’ in world society.
Let us take a step back to see why, and to identify what is at stake. In an early, much
quoted, contested and debated article (Teubner, 1983), Teubner introduced the terminol-
ogy of ‘reflexive law’ in the context of regulatory pathologies of the welfare state. This
was still the era of a weakly globalized society, and the problem that occupied sociolo-
gists of law working against the neoliberal assumptions that were sweeping the theoretical
as well as the political agenda was how to integrate some of the important insights regard-
ing the separateness and integrity of functional systems in order to salvage something of
the steering function of law and its ability to redress distributional injustices and social
need. At least that is how I interpret the normative priorities that underlie Teubner’s earlier
work. The reflexivity of ‘reflexive law’ had a meaning in terms of the ‘constellation pol-
itics/law/regulated field’ in which the reflexivity of the law was harnessed to its ‘perfor-
mance’ as navigating the triad of risks (the ‘regulatory trilemma’, Teubner called it)
that faced the legal scientist in her efforts to regulate society: those of ‘mutual indiffer-
ence’, juridification and regulatory capture. Reflexive law was about reciprocal adaptation
rather than direct intervention, or the convergence of ‘external irritations and internal reac-
tions in the direction of a common difference-minimization’ (above).
Reflexive constitutionalism, however, is about a different sense of reflexivity. The
maintenance of proper boundaries is no longer valued in the name of the political
objectives of redressing injustice and meeting needs, but valued as such. The discussion
shifts to ‘doing justice’ (the equivocation is interesting here) to proper logics and the
autonomy of spheres, valued per se or – what amounts to the same thing – in the name
of functional differentiation, and brought about through a kind of reflexive equilibrium
of constitutive and limitative rules. What is the meaning of this balance? And what is its
aim? The short answer is that the ‘constitutive’ moment, which marks the imperialistic
tendencies of partial rationalities to colonize and capture the whole, needs to be kept in
check through ‘limitative’ considerations about proper boundaries and spheres.
What, one is tempted to ask, makes the two logics – of the constitutive and the limitative –
commensurate and a balance possible at all, since the respective rationalities in fact operate
at different levels, one ‘sub-systemic’ and the other ‘social’? But I do not want to start at that
end of the systems-theoretical distinction of levels and meta-levels. Rather I will start with
what is undoubtedly one of Teubner’s most incisive insights in this context, his insistence on
the notion of an incremental, ‘organic’ process of constitutionalization, as true to the diverse
logics of social spheres. One may indeed be able to speak of an a posteriori rationalization,
an emerging layering of norms, as autonomous spheres develop and entrench constitutive
rules such that new norms are tested against what has only gradually emerged as the field’s
own benchmarks, and in terms of what emerge as its guiding distinctions.
To navigate the dynamic of this emergence, Teubner puts forward a dialectic of general-
ization and re-specification: What elements, Teubner asks, might be generalized from the
tradition of nation-state constitutionalism that might be re-specified in the global context
of advanced functional differentiation? Generalizations are of course as much selective sup-
pressions as they are selective actualizations. And here arises the concern. The danger is that
what is thus actualized may be over-determined in the direction – and by the requirements –
of its re-specification. And it may not always be constitutionalism’s most cherished achieve-
ments that survive the transplantation to the global level. Let me explain this further.
Inherent in the notion of reflexivity is a double movement of generalization (away
from the context of the nation-state) and re-specification (as appropriate to the receiving
fields). What guides this reflexivity is the handling of the tension between what is gen-
eralizable as constitutional (categorical, transcendent) and what is appropriate framing,
sensitive to the self-production of the field. I would suggest that it is impossible to nego-
tiate this tension. It immediately folds into self-reference and then collapses into the
second pole. It is in that sense that re-specification overdetermines what might be
generalizable in the first place. The process works back-the-way and the function of the
constitutional is reconfigured in the process.
