Sociology of Constitutions: A Paradoxical Perspective PDF
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Sociology of Constitutions This collection brings together some of the most influential sociologists of law to confront the challenges of current transnational constitutionalism. It shows the constitution appearing in a new light: no longer as an essential factor of unity and stabilisation but as a potential defence of pluralism and innovation. The first part of the book is devoted to the analysis of the concept of constitution, highlighting the elements that can contribute from a socio-legal perspective, to clarifying the principle meanings attributed to the constitution. The study goes on to analyse some concrete aspects of the functioning of constitutions in contemporary society. In applying Luhmann’s General Systems Theory to a comparative analysis of the concept of constitution, the work contributes to a better understanding of this traditional concept in both its institutionalised and functional aspects. Defining the constitution’s contents and functions both at the conceptual level and by taking empirical issues of particular comparative interest into account, this study will be of importance to scholars and students of sociology of law, sociology of politics and comparative public law. Alberto Febbrajo is Professor of Sociology of Law at the Department of Law, University of Macerata, Italy. Giancarlo Corsi is Associate Professor of Sociology at the Department of Communication and Economics, University of Modena-Reggio Emilia, Italy. Studies in the Sociology of Law Series Editor Alberto Febbrajo, University of Macerata, Italy Series Advisory Board André-Jean Arnaud, University of Paris X, France Alfons Bora, University of Bielefeld, Germany Denis Galligan, University of Oxford, UK Karl-Heinz Ladeur, University of Bremen, Germany Setsuo Miyazawa, University of Waseda, Japan Jirí Pribán, Cardiff Law School, UK Darío Rodríguez Mansilla, University Diego Portales, Chile Wojciech Sadurski, University of Sydney, Australia András Sajó, Central European University, Hungary Gunther Teubner, Johann-Wolfgang-Goethe University, Germany Chris Thornhill, University of Manchester, UK David M. Trubek, University of Wisconsin, USA The objectives of Studies in the Sociology of Law are threefold. Firstly, the series aims to deepen the analysis of the sociolegal problems related to the enlarged European Union and the different paths of its constitutional process and policy. Secondly, it examines the many facets of legal cultures within and outside the European context in comparative perspective and in an open debate with extra European scholarship. Thirdly, it reconsiders the historical legacy of sociolegal thought while dealing with the broader dynamic and the new challenges of con- temporary societies. Law and Intersystemic Communication Understanding ‘Structural Coupling’ Edited by Alberto Febbrajo and Gorm Harste ISBN 9781409421108 Sociology of Constitutions A paradoxical perspective Edited by Alberto Febbrajo and Giancarlo Corsi First published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2016 Alberto Febbrajo and Giancarlo Corsi The right of Alberto Febbrajo and Giancarlo Corsi to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Sociology of constitutions: a paradoxical perspective / by Alberto Febbrajo and Giancarlo Corsi. pages cm. — (Studies in the sociology of law) Includes bibliographical references and index. ISBN 978-1-4724-7959-4 (hardback) 1. Constitutional law—Social aspects. I. Febbrajo, Alberto, editor. II. Corsi, Giancarlo, editor. K3165.S63 2016 342—dc23 2015034043 ISBN: 9781472479594 (hbk) ISBN: 9781315609805 (ebk) Typeset in Times New Roman by Apex CoVantage, LLC Contents List of tables vii List of contributors viii Introduction 1 ALBERTO FEBBRAJO AND GIANCARLO CORSI PART I 1 On paradoxes in constitutions 11 GIANCARLO CORSI 2 Exogenous self-binding: how social subsystems externalise their foundational paradoxes in the process of constitutionalisation 30 GUNTHER TEUBNER 3 Promise as premise: rewriting the paradox of constitutional reasoning 49 INO AUGSBERG 4 On the binding nature of constitutions 60 HANS-GEORG MOELLER 5 Constitutionalism and legal pluralism 68 ALBERTO FEBBRAJO PART II 6 The sociological origins of global constitutional law 99 CHRIS THORNHILL 7 Constitutionalism and globalisation: a disputed relationship 125 CESARE PINELLI vi Contents 8 ‘Cross-constitutionalism’ and sustainable comparison 137 MICHELE CARDUCCI 9 Towards the constitution of networks? 