Constitutionalizing Connectivity: The Constitutional Grid of World Society
| Date | 01 July 2018 |
| Published date | 01 July 2018 |
| Author | Poul F. Kjaer |
| DOI | http://doi.org/10.1111/jols.12106 |
JOURNAL OF LAW AND SOCIETY
VOLUME 45, ISSUE S1, JULY 2018
ISSN: 0263-323X, pp. S114±S134
Constitutionalizing Connectivity: The Constitutional Grid of
World Society
Poul F. Kjaer*
Global law settings are characterized by a structural pre-eminence of
connectivity norms, a type of norm which differs from coherency or
possibility norms. The centrality of connectivity norms emerges from
the function of global law, which is to increase the probability of
transfers of condensed social components, such as economic capital
and products, religious doctrines, and scientific knowledge, from one
legally structured context to another within world society. This was the
case from colonialism and colonial law to contemporary global supply
chains and human rights. Both colonial law and human rights can be
understood as serving a constitutionalizing function aimed at stabiliz-
ing and facilitating connectivity. This allows for an understanding of
colonialism and contemporary global governance as functional, but
not as normative, equivalents.
INTRODUCTION
This article proposes an epistemological shift within the ongoing debate on
the metamorphosis of constitutionalism. A shift away from a focus on
differentiation to a focus on connectivity, that is, a focus on inter-systemic,
rather than intra-systemic, processes, as also expressed in the notion of
interlegality originally coined by Boaventura de Sousa Santos at a speech at
Cardiff University.
1
Systems theoretical approaches to constitutionalism
S114
* Department of Management, Politics and Ph ilosophy, Copenhagen
Business School, Porcelaenshaven 18B, 2000 Frederiksberg, Denmark
pfk.mpp@cbs.dk
Earlier versions were presented at two conferences: `Societal Constitutions in
Transnational Regimes', Cardiff University, 30 June±1 July 2017 and `The politics of
(dis)connectivity', Chinese Academy of Sciences, Beijing, 30 November±1 December
2017. The research leading to this article was developed with support of the European
Research Council, grant no. ITEPE-312331. ID: orcid.org/0000-0002-8027-3601.
1 B. de Sousa Santos, Towards a New Legal Common Sense: Law, Globalization, and
Emancipation (2002, 2nd edn.) 437.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
have, as a consequence of the architecture and basic assumptions of the
theory, a primary focus on the inner worlds of systems and the constitutive
and limiting functions of law in relation to focal social processes, such as the
economy, the mass media, politics, science, and so forth.
2
While the
internalistic perspective is both necessary and fruitful, it implies a de-
emphasizing of the issue of connectivity, that is, the question of how the
probability of sustained and continued social communication flows is
increased on a global scale within a world char acterized by multi-
contextuality. Without dismissing the crucial question concerning the `inner
integrity' of systemically organized communication and the role of legal
norms in achieving such integrity, the issue focused on here is the classical
sociological question of `how is society possible?
3
under the structural
condition of the existence of world society and the role of legal norms and
constitutions in this regard. The point of departure is, therefore, not a
dismissal of systems theory but, rather, the development of an outlook which
stands orthogonal, an outlook which is complementary, to classical systems-
theoretical perspectives, thereby filling a blind spot through a strategy of
theoretical metamorphosis starting from within systems theory and ending
somewhere else.
The notion of world society, that is, the proposition that only one society
exists in our world, is central to systems theory. It refers to the Husserlian
notion of common horizons of opportunity, and thereby stipulates a potential
of connectivity on a global scale. This article goes beyond the very general
proposition of world society advanced by Niklas Luhmann through an
understanding of global legal norms as instruments of connectivity which
play a significant role in the realization of world society. Drawing on a rich
literature concerning the function of legal norms, the perspective will be
developed that legal norms not only limit connectivity but also serve as
enablers of connectivity. This is central for our understanding of the position
and function of global legal norms, as world society, paradoxically, consists
of many worlds. World society is an acentric society which is not only
horizontally differentiated between function systems, but also vertically
differentiated between social processes relying on local, national, and trans-
national organizing principles.
4
Also paradoxically, increased globalization
has, furthermore, resulted in an increase, rather than a demise, of contextual
diversity. The logic of differentiation associated with the acentric world
society therefore has to be complemented by the logic of connectivity. It is
S115
2
N. Luhmann, `Verfassung als evolutionaÈre Errungenschaft' (1990) 9 Rechtshistorisches
J. 176; G. Teubner, Co nstitutional Fr agments: Societa l Constitutiona lism and
Globalization (2012).
3 G. Simmel, `Wie ist Gesellschaft moÈglich, 22 ± 30' in G. Simmel, Untersuchungen
u
Èber die Formen der Vergesellschaftung (1908), at:
soz_1_ex1.htm>.
4 S. Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages
(2006).
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
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