Teubner - Constitutionalizing Polycontexturality

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Debate and Dialogue: Constitutionalizing Polycontexturality

Gunther Teubner, Hans Lindahl, Emilios Christodoulidis and Chris Thornhill Social & Legal Studies 2011 20: 209 DOI: 10.1177/0964663911400245 The online version of this article can be found at: http://sls.sagepub.com/content/20/2/209
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Dialogue & Debate

Social & Legal Studies 20(2) 209252 The Author(s) 2011 Reprints and permission: sagepub.co.uk/journalsPermissions.nav DOI: 10.1177/0964663911400245 sls.sagepub.com
Constitutionalizing Polycontexturality
Introduction
Emilios Christodoulidis University of Glasgow, UK
The Dialogue and Debate section that follows emerged from a series of meetings that took place at the School of Law of the University of Glasgow in the autumn of 2009. The theme of the seminar series was the constitutionalization of employment relations and the aim was to discuss the increasingly precarious protection afforded to workers and more generally 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 section is the final instalment in that series. This section focuses specifically on the question of constitutionalization. The meaning 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 recognized 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 function? If constitutionalism traditionally denotes a certain articulation of the political and the legal, where might one look for the political register under conditions of globalization, 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 Teubners very rich article engages with, and which are asked and variously answered by the respondents. Teubners work has for a long time been at the forefront of these debates, provocative and inspiring. Contextualizing 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.
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Social & Legal Studies 20(2)
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 violated human rights; the World Trade Organization has made decisions that endangered the environment and human health in the name of global free trade; private intermediaries on the internet have threatened freedom of opinion, and, recently, and with particular impact, the global capital markets have unleashed catastrophic risks all these pose constitutional problems in the strict sense. At stake, here, are not just policies of state regulation, but foundational processes of social dynamics. Todays constitutional questions are different, but no less important, from those of the eighteenth 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 spaces beyond the nation-state. This means that constitutional problems arise outside the limits of 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 above have sparked a debate which diagnoses a crisis in modern constitutionalism, and lays the blame at the door of transnationalization and privatization. The debate involves arguments pro 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 regimes on the one hand, and through the transferral of political power to private actors on the other, alternatives to the national constitution cannot be found in the transnational space. As transnational politics suffers from chronic deficiencies from the non-existence of a demos, cultural homogeneity, a deliberating 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). Trends towards globalization and privatization are again held accountable for the crisis of the nation-state, and a weakening of the nation-states constitutional institutions is, again, asserted. It is argued that a new democratic constitutionalism could function in a compensatory mode, if it brought the unbridled dynamics of global capitalism under the domesticating power of a constitutionalized global polity. A constitutionalized international law, a deliberative global public, a policy
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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 counteracted 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 politics, they play a role in other sectors of world society. Constitutionalism has the potential 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 identifying 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 constitutionalism off in the wrong direction? With which assumptions should they be replaced?
Societal Constitutionalism as a Consequence of Globalization?

The uncontrollable dynamic of global capital markets, the obvious power of TNCs and the unchecked activities of epistemic communities in the law-free spaces of globality lead 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 reference to 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-state actions create a law without democratic legitimation; and (3) there is no democratic mandate for transnational governance (Peters, 2006). To compensate for this deficit, interventions of transnational politics are discussed, but are then assessed as having diametrically opposed odds. In truth, what we are concerned with here is the basic failure of modern constitutionalism, 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
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institutions act autonomously to develop their own constitutions? Since its beginning, modern constitutional praxis has oscillated between these two poles. At the same time, the question arises in empirical analysis and in normative programmes about the aims of social sub-constitutions: are they intended to allow state regulation of society, or to defend their own autonomy? Or to assimilate social decision-making processes with political decision-making processes? Or to render social institutions politically capable? It is at this point that sociological theories intervene, seeking the source of the constitutional question in processes of societal differentiation. The problematic of societal constitutionalism was not caused by globalization, but rather, earlier, by the fragmentation of the social whole and by the autonomization of these fragments during the heyday of the nation-state. It was then aggravated by globalization. Analysing various concepts of societal constitutionalism can help to explain why it is that, in the era of the nation-state, institutional solutions remain in a peculiar condition of latency. In light of the enormous draw of the state and its constitution, social sub-constitutions always appear in a strange twilight, though the reasons for this can differ. Liberal constitutionalism concealed the question in the shadow of individual rights. In sharp contrast, totalitarian political systems of the twentieth century attempted to eliminate the autonomy of social sub-constitutions. By subjecting all areas of social life to the states authority, they concealed the question of independent social constitutions. The welfare states of the late twentieth, in turn, never officially recognized autonomous social sub-constitutions; but, at the same time, they achieved a peculiar balance between a state constitutionalism, which progressively extended the principles of the political constitution to social spheres, and a constitutional pluralism, in which the state, as a matter of fact, respected social sub-constitutions. Globalization did not, then, create the problem of societal constitutionalism. But it did dramatically change it. It destroyed its latency. In light of the much weaker draw of transnational politics, compared to that of the nation-state, the acute constitutional problems of other global social sectors appear now in a much harsher light. On what legitimating basis do transnational regimes regulate whole spheres of social activities, right down to the detail of daily life? What are the limits of global capital markets in their impact on the real economy and other social sectors? Can fundamental rights and human rights claim validity in the state-free spheres of the global economy, particularly as against transnational organizations? Contrary to the terms of the current debate, then, it is absolutely not the case that the emergence of the global economy brings with it a wholly new constitutional problematic. In fact, there has been a real existing societal constitutionalism within nation-states for a long time. However, today this societal constitutionalism is faced with the question, whether and how it must transform itself under conditions of globality. The continuity of the problematic has to do with the advanced functional differentiation of society. Its discontinuity can be attributed to globalization which has developed specific structures unknown to the nation-state. The normative question, then, is no longer how to compensate for the failures of national constitutions; in other words, how hitherto constitution-free social spheres might be constitutionalized. Rather the question is how the experiences of nation-states with institutions of societal constitutionalism can be transformed under the essentially different conditions of globality. In particular: how is the role of politics for transnational sub-constitutions to be
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formulated in the magical triangle of politics, law and social sector? Resignation? Guidance? Supervision? Complementarity?
Constitutional Emptiness of the Transnational?

The current debate is marked not only by false tabula-rasa assumptions in respect of societal constitutionalism within the nation-state, but also by its existence in the transnational space. While modern constitutionalism was able to take root in almost all nation-states, it was weakened, so it is said, by the increasing transferral of governmental responsibilities from nation-states to new transnational organizations, regimes and networks. At this transnational level, however, a constitutional emptiness is supposed to prevail. And it is only against the background of this supposedly constitution-free global space that the argument arises, whether constitutionalism is at an end or, alternatively, is experiencing a renaissance. I want now briefly to sketch out why it is wrong to assume a constitutional emptiness of the transnational, and, accordingly, to assume that it is to be constitutionalized from scratch. Social scientific analyses of a new constitutionalism, together with long-standing investigations by economists and commercial lawyers of an emerging global economic constitution, show exactly the opposite. Already, today, constitutional institutions have established themselves in the transnational sphere with an astounding density (Behrens, 2000; Tully, 2007: 328 ff.). That the European Union has its own independent constitutional structures despite the failure of the constitutional referendum is now only rarely disputed (Walker, 2007; Weiler, 1999; Weiler and Wind, 2003). But it is also the case that other international organizations, transnational regimes and their networks are, in the meantime, significantly juridified, and, moreover, have become part of a global if thoroughly fragmented constitutional order. The global institutions that emerged from the agreements of the 1940s the Havana Charter, GATT, Bretton Woods; the new arrangements of the Washington consensus the IMF, the World Bank, the WTO; and the recently initiated public debate concerning a global finance market constitution, all speak the language of a real existing global societal constitutionism which is undergoing a process of change. The new constitutional question must be reformulated, then, for a second time. Not only have social sub-constitutions already emerged in the nation-states, as discussed above, it is also the case that constitutional structures have long existed in the transnational sphere. In this respect too, then, it is not the creation ab ovo of new constitutions in a constitution-free globality which is at stake, but rather the transformation of an already existing transnational constitutional order. These transformative processes are not directed toward a stable balance, but follow, rather, the chaotic pattern of a dynamic disequlibrium between contradictory developments between the liberalization and the limitation of the inner dynamics of subsystems (Polanyi, 1991/1944; Wietholter, 2005). To date, the new global constitutional orders have, for the most part, devised only constitutive rules, which have supported the freeing up of various systemic rationalities at the global level. Only after historical experience with their grave effets pervers, are counter-movements now appearing, which formulate limitative rules, in order to counteract self-destructive tendencies and to limit damage to social, human and natural
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environments. It is true that the manner in which limits had been imposed on the new global regimes, in vertical relation to nation-states, was, from the outset, strongly contested. But the more serious horizontal constitutional problem was not even considered: whether the autonomy of the function systems might not lead to mutual burdens to the limits of their structural adaptability with their very differentiation (Fischer-Lescano and Teubner, 2004; Luhmann, 1997a: 1087). Thus, the agenda of a transnational constitutionalism is transformed in this context, too: the concern is not to create something new, but rather to transform what is essentially an already existing constitutional order. To limit the societal dynamics freed up by the constitutive rules is of particular urgency. The task, then, is to identify the real structures of the existing global constitutionalism, to criticize its shortcomings and to formulate realistic proposals for limitative rules.
Reducing Transnational Governance to Institutionalized Politics?

The first two theses attempted to correct two prevalent misconceptions that nationstates recognized no societal constitutionalism, and that transnational spheres are constitution-free. The third thesis is concerned with a further misconception, on the basis of which the current debate underestimates the radicality of a societal constitutionalization. The need for a constitution is attributed, in principle, only to particular forms of political governance which have emerged in the global economy, quite different to government, to traditional nation-state governmental practices. In particular, the networking of specialized bureaucracies from various nation-states with actors from the global community, transnational corporations, trade associations, NGOs and hybrid regimes is understood as the novel problematic of global governance, which must now be surmounted with constitutional institutions (Grande et al., 2006; Neyer, 2004). The constitutional limitation of political power stands, then, in the foreground; its particularity consisting in the fact that it is partially privatized. Doubtless this partial privatization of political power is one of the central elements of global governance; nonetheless, the analysis does not go far enough. In suggesting that the power constellations of global governance, comprising novel private actors, can be limited with constitutional norms, one trivializes the problem. Here, again, the blinkered nature of political-legal constitutional theories becomes apparent, focused even in respect of transnational relationships only on political phenomena in the narrow sense. In contrast, a sociological view shows that the constitution of particular global social spheres of activity must be thematized outwith international politics and the constitutional role of legal norms in the process. The problems associated with a societal constitutionalism in the strict sense only become visible when we transcend transnational political processes in the narrow sense; when it is made clear that societal actors not only participate in political power processes of global governance, but also establish their own global regimes outwith institutionalized politics. These regimes can, of course, then themselves become political actors, impacting on politics. The differences between social sub-constitutions and a political constitution come, then, to the foreground. It is not the case that the constitutionalization of transnational political processes needs only be modified in relation to national constitutions, because
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they also integrate private actors in political processes. Rather, a sociological analysis of the global subsystems the economy, science, culture and mass media raises more difficult questions: Are there analogies, in this context, with the dynamics of the pouvoir , constituant and pouvoir constitue with the self-constitution of a collective, with the political separation of powers? At a more basic level still: to what extent must we generalize the principles of political constitutions, in order to avoid the pitfalls of methodological nationalism? How must we re-specify those principles for the particularities of a social institution in the global sphere?
Reducing Horizontal Effects of Fundamental Rights to Bare Duties of Care of The Community of States?
The debate about the horizontal effect of fundamental rights within transnational social spaces suffers from similar deficiencies as the debate about global governance. It thematizes fundamental rights within the private sector but remains, at the same time, fixated with the state. The scandals outlined at the beginning of the article, triggered by breaches of fundamental rights by transnational corporations, are usually analysed as a problem of the horizontal effect of fundamental rights. Fundamental rights guaranteed initially against the state are supposed to become effective against breaches by third parties private transnational parties if duties of care are imposed on the international community of states (Anderson, 2005: 126 ff.; Clapham, 2006). This approach misinterprets, in several respects, the problematic of fundamental rights in private contexts. In its typical fixation with the state, it puts the cart before the horse. Instead of imposing duties on the transnational private actors who breach fundamental rights, it obliges the community of states alone to protect private actors from breaches of such rights. The contentious question of whether private actors are themselves bound by fundamental rights is thereby obscured. And all this is done as if it were a question of the states political power of definition, whether fundamental rights exist in social spheres, and who they are intended to protect. Ultimately, the most significant false assumption views the horizontal effect of fundamental rights as purely a problem of political power within society and, for that reason, misinterprets its real tasks: the limitation by means of rights of all expansionist tendencies of social subsystems, including those which do not function through the medium of power. The real difficulty with fundamental rights in the social sphere becomes apparent only if we free ourselves from the fixation with the state. If the task is to use constitutional means to limit the expansionist tendencies of the particular logics of social subsystems, it is no longer possible to sustain the state-centricity of fundamental rights, their assignation to individual actors, their exclusive focus on social power, their definition as spheres of autonomy protected by subjective rights. The task at hand is to develop a perspective whereby fundamental rights are effective against social communicative media themselves, rather than against individual or collective actors. The concern is not only to protect the fundamental rights of individuals, but also those of social institutions against expansive social media. The horizontal effect of fundamental rights needs to be implemented through organization and procedures, rather than through subjective rights.
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A Unitary Global Constitution?