167 KARL-HEINZ LADEUR 10 Standards of ‘good governance’ and peripheral constitutionalism: the case of post-accession romania 180 BOGDAN IANCU 11 The organisation of market expectations beyond legality: an Argentinian case 198 MATÍAS DEWEY 12 De-constitutionalising Latin America: particularism and universalism in a constitutional perspective 211 ALDO MASCAREÑO 13 Paradoxes of transconstitutionalism in Latin America 229 MARCELO NEVES APPENDIX 14 The constitution in the work of Niklas Luhmann 259 GIANCARLO CORSI 15 The issue of the constitution in Luhmann’s card index system: reading the traces 264 JOHANNES F.K. SCHMIDT Index 283 Tables 5.1 Internal and external legal cultures 69 5.2 Internal autopoietic circuit 80 5.3 Socio-legal models of pluralism and constitution 81 5.4 Emerging forms of constitutionalism outside the state 82 11.1 Number of stalls and taxes collected by marketplace (sheds and streets) in La Salada 205 Contributors Ino Augsberg, Professor of Legal Philosophy and Public Law, Christian-Albrechts- University Kiel. Michele Carducci, Professor of Comparative Constitutional Law, University of Salento. Giancarlo Corsi, Professor of Sociology, University of Modena-Reggio Emilia. Matías Dewey, Researcher, Max-Planck-Institut für Gesellschaftsforschung, Cologne. Alberto Febbrajo, Professor of Sociology of Law and Anthropology of Law, University of Macerata. Bogdan Iancu, Professor of Political Science, University of Bucharest. Karl-Heinz Ladeur, Professor (Emeritus), University of Hamburg. Aldo Mascareño, Professor at the School of Government in the Adolfo Ibáñez University, Santiago de Chile. Hans-Georg Moeller, Professor of Philosophy and Religious Studies P rogramme, University of Macau. Marcelo Neves, Professor of Public Law, University of Brasilia. Cesare Pinelli, Professor of Public Law, Department of Law, University of Rome 1, La Sapienza. Johannes F.K. Schmidt, Researcher, University of Bielefeld. Gunther Teubner, Professor (Emeritus) of Private Law and Sociology of Law, Goethe Uni- versity, Frankfurt. Chris Thornhill, Professor of Public Law, University of Manchester. Introduction Alberto Febbrajo and Giancarlo Corsi The fundamental concept of the constitution is changing rapidly. On the basis of the general formula one state, one constitution, the constitution used to be seen as the sole and indisputable mother of the legal order, i.e. as the ‘norm of the norms’, on which the individual legal deci- sions could ultimately be grounded, as the benchmark for sustainable and coherent solutions to the problems of a differentiated society, and as a safe harbour, where the certainty of law could be protected successfully. Due to its privileged relations with civil society on the one side, and with political power on the other, the constitution was consequently applied in many convergent ways: by judges as the main tool for granting identity to their legal decisions, by political actors as the main criterion for defining the limits of legal interventions, and by the public as the main institutionalised norm for defending the abstract recognition of new rights or the elimination of previous constraints. Many parts of these legal and sociological narratives have now come to be regarded as out- dated. Criticism has focused on the main images of law and state on which the traditional con- cept of the constitution was based. Both sociologists and jurists no longer consider it a case of blasphemy to admit that constitutions have lost their strategic role, and even among the public there is a more widespread perception of the profound social distance between the constitution and everyday life – with complex effects on the politically-based democratic order itself. There are plenty of reasons for these changes of image. Transnational organisations, eco- nomic interests that transcend state borders and emerging calls for greater autonomy from local communities, all require regulations of such a scope that single states are coming to accept sig- nificant limitations to their own autonomy. Here some questions arise: is it possible to imagine a reliable constitution without a clear reference to a sovereign state? Can a plurality of states agree reciprocally to downscale their own political roles, even in the absence of a correspond- ing meta-state and of a fully institutionalised new order? Although several theoretical attempts have been made to find an answer to these questions, the specific contents and functions of the concept of ‘constitution’ still seem to lack a clear defi- nition in this phase of transition. It is actually easier to say what the constitution was rather than what the constitution is. The absence of a clear positive definition is an important reason for the increased ambiguity that the concept of constitution now shares with other leading concepts of traditional dogmatics. As a matter of fact, this may easily lead to the constitution’s role being overestimated or underestimated. The constitution may be overestimated, insofar as it now appears – even more than in the past – to lack the instruments necessary for effectively innovating the legal order. In today’s new transnational perspective, the constitution tends to act as a factor of hope, rather than a factor of change, and often does not succeed in effectively implementing even the rights that are broadly considered to be constitutionally inalienable in our societies.
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