Constitutionalism as Fear of the Political? A Comparative Analysis of Teubner's Constitutional Fragments and Thornhill's A Sociology of Constitutions
| Date | 01 September 2012 |
| Author | Jiří Přibáň |
| DOI | http://doi.org/10.1111/j.1467-6478.2012.00592.x |
| Published date | 01 September 2012 |
Review Article
Constitutionalism as Fear of the Political? A Comparative
Analysis of Teubner's Constitutional Fragments and
Thornhill's A Sociology of Constitutions
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CONSTITUTIONAL FRAGMENTS: SOCI ETAL CONSTITUTIONALISM
AND GLOBALIZATION by GUNTHER TEUBNER
(Oxford: Oxford University Press, 2012, 232 pp., £50.00)
A SOCIOLOGY OF CONSTITUTIONS: CONSTITUTIONS AND STATE
LEGITIMACY IN HISTORICAL-SOCIOLOGICAL PERSPECTIVE by
CHRIS THORNHILL
(Cambridge: Cambridge University Press, 2011, 466 pp., £65.00)
In his new book Constitutional Fragments: Societal Constitutionalism and
Globalization, Gunther Teubner warns that we must `be careful in the terms
we use' (p. 66) when defining a new field of global societal constitutionalism
and critically dealing with classical concepts of constitutional and normative
political theory, such as collective identity, political actors, constituted and
constituent power, the nation state, and the public interest. It almost feels like
a touch of irony by one of the most original and distinguished legal scholars,
who has profoundly influenced current social theory of law and introduced
new concepts and metaphors, such as `legal irritants', `transnational con-
stitutional subjects', `sectorial constitutions', and `societal constitutionalism'
to the theory of global law, legal culture, and transnational constitutionalism.
However, Teubner's call for terminological carefulness is not just a
lightweight rhetorical remark. Rather, it highlights his ambitious and most
impressive project to completely rethink and redesign the semantics of
constitutionalism beyond the framework of nation states and international
law, grasping profound structural changes in global law and involving a
441
ß2012 The Author. Journal of Law and Society ß2012 Cardiff University Law School. Published by Blackwell Publishing
Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*Cardiff Law School, Cardiff University, Museum Avenue, Cardiff CF10
3AX, Wales
priban@cardiff.ac.uk
The author wishes to thank Sia
Ãn Edwards and Isobel Roele for their helpful comments.
number of new concepts and apparent oxymorons signifying internal
paradoxes of the global legal system. Its aim is to conceptualize theoretically
and communicate a functional adequacy of law in system-differentiated
global society
1
which is not constrained by the typically modern structure of
the nation state and its constitutional organization.
Reflecting the evolution of transnational law beyond the state and the
internal rationality of the global legal system, new theoretical concepts
signify the systemic self-reference and operative intelligence of global law.
Any neologism and conceptual innovation, therefore, has to be carefully
explained against the persisting pressure of the semantics of state con-
stitutionalism and clarified as a point of self-reference in the evolving system
of global law. Indeed, the very title Constitutional Fragments sounds like an
oxymoron establishing itself against the modern constitutional imagination
which commonly associates the concept of constitution with the process of
unification rather than fragmentation.
Rethinking constitutionalization as part of social fragmentation and
resisting the theoretical temptation of identifying society with normative
unity guaranteed by a political constitution requires a different kind of
imagination. Teubner seeks to facilitate this new constitutional imagination
through the most original mixture of autopoietic systems theory, the classical
terminology of sociology of law, and a number of new concepts emerging in
the rapidly expanding field of transnational law and constitutionalism.
THEORETICAL TENSIONS BETWEEN THE PARTICULARITY OF
THE STATE CONSTITUTION AND THE GENERALITY OF FUNCTION
SYSTEMS
Like any ground-breaking work, Teubner's book may be reviewed either by
appraising and summarizing its content, or by raising intriguing questions
and associated controversies. With the greatest respect and admiration for
Teubner's social theory of law, I opt for the latter.
The book asks `the new constitutional question' (p. 1) which addresses the
alleged inadequacy of modern constitutional theory formed in the eighteenth
and nineteenth centuries and exclusively focusing on the constitutional state,
its rule of law and implementation of state policies. The political power of
nation states is both insufficient to deal with problems of global society and
insufficiently limited to avoid tensions between nation states and global
politics and law. A theory of constitutionalism beyond the nation state thus
needs to pose two different sets of prob lems, namely, problems in
transnational political processes stretching far beyond nation-state powers
442
1 Teubner often uses the term `world society' but this article retains `global society' as
a more common alternative, except when directly quoting from Teubner's work.
ß2012 The Author. Journal of Law and Society ß2012 Cardiff University Law School
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