The final problem with the new constitutional debate concerns the unitary bias; a bias which stems from an uncritical transfer of national constitutional concepts to world society. In international law, as in political philosophy, the notion is advanced that the constitutionalization of international law would be capable of providing a unitary constitutional order for the whole world (Fassbender, 2007: 281 ff.; Hoffe, 2005). It is true that a unitary world state as the substrate of a unitary constitution is rejected as unrealistic. Instead, however, the international community is presented as the reference point for an emerging global constitutional law: no longer, as in traditional international law, merely a community of sovereign states but now, rather, an ensemble of political and societal actors, and a legal community of individuals. The constitutionalization of international law is conceived of in parallel with nation-state constitutional law: a hierarchy of constitutional norms relative to lower-order legal norms, with the whole globe as a unitary jurisdiction, encompassing all national, cultural and social spheres.1 The very marked fragmentation of world society, emphasized by sociological analyses, causes real problems for such a unitary constitutionalism. In the debate, fragmentation is viewed, if at all, as a shortcoming to be addressed, not as a factor necessitating the redefinition of the constitutional problems. The alternative view is this: if constitutionalization must be limited to fragments of global society, then the idea of a unitary global constitution needs to be abandoned in favour of a global conflict of laws.2 The social conditions which allowed the nation-state to establish a unitary constitution, in principle, do not obtain in the transnational sphere. A transnational constitutionalism will have to conform to the requirements of a doubly fragmented world society (Teubner and Korth, forthcoming). As a result of the first fragmentation, the autonomous global social sectors of modernity insist stubbornly on their own constitutions which compete with the constitutions of nation-states. Moreover, unitary standards of a global constitution are rendered illusory by the second fragmentation into various regional cultures, each based upon sets of social principles of organization different to those of the western world. If one wishes to conceive at all of global constitution, the only possible blueprint is that of particular constitutions for each global fragment nations, transnational regimes, regional cultures and the legal interrelation of these constitutions by means of a constitutional conflict of laws.
III Self-Constituting Systems Without Constitutionalization?

Globalization means, above all, that the dynamics of functional differentiation, which historically were first realized in the nation-states of Europe and North America, now encompass the whole world. That is not to say, however, that all subsystems globalize simultaneously, and with the same intensity, the world over. Religion, science, and the economy are all well established as global systems, while politics and law remain mainly focused around the nation-state (Luhmann, 1997a: 145 ff., 806 ff.). Their cross-border communications are organized for the most part through inter-national relationships. Genuinely trans-national political and legal processes, in which communications network themselves globally directly with one another, without the need for intercession
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by nation-states, are emerging only incrementally. Inter-national political relations, inter-national public law and inter-national private law are only slowly being overlayered with trans-national political and legal processes. Because of this staggered nature of globalization, the pressure for the constitutionalization of the globalized subsystems is all the greater. The difference in degrees of globalization exacerbates the coordination problematic. When the function systems go global and free themselves from the dominance of nation-state politics, there is no means of checking their centrifugal tendencies or regulating their conflicts. The problems do not end with the question of coordination, however. As Prandini has shown, the question of coordinating autonomous systems (which results in the forced limitation of their options) is only part of the more comprehensive constitutional problematic, resulting from their high degree of autonomy (Prandini, 2010: 312). The prior question is how subsystems will achieve autonomy at the global level when there are no political-legal institutions capable of supporting this process and when, at the same time, nation-state-organized politics and law act to hinder the process with their territorial validity claims. Here, the staggered nature of globalization is the cause of an emerging hiatus between self-constituting autonomous global social systems, and their political-legal constitutionalization. In the nation-state, self-constitution and political-legal constitutionalization occurred simultaneously. Through long historical processes of self-organization, autonomously operating closed subsystems developed. The growing independence of social subsystems was accompanied by their constitutionalization through the politics and law of the nation-state; it was stabilized and strengthened by that constitutionalization and, at the same time, limited in its effects. The constitutional laws of politics, of the economy, of social security, of the press, of public health and, to an extent, of science and religion each raised their validity claim in the territorial framework of the nation-state and, at the same time, limited it to that framework. Under conditions of globalization, selfconstitution and constitutionalization are drifting apart. The triangular constellation of politics/law/subsystem, which in the nation-state produced societal sub-constitutions, finds no counterpart in the global context. Its role in both enabling and limiting systemic autonomy remains unfulfilled. This is decidedly the case for the neo-corporatist variety of societal constitutionalism which has dominated European welfare states. Because it effectively limited options for action for the social sectors involved, it was simultaneously able to release a larger measure of their autonomy. However, what was provided, in this context, by way of fine-tuning between societal organizations and political institutions, cannot be repeated on a global scale today. Moreover, the necessary degree of mutual trust and socio-cultural norm-consensus cannot be globalized (Streeck, 2009: 93 ff.). Even at the European level, where experiments are conducted in social dialogue between the institutions of the European Commission, the European Trade Union Confederation and the European trade associations, the transfer of the neo-corporatist model beyond the nation-state has proven to be of only limited success (Streeck and Schmitter, 1991). At the global level, neo-corporatist arrangements are bound to fail. The contradiction remains: the self-constitution of social subsystems takes a global course while only nation-state institutions are available for their political-legal constitutionalization. The consequence is a shift in balance, on a global scale, in the triangle politics-law-
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subsystem as the bearer of societal constitutionalism. Are there new configurations emerging, which advance constitutionalization in place of nation-state constitutionmaking? Which internal qualities are assumed by the constitutional legal norms developed in this process? Claims to lead the constitutionalization of world society in toto have been made primarily by the United Nations. The basis for such claims is found in the UN Charter. According to Jurgen Habermas, the Charter has established a new constitutional order in which member states no longer understand themselves exclusively as partners in international treaties, but rather, together with their citizens, as constitutive elements of a politically constitutionalised world society (Habermas, 2004: 159; Hoffe, 2005). According to this view, the UN Charter has developed beyond its original character as a mere treaty. Together with other fundamental international law treaties the International Convention of Human Rights, the Convention against Race Discrimination, and the Rome Statute of the International Criminal Court it has been transformed into a genuine constitution of the international community (Dupuy, 1997, 2002; Fassbender, 2005, 2007). For our purposes, the claim of the United Nations to constitutionalize not only international politics, but also the major world societal sectors, is of particular relevance. The International Labour Organization (ILO), the World Health Organization (WHO), UNICEF and other suborganizations of the UN have made significant advances in developing constitutional norms for world societal sub-spheres. A polemical critique of these ambitions has revealed that they are nothing more than constitutional illusions phantasms of a global state constitution (Fischer-Lescano, 2005: 247 ff.). Nation-state conceptions of a constitution are transferred, here, uncritically to global relations, when the UN is assigned the impossible task of producing a cosmopolitan constitution more or less as an inflated nation-state collective. Here, methodological nationalism, which as an element of international relations only recognizes states and their associations, functions as an epistemological obstacle. Even for global relations, it cannot overcome the state-centricity of constitutions (Beck and Sznaider, 2006; Wimmer and Glick-Schiller, 2002: 302). A realistic appraisal will check such exaggerations. While it cannot be ignored that the UN has gone through a constitutionalization process, the result is absolutely not a world constitution, but, rather, a much more limited constitution of formal organizations. An organizational constitution, not a cosmopolitan constitution that is the reality of the UN. When it tries to realize greater ambitions, then these are at best political impulses for constitutionalization processes, which play out elsewhere. This is particularly so in the case of the norms which the ILO, WHO, UNICEF and the Human Rights Commission adopt for their spheres of authority. The international soft law formulated in codes of conduct for various global institutions is not comparable with binding constitutional norms, such as those provided by nation-state parliaments and constititutional courts for societal sub-spheres. On the merits, we are dealing here with mere constitutional impulses which are sent by an admittedly influential international organization towards the global social sub-spheres involved. Whether they become consolidated there as constitutional norms is decided in accordance with their internal processes. The same goes for the much discussed constitutionalization of international law (de Wet, 2006; Frowein, 2000; Peters, 2006). Here, three bodies of norms stand in the foreground jus cogens, norms with erga omnes effect, and human rights which
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have, as a matter of fact, constitutional properties. It is true that doubts are often raised, suggesting that they ought rather to be regarded as simply lower-order legal limitations of state agreements. In respect of global human rights, however, Peters has convincingly elaborated a constitutional legal quality with respect to five criteria. Global human rights: (i) limit the sovereignty of individual states; (ii) make a catalogue of fundamental values universally binding; (iii) establish a hierarchy of norms, according to which binding higher-order law is superior to lower-order law; (iv) are not only programmatic, but have the status, rather, of positive international law with constitutional priority; and (v) as constitutional legal dogma, provide a basis for argumentation in favour of the judicial extension of international constitutional law (Peters, 2006: 585 ff.). Such genuine constitutional norms emerge in the transformation of international law from merely a treaty-order of sovereign states to an independent legal order which, in the ordre publique international, creates its own foundations with legal constitutional norms. This constitutionalization allows international law to do what would have been unthinkable for a mere treaty-order: to establish binding norms even against the will of the parties to the treaty, legitimated with reference not only to the state treaties, but also to the orientation of the legal order to the public good. But for all the indisputable significance of this constitutional law in the making, one must bear in mind the sectoral nature of the development. The three bodies of norms mentioned are constitutional limitations of international agreements and, as such, function only within international politics in the narrow sense. No wonder, then, that international law has a peculiarly indifferent attitude to the lex mercatoria and other global normative orders based on private autonomy. International constitutional law is simply not capable of achieving the equivalent of welfare-state concepts in nation-states, namely, the constitutionalization of other global social spheres. Global administrative law is the newest candidate for global societal constitutionalism (Kingsbury et al., 2005). In comparison to the organizational law of the UN and to international law generally, which functions in the sphere of institutional politics, administrative law norms regulate the relevant global subsystem directly. The social quality of global administrative law has been clearly demonstrated by Kingsbury (2009). In the regulation of transnational social spheres, more and more forms of private ordering are activated, which are not encompassed by traditional public administrative law. However, one must bear in mind, here, too, that the norms being developed, of constitutional character due process in regulation, notice and comment rules, obligations to consult experts, the proportionality principle, respect for human rights (Kumm, 2007) are concerned, ultimately, with the internal constitutions of the regulatory agencies: they cannot function as constitutional norms in the regulated spheres. In all three areas it becomes clear that the conceptual demands for global processes of constitutionalization (made, in particular, by Dieter Grimm) will not be met (Grimm,
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2005). At the same time, however, it becomes apparent, too, that the demands themselves misinterpret the nature of these processes. For the developed constitutions of nation-states, it is certainly the case that we can only speak of a constitution in the full sense when constitutional norms raise a comprehensive claim for the creation of a political community. In the discrepancy between globally established social subsystems and a politics stuck at the inter-national level, however, the constitutional totality breaks apart and is dissolved by a type of constitutional fragmentation (Fischer-Lescano, 2005: 247 ff.; Walker, 2002; Walter, 2001). In the sea of globality there are only islands of constitutionality. The comprehensive structural coupling between politics and law, which Luhmann observed in the constitutions of nation-states, has no counterpart at the level of world society (Luhmann, 2004: 487 ff.). Here, it is dissolved by occasional couplings as and when social problems demand. Constitutional norms are developed ad hoc when current conflict assumes constitutional dimensions, demanding constitutional decisions. The comprehensive societal claim for the creation of a community is reduced in two ways. Even the political system of world society has no comprehensive constitution constitutional fragments are developed for particular segments the UN, parts of international law and administrative law. Now more than ever, however, the transferral of political constitutional claims to other social sub-spheres, as achieved by the nationstate, is not recognizable. As stated above, one can speak at most only of constitutional impulses, which emanate from the political system of world society in the direction of other global societal spheres.
IV Sectoral Constitutions in World Society?