But if that is the case, is it really true that there is any significant distinction to be drawn
here between juridification and constitutionalisation? Might one not see ‘self-descriptions’,
generalizations and other emerging concepts and rules as merely aggregation rules or simply
aggregations of rules whose constitutional function comes too late: as gathering rationaliza-
tions that lack the constitutional qualities of being able to perform a framing function or a
review function, that is, the hallmarks of the ‘constitutional’ function, all of which would
have required them to pre-exist the instance of their application (simply in order to perform
that function)? If the constitutional is to retain anything of the ‘constituent’-political dimen-
sion, of a society’s ability to act on what the various spheres, regimes or fields might present
as the necessary logic of their self-production, then constitutionalization needs to be pitted
against juridification and the ‘limitative’ pitted against the constitutive. But the possibility of
pitting anything against anything else, setting up any pair as oppositional, and with it the very
capacity of a society to draw political distinctions, has become increasingly difficult to sus-
tain under conditions of functional differentiation. And with it comes the inevitable substi-
tution of constitutionalization for self-limitation, which is the name of what ‘hardens’ into
concepts that acquire some form of orientation value for the system as it surges on along the
trajectory of its self-reproduction. That is what the collapse into the ‘re-specification’ pole of
what is ‘appropriate to the receiving field’ sacrifices: the possibility of drawing distinctions
on a political-societal register. In the face of this surrender, and as the subsumption of value
to the partial rationalities of the systems continues unabated, is it useful to grace the institu-
tional facilitation of the all-too-predictable trajectories of capital accumulation with the term
constitutional?
This is the point about the normative and the functional, and the reflexivity that uncom-
fortably straddles them both, that I began this response by identifying as problematic. We
have now reached other ways to ask the same question. What purchase point for the ‘limita-
tive’ in the differentiated, centrifugal processes of social reproduction? What pivot for a
reflexivity that will reflect on proper boundaries? What thresholds and benchmarks for that
‘proper’ other than ‘functional’, and what criteria for functional other than systemic equili-
bria that come in the form of ‘requisite variety’ and other successful forms of bringing com-
plexity under control?
I find no leverage in Teubner’s analysis for what might hoist constitutional reflexivity out
of the internal dynamics of partial rationalities and into a protective (‘limitative’) role for
society. Of course there have been much-discussed attempts to do this, but these are efforts
that I think Teubner too would find problematic. On the one hand, from Hart we have an
analysis of how the constitutional distinction that imports reflexivity operates as an unfold-
ing of self-reference: in The Concept of Law he famously defined the law as the union of
primary and secondary rules. Reflexivity for Hart, as for Teubner, has to do with the oper-
ation of containment that the deployment of this basic (both simple and fundamental) dis-
tinction allows. But Teubner attributes nothing like the importance that Hart does to this
distinction, and for him it certainly has little to do with societal reflexivity, let alone with
furnishing a society with the capacity to stand back from the operations of the system, to put
them to question or hold them up to scrutiny constitutionally (whereas for Hart, famously, it
involves the officials’/judges’ recognition and endorsement of what counts as law). At the
same time Teubner is critical of a human rights approach that advocates ‘the limitation by
means of rights of all expansionist tendencies of social subsystems including those which do
not function through the medium of power’ (Teubner, above). And he is surely right in the
limiting function he attributes (elsewhere) to human-rights-constitutionalism, as a compen-
satory (my term, not his) constitutionalism, with human rights as simply markers of excess,
signs that the ordinary operations of the system have imposed social costs beyond a threshold
of what the system deems bearable, or that it can usefully externalize.
But neither of these moments has anything to tell us about the possibility of the ‘lim-
itative’ constitutional moment, the point at which the system must yield before different
sets of values, or contract back to its proper limits. This would require a normative rather
than a functional register, and, ingenious as the attempt is to run these as congruent and
to navigate normativity via functional considerations, limit situations in particular
(Teubner calls them ‘tipping points’, below) stand them apart.
Let us attempt to salvage this normative question from the self-legitimating dynamics of
function systems and ask this: how might the distinction between politics and the political –
that to my mind is the guiding distinction of any politics worthy of the name ‘reflexive’ – be
unfolded productively in the direction of a certain redress of injustice? The question
is important because it concerns the available registers of political meaning, and I am not
persuaded that Teubner wants to give up on that question, for he asks, for example, ‘how
is the role of politics for transnational sub-constitutions to be formulated?’ (Teubner,
above). How, one might interject, is systems theory – as critical theory – poised at this
historical conjuncture, before the dynamics of societal subsystems running amok?
