Constitutional Mobilization and Contestation in the Transnational Sphere
| Published date | 01 July 2018 |
| Date | 01 July 2018 |
| DOI | http://doi.org/10.1111/jols.12103 |
| Author | Paul Blokker |
JOURNAL OF LAW AND SOCIETY
VOLUME 45, ISSUE S1, JULY 2018
ISSN: 0263-323X, pp. S52±S72
Constitutional Mobilization and Contestation in the
Transnational Sphere
Paul Blokker*
The debate on the constitutionalization of European and transnational
law pays little attention to the role of civil society and social move-
ments. While civil society involvement in private litigation increasingly
receives attention, the critical, counter-democratic role of trans-
national movements in a broader, public sense, is largely ignored. The
significance of democratic claim making, public demands, and con-
testation, and the normative dimensions as well as constitutional
implications of such engagement, are insufficiently explored. This
article discusses the theoretical and analytical dimensions of legal and
constitutional mobilization and explores different forms of civil society
action before considering a plurality of legal rationalities as articu-
lated in public claims, as well as the issue of counter-hegemonic
struggle. Then, it develops a political-sociological approach, which, in
the final part, is used in a case-study of the water rights campaign,
exploring the different types of legal mobilization involved (including
the European Citizens' Initiative) and a variety of normative claims
being endorsed.
INTRODUCTION
The idea of societal constitutionalism challenges our understanding of
modern constitutionalism as a phenomenon that is strictly tied up with the
nation-state. Significant interest is now displayed in the emergence of trans-
national constitutional regimes. The claim is that the quality of constitu-
tionality needs to be extended to a range of transnational actors and
S52
*Faculty of Social Sciences/Institute of Sociological Studies, Charles
University, U Kr
Ïõ
ÂzÏe 8, 158 00 Prague 5, Jinonice, Czech Republic
paulus.blokker@fsv.cuni.cz
The author acknowledges funding for the research project, `Transnational populism and
European democracy' (TRAPpED) from the Czech Science Foundation (Grantove
Â
agentury C
Ïeske
Ârepubliky), standard project 18-25924S.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
arrangements, reflecting the view that in the global arena the `center of
lawmaking has moved away from the state and into the periphery of
transnational actors'.
1
The `societal' has, however, been explored predomi-
nantly in terms of new, transnational `constitutional subjects' (in particular,
non-state, corporate actors), who replace and challenge the constituent
powers of the era of the nation-state, and the constitution-like regimes these
novel constitutional subjects constitute. While there is recognition of the role
of other, societal or `spontanenous' actors that engage with forms of trans-
national constitutionalism and challenge these post-national regimes,
2
this
dimension has, at least until recently, not been at the forefront of debate.
3
This article emphasizes the importance of a focus on the `spontaneous' or
the less institutionalized dimension of the `societal': what is societal about
constitutionalism is not least the embedment (or lack thereof) of con-
stitutional orders (of both a private and a public nature) in a wider societal
context. The argument is that attention to the interaction of a constitutional
regime with its wider `audience', addressees, and affected outsiders is crucial
for understanding the contested nature of constitutionalism beyond the
nation-state, and it is relevant both for private and more public arrangements.
Its contested nature points to key problem areas of transnational constitu-
tionalism, such as legitimacy, transparency, accountability, and democracy,
as well as, in a related manner, to the one-sidedness of transnational regimes
and their tendency to a limited legal and constitutional imagination, focusing
on a distinctive functional logic.
4
Civil society actors play a significant role
in contesting and `testing' transnational constitutional arrangements, in this
making the latter's deficiencies and one-sidedness explicit and public, while
at times engaging i n the proposition of alternative and e ven more
comprehensive, political forms of constitutionalism.
The article focuses on the specific debate regarding the constitutionaliza-
tion of transnational law in the European context. The well-developed field
of scholarly research and debate on an emerging European constitutional
order can be said to suffer from some of the shortcomings mentioned above,
including a lack of attention to the role of civil society and social movements
S53
1 R. Michaels, `Global Legal Pluralism' (2009) Duke Law School faculty scholarship
series, paper 185, at .
2 G. Teubner, Constitutional Fragments: Societal Constitutionalism and Globalization
(2012) 89.
3 See G. Teubner, `Quo d omnes tangi t: Transna tional Con stitutio ns Without
Democracy?' in this issue, p. S5.
4 id. In this regard, more densely constitutionalized public regimes such as the EU can
equally be understood as being relatively one-sidedly focused on functional areas, in
particular the economy, rather than displaying the comprehensive nature of the
political constitution at national level: compare H. Brunkhorst,`Constituent power and
constitutionalization in Europe' (2016) 14 International J. of Constitutional Law 680;
K. Tuori, `The Eurozone Crisis as a Constitutional Crisis' in Polity and Crisis:
Reflections on the European Odyssey, eds. M. Fichera et al. (2016) 3.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
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