Are we stuck, then, with self-constituting global systems without political-legal constitutionalization? Will the global villages that have been built in the economy, science, health, communicative media, exist in the long run without the stability provided by legal-political constitutionalization? Will their autonomy remain consequently at a rather underdeveloped level? Or will they have to rely for their constitutional stabilization on nation-state legislation and judicial precedent even though these can provide only a confusing variety of territorially-specific constitutional norms with competing claims? Or will they have to wait for a unification of laws, for a gradual harmonization of the constitutional standards of nation-states? Here, we come up against an intriguing new phenomenon that of self-constitutionalization without a state (Brunkhorst, 2002: 203 ff.; Calliess, 2002; Calliess and Zumbansen, 2009; Kjaer, 2010; Teubner, 2003). Sectors of world society begin to develop step-by-step their own constitutional norms. Pressing social problems that accrue within autonomous world systems produce social conflicts which result in legal norms of a constitutional quality. These norms then become aggregated, over time, into sectoral constitutions of world society. This analysis is not merely the result of theoretical deliberations arising from occasional observations, but is based on empirical observations. A large-scale empirical study into the global creation of law was conducted over several years by means of individual studies of non-state institutions. It was summarized as follows by the project leader, with barely concealed surprise:
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In some respects, the quasi-legal orders of world society themselves show constitutional characteristics. In addition to different social and ecological standards and to existing mechanisms of control and implementation, superior norms develop that define where the decision making power should be located, how violations should be handled, and how third parties should be included. By analogy to state constitutions, private regulations embody mechanisms of self-restraint to reduce intrusions on other actors and other domains. Is world society thus about to develop functional equivalents to the classical constitutional state, and will the latter gradually become marginal? (Dilling et al., 2008: 8)
The primary candidates for such constitutions are international organizations. Regardless of whether the organizations were formed through international treaties, such as the WTO, or, alternatively, through private ordering, like multinational corporations, tendencies towards constitutionalization can be observed everywhere, as the organizations continually free themselves from the consensus of the founding members. In the case of the WTO, this kind of constitutional emancipation has emerged in respect of panels set up to mediate conflicts between member states and the WTO regarding the interpretation of the Treaty. Though the panels were intended, originally, to mediate only through negotiations, they have developed, over time, into genuine courts with extensive decision-making powers (see e.g. Carmody, 2008; Dunoff, 2006; Petersmann, 2006). Decisions are made concerning not only straightforward questions of law, but also constitutional questions regarding the external relations of the WTO to nation-states. The regulatory body of the internet, ICANN (the Internet Corporation for Assigned Names and Numbers), established under Californian law as a private association, has developed, over time, functional and territorial representative structures, forms of separation of powers, and an effective jurisdiction over questions of domain-name allocation. In this context, governance questions of constitutional significance arise (Post, 1996). When questions of fundamental rights in the internet have been raised, there has not been a reversion to diverse national constitutions, which would work only for national segments of the internet; instead, internet-specific fundamental rights standards have been developed with a claim to global validity (Karavas, 2006: 136 ff.). Multinational corporations formed under rules of national company law go on to develop codes of conduct through disputes with local organizations, social movements and NGOs, which act as the transnational equivalent of national corporate constitutions (Abbott and Snidal, 2009; Herberg, 2007). Global standards organizations, such as the ISO, free themselves from their national counterparts and develop principles of constitutional law. They produce rules for the representation of national bodies, experts and interest groups, norms of due process and institutionalized discourse, and principles of material decision-making (Schepel, 2005: 403 ff.). And in the lex mercatoria, the self-created law of the global economy, a hierarchy of norms has gradually developed, at the top of which stand constitutional legal norms, procedural principles and fundamental rights standards (Dalhuisen, 2006; Voser, 1996). Although these processes are set in motion by functional differentiation, the constitutionalization process is not directed towards the major function systems themselves. Finance and product markets are globalized, scientific communication takes place at a global level, and the system of communicative media, news agencies, TV, internet, transmits news across the whole globe. Despite the operational closure of these world
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systems, however, there is no sign of a unified global economic constitution, a scientific constitution, or a media constitution sui generis. As neo-corporatist constitutions within nation-states have already experienced, the function systems themselves lack the capacity to take action, to become organized and, therefore to be constitutionalized. The various attempts at global constitutionalization are directed rather at social processes beneath the function systems, at formal organizations and at formalized transactions that are not tied to the territorial borders of nation-states. It would nonetheless be overhasty to understand these as just internal constitutions of international organizations; a mistake made in most of the literature dealing with international institutions (Schermers and Blokker, 2004). It is not only the internal decision-making processes of international organizations, private or public, that are constitutionalized, but also their external relations with various constituencies. To understand the private ordering of ICANN, it is not enough to take into account only its formal organization as a private association under Californian law. Its external relations must also be considered. A whole network of contracts has been built up, which has enabled ICANN to create a comprehensive regulatory system. ICANN contracts with the organization VeriSign for the latter to act as domain administrator and it, in turn, negotiates contracts with national domain administrators. The national domain administrators stipulate the details of domain name allocation by means of standard contracts with internet users, which refer to the internet regulation of the UDRP (Uniform Dispute Resolution Policy). Moreover, ICANN is associated with public law bodies via contractual relations, which allows the US Government to secure a means of influencing this otherwise private governance. The arrangement involves, then, a complex combination of contracts which cannot be equated with either one formal organization, or with the sum of bilateral contracts. Individual contracts and formal organizations are aimed at the achievement of one overriding purpose and create a regulatory framework at the emerging level (Hutter, 2003; Viellechner, 2007: 42 ff.). Therefore it is not sufficient to talk only of the constitutionalization of international organizations. The concept of a regime constitution is rather more inclusive. Global regimes, commonly defined as a set of principles, norms, rules, and decision-making procedures around which actors expectations converge in a given cause-area (Keohane and Nye, 2001: 5; Krasner, 1983: 1) encompass substantially more than formal organizations. Admittedly, the nature of this added value, in comparison to formal organizations, is not made entirely clear in the course of the unsystematic debate about regimes. The regimes are referred to, appropriately, as complex and variable ensembles of formal and informal institutions, organisations, actors, relations, norms and rules (Grande et al., 2006: 123). Further aspects are captured by the following description:
A regime within the political or the physical comprises a set of conditions or measures, which fit in and work within a certain environment without necessarily being completely understood or even spelled out. A regime combines formal and informal rule, or outspoken and silent expectations and commitments. It is both an institution and a style, or even a combination of styles around institutions, and it makes use of this combination in order to be able to float with respect to both its range and its core. (Baecker, 2009: 673, with reference to White, 1992: 226)
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It is helpful to distinguish between the centre and the periphery of a regime. At the centre, there is often a formal organization (or several formal organizations) with professional core competencies. But the regime also has a periphery, consisting of the interactions of the centre with its constituencies. A regime constitution normalizes both the internal relations of the formal organization (or network of formal organizations) and the external relations in their relevant environmental sectors (the interactions with their publics).
V Constitutionalization in a Dynamic Disequilibrium