There is a hint towards the end of Teubner’s article that the limitative has an important role
to play when tipping points are reached. In the face of impeding catastrophe, the constitutive
dynamics of systemic augmentation will be reined in, and sub-rationalities – systemic, partial
– will yield to the requirements of an overall limit. The article, in fact, culminates on an argu-
ment, and a warning, about preventing ‘catastrophe’. Teubner’s concern is that freed up ‘ener-
gies’ may ‘spin out of control’, to have corrupting or even destructive social effects when a
‘tipping point’ may be reached (Teubner, above) at which we may even have a ‘collision’
between the reproduction of function systems and a ‘comprehensive rationality of world
society’ (Teubner, above). ‘This requires massive interventions’, most effective when ‘they
are translated into self-limiting impulses and transformed into a regime constitution’.
I would ask this question: How would we even know that tipping points have been
reached, that destructive energies can no longer be tolerated? What societal register
would carry that message? Not just from Marx, but from Polanyi too, we know that the
market system has in the past had a series of massive collisions with society, and what in
Marx’s analysis of capitalism’s early clearing exercise of ‘primitive accumulation’ is a
history of pillage, exaction and devastation, Polanyi describes as the radical disembed-
ding of the market system from the society that harboured it, a violent extraction that
marks social devastation. Worlds have been lost in these collisions, and not only was
no ‘tipping point’ reached or registered, but in some cases, in the colonial context, for
example, there is not even a trace of the language that the vanquished used to describe
the loss of their worlds. That is all to say that functional sub-systems not only outlive
catastrophic events but feed off them, turning them productive.
On ‘catastrophes’ that don’t register, here is Žižek on the recent débâcle of the system
that ran itself into the ground, unable to sustain the logic of its own reproduction.
The financial meltdown has made it impossible to ignore the blatant irrationality of global
capitalism. In the fight against AIDS, hunger, lack of water or global warming, we may
recognize the urgency of the problem, but there is always time to reflect, to postpone deci-
sions. The main conclusion of the meeting of world leaders in Bali to talk about climate
change, hailed as a success, was that they would meet again in two years to continue the
talks. But with the financial meltdown the urgency was unconditional; a sum beyond imag-
ination was immediately found . . . Saving the starving children can wait a bit, but ‘save the
banks!’ is an unconditional imperative. (Žižek, 2008)
movement at the ‘tipping point’, with social forces storming the market as a result of a
radical disembedding of the economy from society. But what would ‘disembedding’
mean under conditions of functional differentiation? Where will society draw the
resources for that storming with the purchase point for a society-wide response dispersed
and its ability to respond to market excess undone? In what modality would society ‘col-
lect’ itself, and what form of action would its response take?
Which brings me, finally, to a disquieting suggestion. There are economists, I under-
stand, who confirm that there are states of allocative efficiency perfectly consistent with
the poor starving and the economy’s productive activity channelled into the manufacture
of luxury goods. We are depressingly familiar with how multinational companies react to
turbulence by forms of self-binding that see out the storm, in inculcating forms of respon-
sibility, substituting self-control for co-determination, promising the reining in of extra-
vagant greed. Teubner’s ‘tipping point’ here must be the point at which the self-binding
comes undone as radically inadequate, and that ushers in a whole new set of reasons and
a societal register other than the market. It is the very thing that Luhmann insisted cannot
and should not be done, in Ecological Communication, and in practically everything else,
but then this is not the first time that Teubner has broken with Luhmann. What if – this is the
disquieting bit – we have reached the point where the only possible reaction to ‘cata-
strophe’ is ‘catastrophic’? And I mean it in the devastating sense that Georges Sorel used
the term to describe that which introduces a radical break with the logic of the situation (the
mass strike in his case). After all, that which ushers in radical change (as Teubner himself
describes the Kuhnian paradigm shift above) does not do so because it is read by the theory
it challenges but precisely because it cannot be: it breaks into a certain economy as irre-
ducibly uninterpretable, incongruent, resistant, undecipherable and yet un-ignorable.
Could it be then that at the threshold of the catastrophic, it is no longer the system that has
brought us to the brink that needs to be tapped or resourced? That in the face of the state of
emergency that has been reached, we advocate not its internalization – à la Luhmann – and
functionalization in the direction of new systemic operations and a renewed impetus, but a
radicalization of a different order? And one might imagine Gunther Teubner, at this
moment, turning away from Luhmann and towards another great compatriot of his:
The tradition of the oppressed teaches us that the ‘state of emergency’ in which we live is
not the exception but the rule. We must attain to a conception of history that is in keeping
with this insight. Then we shall clearly realize that it is our task to bring about a real state of
emergency. (Benjamin, 1940: XVIII)
References
Benjamin W (1940) Theses on the Philosophy of History or On the Concept of History.
