Transnational Societal Constitutionalism

= a concept and a conference on how international civil society is creating its own constitutions and thereby resisting the constitutionalism of global finance.

“How can global “constitutional problems”, such as human rights violations by corporations or the catastrophic risks of global capital markets, be dealt with? Societal spheres have to develop their own self-limitative structures, Gunther Teubner suggests in his recently published book “Constitutional Fragments”. The conference on “Transnational Societal Constitutionalism” discussed this idea and analyzed under which conditions such constitutional structures emerge and where in social reality they can currently be observed. The following questions became relevant during the conference:

Questions

Can constitutions in fact emerge on a transnational level and how may transnational constitution making be described (Christopher Thornhill)?

Are societal sectors outside the political arena able to adapt a “political logic” (Emilios Christodoulidis) and develop a discourse on common goods (Ugo Mattei)?

Do constitutions have to be developed by a collective (Hans Lindahl) or even a formal organization (Poul Kjaer)?

Which role does territory play for transnational constitution making (Saskia Sassen)?

May constitutions also have to develop a temporal dimension (Riccardo Prandini)?

How does the idea of human rights have to be further developed (Florian Rödl)?

And how can we deal with constitutional pluralism in world society (Paul Schiff Berman, Christian Joerges)?

Where in global society do constitutional structures currently emerge:

– In the setting of international financial accounting standards (Moritz Renner)? – In the societal production of knowledge, such as open-source movementsor massive author collaboration projects (Dan Wielsch)? – In certification schemes on sustainable forestry and fishery (Jaye Ellis)? – In NGO protests against large companies and the increasing adaption of CSR commitments (Larry Cata Backer, Anna Beckers)?” (http://www.hiil.org/events/conference)

More Information

The concept explained through a conference review. Article from the Frankfurter Allgemeine Zeitung, the leading newspaper in Germany, 23 May 2012.
Max Steinbeis:

‘The main initiator of the conference was Gunther Teubner (Frankfurt), legal sociologist and Niklas Luhmann’s most influential successor in the field of law. At this moment his new book Constitutional Fragments appears simultaneously in German, English and Italian. Constitutions, according to Teubner’s thesis which he developed over the last years, exist not only in nation states, but are emerging in many sectors of global society. The function systems of society, politics, the economy, science, media, medicine or technology develop massive tendencies of blind expansion at the cost of their environment and subordinate other sectors to their specific functional logics. This produces strong resistance from the other sectors and ends up in massive stress which re-enters the expansive systems and compels them to accept limitative rules for themselves. In politics these rules are called constitutions. Constitutions produce on the one hand an autonomous basis for power which makes politics relatively independent from religion, family and other social systems, on the other hand constitutions create barriers to their expansionism in the form of fundamental rights.

Teubner illustrates this, appropriate to the genius loci, with a classical image: Ulysses asks his comrades to bind him to the mast so that he can enjoy the singing of the sirens without falling to their deadly temptation to steer the ship to wreckage on the riffs. This is what is needed today for global markets and other transnational social systems: self-binding in order to gain higher degrees of freedom for society as a whole, in other words, constitutionalisation.

What worked quite successfully within the territorial boundaries of the nation state – can this also work in transnational contexts like the global financial markets? This is where the controversies started. The pouvoir constituant has ceased to be a national phenomenon and furthermore can no longer be separated from the pouvoir constitué. With these arguments Chris Thornhill (Glasgow) supported his Luhmannian ally Teubner pointing to the dense network of transnational rights which have not been legislated by any constitutional assembly but by a judiciary which has been constitutionalised in its turn.

Emilios Christodoulidis (also Glasgow), obviously under the impression of circumstances in Greece, objected. The transnational realm has been „colonised“ by the economic logic of competition and is basically immune against irritations by the political system where Teubner puts his hopes. Who wants to domesticate the markets, must turn to (national) politics, not to the markets.

Does he have the courage to tell this to an Italian? – Teubner countered. In Italy the nation state and its institutions are perceived as passive instruments of economic interests – this was the message of Ugo Mattei (Turin), the law professor who has become the star activist of the Italian Occupy Movement. Public goods like cultural and welfare institutions even when they are in the hands of the state have fallen prey to the appropriation by private actors. A genuine constitutionalisatin of the „commons“ is needed which would exclude both nationalisation and privatisation.

It did not come as a surprise that Saskia Sassen (New York) did not wish to rely on the state as the tamer of expansive social systems. In her analysis „global high finance“ differs from traditional banking as it lends money which it does not possess. Thus it is compelled to invade more and more sectors of society. For this purpose global high finance exploits globally, albeit with local variations, the law of the nation states. The famous sociologist did not explicitly make reference to constitutionalism, but enriched the debate with valuable data on landgrabbing by states and hedgefunds, the massive acquisition of land with the help of corrupt governments at the cost of the indigenous population. The territory which has been privatised in this way amounts today to two hundred and twenty million of hectars.

In a concrete case study Moritz Renner (Berlin) demonstrated that constitutionalisation tendencies of transnational regimes are actually taking place. He analysed the regime of autonomous accounting standards of the global economy with its detailed rules of procedure and competences as a piece of transnational constitution making. In the same constitutional perspective Jaye Ellis (Montreal) analysed the ecological standards of non-governmental certification organisations in forestry and high sea fishery.

The most fascinating case study however was conducted by the private law theorist Dan Wielsch (Cologne). He criticized the strictly economic rationality of intellectual property law of the state world where international agreements actually subvert national constitutional guarantees of free and equal access to information and communication media. However, parallel to these state agreements alternative transnational copyright regimes are emerging within the internet community. Software, photos, texts are published under Open Source or Creative Commons Licences which make it possible that the works can be used and distributed without any costs – under the conditions that users apply the same licence for their future partners. This means, private copyright is used to guarantee – not its private character – but its public use.

This, according to Wielsch, is an example for civil society appropriating a legal regime in order to protect the conditions of its own autonomy. That is societal constitutionalisation.” (http://www.iuctorino.it/content/occupy-law)

Background Paper

• Gunther Teubner, Background Paper for a Conference on Societal Constitutionalism and Globalization: The New Constitutional Question

“Over the past few years, a series of political scandals have raised the ‘new constitutional question’. Multinational corporations violated human rights; the World Trade Organization made decisions that endangered the environment and human health in the name of global free trade; private intermediaries in the internet threatened freedom of opinion, and recently, with particular impact, the global capital markets unleashed catastrophic risks – all of 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, than those of the 18th and 19th 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 institutionalised politics, in the ‘private’ sectors of global society.

The political scandals mentioned have sparked a debate, which diagnoses a crisis in modern constitutionalism, and lays the blame at the door of transnationalisation and privatisation. One side heralds the decline of modern constitutionalism. Modern constitutionalism, so the argument goes, took its historically fully-developed form in the political constitutions of the nation-state. At the same time, its foundations were being eroded, 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-nationalisation and repoliticization.

The opposing side in the debate juxtaposes a similar story of decline with the demand for a compensatory constitutionalisation of world society itself. 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 constitutionalised global polity. A constitutionalised international law, a deliberative global public, a policy formulation on a global scale, a transnational system of negotiation between collective actors, a limitation of social power by global politics; each of these is said to open up possibilities for realising 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 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 the expansionism of other social systems when they endanger individual or institutional autonomy. For these questions, which arise with trends towards globalisation and privatisation, 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.” (http://www.hiil.org/data/sitemanagement/media/TSC_outline.pdf)

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