The fragmented constitutions of the current global regimes are markedly one-sided in their normative quality. Only the constitutive function is prominent, directed at guaranteeing the institutional conditions for subsystem autonomy. The constitutions focus on the problem that the segmentary internal differentiation of nation-state entities creates obstacles for cross-boundary communication in the spheres of the economy, ecology, science, education, health and media. The politics and law of nation-states have created a tight structural coupling with other function systems in the form of national production regimes.3 The global regimes regard the dismantling of such nation-state production regimes in the most varied spheres as an uppermost constitutional priority. At present, world societal constitutionalism has two prominent goals: to break apart the national boundaries of function systems; and to dismantle regulatory structures to the extent necessary for global function-specific communications. Constitutive norms of this type serve to release the particular dynamics of function systems at the global level. Both theorists of the new constitutionalism, and/or liberal advocates of a global economic constitution, identify in those global regimes a genuine global constitutional order, though they evaluate this, politically, in diametrically opposed ways (Behrens, 2000; Tully, 2007: 328 ff.). The regimes of the International Monetary Fund and the World Bank are orientated to the opening of national capital markets. The regime of the WTO, like that of the Single European Market, NAFTA, the Mercado Comun del Cono Sur (MERCOSUR) and the Asia Pacific Economic Cooperation (APEC), is aimed at a legally guaranteed constitution of free world trade, and the facilitation of direct investment. The lex mercatoria has developed a layer of constitutional norms which enforce property and freedom of contract legally and globally. International standards organizations aim to harmonize national standards globally by combining public and private law-making (Schepel, 2005: 11 ff., 177 ff.). In the long run, however, the one-sided limitation of societal constitutionalism to its constitutive function cannot be sustained. It is only a matter of time until, in addition to their positive effects, the freed-up systemic energies have negative consequences of such proportions that the resulting societal conflicts push for drastic change of constitutional politics. In the dynamic disequlibrium between simultaneous autonomization and the limitation of the logic of subsystems, a tipping point is reached. It is no longer constitutive constitutional norms, but now limitative constitutional norms that are sought. This is the situation after dismantling nation-state regulations at a transnational level. While global function-specific communication is no longer hindered by nation-state
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production regimes, the constitutive constitutional politics of the Washington consensus has overriden many of the limitations that nation-states placed on the dynamics of the function systems. Unburdened by nation-state restrictions, the systems are now placed to follow, globally, a programme of maximizing their partial rationality. Despite their many differences, sociological analyses in the tradition of Karl Marx, Max Weber and Niklas Luhmann all agree on the consequences of this diagnosis. The laws of motion of capital, or the rationalization of spheres of social action, or the dynamics of functional differentiation all identify destructive energies created by the one-sided function orientation of a social sector. The dismantling of national production regimes releases destructive dynamics in the global systems; destructive dynamics in which the onesided rationality-maximization of one social sector collides with other social dynamics. Without being significantly hindered by nation-state countervailing programmes, the globalized function systems now burden themselves, society and the environment with serious consequential problems of their own complete differentiation, specialisation and high achievement orientation (Luhmann, 1997a: 802). Three fields of collision can be identified: (1) the collision of a particular sub-rationality with other sub-rationalities; (2) the collision with a comprehensive rationality of world society; and (3) the collision of the function-maximization with its own self-reproduction. The evolutionary dynamics of these three collisions certainly has the potential to result in a societal catastrophe. But there is nothing necessary about the collapse, as Karl Marx postulated, and nothing necessary about Max Webers iron cage of modernity. Niklas Luhmann is more plausible: the occurrence of catastrophe is contingent. It depends on whether countervailing structures emerge which prevent the positive feedback catastrophe. Where it becomes concrete, this contingency experience of the catastrophe may be regarded as the constitutional moment (Ackerman, 2000). This is not yet the moment when the structurally applied self-destructive dynamic makes the abstract danger of a collapse appear that is the normal state of things. Rather, it is the moment when the collapse is directly imminent. The functionally differentiated society appears to ignore earlier chances of self-correction; to ignore the fact that sensible observers draw attention to the impending danger with warnings and incantations. In the self-energizing processes of maximizing sub-rationalities, self-correction seems to be possible only at the very last minute. The similarity with individual addiction therapies is obvious: Hit the bottom!; it must be one minute before midnight. Only then, todays addiction society has a chance of self-correction. Only then is the understanding lucid enough, the suffering sufficiently severe enough, the will to change strong enough, to allow a radical change of course. And that goes not only for the economy, where warnings about the next crisis are regularly ignored; it goes too for politics, which does not react when experts criticize undesirable developments, but waits instead until the drama of a political scandal unfolds and then reacts frantically. The Kuhnian paradigm shift in science appears to be a similar phenomenon, where aberrations from the current dominant paradigms are dismissed as anomalies until the point where the theory-catastrophe forces a paradigm shift. When processes in a social subsystem spin out of control in this manner, a choice must be made between state intervention and constitutionalization. After the
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experience of political totalitarianism during the last century, permanent subordination to the state is not an option which is seriously discussed. The political regulation of social processes by means of global regulatory regimes is a possibility, but its meaning is ambivalent. What are the options, then? Either administrative steering of global communication processes, or external pressure for a self-limitation of the systems choices. If it is correct that the defence of the three collisions mentioned above is central, then the second option is preferable. This is the core message of societal constitutionalism. A global constitutional order must face the challenge: how can sufficient external pressure be brought to bear on the subsystems so that the selflimitation of their possible courses of action becomes effective? But why self-limitation and not external limitation? Doesnt past experience show that self-limitation strategies put the fox in charge of the henhouse; that excesses can only be prevented by the external exercise of control, backed by massive sanctions? Yet doesnt it also show that attempts to steer internal processes by means of external interventions are bound to misfire? Societal constitutionalism attempts to steer a difficult path between external interventions and pressures towards self-limitation.4 What is required is a form of hybrid regulation: the exercise of state power, the enforcement of legal rules, the strong influence of social countervailing power from other spheres media, public discussion, spontaneous protest, intellectuals, social movements, NGOs, trade unions must apply such massive external pressure to the function systems that selflimitations become truly effective. However, this can only work within, and not outwith, the logic specific to a subsystem. Political-legal regulation and external social influence can only succeed if they are transformed into the self-regulation of systemic dynamics. This requires massive interventions from politics, law and civil society: interventions, however, which, as a matter of fact, are translated into self-limiting impulses and transformed into a regime constitution. The challenge is to combine external political, legal and social impulses with internal self-limitation. How that might be achieved, concretely, cannot be known in advance. Ex-ante prognoses are impossible. For that reason, there is no alternative but to experiment with constitutionalization. The application of external pressure means that the impulses of politics, or law, or other subsystems, create such irritations of the focal system, that ultimately the external and internal programmes play out together along the desired course. And that cannot be planned for, but only experimented with. The desired course of constitutional politics is: limitations of the tendencies towards self-destruction and environmental damage.
Acknowledgements
This article was translated from the German by Ruth Dukes, with thanks to Emilios Christodoulidis. For critical comments I would like to thank Anna Beckers.
Notes
1. For a critique of such constitutional illusions, see Fischer-Lescano (2005: 247 ff.). 2. For a first step in this direction, see Fischer-Lescano and Teubner (2004: 1018 ff.).
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3. On differing production regimes as stable configurations of economics, politics and law, responsible for the varieties of capitalism, see Hall and Soskice (2005). On the generalization of the terms as structural coupling between different subsystems, see Teubner (2001) and Teubner and Zumbansen (2000: 197 ff). 4. The usual formulation, regulation through self-regulation, is the result of a debate about the chances of social steering by politics and law (see Hoffmann-Riem, 2001). The formula must be clarified, however, in so far as it only promises success where external irritations and internal reactions converge in the direction of a common difference-minimization (see Luhmann, 1989, 1990, 1997b).
References
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Societal Constitutionalism as Political Constitutionalism: Reconsidering the Relation between Politics and Global Legal Orders
Hans Lindahl University of Tilburg At least as far back as his paper on Global Bukowina (1997), Gunther Teubner has repeatedly argued that the methodological nationalism of modern legal theory is neither capable of conceptualizing the specificity of global legal orders nor up to the task of providing adequate normative orientation in the face of the transformed set of conditions confronting contemporary law and politics. The key transformation which legal theory must be prepared to make is, in Teubners opinion, to loosen the bonds between the state and constitutionalism, and embrace societal constitutionalism. If law is no longer simply state law (or its correlate international law), so also constitutionalism has ceased to be state constitutionalism. Societal constitutionalism opens up novel conceptual, normative, and institutional perspectives for a theory of legal orders which refuses to view contemporary developments simply as a story of decay. Indeed, and this is a thesis that Teubner develops at length in his paper Constitutionalizing polycontexturality, a theory of societal constitutionalism can call attention to the dangers of self-destruction inherent in contemporary social developments, while also suggesting how they could be parried without having to fall back on variations on state-centred conceptions of law. I endorse Teubners move to disconnect statism and constitutionalism, or as he also puts it, state-centred constitutionalism, in so far as he means by such the modern nation-state and its specific institutionalization of the relation between politics and law. But need this move imply committing to the further thesis that societal constitutionalism can or should sever the link between politics and constitutionalism? To borrow a terse expression of an earlier paper of Teubners, need we accept that giving account of global legal orders requires moving beyond politics-centred constitutional thinking (Teubner, 2006: 12)? To be sure, whoever reads Constitutionalizing polycontexturality with this question in mind will notice what seems to be a certain shift in Teubners position on politics, as compared to the trenchant views espoused in earlier pieces. The paper seems to concede an important role to politics with respect to global legal orders, when, for instance, Teubner asks how is the role of politics for transnational subconstitutions to be formulated in the magical triangle of politics, law and social sector? (see Teubners Constitutionalizing polycontexturality, above) Im not sure Teubner would want to follow me on this, but Ill assume that this question raises a strongly conceptual issue: can we at all make sense of societal constitutionalism as constitutionalism unless it is a mode of political constitutionalism? To put the question in another, perhaps more pointed way: might Teubners suggestion that we need to move from political to societal constitutionalism, if legal theory is to cast off its bondage to state-centred constitutionalism, be self-defeating because the notion of societal constitutionalism is a particularly subtle manifestation and reinforcement of the presuppositions about politics that have governed state-centred constitutionalism? I hasten to add
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that by raising these questions I am not assuming that law can ever absorb politics, such that societal constitutionalism is not only always a form of political constitutionalism, but also that politics is such if and only if it is constitutional politics. As indicated, my question is more limited in scope. It concerns whether it makes sense to vindicate the double gesture of generalizing and re-specifying state-centred constitutionalism in terms of an abstractive movement that seeks to capture a purely legal essence of constitutionalism that can then be redeployed in a non-political setting.
Politics and Political Constitutionalism in Systems Theory

To get started, let me first quickly summarize the main contours of Teubners case for societal constitutionalism as a non-political mode of constitutionalism: 1. Nation-state constitutions claim to discipline all social sectors rather than only political processes. Accordingly, the emergence of the nation-state is profoundly ambiguous: while it witnesses and even contributes to the differentiation of society into sectors such as the economy, politics, law, science, religion, the media and art, nation-state constitutionalism also colonizes this process of social differentiation by subordinating all sectors to political decision-making. Retrospectively, the globalization of various social sectors, such as the economy, science, media and law, reveals the subordination of social sectors by political constitutionalism, while also attesting, more or less prospectively, to their emancipation from political constitutionalism, by means of processes of sectorial selfconstitutionalization. The globalization of certain social systems makes it possible to generalize from political constitutionalism, identifying a formal and abstract legal structure that defines constitutions as such, and to re-specify this legal structure in the framework of non-political social systems. At their most formal and abstract level, constitutions are sets of legal rules that enable and limit social activities. As Teubner puts it, the concern, in state-centred constitutionalism, 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 [i.e. societal, HL] constitutional question, the concern is to release quite different social energies, and to limit these effectively (Teubner above).1 If societal constitutionalism has hitherto aimed primarily at enabling or liberating non-political forms of social self-regulation, its main concern now is to limit or check the expansiveness of these social forms of self-regulation, thereby curbing their destructive potential.2
2.
3.
4.
What, on Teubners view of the matter, determines the political constitutionalism of the nation state as political? The short answer is, I think, a specific institutionalization of the enabling feature of constitutions. In particular, the main features of what Teubner calls political constitutionalism seem to be the centralization of decision-making, coupled with a hierarchical structure of norm-production (legislation and judicial rulings). In its democratic form, political constitutionalism identifies a specific subject of legitimate decision-making: the peoplepopular sovereignty.
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In itself, this is of course a rather meagre development of the notion of politics implied in political constitutionalism, so I take it that the notion of politics developed by Luhmanns systems theory provides the conceptual background of Teubners views on the matter. The question, then, becomes the following: what is, for systems theory, the function of politics, and how does this impinge on political constitutionalism? The function of politics, or more properly of the political subsystem, is, according to Luhmann, to hold ready the capacity for collectively binding decisions (Luhmann, 2002/2000: 84). Although it is tempting to consider all the aspects of this characterization, I will largely concentrate, for the purpose of this response, on the notion of binding decisions, although I will have something to say in the final section about the concept of collective which remains presupposed and never quite elucidated in Luhmanns (and Teubners) characterization of politics. In Luhmanns view, political decisions are binding to the extent that they operate as authoritative premises for further decisions. Moreover, and this is crucial, decisions must be effectively binding. As he puts it, [i]n all these questions that could lead to controversies and conflict, what is at stake is the enforcement [Durchsetzung] of the decision concerning the premises of decisions (Luhmann, 2002/2000: 85). Luhmann argues that power, in the form of a negative sanction when a decision fails to bind those to whom it is directed, is not simply one possible element of politics among others, but its very quintessence (Luhmann, 2002/2000: 75). In contrast with the economy, which influences behaviour by relying on positive sanctions in the form of payment, politics depends on negative sanctions. While there are a variety of forms of negative sanctions, the constitutive form thereof for politics, and which it must be able to actualize, if all other forms of positive or negative sanctions fail, is physical power.
Physical power is the instrument of threat [Drohmittel] that best lends itself for the creation of the symbolically generalized medium of communication [called] power and, at the same time . . . for the differentiation of a specific functional system for politics, which later bears the name state. (Luhmann, 2002/2000: 55)
Against all attempts by those theories of democracy that would transform political decisions into consensual decisions, Luhmann insists that the function of politics is to decide and enforce decisions despite and because of the fact that there is no consentre sus. Politics would forfeit its raison de if it ceased to be power politics, that is, having the capacity, even though usually held in reserve, to enforce decisions. In terms of evolutionary theory, politics evolves into an autonomous functional system because,
it deals with a problem that society must resolve, with or without the differentiation of politics, namely the necessity to establish what counts as collectively binding, even in the face of differences of opinion between or changes of heart by the concerned parties. (Luhmann, 2002/2000: 87)
Having looked at the function of politics, lets turn to consider very briefly how it impinges on political constitutionalism. In an important passage of the Politics of Society, Luhmann summarizes the relation between politics and constitutionalism in terms of the general principle of the Rechtsstaat:
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physical power could only be applied in the sense of law, only on the basis of legal status (Rechtslage), and this presupposed a political control of legislation, which, for its part, was subordinated to the constitution and, possibly, judicial control by a constitutional court. (Luhmann, 2002/2000: 79)3
Democracy, for its part, consists in the inclusion, as a matter of principle, of the entire population . . . in the political system (Luhmann, 2002/2000: 97). That is, it consists in a further specification of the political control of legislation: suffrage. Moreover, to the extent that democratic conflicts consist in different prioritizations of values and interests, political constitutionalism institutionalizes the contingency of decisions and the possibility of accounting for them politically and legally.
Repoliticizing Societal Constitutionalism