Teubner G (1983) Substantive and reflexive elements in modern law. Law & Society Review
17(2): 239–286.
Teubner G (1993) Law as an Autopoietic System, trans. Anne Bankowska and Ruth Adler, ed.
Zenon Bankowski. Oxford: Blackwell.
Žižek S (2008) Use your illusions. The London Review of Books, 14 November 2008. Available at:
http://www.lrb.co.uk/2008/11/14/slavoj-zizek/use-your-illusions.
We might perceive the erosion of this coupling, rather, as one new expression in the
loose and eternally fraught semantic between state and power, and we might seek to ana-
lyse it by rejecting all sense of an original homology between statehood and society’s
politicality. In short, although in this article, theory construction is refined to account for
ultra-contingent variations in the formation of law, the sensibility of theory to the con-
tingency of power and its precarious relation to its own semantic forms (states) are sub-
stantially less evolved.
Second despite its admirable sociological impetus, the article at times also contains
evidence that power is approached through a perspective that is residually derived from
the classical-normative law/power antinomy, which, in its founding self-definitions,
sociology (especially, and most seminally, Durkheim) sought to surpass (see Durkheim,
1950: 70–71). At one point, for example, legal/constitutional rights are ascribed the func-
tion of limiting power and placing restrictive normative checks on ‘expansive social
media’. Subsequently, states are seen as institutions that are in some circumstances
avidly intent on annexing society’s other subsystems: this, it is argued, was particularly
the case under totalitarian regimes. This view is questionable. Germany, Italy, Spain
and Portugal in the 1930s and beyond were all examples of polities that specifically
acknowledged their inability to perform even minimal regulatory functions across differ-
ent societal subsystems and that opted to shore up their reserves of power by co-opting
private or even neo-patrimonial actors into the peripheries of government. Extrapolating
from this, then, we might observe that even (or especially) in the moment of their greatest
structural over-potentiation, states could not effect a condition even close to the ‘perma-
nent subordination’ of autonomous spheres. Totalitarianism was always societally con-
stituted: i.e. not centred on the state. In fact, to push this claim further, I suggest weak
statehood instead of strong statehood as a paradigm for analysing totalitarianism (see
Gunther, 1980: 259; Gunther, 1996: 167; Palla, 2001: 8; Sarti, 1971: 2). In extension
of this, then, I suggest that the diffusely acentric reality of societal constitutionalism
urged by Teubner – that is, the idea of a ‘hybrid constitutionalization’ in which ‘the exer-
cise of state power, the enforcement of legal rules, the strong influence of social counter-
vailing power from other spheres’ such as ‘media, public discussion, spontaneous
protest, intellectuals, social movements, NGOs, trade unions’ all play a role in the com-
position and exercise of power – is in fact merely a variation on a socio-political reality
that has long been typical of European societies. Further, at a later point, the article
observes that states are called upon to exercise ‘external pressure’ in order to facilitate
the self-limitation of global subsystems, and that, even in politically de-centred societies,
states might exceptionalistically annex and regulate other spheres of social exchange. In
each of these examples, albeit for conflicting motives, the discussion of power and states
appears at once implicitly to replicate classical (Weberian) accounts of the state as a
centre of power and of power as a static, monopolistic and violating societal commodity,
and to reconstruct classical (Kantian) accounts of power as founded in an antinomical or
dualistic relation to law. In consequence, in its practical implications, this argument still
ascribes exaggerated force to states, and it even (against its intentions) preserves high
expectations regarding the regulatory functions that states might perform. Methodologi-
cally, moreover, this perspective seems to deflect from consideration of the social mor-
phology of power, to pay limited attention to the inner articulation of constitutional
forms and power per se, and, in consequence, to reproduce a binary (pre-sociological)
pattern for analysing the relation of power to law.
