Teubner - Constitutional fragments: societal constitutionalism and globalization

Constitutional Fragments

OXFORD CONSTITUTIONAL THEORY

Series editors:
Martin Loughlin, John P. McCormick, and Neil Walker

One consequence of the increase in interest in constitutions and constitutional law in recent years is a growing innovative literature in constitutional theory. The aim of Oxford Constitutional Theory is to provide a showcase for the best of these theoretical reflections and a forum for further innovation in the field.

The new series will seek to establish itself as the primary point of reference for scholarly work in the subject by commissioning different types of study. The majority of the works published in the series will be monographs that advance new understandings of the subject. Well-conceived edited collections that bring a variety of perspectives and disciplinary approaches to bear on specific themes in constitutional thought will also be included. Further, in recognition of the fact that there is a great deal of pioneering literature originally written in languages other than English and with regard to non-anglophone constitutional traditions, the series will also seek to publish English translations of leading monographs in constitutional theory.

Gunther Teubner

Translated by

Gareth Norbury

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G. Teubner, 2012

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First published 2012

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ISBN 9780-199644674

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let thy company bind thee hand and foot to the mastUlysses followed Circes advice and was able to enjoy the sirenes singing without falling for their deadly temptation. Freedom through self-restraint is Ulysses constitutional message which has been echoed by political constitutions once they began to constrain the power of the nation state. In this book the message is applied to constitutions beyond the nation state, to the constitutions of transnational regimes which govern more and more our daily lives. Their expansive tendencies are in urgent need of being constrained by constitutional rules.

This book grew out of the lively debates of the constitutionalists, a discussion group at the Wissenschaftskolleg zu Berlin. Petra Dobner, Dieter Grimm, Martin Loughlin, Fritz Scharpf, Alexander Somek, and Rainer Wahl had such powerful objections to the concept of constitutionalism beyond the nation state that I thought I needed to write a book to deal with them adequately. I benefited from the institutional support and the intellectual climate of the Exzellenzcluster Normative Ordnungen in Frankfurt, the Hague Institute of International Law, and the International University College in Turin. In preparing this book I co-operated closely with Poul Kjaer, whose forthcoming monograph on The Structural Transformation of Democracy: Elements of a Theory of Transnational Constitutionalism develops complementary analyses on transnational societal constitutionalism from the political sciences perspective. Anna Beckers and Soo-Hyun Oh supported the whole process from the beginning with substantive assistance and constructive critique. Last but not least, I should mention the discussions of the seminar on private law theory which I held in Frankfurt for several years together with Rudolf Wiethlter. His ideas on Rechtsverfassungsrecht inspired me more than the text can tell.

During the last few years, a series of public scandals has raised the new constitutional question.state in transnational political processes, and at the same time outside the institutionalized political sector, in the private sectors of global society.

These scandals have sparked a debate that diagnoses a crisis of modern constitutions, with transnationalization and privatization of the political to blame. Arguments rage about a transnational constitutionalism, whose statuswhether constitutional doctrine, sociological theory, political manifesto, or social utopiaremains unclear. Broadly speaking, the terms of the debate are as follows. One side heralds the decline of constitutionalism. Its historically fully-developed form, so the argument goes, was taken in the political constitutions of the nation state. However, its foundations were being eroded, on the one hand by European integration and the emergence of transnational regimes and, on the other, by the transfer of political power to private collective actors. Alternative forms to national constitutions cannot be found in the transnational space. They are even saidbecause transnational politics suffers from chronic deficits, for example the non-existence of a demos, cultural homogeneity, political founding myths, a public sphere, political partiesto be structurally impossible. If this double crisis of constitutionalism can be counteracted at all, then it will be at most through re-nationalization and re-politicization, that is, constitutional institutions of the nation state (constitutional courts, parliaments, the public sphere) would need to be fully restored.