Although far too abridged to do any justice to the wealth of issues raised by a systemstheoretical approach to politics, this description of politics and political constitutionalism suffices for the purpose of reconsidering what is at stake and above all what seems to get lost in Teubners recommendation that legal theory abandon political constitutionalism and resolutely embrace societal constitutionalism that is, that it reject a politicscentred constitutional thinking. Indeed, and to repeat the point, the problem for which nation-state politics is one particular institutional response remains unchanged in global society, namely, the problem of having to be able to take collectively binding decisions in the face of conflicts about interests and values, and to enforce them, when necessary. I am reminded, at this point, of Carl Schmitts strong thesis about politics: to the extent that no society is conceivable without politics, any attempt to depoliticize society simply displaces politics to another field of social activity, primarily to the economy and ethics. Referring to liberalisms conceptual attempts to neutralize politics, he notes:with the help of such definitions and constructions, all of which finally circle around the polarity of ethics and economy, one cannot eradicate the state and politics, nor is the world depoliticized (Schmitt, 1991/1932: 76). And he immediately adds: That economic contradictions have become political . . . only shows that one can reach the point of the political from the economy as well as from any other field (Schmitt, 1991/1932: 76). While Luhmann takes issue with Schmitts definition of the political in terms of the friend/foe distinction, he does seem to concur on at least two points with Schmitt: first, on the inevitability of the problem of politics; second, on the possibility that the economic system can, in a sense, become politicized. Indeed, as Luhmann points out, although positive sanctions are constitutive for the economy, for example in the form of payment (for goods, services, etc.), these sanctions can become a form of negative sanctions when they are withheld, even though the functionality of the economy remains irreducible to that of politics. In other words, when a political effect has been displaced to the economic system, what gets lost, first and foremost, is the possibility of submitting that political effect to forms of political accountability. It seems to me that a danger Teubner has not sufficiently dealt with in his account of societal constitutionalism is, to borrow Schmitts acute turn of phrase, the multiplication of apocryphal acts of sovereignty (Schmitt, 1989/1928: xiv). But the apocryphal acts by anonymous civil
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servants which Schmitt feared, when writing in 1928, seem relatively harmless when, in light of the globalization of the economy, acts of sovereignty are apocryphal because there is no longer even a civil servant to whom they could be ascribed, or who could be held politically responsible. Notice that this problem is not solved by appealing to the limiting function of societal constitutionalism, in particular the notion of fundamental rights, to which Teubner appeals. To repeat the central point of Constitutionalizing polycontexturality, Teubner argues that if societal constitutionalism has focused heretofore on the enabling function of global legal orders, that is, on institutionalizing sectorial decision-making processes, it is now necessary to urgently set up limits that restrain the destructive potential inherent in rationalities deployed in those social sectors. While I certainly agree with Teubner that positivizing fundamental rights in the framework of societal constitutions could be an important step, their mere enactment in a legal order does not solve the political problem of their enforcement. Nor, more generally, does creating new fundamental rights address the problem of enforcing political decisions about, say, how to deal with the globalization of capitalism: how, if necessary, can physical power be brought to bear on the regulation of economic processes in a way that addresses their properly global character? This means that the main problem confronting societal constitutionalism resides in its enabling function: if global sectors call for global legal regulation, then such regulation, to be credible as legal regulation, depends on the possibility that those norms be enforced, that is, on a global form of the general function of politics. In short, I dont see how law, on its own, could impede or rein in the destructiveness and self-destructiveness of global sectorial systems. Societal constitutionalism, if it is at all to succeed in its limiting function, must become a global form of political constitutionalism. This, it seems, is what Teubner acknowledges when discussing the example of a global constitution for science:
If the constitution of global science were able not just to norm the multiplicity of differing mutually competing funding sources for research, but also de facto to guarantee them, then this would have effects on the autonomy of science that need not be shy of the comparison with the effect of traditional subjective rights against political interference. (Teubner, 2006: 16, emphasis added)
What else can it mean to de facto guarantee a multiplicity of funding sources for research other than to be able, when necessary, to bring physical power to bear on to exercise political power with respect to those who would hinder that multiplicity of funding sources? If, then, a constitution for global science that could effectively provide such a guarantee need not be shy of comparison with subjective rights in a nationstate, this is because both would be forms of political constitutionalism that provide for political rights and their enforcement. There is, of course, a second way of interpreting societal constitutionalism, a possibility that Teubner sometimes hints at, or at least seems to hold open. Indeed, as noted at the outset, the burning question confronting constitutionalism today is what role politics should play in the differentiation of global society, that is what would be the appropriate articulation of the magical triangle of politics, law and a sectorial system. This
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second approach would have Teubner concede that societal constitutionalism is political constitutionalism in the sense noted above, but not in the sense that what would be required is political constitutionalism in the form of a constitution that organizes and controls a world state. What would be required, if one follows this second line of constitutional thinking, is that each social sector organize itself legally and politically, which would mean that political power, hitherto concentrated in the nation-state, would need to be disaggregated into and parcelled out along the lines of the distinct sectorial systems that configure global society. While the sectorial institutionalization of global political power would be very different from the institutionalization of political power in the nation-state, one would still have to speak of world sectorial polities (in the plural), where the term polity refers to institutionalized politics, even if not in the form of nation-state politics.4 In short, societal constitutionalism is a thoroughly politics-centred constitutionalism, but then in the institutional form of polity-centred constitutionalism, rather than one of its species, state-centred constitutionalism. In assessing this second line of thinking about societal constitutionalism, let me say straightaway that I share Teubners qualms about the cosmopolitan enthusiasm surrounding the idea of what Habermas calls a world domestic politics (Weltinnenpolitik), although my own qualms arise from a very different problematization of cosmopolitanism.5 But I remain unsure that the disaggregation of political power along the lines of sectorial global polities will do the trick. For if it is the case that societal constitutionalism would need to become political constitutionalism, in the sense noted above, then the globalization of legal orders not only unleashes a global conflict of laws, as Teubner asserts (above); the emergence of world sectorial polities would also give rise to global political conflicts, where the conflict is drawn along sectorial lines. And to the extent that global conflicts are political, this means, in line with the function of politics, that they involve the possibility of deploying physical power to enforce decisions. Succinctly, sectorial political constitutionalism would entail the possibility of global sectorial wars. This has ceased to be a merely hypothetical scenario if one bears in mind that some multinational companies, including large oil companies, are systematically hiring mercenaries to enforce their decisions against indigenous or environmental groups which violently oppose the destruction of their ancestral lands or of nature. This is by no means surprising: the emergence of global private self-regulation, in the face of the decline of the nation-state, opens up the possibility of the private enforcement of global self-regulation. By the same token, the emerging tandem between private selfregulation and the private enforcement of private regulations allows for compounding negative sanctions to marvellous effect: withholding (appropriate) payment for the use of natural resources, for example, while also applying physical force in the face of opposition to the absence of (appropriate) payment. At least part of this problem could be addressed by a democratization of sectorial polities, whereby, as Teubner nicely formulates it in an earlier paper, the question Who are the legitimate actors and what are the legitimate procedures for producing law? (2006: 19), is constitutionalized.6 Notice, if I may be allowed a brief digression, that this question neatly exposes what is perhaps the crucial reductive move in the functional concept of politics available to systems theory. Remember that for Luhmann, the function of politics is to hold ready the capacity for collectively binding decisions. While I have concentrated heretofore on the problem of physical force as the properly political manifestation of
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collectively binding decisions, the crucial political question and one to which Teubner indirectly points by invoking the question who belongs? is of course this: under what conditions can a manifold of individuals view themselves as a collective, and, as such, capable of enacting binding decisions, which, if necessary, can be physically enforced? It is here that Leforts notion of the political, which he contrasts to politics, provides a powerful corrective to a merely functional theory of politics:
power makes a gesture towards an outside [un dehors], whence [society] defines itself. Whatever its form, [political power] always refers to the same enigma: that of an internal-external articulation . . . of a movement of the externalization of society which goes hand in hand with its internalization. (Lefort, 1988: 225)
While Luhmann and Teubner are no doubt right in insisting on the importance of politics (la politique, in Leforts vocabulary), the enforcement of binding collective decisions, even if held in abeyance for the time being, presupposes a reference by political power to a point outside the collective, absent which a manifold of individuals could not view themselves as a collective; could not engage in collectively binding decisions; and could not raise nor constitutionalize the question about who belongs and who doesnt. The defence of societal constitutionalism as a form of non-political constitutionalism is only plausible as long as systems theory factors out le politique of its account of politics, a move, to belabour the point, it cannot sustain without leaving unexplained the key concept of a collectively binding decision. Returning to the problem of global political conflicts confronting Teubner, it might be possible to temper the potential for such conflicts if although this is a very big if global sectorial polities were to engage in a process of mutual observation, in which each sectorial polity subordinates itself to an all-encompassing horizon, a common perspective, even if this perspective is only fictive. But an urgent problem remains: how to deal with the inequalities of political power that would no doubt arise between sectorial polities? The question that, as far as I can see, is neither posed nor answered in Teubners vindication of societal constitutionalism is the following: if political power is ultimately the physical power to ensure that collective decisions function as authoritative premises for further decisions, to which global sectors will it migrate in the face of the waning political power of the nation-state? Teubners example of the constitutionalization of global science, to which I alluded earlier, is instructive in this respect. Would global science really be able to de facto guarantee the multiplicity of sources of funding? For example, would global science be able to enforce funding by large multinationals, if these decide to deny funds to those scientific institutions that do not engage in research they are interested in? In general, isnt there the real risk that realizing the global autonomy of some sectors, for example, the economy, would have to be paid for with the subordination of other sectors, for example, science? To evoke Schmitt one last time, doesnt Teubners defence of societal constitutionalism run the risk of converting the economy the capitalist organization of the economy, in particular into the political fate (Schicksal) of global constitutionalism (Schmitt, 1991/1932: 77)? If, as I suspect, this risk is inherent in the fact that societal constitutionalism cannot but be political constitutionalism, if it is to be constitutionalism at all, then Teubners
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defence of societal constitutionalism may well end up providing a powerful argument for the votaries of a world state with a global constitution (in the singular).
Notes
1. Teubner insists on this double function of constitutions in other articles as well. For example, in Societal constitutionalism he argues that In constitutionalisation the point is to liberate the potential of highly specialised dynamics by institutionalising it and, at the same time, to institutionalise mechanisms of self-restraint against its society-wide expansion (Teubner, 2006: 9). In the article Regime-collisions, he reiterates that [the] typical elements of a constitution [are]: provisions on the establishment and exercise of decision-making (organizational and procedural rules) on the one hand, the definition of individual freedoms and societal autonomies (fundamental rights) on the other (Fischer-Lescano and Teubner, 2004: 1016). 2. Although I will not discuss this issue here, notice the strong teleological reading of history involved in this account: if the emergence of the modern nation-state both inaugurates and arrests social differentiation, the constitutionalization of social subsystems heralds the completion of das unvollendete Projekt der Moderne. Not the realization of individual and collective autonomy through the foundation of a global polity, as Habermas would have it, but rather the autonomization of systems, that is, the worldwide realization of functional differentiation (Teubner, 2006: 11) marks the historical completion of modernity. 3. See also Luhmann (1995/1993: Chapter 9), Politik und Recht, 407 ff. 4. This, in contrast to the characterization of the term polity as [non-institutionalized politics as well as] non-political configurations of civil society, in the economy, in science, education, health, art or sports . . . (Fischer-Lescano and Teubner, 2004: 1015). 5. See e.g. Lindahl (2010). 6. See also Teubner (2003) on the notion of a dual constitution.
References
Fischer-Lescano A and Teubner G (2004) Regime-collisions: The vain search for legal unity in the fragmentation of global law. Michigan Journal of International Law 25(4): 9991045. Lefort C (1988) Democracy and Political Theory, trans. David Macey. Cambridge: Polity Press. Lindahl H (2010) A-legality: Postnationalism and the question of legal boundaries. Modern Law Review 73(1): 3056. Luhmann N (1995/1993) Das Recht der Gesellschaft. Frankfurt: Surhkamp. Luhmann N (2002/2000) Die Politik der Gesellschaft. Frankfurt: Suhrkamp. Schmitt C (1989/1928) Verfassungslehre. Berlin: Duncker & Humblot. Schmitt C (1991/1932) Der Begriff des Politischen. Berlin: Duncker & Humblot. Teubner G (1997) Global Bukowina: Legal pluralism in the world society. In: Teubner G (ed.) Global Law Without a State. Aldershot: Dartmouth, 328. Teubner G (2003) Global private regimes: Neo-spontaneous law and dual constitution of autonomous sectors? In: Ladeur K-H (ed.) Globalization and Public Governance. Oxford: Oxford University Press, 7187. Teubner G (2006) Societal constitutionalism: Alternatives to state-centered constitutional theory? Available at SSRN: http://ssrn.com/abstract876941.
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Of Boundaries and Tipping Points: a Response to Gunther Teubner