There might, in consequence, be an alternative systems-theoretical approach to ques-
tions of contemporary constitutionalism and to the normative fabric of modern society,
which might expand the sociological foundations of the analysis proposed here. An alter-
native approach to these matters might examine constitutions and constitutional rights,
from the outset, not (or not solely) as institutions designed to ‘limit power effectively’,
but also as reflexively internal articulations of law and power that are generated – socio-
logically – from within power, and that create an adequately abstracted medium for the
societal circulation of power. The structural coupling of law and power in a constitution,
thus, might be seen as an element of power’s own internal differentiation, displacement
and transmission within a certain socio-historical conjuncture, responding to and
expressing power’s specific resources of societal adaptivity. This view of the constitu-
tion would allow us to step outside both the presumptive state/power homology and the
law/power antinomy (discussed above) and it would make it possible to observe the
constitutional framing of power, not as a process marked by radical caesura or crises, but
as expressing momentary, evolving and contingent semantic patterns for the transfusion
of modern society with power. There is in fact a wealth of historical evidence to sustain
this view of constitutions and constitutional rights as dimensions of power’s adaptivity
and internal abstraction. If pursued, this approach might throw up a different account of
new processes of constitutionalization; it might construe transformations in constitu-
tional rule as correlated with internal transformations in the substance of power and as
adjusted to new conditions of society’s power; and it might allow us to observe the
‘dismantling’ of ‘nation-state regulations’ in a different light.
A highly reflected sociological theory of law, to conclude, needs and presupposes
an equally highly reflected and equally sociological theory of power and politicality.
Indeed, we might observe that if sociology is to bring to conclusion its original endea-
vour to construct the normative reserves of modern society in a paradigm that is ade-
quate to the spontaneous norm-constitutive structures of this society, a revision of
deductive analysis of law only wins half the battle. The coupling of law and
power also needs to be re-examined and the internal/evolutionary interdependence
of power, law, constitutions and constitutional rights needs to be placed in the fore-
front of theoretical debate.
References
Durkheim É (1950) Leçons de Sociologie. Physique des Mœurs et du Droit. Paris: Presses
Universitaires de France.
Gunther R (1980) Public Policy in a No-Party State: Spanish Planning and Budgeting in the
Twilight of the Franquist Era. Berkeley: University of California Press.
Gunther R (1996) The impact of regime change on public policy: The case of Spain. Journal of
Public Policy 16(2): 157–201.
Palla M (ed.) (2001) Lo stato fascista. Florence: La Nuova Italia.
Sarti R (1971) Fascism and Industrial Leadership in Italy, 1919–1940: A Study in the Expansion of
Private Power under Fascism. Berkeley: University of California Press.
to be integrated into the creation of forms of action in the social substrate, that is, in the glo-
bal economy itself (and not its political system, i.e. the international community [of states]).
Similarly decision-making (in the legislative, executive and juridical apparatuses) and dis-
cussion (in the global sub-publics) have to be structurally coupled with one another, such
that the democratic-theoretically meaningful duality of spontaneous and organised spheres
of the creation of the social constitution can be established. (Fischer-Lescano and Renner,
2011: 15)
The world state does not prescribe the constitution of the economy and other social sub-
systems, but it produces constitutional impulses for them. If institutionalized politics,
together with other actors, particularly civil-societal actors, exerts massive external pres-
sure in order to compel changes in fundamental social structures, for example, in the
capillaries of the payment cycle of the economy, that would be the appropriate division
of labour. Social systems have the best constitutional chances where they can develop
their own constitutions in the shadow of institutionalized politics (Grimm, 2009: 81).
Political interventions in the economic and other societal constitutions, which do exist
of course, ought not to be understood, then, as genuine operations within a civil consti-
tution, but rather as external constitutional impulses. The most important external
impulses from politics are released during the foundational act of the relevant constitu-
tion, but usually transmitted by the legal system. To establish a financial constitution
would require political impulses, which would have to work their way into the internal
structure of the economy. Generally it is the case that an autonomous economy requires a
strong political system. The Mafiosi conditions in Russia after 1989 offer ample illustra-
tion of the negative effects when a capitalist economy is introduced by a ‘big bang’
without rule of law constraints. To date, transnational politics have reacted most con-
vincingly when in the moment of the financial crisis an international coordination of
‘first aid’ measures was put into effect. To that extent, it can be concluded that social
constitutions are politically imposed.
However, it is the internal reconstruction of the external political impulses which mat-
ters and that is what is decisive for the sustained transformation of a civil constitution.
