Pulling Back from the Edge?
| Author | David Schiff,Richard Nobles |
| Date | 01 May 2013 |
| DOI | http://doi.org/10.1111/1468-2230.12027 |
| Published date | 01 May 2013 |
REVIEW ARTICLE
Pulling Back from the Edge?
Richard Nobles and David Schiff*
Gunther Teubner,Constitutional Fragments: Societal Constitutionalism and
Globalization, translated by Gareth Norbury, Oxford: Oxford University Press, 2012,
213 pp, hb £50.00.
INTRODUCTION
This book continues a project that Teubner has been engaged with for the past
fifteen or more years: the nature of global law, and its implications for world
society. Since his seminal 1997 essay ‘Global Bukowina’ on the possibilities for
global law without a state,1Teubner has written numerous papers, articles and
chapters which have made important contributions to debates on the nature of
globalisation, legal pluralism, and constitutionalism.2What unifies his many
writings in these fields, and informs this book, is neo-systems theory. It is this
sociological theory, first developed by Niklas Luhmann, which informs
Teubner’s understanding of the nature of world society, and the possibilities for
law(s), and constitutionalism,3at the global level. Using systems theory, including
in particular Chris Thornhill’s recent work on constitutional sociology,4and
*Department of Law, Queen Mary University of London.
1 ‘Global Bukowina: Legal Pluralism in the World Society’ in G. Teubner (ed), Global Law Without
a State (Aldershot: Dartmouth, 1997) 3.
2 See, for a few examples: ‘The King’s Many Bodies: The Self-Deconstruction of Law’s Hierarchy’
(1997) 31 Law & Society Review 763; (with A. Fischer-Lescano) ‘Regime Collisions: The Vain
Search for Legal Unity in the Fragmentation of Global Law’ (2004) 25 Michigan Journal of
International Law 999; (with C. Beat-Graber) ‘Art and Money: Constitutional Rights in the Private
Sphere’ (1998) 18 Oxford Journal of Legal Studies 61; ‘Breaking Frames: Economic Globalisation and
the Emergence of Lex Mercatoria’ (2002) 5 European Journal of Social Theory 199; ‘Global Private
Regimes: Neo-Spontaneous Law and Dual Constitution of Autonomous Sectors?’ in K. Heinz-
Ladeur (ed), Public Governance in the Age of Globalization (Aldershot, Ashgate, 2004) 71; ‘Societal
Constitutionalism: Alternatives to State-Centred Constitutional Theory?’ in C. Joerges, I-J. Sand
and G. Teubner (eds), Transnational Governance and Constitutionalism (Oxford: Hart, 2004) 3; ‘A
Constitutional Moment? The Logics of “Hitting the Bottom” ’ in P. Kjaer, G. Teubner and A.
Febbrajo (eds), The Financial Crisis in Constitutional Perspective: The Dark Side of Functional Differen-
tiation (Oxford: Hart, 2011) 3; (with P. Korth) ‘Two Kinds of Legal Pluralism: Collision of
Transnational Regimes in the Double Fragmentation of World Society’ in M. Young (ed), Regime
Interaction in International Law: Theoretical and Practical Challenges (Cambridge: CUP, 2012) 23.
3 On constitutionalism see, in particular, the essays in P. Dobner and M. Loughlin (eds), The Twilight
of Constitutionalism? (Oxford: OUP, 2010), to which Teubner makes frequent reference.
4 Teubner cites numerous works by Thornhill, but the most important are ‘Towards a Historical
Sociology of Constitutional Legitimacy’ (2008) 37 Theory and Society 161, and A Sociology of
Constitutions: Constitutions and State Legitimacy in Historical-Sociological Perspective (Cambridge: CUP,
2011).
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© 2013 The Authors. The Modern Law Review © 2013 The Modern Law Review Limited. (2013) 76(3) MLR 620–638
Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
combining this with Philip Selznick’s work on private governance5and David
Sciulli’s work on societal constitutionalism,6Teubner in this book considers the
possibilities for, and potential of, constitutionalism at a societal level.7His argu-
ments are premised on the importance of changing our understanding of nation
state constitutions. The paradigm which he contests is that of the constitution of
the nation state, embodying public political power, and justified as the exercise
of a constituent power by a national people. He claims that that paradigm leads
to a standard debate in which there are two camps: those who anticipate the
decline of constitutions in the face of transnational developments; and those who
seek to re-establish the features of national constitutions at the transnational level
(constitutional courts, parliaments, the public sphere) (2). In place of that para-
digm and its standard debate, we are invited to view the national constitution as
a self-limitation of the political system as a system of communication, achieved
via a particular relationship (structural coupling) between law and politics.8With
this change of perspective:
It [constitutional sociology] projects the constitutional question not only onto the
relationship between politics and law, but also onto all areas of society . . . The
question of constitutionalization arises not just for the state world of international
politics and international law, but equally for other autonomous sectors of global
society: in particular for the global economy, but also for science, technology,
education, the new media, and the health service. In addition to limiting the
expansionist tendencies of the political system, does a societal constitutionalism have
the potential to stem the current–and no less problematic–expansionist tendencies of
numerous other social subsystems when they endanger the integrity of individuals
and institutions? Can constitutions effectively combat the centrifugal dynamics of
subsystems in global society, thus contributing to social integration? (3–4)
The problem addressed here by Teubner is that with ever increasing complexity
within society’s autonomous subsystems (economic, political, legal, etc.) there is
an unavoidable risk that something in this process will impede their continuation
and that (turning at this point to a normative perspective) this will be catastrophic
for humanity, or some sections of it. The most obvious example at present is that
5 P. Selznick, Law, Society and Industrial Justice (New York: Russell Sage, 1969).
6 D. Sciulli, ‘Foundations of Societal Constitutionalism: Principles from the Concepts of Commu-
nicative Action and Procedural Legality’ (1988) 39 British Journal of Sociology, 377; Theory of Societal
Constitutionalism: Foundations of a Non-Marxist Critical Theory (Cambridge, CUP, 1992); Corporate
Power in Civil Society: An Application o f Societal Constitutionalism (New York: New York University
Press, 2001).
7 Selnick’s work on private government supports Teubner’s arguments for taking the concept of
constitutionalism into the private sphere, and Sciulli’s work supports the argument that constitu-
tions can exist in all social spheres. However, whilst he credits these two as forming part of the ‘third
position’ he wishes to advocate, his reliance on Thornhill and Luhmann is far greater. This is
reflected numerically in the author index which has many entries for Luhmann and Thornhill, but
only a few for Sciulli and Selznick.
8 Teubner discusses the nature of this structural coupling, and the distinction between operative and
structural coupling (especially at 102–113). Teubner also relies on a difference between loose and
tight coupling especially via ‘production regimes’: see his ‘Idiosyncratic Production Regimes:
Co-Evolution of Economic and Legal Institutions in the Varieties of Capitalism’ in J. Ziman (ed),
The Evolution of Cultural Entities: Proceedings of the British Academy (Oxford: OUP, 2002) 161.
Richard Nobles and David Schiff
© 2013 The Authors. The Modern Law Review © 2013 The Modern Law Review Limited. 621
(2013) 76(3) MLR 620–638
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