Emilios Christodoulidis University of Glasgow Let me state from the outset that my short comment is intended as an internal critique rather than a frontal attack on systems theory, the heuristic value of which I take to be extraordinary. And yet in talking about critique within systems theory, one already comes up against a limit. Within the fragmented world space of functional differentiation, where the vast complexity of the social depends on system-specific reductions for releasing opportunities for reflection, political space becomes reconfigured and the political register for critique across social systems collapsed. One would thus need, first of all, to identify within the differentiated terrain a purchase point for critique and its political opportunity. I will make some tentative suggestions in this regard by taking up the notion of reflexivity and its relation to critique; conscious all the time that as metaphors, political space and political register can only be transitory devices for reflection that themselves fold under the pressure of temporal perspectives and the deployment of distinctions other than spatial. Gunther Teubners more recent work on the dynamics of constitutionalization and on societal constitutionalism on a global scale has been influential, and a fair range of the insights are collected in his contribution to this Dialogue & Debate. Teubner invites us to think about constitutionalization as incremental, as an emergent property of global social processes. Read against the background of his earlier work on modalities of self-reference (Teubner, 1993, especially Chap. 2), one might speak here of constitutionalization as the emergence of a recursive, self-referential modality of closure, as a result of the way in which repeated operations crystallize and become entrenched as self-descriptions that in turn acquire a guiding function within the legal system. There is little room to elaborate this point here, except to say that systems theory in this context offers a template to make sense of the multi-level articulation of legal orders in a way that steers clear of the uncomfortable binarisms that much constitutional theory either bypasses or surrenders to. It also offers a much needed critical rebuttal of the supposed directive function of international soft law (Teubner, above) and the exaggerated expectations placed on what loosely coupled guiding principles like those it contains might actually constrain and curb. Instead the dynamic is turned on its head, internal processes in the receiving fields driving the consolidation of soft law as constitutional. Systems theory is at its core a phenomenology: in inviting a re-thinking of conditions of openness and closure in the handling of complexity, it delimits what is thinkable institutionally against the vast terrains of that which is not. Institutional imagination releases contingencies selectively. Institution in the phenomenological tradition, as we know from Merleau-Ponty, is the symbolic matrix that opens up a field, a dimensional future that makes possible a common experience of the present, a common anticipation of the future and a past history. Teubners suggestion is for a re-thinking of societal constitutionalism in the direction of a reflexive constitutionalism, one that avoids the double danger of, on the one hand, tying constitutionalism to a largely redundant framework of
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the nation-state, and, on the other, of invoking a global constitutionalism that can claim neither the resources nor the institutional density to get it meaningfully off the ground. It is in connection to the reflexive dimension that I would like to raise two concerns. The first has to do with the meaning of the reflexive; the second, pragmatic rather than conceptual, has to do with what that reflexivity really alerts us to in the context of the massive tasks and risks that the new constitutionalism is called upon to respond to and redress. In both directions I find the suggestions offer up a hollowed-out constitutionalism, its reflexivity falling short of the task. This, one expects the retort, may be all that we can hope for under conditions of globalization, and the consequent flattening of traditional, more robust, constitutional protections in the global race to increase the rates of return for capital. That it is false necessity that commits us to this form of surrender is the injunction I will return to at the end. To take things more gradually, my first concern is this: what is the relationship between the normative and the functional dimensions of the new reflexive constitutionalism? My concern, to put it briefly, is that the reflexivity that is constitutive of the new constitutionalism is torn between a functional and a normative dimension, the clash predominantly (it seems to me) alleviated via the subsumption of the latter to the former. In this subsumption what is functional re-orients and overdetermines what is normative. This has the result of short-circuiting reflexivity to the operational requirements of the system to the detriment of the systems performance in world society. Let us take a step back to see why, and to identify what is at stake. In an early, much quoted, contested and debated article (Teubner, 1983), Teubner introduced the terminology of reflexive law in the context of regulatory pathologies of the welfare state. This was still the era of a weakly globalized society, and the problem that occupied sociologists of law working against the neoliberal assumptions that were sweeping the theoretical as well as the political agenda was how to integrate some of the important insights regarding the separateness and integrity of functional systems in order to salvage something of the steering function of law and its ability to redress distributional injustices and social need. At least that is how I interpret the normative priorities that underlie Teubners earlier work. The reflexivity of reflexive law had a meaning in terms of the constellation politics/law/regulated field in which the reflexivity of the law was harnessed to its performance as navigating the triad of risks (the regulatory trilemma, Teubner called it) that faced the legal scientist in her efforts to regulate society: those of mutual indifference, juridification and regulatory capture. Reflexive law was about reciprocal adaptation rather than direct intervention, or the convergence of external irritations and internal reactions in the direction of a common difference-minimization (above). Reflexive constitutionalism, however, is about a different sense of reflexivity. The maintenance of proper boundaries is no longer valued in the name of the political objectives of redressing injustice and meeting needs, but valued as such. The discussion shifts to doing justice (the equivocation is interesting here) to proper logics and the autonomy of spheres, valued per se or what amounts to the same thing in the name of functional differentiation, and brought about through a kind of reflexive equilibrium of constitutive and limitative rules. What is the meaning of this balance? And what is its aim? The short answer is that the constitutive moment, which marks the imperialistic
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tendencies of partial rationalities to colonize and capture the whole, needs to be kept in check through limitative considerations about proper boundaries and spheres. What, one is tempted to ask, makes the two logics of the constitutive and the limitative commensurate and a balance possible at all, since the respective rationalities in fact operate at different levels, one sub-systemic and the other social? But I do not want to start at that end of the systems-theoretical distinction of levels and meta-levels. Rather I will start with what is undoubtedly one of Teubners most incisive insights in this context, his insistence on the notion of an incremental, organic process of constitutionalization, as true to the diverse logics of social spheres. One may indeed be able to speak of an a posteriori rationalization, an emerging layering of norms, as autonomous spheres develop and entrench constitutive rules such that new norms are tested against what has only gradually emerged as the fields own benchmarks, and in terms of what emerge as its guiding distinctions. To navigate the dynamic of this emergence, Teubner puts forward a dialectic of generalization and re-specification: What elements, Teubner asks, might be generalized from the tradition of nation-state constitutionalism that might be re-specified in the global context of advanced functional differentiation? Generalizations are of course as much selective suppressions as they are selective actualizations. And here arises the concern. The danger is that what is thus actualized may be over-determined in the direction and by the requirements of its re-specification. And it may not always be constitutionalisms most cherished achievements that survive the transplantation to the global level. Let me explain this further. Inherent in the notion of reflexivity is a double movement of generalization (away from the context of the nation-state) and re-specification (as appropriate to the receiving fields). What guides this reflexivity is the handling of the tension between what is generalizable as constitutional (categorical, transcendent) and what is appropriate framing, sensitive to the self-production of the field. I would suggest that it is impossible to negotiate this tension. It immediately folds into self-reference and then collapses into the second pole. It is in that sense that re-specification overdetermines what might be generalizable in the first place. The process works back-the-way and the function of the constitutional is reconfigured in the process. But if that is the case, is it really true that there is any significant distinction to be drawn here between juridification and constitutionalisation? Might one not see self-descriptions, generalizations and other emerging concepts and rules as merely aggregation rules or simply aggregations of rules whose constitutional function comes too late: as gathering rationalizations that lack the constitutional qualities of being able to perform a framing function or a review function, that is, the hallmarks of the constitutional function, all of which would have required them to pre-exist the instance of their application (simply in order to perform that function)? If the constitutional is to retain anything of the constituent-political dimension, of a societys ability to act on what the various spheres, regimes or fields might present as the necessary logic of their self-production, then constitutionalization needs to be pitted against juridification and the limitative pitted against the constitutive. But the possibility of pitting anything against anything else, setting up any pair as oppositional, and with it the very capacity of a society to draw political distinctions, has become increasingly difficult to sustain under conditions of functional differentiation. And with it comes the inevitable substitution of constitutionalization for self-limitation, which is the name of what hardens into concepts that acquire some form of orientation value for the system as it surges on along the
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trajectory of its self-reproduction. That is what the collapse into the re-specification pole of what is appropriate to the receiving field sacrifices: the possibility of drawing distinctions on a political-societal register. In the face of this surrender, and as the subsumption of value to the partial rationalities of the systems continues unabated, is it useful to grace the institutional facilitation of the all-too-predictable trajectories of capital accumulation with the term constitutional? This is the point about the normative and the functional, and the reflexivity that uncomfortably straddles them both, that I began this response by identifying as problematic. We have now reached other ways to ask the same question. What purchase point for the limitative in the differentiated, centrifugal processes of social reproduction? What pivot for a reflexivity that will reflect on proper boundaries? What thresholds and benchmarks for that proper other than functional, and what criteria for functional other than systemic equilibria that come in the form of requisite variety and other successful forms of bringing complexity under control? I find no leverage in Teubners analysis for what might hoist constitutional reflexivity out of the internal dynamics of partial rationalities and into a protective (limitative) role for society. Of course there have been much-discussed attempts to do this, but these are efforts that I think Teubner too would find problematic. On the one hand, from Hart we have an analysis of how the constitutional distinction that imports reflexivity operates as an unfolding of self-reference: in The Concept of Law he famously defined the law as the union of primary and secondary rules. Reflexivity for Hart, as for Teubner, has to do with the operation of containment that the deployment of this basic (both simple and fundamental) distinction allows. But Teubner attributes nothing like the importance that Hart does to this distinction, and for him it certainly has little to do with societal reflexivity, let alone with furnishing a society with the capacity to stand back from the operations of the system, to put them to question or hold them up to scrutiny constitutionally (whereas for Hart, famously, it involves the officials/judges recognition and endorsement of what counts as law). At the same time Teubner is critical of a human rights approach that advocates the limitation by means of rights of all expansionist tendencies of social subsystems including those which do not function through the medium of power (Teubner, above). And he is surely right in the limiting function he attributes (elsewhere) to human-rights-constitutionalism, as a compensatory (my term, not his) constitutionalism, with human rights as simply markers of excess, signs that the ordinary operations of the system have imposed social costs beyond a threshold of what the system deems bearable, or that it can usefully externalize. But neither of these moments has anything to tell us about the possibility of the limitative constitutional moment, the point at which the system must yield before different sets of values, or contract back to its proper limits. This would require a normative rather than a functional register, and, ingenious as the attempt is to run these as congruent and to navigate normativity via functional considerations, limit situations in particular (Teubner calls them tipping points, below) stand them apart. Let us attempt to salvage this normative question from the self-legitimating dynamics of function systems and ask this: how might the distinction between politics and the political that to my mind is the guiding distinction of any politics worthy of the name reflexive be unfolded productively in the direction of a certain redress of injustice? The question is important because it concerns the available registers of political meaning, and I am not
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persuaded that Teubner wants to give up on that question, for he asks, for example, how is the role of politics for transnational sub-constitutions to be formulated? (Teubner, above). How, one might interject, is systems theory as critical theory poised at this historical conjuncture, before the dynamics of societal subsystems running amok? There is a hint towards the end of Teubners article that the limitative has an important role to play when tipping points are reached. In the face of impeding catastrophe, the constitutive dynamics of systemic augmentation will be reined in, and sub-rationalities systemic, partial will yield to the requirements of an overall limit. The article, in fact, culminates on an argument, and a warning, about preventing catastrophe. Teubners concern is that freed up energies may spin out of control, to have corrupting or even destructive social effects when a tipping point may be reached (Teubner, above) at which we may even have a collision between the reproduction of function systems and a comprehensive rationality of world society (Teubner, above). This requires massive interventions, most effective when they are translated into self-limiting impulses and transformed into a regime constitution. I would ask this question: How would we even know that tipping points have been reached, that destructive energies can no longer be tolerated? What societal register would carry that message? Not just from Marx, but from Polanyi too, we know that the market system has in the past had a series of massive collisions with society, and what in Marxs analysis of capitalisms early clearing exercise of primitive accumulation is a history of pillage, exaction and devastation, Polanyi describes as the radical disembedding of the market system from the society that harboured it, a violent extraction that marks social devastation. Worlds have been lost in these collisions, and not only was no tipping point reached or registered, but in some cases, in the colonial context, for example, there is not even a trace of the language that the vanquished used to describe the loss of their worlds. That is all to say that functional sub-systems not only outlive catastrophic events but feed off them, turning them productive. On catastrophes that dont register, here is Zizek on the recent debacle of the system that ran itself into the ground, unable to sustain the logic of its own reproduction.
The financial meltdown has made it impossible to ignore the blatant irrationality of global capitalism. In the fight against AIDS, hunger, lack of water or global warming, we may recognize the urgency of the problem, but there is always time to reflect, to postpone decisions. The main conclusion of the meeting of world leaders in Bali to talk about climate change, hailed as a success, was that they would meet again in two years to continue the talks. But with the financial meltdown the urgency was unconditional; a sum beyond imagination was immediately found . . . Saving the starving children can wait a bit, but save the banks! is an unconditional imperative. (Zizek, 2008)
If anything, this is a tipping point that is re-integrated into business-as-usual, giving those responsible for the crisis yet another financial instrument to play with, recycling catastrophe into the vortex of profit, as another toxic commodity to be sold. This is too depressing and familiar a point to develop at any length. But it is also an argument that resonates all too disturbingly with how systems think. It is counter-intuitive that Teubner brings in Polanyi at this point, sometimes implicitly, sometimes explicitly. Polanyi, as is well known, indeed identifies a reactive double
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movement at the tipping point, with social forces storming the market as a result of a radical disembedding of the economy from society. But what would disembedding mean under conditions of functional differentiation? Where will society draw the resources for that storming with the purchase point for a society-wide response dispersed and its ability to respond to market excess undone? In what modality would society collect itself, and what form of action would its response take? Which brings me, finally, to a disquieting suggestion. There are economists, I understand, who confirm that there are states of allocative efficiency perfectly consistent with the poor starving and the economys productive activity channelled into the manufacture of luxury goods. We are depressingly familiar with how multinational companies react to turbulence by forms of self-binding that see out the storm, in inculcating forms of responsibility, substituting self-control for co-determination, promising the reining in of extravagant greed. Teubners tipping point here must be the point at which the self-binding comes undone as radically inadequate, and that ushers in a whole new set of reasons and a societal register other than the market. It is the very thing that Luhmann insisted cannot and should not be done, in Ecological Communication, and in practically everything else, but then this is not the first time that Teubner has broken with Luhmann. What if this is the disquieting bit we have reached the point where the only possible reaction to catastrophe is catastrophic? And I mean it in the devastating sense that Georges Sorel used the term to describe that which introduces a radical break with the logic of the situation (the mass strike in his case). After all, that which ushers in radical change (as Teubner himself describes the Kuhnian paradigm shift above) does not do so because it is read by the theory it challenges but precisely because it cannot be: it breaks into a certain economy as irreducibly uninterpretable, incongruent, resistant, undecipherable and yet un-ignorable. Could it be then that at the threshold of the catastrophic, it is no longer the system that has brought us to the brink that needs to be tapped or resourced? That in the face of the state of `la emergency that has been reached, we advocate not its internalization a Luhmann and functionalization in the direction of new systemic operations and a renewed impetus, but a radicalization of a different order? And one might imagine Gunther Teubner, at this moment, turning away from Luhmann and towards another great compatriot of his:
The tradition of the oppressed teaches us that the state of emergency in which we live is not the exception but the rule. We must attain to a conception of history that is in keeping with this insight. Then we shall clearly realize that it is our task to bring about a real state of emergency. (Benjamin, 1940: XVIII)
References
Benjamin W (1940) Theses on the Philosophy of History or On the Concept of History. Teubner G (1983) Substantive and reflexive elements in modern law. Law & Society Review 17(2): 239286. Teubner G (1993) Law as an Autopoietic System, trans. Anne Bankowska and Ruth Adler, ed. Zenon Bankowski. Oxford: Blackwell. Zizek S (2008) Use your illusions. The London Review of Books, 14 November 2008. Available at: http://www.lrb.co.uk/2008/11/14/slavoj-zizek/use-your-illusions.
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Constitutional Law from the Perspective of Power: A Response to Gunther Teubner