Without this, the constitutional impulses of politics and society fade. But it is also true
that without them, there is no chance of a sustained transformation of the civil constitu-
tion. It is not the ‘big decision’, the mythical foundational act, that is relevant for the
existence of a constitution, but rather ‘long standing chains of communicative acts,
bound to one another, of the successful anchoring of a constitution as the ‘‘highest
authority’’’ (Vesting, 2009: 613). The political impulse limits itself to the formative act
and fundamental changes; over and above that, high constitutional autonomy is required
in relation to politics.
The phrase ‘in the shadow of institutionalized politics’ has an additional meaning.
Societal constitutionalism always depends on law; law, for its part, depends on the phys-
ical monopoly that politics has over power. Economic and social sanctions alone are not
sufficient to stabilize constitutional norms. Hans Lindahl, in his response, sees here the
main problem confronting societal constitutionalism: global legal regulation depends on
the possibility that those norms be enforced and, thus, law on its own cannot impede the
destructiveness of global sectorial systems. Indeed, societal constitutionalism, if it is at
all to succeed in its ‘limiting’ function, depends upon political constitutionalism. Such
political support, however, does not transform the economic constitution into a part of
the state constitution. It is only the instruments of state power which law uses, depoliti-
cizes, and places at the disposal of the societal constitution.
While societal constitutionalism keeps its relative distance from institutionalized
politics, the politicization itself of the economy and other social sectors is high on its
agenda. Politicizing a social sector involves intense and conflictual processes of reflec-
tion which deal with the social consequences of the extension or limitation of its
medium. The politicization is carried on by ‘collegial institutions’ in the general public,
citizen groups, NGOs, labour unions, professional associations, universities and corpo-
rations. A strengthened politics of reflection is required within the economy and other
social spheres that at the same time needs to be supported by constitutional norms.
Historically, collective bargaining, codetermination, and the right to strike enabled new
forms of societal dissensus (Luhmann, 1973: 182). In today’s transnational organiza-
tions, ethic committees of conduct fulfil a similar role. Societal constitutionalism sees
its point of application wherever it turns the existence of a variety of ‘reflection centres’
within society, and in particular within economic institutions, into the criterion of a
democratic society (Sciulli, 1992, 2001). Candidates for a capillary constitutionalization
exist not only in the organized sector of the global society, in corporations and banks, but
also in its spontaneous spheres (on this difference, see Teubner, 2003: 82 ff.). In these
reflection centres it is fiercely discussed and finally decided whether, in a concrete
situation, the growth compulsions of the social sector are excessive or not.
The dynamics of external political impulses and the internal politics of the ‘capillary
constitution’ are not an automatic consequence of functional imperatives. In his response,
Emilios Christodoulidis seems to assume that in the relation between ‘normative’ and
‘functional’ demands on social systems, functional imperatives will always prevail in a
way that renders normative concerns illusory. I suggest a distinction: while the differential
rationality of social systems necessitates that normative institutions differ from system to
system, the balance of strength between normative and functional demands is contingent
upon historical constellations. The history of nation-state constitutionalism gives ample
evidence of the changing balance between a (functional) realpolitik and a (normative)
‘common good’ orientation. It is safe to assume that in societal constitutionalism a similar
experience will be generated. It develops only in crisis phases, caused themselves by
excessive growth compulsions. These are the constitutional moments, when social ener-
gies of such intensity are activated that catastrophe is averted. From an historical point
of view, it is clear that the Great Depression in 1929 was such a moment. At the time the
nation-states were faced with a constitutional decision: to abolish the autonomy of
the economy via totalitarian politics of either a socialist or fascist bend, or to inaugurate
the ‘New Deal’ and the welfare state as a limitative constitutionalization of the national
economies. And today? Did the banking crisis of 2008 resonate systemically? Was it threa-
tening enough to amount to a new constitutional moment – this time of the global economy
– establishing, within the realm of possibility, a self-limitation through a global financial
constitution? Or has ‘the bottom’ not yet been reached? In which case will the fading of the
crisis herald the global return to the old addictive behaviour, untreatable with nation-state
withdrawal cures?1
Acknowledgement
This article was translated from the German by Ruth Dukes.
Note
1. For the interpretation of the recent financial crisis in terms of an addictive growth compulsion
and the potential role of constitutional limitations, see Teubner (2011).
References
Christodoulidis E (2007) Against substitution: The constitutional thinking of dissensus. In: Lough-
lin M and Walker N (eds) The Paradox of Constitutionalism: Constituent Power and Consti-
tutional Form. Oxford: Oxford University Press, 189–208.