The Olympic Charter: A Transnational Constitution Without a State?
| DOI | http://doi.org/10.1111/jols.12112 |
| Date | 01 July 2018 |
| Published date | 01 July 2018 |
| Author | Antoine Duval |
JOURNAL OF LAW AND SOCIETY
VOLUME 45, ISSUE S1, JULY 2018
ISSN: 0263-323X, pp. S245±S269
The Olympic Charter: A Transnational Constitution
Without a State?
Antoine Duval*
This article examines various aspects of Teubner's theory of societal
constitutionalism using the lex sportiva as an empirical terrain. The
case study focuses on the operation of the Olympic Charter as a
transnational constitution of the Olympic movement. It shows that
recourse to a constitutional vocabulary is not out of place in qualifying
the function and authority of the Charter inside and outside the
Olympic movement. Yet, the findings of the case study also nuance
some of Teubner's descriptive claims and question his normative
strategy.
INTRODUCTION
This article builds on Gunther Teubner's theory of societal constitutionalism,
which he has steadily enriched over the last twenty years.
1
His main claim is
that:
[c]onstitutionalisation beyond the nation state occurs as an evolutionary
process going in two different directions: constitutions evolve in transnational
political processes outside the nation state and, simultaneously, they evolve
outside international politics in the global society's `private' sectors.
2
S245
*T.M.C. Asser Instituut, P.O. Box 30461, 2500 GL, The Hague, The
Netherlands
a.duval@asser.nl
1 Culminating with the publication of G. Teubner, Constitutional Fragments (2012).
See, also, G. Teubner, `The Project of Constitutional Sociology: Irritating Nation
State Constitutionalism' (2013) 4 Transnational Legal Theory 44; G. Teubner,
`Fragmented Foundations: Societal Constitutionalism beyond the Nation State' in
The Twilight of Constitutionalism?, eds. P. Dobner and M. Loughlin (2010) 327; G.
Teubner, `Constitutionalising Polycontexturality' (2011) 20 Social and Legal
Studies 210. See, also, review by J. Pr
ÏibaÂn
Ï, `Constitutionalism as Fear of the
Political? A Comparative Analysis of Teubner's Constitutional Fragments and
Thornhill's A Sociology of Constitutions' (2012) 39 J. of Law and Society 441.
2 Teubner, id. (2013), p. 45.
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Boiled down to its core, Teubner's theory is structured around two main
pillars. One is a descriptive (sociological) claim: we are moving towards a
multiplicity of private constitutions of transnational regimes reflecting the
irremediable functional differentiation of world society. The other is a
normative mission: we need to make sure that the negative externalities
triggered by the tunnel vision of the functional regimes do not destroy our
world(s). In other words, we need to make sure that the societal constitutions
also provide for ways to limit the destructive egoistic tendencies of autono-
mous transnational regimes and ways to reflect (and respond to) the plight of
the affected actors, discourses, systems outside of their systemic boundaries.
On both fronts, I share parts of his diagnostic and normative ambitions, but
as will be elaborated on in the conclusion, I also have some doubts regarding
the accuracy of Teubner's prophecies and the effectiveness of his strategies.
This article will confront various elements of Teubner's proposal to my
experience studying the lex sportiva.
3
By lex sportiva I mean the complex
web of rules and institutional practices produced by (formally private) sports
governing bodies (SGBs) in order to regulate international sports. Teubner
himself has often referred to the transnational regulation of sports as a
promising example supporting his theory.
4
Yet, he has not conducted a
detailed empirical study of the field and the works he cites in support of his
claim are not testing or engaging with his theory.
In this article, I focus only on the International Olympic Committee (IOC)
and its Olympic Charter (OC)
5
as they are often portrayed in the literature as
the central actors of the Olympic system (or Olympic regime) and as
constituting the central `legal order' of a lex sportiva.
6
While the IOC's
supreme authority over sports is not absolute and the normative pyramid
sometimes morphs into a horizontal network, it is the only institution
claiming a universal governing role over sport.
The Olympic Games were revived and the IOC instituted at the Sorbonne
under the impetus of Baron de Coubertin in 1894. Its early years were
marked by amateurism and a lack of proper administrative structures and
processes.
7
It is only with the commercialization of sports in the 1970s and
its exponential economic growth under the reign of IOC President Juan
S246
3 See A. Duval, `Lex Sportiva: A Playground for Transnational Law' (2013) 19
European Law J. 822. See, also, K.D. Wolf, `The non-existence of private self-
regulation in the transnational sphere and its implications for the responsibility to
procure legitimacy: The case of the lex sportiva' (2014) 3 Global Constitutionalism
275, at 275.
4 Starting with G. Teubner, ` ``Global Bukowina'': Legal Pluralism in the World
Society' in Global Law Without a State, ed. G. Teubner (1997) 4; Teubner, op. cit.
(2012), n. 1, p. 73.
5 Unless stated otherwise, references are to the 2017 version of the OC.
6 F. Latty, La Lex Sportiva: Recherche sur le droit transnational (2007) 251.
7 See J.-L. Chappelet and B. Ku
Èbler-Mabbott, The International Olympic Committee
and the Olympic System: The Governance of World Sport (2008) ch. 2.
ß2018 The Authors. Journal of Law and Society published by John Wiley & Sons Ltd on behalf of Cardiff University Law School
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