Chris Thornhill University of Glasgow Gunther Teubners work stands as one of the most highly evolved positions in the contemporary sociology of law and legal-political norms, and it demands the deepest respect. Above all, his work has this distinction because it is very serious about the formative theoretical problem underlying sociology as an academic discipline. That is to say, it aims to examine law as an aggregate of highly contingent and interdependent societal facts whose normative dimensions have variable causality (that is, they are inseparably interwoven with other social functions, they cannot be reduced to any natural or deductive/prescriptive source, and they are not simply or formally counterposed to other institutions), and it seeks to develop a methodological model that is able to capture the emergent and multi-centric reality of societys legal fabric. To a large degree, the question of societys unstructured and interwoven normativity was at the formative centre of theoretical sociology in its very first emergence, and Teubner re-visits this question in deeply penetrating and unusual fashion. His analysis of constitutions as arising from interdependent processes of societal differentiation, linked to his description of constitutional rights as societally contingent and subject to varied extensions of validity and changes in vertical and horizontal impact, re-commences the original sociological desire to propose a contextsensitive, multi-causal and institutionally inclusive account of the dominant normative and political legitimating structures of modern societies. His emphasis on recent and contemporary transformations of statehood, and on the altered status of constitutions and constitutional rights resulting from the end of societys state-centricity, including his analysis of the quasi-constitutional force attaching to (formally constructed) private rights, can also be seen in this light. This aspect of his work also marks a vital attempt to actualize the original potentials of theoretical sociology in contemporary society, and to push theory to such a level that it can reflect and explain the multiple sources of normativity in society. The claim that contemporary societies have an informal constitutionality that is neither normatively nor directively centred on states and contain multivalent and multi-layered legal structures appears to me to represent a key position in the legacy of the original sociological project of establishing a complex, non-naturalized and post-ontological conception of society and societys norms. The new sociology of simultaneously public and private, vertical and horizontal or simply hybrid law proposed by Teubner culminates in a sociological view which attributes the following features to modern society. Contemporary global society is viewed as: (a) lacking a constititive legal/political and normative centre; (b) containing normatively formative and legally restrictive impulses that are not concentrated in national or even state-centred constitutions; and (c) drawing normative order from a multiplicity of legal forms, often (but not necessarily) articulated as rights. I strongly applaud the sociological focus on highly varied patterns of constitutional formation in this line of inquiry, and I greatly welcome its attempt to produce a sociological theory of legal-constitutional formation adequate to describing the realities of a normatively fragmented world society.
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In my opinion, however, the approach to constitutional analysis, both at national and global level which is advanced in this article has the weakness that it is not yet sociological enough, and it does not pursue its evaluation of normatively formative contingency to a sufficiently refined degree of distillation. This is the case, in my opinion, on two separate counts. First, the discussion of socio-functional differentiation as a dominant dynamic underlying social structure diagnoses a transformative fragmentation in modern society and some of its subsystems, and it views the polycontextural constitutionality of society as an overarching reaction to the political consequences of the erosion of the classicalmodern patterns of convergence and differentiation between distinct systems: especially between the state and the economy and the state and the law. However, this analysis does not adequately accentuate transformations that occur within political power as an autonomous medium of social exchange, and it does not fully assess the fragmentation of political regimes, and resultant changes in the constitutional relation between power and law, as an occurrence whose causes can be located within political power itself. The construction of power in fact, although its growing diffusion and secondarization in modern society are clearly reflected, remains rather static. There is, above all, no conceptual attempt either to disarticulate power from the state, or to render meaningful the semantic relation between politics (that is, social exchanges having to do with power) and statehood: in consequence, while at the level of state theory Teubners view of diffuse societal-constitutional formation in modern world society is admirably sociological and highly sensitive to the status of constitutions in rapidly evolving societies, at the level of power theory it is somewhat less so. Although the article proceeds from the premise that classical constitutionalism is discredited because it remains fixated with the state and that this fixation must be abandoned, the article itself is also guilty of a semantically over-literal and historically simplifed view of statehood: it might be challenged to offer a more reflected analysis of the state, and it might be pressed to observe classical conditions of statehood, not as a constitutional totality, but as one incidental or semantic moment in the wider history of the formation of political power in modern societies. In particular, we might reflect that the construction of the national state, enshrined within a formal constitution, made (if which is debatable it existed at all) only a very short appearance on the stage of European history, and both throughout the nineteenth century and since the aftermath of World War I, European states existed for most of their history in a condition in which they were either not yet or no longer states in the classical sense of an aggregate of clearly public institutions possessing national/territorial sovereignty. The classical idea of the state used as evidence here, therefore, requires a sociologically internal and historical relativization, and it cannot be used as a standard against which levels or processes of constitutional fragmentation in contemporary society might be reliably identified or measured. Tentatively, in fact, I am inclined to propose the view that the comprehensive structural coupling between politics and law (allegedly) observable in the constitutions of nation-states is nothing more than a fiction it semantically duplicates a societal condition which never factually existed. In consequence, we should not be surprised that this structural coupling has no counterpart at the level of world society, and we should not observe this as a crisis dimension of modern society or as enacting a process of unique, unprecedented or structurally decisive fragmentation.
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We might perceive the erosion of this coupling, rather, as one new expression in the loose and eternally fraught semantic between state and power, and we might seek to analyse it by rejecting all sense of an original homology between statehood and societys politicality. In short, although in this article, theory construction is refined to account for ultra-contingent variations in the formation of law, the sensibility of theory to the contingency of power and its precarious relation to its own semantic forms (states) are substantially less evolved. Second despite its admirable sociological impetus, the article at times also contains evidence that power is approached through a perspective that is residually derived from the classical-normative law/power antinomy, which, in its founding self-definitions, sociology (especially, and most seminally, Durkheim) sought to surpass (see Durkheim, 1950: 7071). At one point, for example, legal/constitutional rights are ascribed the function of limiting power and placing restrictive normative checks on expansive social media. Subsequently, states are seen as institutions that are in some circumstances avidly intent on annexing societys other subsystems: this, it is argued, was particularly the case under totalitarian regimes. This view is questionable. Germany, Italy, Spain and Portugal in the 1930s and beyond were all examples of polities that specifically acknowledged their inability to perform even minimal regulatory functions across different societal subsystems and that opted to shore up their reserves of power by co-opting private or even neo-patrimonial actors into the peripheries of government. Extrapolating from this, then, we might observe that even (or especially) in the moment of their greatest structural over-potentiation, states could not effect a condition even close to the permanent subordination of autonomous spheres. Totalitarianism was always societally constituted: i.e. not centred on the state. In fact, to push this claim further, I suggest weak statehood instead of strong statehood as a paradigm for analysing totalitarianism (see Gunther, 1980: 259; Gunther, 1996: 167; Palla, 2001: 8; Sarti, 1971: 2). In extension of this, then, I suggest that the diffusely acentric reality of societal constitutionalism urged by Teubner that is, the idea of a hybrid constitutionalization in which the exercise of state power, the enforcement of legal rules, the strong influence of social countervailing power from other spheres such as media, public discussion, spontaneous protest, intellectuals, social movements, NGOs, trade unions all play a role in the composition and exercise of power is in fact merely a variation on a socio-political reality that has long been typical of European societies. Further, at a later point, the article observes that states are called upon to exercise external pressure in order to facilitate the self-limitation of global subsystems, and that, even in politically de-centred societies, states might exceptionalistically annex and regulate other spheres of social exchange. In each of these examples, albeit for conflicting motives, the discussion of power and states appears at once implicitly to replicate classical (Weberian) accounts of the state as a centre of power and of power as a static, monopolistic and violating societal commodity, and to reconstruct classical (Kantian) accounts of power as founded in an antinomical or dualistic relation to law. In consequence, in its practical implications, this argument still ascribes exaggerated force to states, and it even (against its intentions) preserves high expectations regarding the regulatory functions that states might perform. Methodologically, moreover, this perspective seems to deflect from consideration of the social morphology of power, to pay limited attention to the inner articulation of constitutional
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forms and power per se, and, in consequence, to reproduce a binary (pre-sociological) pattern for analysing the relation of power to law. There might, in consequence, be an alternative systems-theoretical approach to questions of contemporary constitutionalism and to the normative fabric of modern society, which might expand the sociological foundations of the analysis proposed here. An alternative approach to these matters might examine constitutions and constitutional rights, from the outset, not (or not solely) as institutions designed to limit power effectively, but also as reflexively internal articulations of law and power that are generated sociologically from within power, and that create an adequately abstracted medium for the societal circulation of power. The structural coupling of law and power in a constitution, thus, might be seen as an element of powers own internal differentiation, displacement and transmission within a certain socio-historical conjuncture, responding to and expressing powers specific resources of societal adaptivity. This view of the constitution would allow us to step outside both the presumptive state/power homology and the law/power antinomy (discussed above) and it would make it possible to observe the constitutional framing of power, not as a process marked by radical caesura or crises, but as expressing momentary, evolving and contingent semantic patterns for the transfusion of modern society with power. There is in fact a wealth of historical evidence to sustain this view of constitutions and constitutional rights as dimensions of powers adaptivity and internal abstraction. If pursued, this approach might throw up a different account of new processes of constitutionalization; it might construe transformations in constitutional rule as correlated with internal transformations in the substance of power and as adjusted to new conditions of societys power; and it might allow us to observe the dismantling of nation-state regulations in a different light. A highly reflected sociological theory of law, to conclude, needs and presupposes an equally highly reflected and equally sociological theory of power and politicality. Indeed, we might observe that if sociology is to bring to conclusion its original endeavour to construct the normative reserves of modern society in a paradigm that is adequate to the spontaneous norm-constitutive structures of this society, a revision of deductive analysis of law only wins half the battle. The coupling of law and power also needs to be re-examined and the internal/evolutionary interdependence of power, law, constitutions and constitutional rights needs to be placed in the forefront of theoretical debate.
References
Durkheim E (1950) Lecons de Sociologie. Physique des Murs et du Droit. Paris: Presses Universitaires de France. Gunther R (1980) Public Policy in a No-Party State: Spanish Planning and Budgeting in the Twilight of the Franquist Era. Berkeley: University of California Press. Gunther R (1996) The impact of regime change on public policy: The case of Spain. Journal of Public Policy 16(2): 157201. Palla M (ed.) (2001) Lo stato fascista. Florence: La Nuova Italia. Sarti R (1971) Fascism and Industrial Leadership in Italy, 19191940: A Study in the Expansion of Private Power under Fascism. Berkeley: University of California Press.
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Societal Constitutionalism Without Politics? A Rejoinder

