Debate and Dialogue: Constitutionalizing Polycontexturality
| Date | 01 June 2011 |
| Author | Chris Thornhill,Hans Lindahl,Gunther Teubner,Emilios Christodoulidis |
| Published date | 01 June 2011 |
| DOI | 10.1177/0964663911400245 |
| Subject Matter | Articles |
Dialogue & Debate
Constitutionalizing
Polycontexturality
Introduction
Emilios Christodoulidis
University of Glasgow, UK
The Dialogue andDebate section that followsemerged from a series of meetings that took
place at the Schoolof Law of the University of Glasgow in the autumnof 2009. The theme
of the seminar series was the ‘constitutionalization of employment relations’ and the aim
was to discuss theincreasingly precariousprotection afforded to workers and more gener-
ally issues of regulation of the workplace, from the perspective of Constitutional Law.
Some of the papers presented and discussions, which involved academics from the UK,
Europe and Canada, have already been published in this journal (Supiot in 2010, Vol.
19(2), Arthurs in 2010, Vol.19(4)). The current sectionis the final instalmentin that series.
This section focuses specifically on the question of constitutionalization. The mean-
ing of the term itself is one that invites controversy. If the term constitutional connotes a
framing function, the Constitution as a system of meta-rules that allow law to be recog-
nized as valid and frame the contours of what can be contested legally, what does it mean
to talk of constitutionalization as an ongoing process? And what does it mean to talk of
constitutionalization at the global level, where the familiar structures on nation-state
constitutionalism can no longer claim exclusivity in performing the constitutional func-
tion? If constitutionalism traditionally denotes a certain articulation of the political and
the legal, where might one look for the political register under conditions of globaliza-
tion, and the weakening or collapse of political opportunities of framing or intervention?
Finally, does the age of crisis signal a sobering of sorts, a tipping point that might return
us to a different, adequate, constitutional dispensation?
These are all questions that Gunther Teubner’s very rich article engages with, and
which are asked and variously answered by the respondents. Teubner’s work has for a
long time been at the forefront of these debates, provocative and inspiring. ‘Contextua-
lizing polycontexturality’ is an important paper and thanks are due to the Journal for
hosting the debate and funding the event from which it originates. The Modern Law
Review also provided funding and we are grateful for its generosity. Personally I would
like to thank all those who came to Glasgow to participate in the memorable debate that
day, and especially to Ruth Dukes who co-organized the event with me.
Social & Legal Studies
20(2) 209–252
ªThe Author(s) 2011
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DOI: 10.1177/0964663911400245
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Constitutionalizing Polycontexturality
Gunther Teubner
University of Frankfurt, Germany
I The New Constitutional Question
Over the past few years, a series of political scandals have raised the ‘new constitutional
question’.Multinational corporations have violatedhuman rights; the WorldTrade Organi-
zationhas made decisions thatendangered the environmentand human healthin the name of
global freetrade; private intermediaries on the internethave threatened freedomof opinion,
and, recently, and with particular impact, the global capital markets have unleashed cata-
strophic risks– all these pose constitutional problemsin the strict sense. At stake, here,are
not just policies of state regulation, butfoundational processesof social dynamics. Today’s
constitutional questionsare different,but no less important,from those of theeighteenth and
nineteenth 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 spacesbeyond the nation-state.This means that consti-
tutional problems arise outside the limitsof the nation-state in transnational politics and, at
the same time, outside institutionalized politics, in the ‘private’ sectors of global society.
The political scandals mentioned abovehave sparked a debate which diagnoses a crisis
in modern constitutionalism,and lays the blame at the door of transnationalization and pri-
vatization.The debate involves argumentspro and contra a transnational constitutionalism,
the status of which – social theory, issue of constitutional law, political manifesto, social
utopia – remains unclear. Broadly speaking, the terms of the debate are as follows. One
side heralds the decline of modern constitutionalism (Grimm, 2005; Loughlin, 2010).
Modern constitutionalism,so the argument goes, took its historically fully-developed form
in the political constitutions of the nation-state. While its foundations have been shaken
through European Union and transnational regimeson the one hand, and through thetrans-
ferral of political power to private actors on the other, alternatives to the national consti-
tution cannot be found in the transnational space. As transnational politics suffers from
chronic deficiencies – from the non-existence of a demos, cultural homogeneity, a delib-
erating 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-nationalization and re-politicization.
The opposing side in the debate juxtaposes a similar story of decline with the demand
for a compensatory constitutionalization of world society itself (de Wet, 2006; Frowein,
2000; Habermas,2008: 322 ff.; Peters, 2006). Trendstowards globalization and privatiza-
tion are again held accountable for the crisis of the nation-state, and a weakening of the
nation-state’s constitutional institutions is, again, asserted. It is argued that a new demo-
cratic constitutionalism couldfunction in a compensatorymode, if it brought the unbridled
dynamics of global capitalism under the domesticating power of a constitutionalized glo-
bal polity. A constitutionalized international law, a deliberative global public, a policy
210 Social & Legal Studies 20(2)
formulation on a global scale, a transnational system of negotiation between collective
actors, the limitation of social power by global politics; each of these is said to open up
possibilities for realizing 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 counter-
acted 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
whole problematic: in addition to the role which constitutions play in international pol-
itics, they play a role in other sectors of world society. Constitutionalism has the poten-
tial to react not only to the expansionist tendencies of the global political system, but also
to those of other subsystems when they endanger individual or institutional autonomy.
For these questions, which arise with trends towards globalization and privatization,
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 iden-
tifying new problematics and suggesting different practical consequences.
II False Premises in the Current Debate
What are the questionable premises which set the debate about transnational constitu-
tionalism off in the wrong direction? With which assumptions should they be replaced?
Societal Constitutionalism as a Consequence of Globalization?
The uncontrollable dynamic of globalcapital markets, the obvious powerof TNCs and the
uncheckedactivities of epistemic communitiesin the law-free spaces of globalitylead both
advocates and opponents of transnational constitutionalism to the false assumption that
the constitutional deficiencies of transnational institutions can be explained, for the most
part, with referenceto globalization. Particularly,the weakness of politics in transnational
relationships is said to be responsible for the disarray that governs global society. Three
phenomena are prominent: (1) nation-states are ‘de-constitutionalized’ by the transferral
of governmental functions to the transnational level, and, at the same time, the partial
assumption of these functions by non-state actors; (2) the extra-territorial effects of
nation-stateactions create a law withoutdemocratic legitimation;and (3) there is no demo-
cratic mandate fortransnational governance (Peters,2006). To compensate for this deficit,
interventionsof transnational politicsare discussed, but are then assessed as having diame-
trically opposed odds.
In truth, what we are concerned with hereis the basic failure of modern constitutional-
ism, which even at the time of its nation-state beginnings was faced with the unanswered
question: whether and how the political constitution should also capture non-state sectors
of society. Are economic, scientific, educational, medical and other social activities to be
subjected to the normative parameters of the state constitution? Or should social
Dialogue & Debate 211
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