Global Law Before the State? On Canon Law as a Transnational Regime
| DOI | http://doi.org/10.1111/jols.12113 |
| Date | 01 July 2018 |
| Published date | 01 July 2018 |
| Author | Ino Augsberg |
JOURNAL OF LAW AND SOCIETY
VOLUME 45, ISSUE S1, JULY 2018
ISSN: 0263-323X, pp. S270±S286
Global Law Before the State? On Canon Law as a
Transnational Regime
Ino Augsberg*
According to Harold Berman, modern Western law is based on the
establishment of canon law in the eleventh and twelfth centuries. By
this account, the original role-model for our modern concept of law is
already transnational, and the idea of law being a characteristic
instrument of nation-states is only a subsequent event. The article
discusses this thesis and scrutinizes its relevance for current attempts
to develop a concept of transnational law and transnational constitu-
tionalism. In doing so, it also raises a critical question: if our modern
concepts of law are based on canon law, is it possible that some main
characteristics still reflect this origin? Could it be that a certain `motif
of the unity of the constitution' ± a motif which, according to Gunther
Teubner, underlies all kinds of societal constitutionalism, even those
insisting on social pluralism ± is a hidden legacy of canon law? And if
so, what might be the alternative?
In all their different variations, current attempts to develop a new `societal'
form of constitutionalism seem to have at least one thing in common: they
oppose a certain classic understanding of `constitution'. Claiming that this
concept is closely intertwined with the concept of the modern nation state,
and stating that the process of globalization has in one way or another
subverted every state-centred perspective, societal constitutionalism, in all
its forms and variations, is about overcoming an allegedly too narrow, statist
idea of the constitution.
1
Societal constitutionalists' common assertion is that
S270
*Faculty of Law, University of Kiel, Leibnizstr. 6, D-24118 Kiel, Germany
augsberg@law.uni-kiel.de
1 See G. Teubner, `Societal Constitutionalism: Nine Variations on a Theme by David
Sciulli' in Sociological Constitutionalism, eds. P. Blokker and C. Thornhill (2017)
313; G. Teubner and A. Becker, `Expanding Constitutionalism' (2013) 20 Indiana J.
of Global Legal Studies 523; C. Thornhill, `Constitutionalism between Nation States
and Global Law' in Blokker and Thornhill (eds.), id., p. 135. For a related attempt to
`describe what happens to constitutional law when it is emancipated from the state',
see M. Neves, Transconstitutionalism (2013).
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
`it is simply anachronistic to restrict the range of phenomena which we see
as essentially constitutional to the constitutions of nation states.'
2
By con-
trast, the `doctrine' of societal constitutionalism, combining a historical and
a theoretical (more precisely, for the majority of cases, a system-theoretical)
approach:
sets out a theory of transnational constitutional pluralism. From this per-
spective, all communication systems are de-coupled from legal/political
centres of control, and they produce, more or less spontaneously, an internally
self-regu latory micr o-structu re, reachin g beyond geog raphical bo rders.
Regional borders or the borders of nation states are replaced by functional
borders as points of reference for constitutional foundation and constitutional
validity.
3
In that view, the limited focus on the state, emphasizing territorial instead of
functional demarcations, is the `basic deficiency'
4
of modern constitu-
tionalism which societal constitutionalism is supposed to overcome. This
birth defect of the concept happened long before the modern phenomenon
called globalization became such a hotly disputed topic. Globalization only
manifests the general problem:
Since the time of its nation-state beginnings, constitutionalism has been faced
with the unresolved question of whether and how the constitution should also
govern non-state areas of society. [. . .] The problematic of societal constitu-
tionalism was not caused by globalization, but earlier by the fragmentations of
the social whole and autonomization of the fragments during the heyday of the
nation state. This has now been considerably aggravated by globalization. [. ..]
Globalization did not, then, create the problem of societal constitutionalism.
But, by destroying its latency, it dramatically changed it.
5
This account of societal constitutionalism, focused ± albeit negatively ± on
the nation state, holds true even for positions referring to time-honoured
alternative concepts of law, namely, concepts of law based on religion. As
long as these religious concepts of law with their specific characteristics are
presented as an ± or maybe even the ± alternative to classical state-centred
ideas, the presentation remains ± albeit, once again, only negatively ±
focused on the old paradigm. In particular those attempts that elaborate on
Jewish concepts of law, claiming that they are early forms of transnational
law opposed to state law,
6
thereby affirm the idea that modern Western law
S271
2 Teubner, id., p. 312.
3 C. Thornhill, A Sociology of Constitutions: Constitutions and State Legitimacy in
Historical-Sociological Perspective (2011) 212.
4 G. Teubner, Constitutional Fragments: Societal Constitutionalism and Globalization
(2012) 5.
5 id., pp. 5 ff.
6 See, for example, A. Fischer-Lescano, Globalverfassung. Die Geltungsbegru
Èndung
der Menschenrechte (2005) 131 ff.; M. Amstutz and V. Karavas, `Rechtsmutation: Zu
Gene se un d Evo lut ion de s Rec hts i m tra nsn atio nal en Ra um' ( 2006 ) 9
Rechtsgeschichte 14.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
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