Gunther Teubner University of Frankfurt There is one overriding concern in all three responses. While they raise many issues of constitutionalizing polycontexturality, they ask again and again one question: What is the role of politics in societal constitutionalism? Does societal constitutionalism aiming at extensive autonomy of the social subsystems not imply an extensive de-politicization of society? Does giving account of global legal orders really require moving beyond politics-centred constitutional thinking? Do not state constitutions have to play a role in constitutionalizing social sectors? And will not a societal constitutionalism in the end depend on the primacy of the political in society? The following remarks will concentrate on this aspect, on the politics of societal constitutionalism. Societal constitutions are paradoxical phenomena. They are not part of the political constitution of society but, at the same time, they involve highly political concerns. The paradox can be solved with the help of a double conception of the political. This is a widespread idea and the difference between le politique and la politique is understood in a variety of ways (Christodoulidis, 2007: 191 ff.), but here, the double meaning of the political is interpreted as follows. First, by the political is meant institutionalized politics: the political system of the world of states. In relation to this world, the social subconstitutions go the distance; they require extensive autonomy against the constitution of international politics. And with regard to the participation of the political system in the process of the social sub-constitutions, particular political restraint is required. Second, the concept can also indicate the political in society outside institutionalized politics. It can indicate, in other words, the politicization of the economy itself and of other social spheres; the politics of reflection on the social identity of the social system involved. In this respect, the particular social constitutions are highly political, but beyond the state. With this argument I react to Chris Thornhills observation that political power as an autonomous medium of social exchange has been fundamentally transformed and that political regimes have been fragmented with resultant changes in the constitutional relation between power and law. Thornhill seems to integrate these transformations within a broadened but still unitary conception of the political while I would argue for a clear-cut distinction between institutionalized politics in the political system and the emergence of autonomous political dynamics within other social sectors. But why should not the political constitution regulate the fundamental structures of social sub-spheres? This would be the consequence of conceptions of constitutionalization which identify a variety of social sub-constitutions, but then postulate a primacy of the political constitution of the state (e.g. Joerges and Rodl, 2009: 775 ff.). For the nation-state this primacy might be more or less realistic, but it is no longer so for transnational relations. The matter raises itself as an aspect of democratic theory, as the collective accountability of democratic politics to society. If it is ultimately the greatest privilege of the democratic sovereign to grant a constitution to society, why favour auto-constitutionalization of social sectors and not a collective decision by the whole body politic? The answer can only be alluded to. The basic social structures of modernity
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make it necessary to re-define the relationship between representation, participation and reflection. In the functionally differentiated society, the political constitution cannot fulfil the role of defining the fundamental principles of other sub-systems without causing a problematic de-differentiation as occurred in practice in the totalitarian regimes of the twentieth century (Thornhill, 2008: 188 ff.). In modernity, society can be constitutionalized only in such a way that every sub-system acts reflexively to develop its own constitutional principle for itself, and these cannot be prescribed by politics. Such decentred reflexivity is necessary since it is no longer the case, as in the old society, that the maiores partes represent the whole, while the minores partes participate. Instead, modern society regards participation and representation as identical and, at the same time, abolishes them. We must give up the notion that, in the state, politics represents society and that other social spheres participate therein. No social sub-system, not even politics, can represent the whole society. Instead, it is characteristic of the condition of development that . . . psychic and social systems must develop their own reflexive processes of structure selection processes of thinking about thinking, or of loving love, of researching into research, regulating regulation, financing the use of money or overpowering the powerful (Luhmann, 1997: 101). Democratic legitimation must, indeed, deliver in relation to society as a whole though it need not proceed through the channels of institutionalized politics. This would correspond with the views of the early Habermas, who after a fundamental critique of parliamentarianism, called for the democratic potential of societal processes outside institutionalized politics to be tested. Apparently this insight has been lost by the later Habermas (1992) and his followers. Space does not allow me to elaborate further on the democratic potential of social processes outside institutionalized politics. It must suffice to point to participation of the general public in the decision-making of transnational private regimes. For example, the Aarhus Convention made an impact by declaring three principles of public participation: (1) access to information; (2) public participation in decision-making procedures; and (3) access to justice in environmental matters. The collaboration of the administrative apparatus of public and private regimes is thereby:
to be integrated into the creation of forms of action in the social substrate, that is, in the global economy itself (and not its political system, i.e. the international community [of states]). Similarly decision-making (in the legislative, executive and juridical apparatuses) and discussion (in the global sub-publics) have to be structurally coupled with one another, such that the democratic-theoretically meaningful duality of spontaneous and organised spheres of the creation of the social constitution can be established. (Fischer-Lescano and Renner, 2011: 15)
The world state does not prescribe the constitution of the economy and other social subsystems, but it produces constitutional impulses for them. If institutionalized politics, together with other actors, particularly civil-societal actors, exerts massive external pressure in order to compel changes in fundamental social structures, for example, in the capillaries of the payment cycle of the economy, that would be the appropriate division of labour. Social systems have the best constitutional chances where they can develop their own constitutions in the shadow of institutionalized politics (Grimm, 2009: 81).
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Political interventions in the economic and other societal constitutions, which do exist of course, ought not to be understood, then, as genuine operations within a civil constitution, but rather as external constitutional impulses. The most important external impulses from politics are released during the foundational act of the relevant constitution, but usually transmitted by the legal system. To establish a financial constitution would require political impulses, which would have to work their way into the internal structure of the economy. Generally it is the case that an autonomous economy requires a strong political system. The Mafiosi conditions in Russia after 1989 offer ample illustration of the negative effects when a capitalist economy is introduced by a big bang without rule of law constraints. To date, transnational politics have reacted most convincingly when in the moment of the financial crisis an international coordination of first aid measures was put into effect. To that extent, it can be concluded that social constitutions are politically imposed. However, it is the internal reconstruction of the external political impulses which matters and that is what is decisive for the sustained transformation of a civil constitution. Without this, the constitutional impulses of politics and society fade. But it is also true that without them, there is no chance of a sustained transformation of the civil constitution. It is not the big decision, the mythical foundational act, that is relevant for the existence of a constitution, but rather long standing chains of communicative acts, bound to one another, of the successful anchoring of a constitution as the highest authority (Vesting, 2009: 613). The political impulse limits itself to the formative act and fundamental changes; over and above that, high constitutional autonomy is required in relation to politics. The phrase in the shadow of institutionalized politics has an additional meaning. Societal constitutionalism always depends on law; law, for its part, depends on the physical monopoly that politics has over power. Economic and social sanctions alone are not sufficient to stabilize constitutional norms. Hans Lindahl, in his response, sees here the main problem confronting societal constitutionalism: global legal regulation depends on the possibility that those norms be enforced and, thus, law on its own cannot impede the destructiveness of global sectorial systems. Indeed, societal constitutionalism, if it is at all to succeed in its limiting function, depends upon political constitutionalism. Such political support, however, does not transform the economic constitution into a part of the state constitution. It is only the instruments of state power which law uses, depoliticizes, and places at the disposal of the societal constitution. While societal constitutionalism keeps its relative distance from institutionalized politics, the politicization itself of the economy and other social sectors is high on its agenda. Politicizing a social sector involves intense and conflictual processes of reflection which deal with the social consequences of the extension or limitation of its medium. The politicization is carried on by collegial institutions in the general public, citizen groups, NGOs, labour unions, professional associations, universities and corporations. A strengthened politics of reflection is required within the economy and other social spheres that at the same time needs to be supported by constitutional norms. Historically, collective bargaining, codetermination, and the right to strike enabled new forms of societal dissensus (Luhmann, 1973: 182). In todays transnational organizations, ethic committees of conduct fulfil a similar role. Societal constitutionalism sees
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its point of application wherever it turns the existence of a variety of reflection centres within society, and in particular within economic institutions, into the criterion of a democratic society (Sciulli, 1992, 2001). Candidates for a capillary constitutionalization exist not only in the organized sector of the global society, in corporations and banks, but also in its spontaneous spheres (on this difference, see Teubner, 2003: 82 ff.). In these reflection centres it is fiercely discussed and finally decided whether, in a concrete situation, the growth compulsions of the social sector are excessive or not. The dynamics of external political impulses and the internal politics of the capillary constitution are not an automatic consequence of functional imperatives. In his response, Emilios Christodoulidis seems to assume that in the relation between normative and functional demands on social systems, functional imperatives will always prevail in a way that renders normative concerns illusory. I suggest a distinction: while the differential rationality of social systems necessitates that normative institutions differ from system to system, the balance of strength between normative and functional demands is contingent upon historical constellations. The history of nation-state constitutionalism gives ample evidence of the changing balance between a (functional) realpolitik and a (normative) common good orientation. It is safe to assume that in societal constitutionalism a similar experience will be generated. It develops only in crisis phases, caused themselves by excessive growth compulsions. These are the constitutional moments, when social energies of such intensity are activated that catastrophe is averted. From an historical point of view, it is clear that the Great Depression in 1929 was such a moment. At the time the nation-states were faced with a constitutional decision: to abolish the autonomy of the economy via totalitarian politics of either a socialist or fascist bend, or to inaugurate the New Deal and the welfare state as a limitative constitutionalization of the national economies. And today? Did the banking crisis of 2008 resonate systemically? Was it threatening enough to amount to a new constitutional moment this time of the global economy establishing, within the realm of possibility, a self-limitation through a global financial constitution? Or has the bottom not yet been reached? In which case will the fading of the crisis herald the global return to the old addictive behaviour, untreatable with nation-state withdrawal cures?1
Acknowledgement
This article was translated from the German by Ruth Dukes.
Note
1. For the interpretation of the recent financial crisis in terms of an addictive growth compulsion and the potential role of constitutional limitations, see Teubner (2011).
References
Christodoulidis E (2007) Against substitution: The constitutional thinking of dissensus. In: Loughlin M and Walker N (eds) The Paradox of Constitutionalism: Constituent Power and Constitutional Form. Oxford: Oxford University Press, 189208.
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Teubner - Constitutionalizing Polycontexturality

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com/ & Legal Studies

Debate and Dialogue: Constitutionalizing Polycontexturality

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Dialogue & Debate

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Social & Legal Studies 20(2)

I The New Constitutional Question

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Dialogue & Debate

II False Premises in the Current Debate

Societal Constitutionalism as a Consequence of Globalization?

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Social & Legal Studies 20(2)

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Dialogue & Debate

Constitutional Emptiness of the Transnational?

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Social & Legal Studies 20(2)

Reducing Transnational Governance to Institutionalized Politics?

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Dialogue & Debate

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A Unitary Global Constitution?

III Self-Constituting Systems Without Constitutionalization?

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Dialogue & Debate

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Social & Legal Studies 20(2)

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Dialogue & Debate

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Social & Legal Studies 20(2)

IV Sectoral Constitutions in World Society?

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Dialogue & Debate

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Social & Legal Studies 20(2)

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Dialogue & Debate

V Constitutionalization in a Dynamic Disequilibrium

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Social & Legal Studies 20(2)

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Dialogue & Debate

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Social & Legal Studies 20(2)

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Dialogue & Debate

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Social & Legal Studies 20(2)

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Dialogue & Debate

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Social & Legal Studies 20(2)

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Dialogue & Debate

Politics and Political Constitutionalism in Systems Theory

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Social & Legal Studies 20(2)

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