The Citizen of Many Worlds: Societal Constitutionalism and the Antinomies of Democracy
| Date | 01 July 2018 |
| Published date | 01 July 2018 |
| Author | Chris Thornhill |
| DOI | http://doi.org/10.1111/jols.12104 |
JOURNAL OF LAW AND SOCIETY
VOLUME 45, ISSUE S1, JULY 2018
ISSN: 0263-323X, pp. S73±S93
The Citizen of Many Worlds: Societal Constitutionalism and
the Antinomies of Democracy
Chris Thornhill*
This article argues that Gunther Teubner's theory of societal con-
stitutionalism can be used to examine the realities of citizenship in
contemporary society. Teubner's thought illuminates how the rise of
global law has directed classical practices of citizenship ± claims to
rights and participation in law making ± away from centralized
political institutions, and located them in distinct functional spheres.
On this basis, we see that the integration of the democratic citizen only
evolved as society assumed an acentric sectoral design, and we
observe that the core processes of national integration only
approached completion in a post-national constellation. However, it
is also argued here that the contemporary figure of the citizen appears,
not as a figure that contradicts, but as a figure that arises directly from
the classical form of national citizenship. This fact may be obscured by
Teubner's emphasis on societal constitutionalism as a normative
construct that emerges beyond the state.
INTRODUCTION: THE CITIZEN AND THE STATE
It is widely observed that the concept of the national citizen, originally
formulated in the national constitutional revolutions of the eighteenth cen-
tury, lies at the foundation of the modern state, and of modern society more
widely.
1
For a number of reasons, in fact, the governmental system of
S73
*School of Law, University of Manchester, Oxford Road, Manchester M13
9PL, England
chris.thornhill@manchester.ac.uk
Research for this article was funded by the European Research Council (Advanced Grant:
323656-STC).
1 See J.N. Shklar, Ame rican Citizenship. The Que st for Inclusion (1991); D.
Gosewinkel, Schutz und Freiheit? Staatsbu
Èrgerschaft in Europa im 20. und 21.
Jahrhundert (2016); R. Bendix, Nation-Building and Citizenship: Studies of our
Changing Social Order (1996, 3rd edn.).
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
modern society could not have developed if it had not extracted its
legitimacy from a corpus of constitutional law centred around the construct
of the citizen. As a source of constitutional legitimacy, the national citizen
contains three quite separate implications, each of which is intricately
formative of the institutions that characterize the modern state.
First, the constitutional construct of the citizen contains the implication
that the state obtains legitimacy by recognizing all citizens as equal rights
holders, such that laws are only likely to be seen as legitimate if they are
applied equally to all persons and if they provide protection for shared rights.
Primarily, such rights held by citizens include passive rights, such as rights
of physical integrity, rights concerning due process, rights of ownership,
rights of freedom of movement, freedom of labour, and freedom of contract,
which cannot be subject to restriction by political institutions without
proportionate justification. The fact that, as they assumed constitutional
form, states learned to protect such rights contributed to the development of
the modern order of governance in several ways. For example, the projection
of citizens as holders of equal rights meant that all persons could be expected
to perceive themselves as uniformly reflected in the law, so that states
acquired a generalized environment for their legal functions, and they were
able to apply laws in even fashion across their societies. Moreover, the fact
that the citizen was perceived as a generic member of society, with equal
access to rights protected by the state, meant that the national state was able
to legitimize its power in universal categories, and it was able to sustain a
generalized hold on society in its entirety. In different contexts, states that
did not extract their authority from a concept of the rights-holding citizen
were usually based in indirect rule. In fact, the system of indirect rule,
depending on local gradations of authority and status-based hierarchy,
marked the strictest antithesis to modern statehood.
2
Indirect rule, however,
was eradicated from society through the formation of states able to explain
their power as directly derived from, and applied to, equal rights-holding
citizens.
Second, the construct of the citizen contains the implication that citizens
bring legitimacy to the state because citizens choose ± freely ± to belong to
the state. In this regard, citizenship appears as a condition of communal
affiliation or membership, in which (a) all people are recognizable as
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2 On indirect rule in early modern Europe, see C. Tilly, Contention and Democracy in
Europe, 1650±2000 (2004) 165. On indirect rule in colonial Africa, see M. Mamdani,
`Historicizing Power and Responses to Power: Indirect Rule and Its Reform' (1999)
66 Social Research 859. For more specific discussion, see D.W. Throup, Economic
and Social Origins of Mau Mau 1945±1953 (1988) 144; H. Bienen, Tanzania: Party
Transformation and Economic Development (1970) 38. See, also, analysis of indirect
rule in Central Asia in G. Mirsky, On Ruins of Empire: Ethnicity and Nationalism in
the Former Soviet Union (1997) 3. Durkheim intuited the fact that indirect rule could
prevent the formation of general citizenship rights: see E
Â. Durkheim, LecËons de
sociologie (1950) 99.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
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