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Societal Constitutions in Transnational Regimes
Preliminary programme and conference abstracts
Cardiff, 30 June-1 July 2017
Preliminary Programme:
Friday, 30 June 2017
12 o'clock, Lunch, Senior Common Room, School of Law and Politics
1pm, Session I
G. Teubner, Quod omnes tangit: Transnational Constitutions Without Democracy?
2pm Session II
C. Thornhill, The Citizens of Many Worlds
J. Klabbers, Constitutionalism 2.0 in Public International Law: Inter-legality as Constitutional
Irritant
3.30pm, Coffee break
3.45pm, Session III
J. Přibáň, Legitimation Beyond Legality: On Potentia and Potestas in Societal Constitutions
P. Blokker, Constitutional Mobilization in the Transnational Sphere
5.15pm, Coffee break
5.30pm, Session IV
F. Kästner, Fabricating Lex Transitus: On the Constitutionalisation of a New Global Legal
Regime of Transitional Justice in World Society
I. Augsberg, Canon Law as a Transnational Regime
8pm, Dinner, Laguna Restaurant
Saturday, 1 July 2017
8.30am, Session V
C. Pinelli, Constitutionalization of Financial Markets?
H. Muir Watt, Transnational Private Law
10am, Coffee break
10.15am, Session V
A. Krajewska, Transnational Health Law
P. Kjaer, From Space to Time: The Evolution of the Pharmaceutical Constitution
11.45am Session VI
A. Duval, The Olympic Charter as Constitution: Faster, Higher, Stronger
O. Perez, Networked Governance
G. Verschraegen, Constitutionalizing Scientific and Technological Innovation
1.45pm, Closing remarks and lunch, place to be confirmed
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Gunther Teubner, Frankfurt
Quod omnes tangit: Transnational Constitutions Without Democracy?
Is the constitutionalisation of transnational regimes accompanied by their democratization –
this is a hotly disputed topic in democratic theory and political practice. Critics invoke a
time-honoured principle of democracy: Quod omnes tangit, ab omnibus tractari et approbari
debet. What touches all should be considered and approved by all. The identity of authors and
affected people is presented as the universal core of democracy. However, in its long winding
history, the principle of quod omnes tangit had always been re-contextualized by two
operations which go into opposite directions: generalization out of a particular historical
situation and its respecification for new situations. And this re-contextualization is needed
again today under the conditions of transnationalization and functional differentiation of
world society.
In transnational regimes a renewed version of quod omnes tangit is facing context-dependent
challenges, which are quite different from national political systems. The difference comes to
the fore in each of its three components: omnes – quod – tangit. (1) Omnes: While the nation
state’s constituency was clearly defined as the one and only one demos, issue-specific regimes
cannot rely on self-legitimation within one well defined collective, rather they have to cope
with the problem of extremely fluctuating constituencies. (2) Quod: While the political
systems of the nation state made collective decisions comprehensively on the whole range of
national policy issues, a transnational regime is highly specialized on only one policy field.
Result is an extremely narrow tunnel vision, which tends to cannot be the basis for selflegitimation. (3) Tangit: While in the nation state it was political power that was contested by
the counter-power of organized opposition, transnational regimes - dealing with issues of the
finance economy, of science and technology, of health, of education, of culture, of the new
digital media - are based on different sources of authority which require different forms of
self-legitimation.
Ino Augsberg, University of Kiel
Canon Law as a Transnational Regime
According to Harold Berman, modern Western law emerged not primarily out of ancient
Roman traditions. Rather, it is based on the establishment of canon law in the course of the
11th century. On this account, the original role-model for our modern concept of law is
already transnational. Otherwise put, the idea of law being a characteristic instrument of
nation-states is only a subse-quent event. My paper will discuss this thesis and scrutinise its
relevance for current attempts to develop a concept of transnational law in general and a
concept of transnational constitutions in particular. In doing so the analysis begs also a critical
question: If our modern concepts of law are based on can-on law, is it possible that despite all
evident processes of secularisation and transformation some main characteristics still depend
on this origin? To be more precise: Could it be that a certain “motif of the unity of the
constitution” – a motif which according to Gunther Teubner underlies all sorts of societal
constitutionalism, even those variations that insist on social pluralism – is a hidden legacy of
canon law? And if so, what might be the alternative?
Paul Blokker, Charles University, Prague
Constitutional Mobilization in the Transnational Sphere
Processes of post-national constitutionalization refer to both private and public constitutional
regimes, discussing either the self-constitutionalizing potential in private transnational
regimes or the incremental constitutional qualities of transnational public law, including
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human rights regimes. In this debate, there is less attention for the constitutional propensities,
action, and contestation of non-state and non-corporate actors, that is, organized transnational
civil society. In this paper, the focus is on the latter, in terms of the legal and constitutional
mobilization that (networks of) social movements and civil society organizations engage in.
The focus is on the European context, and it is suggested that European civil society
increasingly takes recourse to forms of legal mobilization and activism. Existing research
particularly focusses on litigation as a legal strategy, while alluding to its constitutional
relevance. But, in this, there is thus far little systematic research on how legal mobilization of,
and contestation by, social movements is related to more general forms of claims-making,
framing, and justification, in particular with constitutional implications. The paper argues that
two dimensions of legal mobilization in the EU would need more sustained analysis. First,
legal mobilization is often understood as litigation, and research particularly focusses on the
CJEU and ECtHR as the main arenas of legal action. But legal mobilization can take other,
more public, forms, such as public claims-making, advocacy campaigns, and lobbying, with
potential impact on EU governance. Second, legal activism is mostly researched in the
context of specific rights claims, without explicit attention to wider normative frame in which
claims are embedded. The paper will discuss the theoretical and analytical dimensions to both
legal mobilization and rights claims, and will subsequently discuss a number of case-studies,
regarding different types of legal mobilization involved (including the ECI) and different
normative claims being endorsed.
Antoine Duval, The Asser Institute, Netherlands
The Olympic Charter as Constitution: Faster, Higher, Stronger
This paper aims to investigate the constitutional nature and function of the Olympic Charter
inside the lex sportiva, which denotes the transnational legal regime regulating sport
worldwide. To this end, I will first offer a descriptive account of the institutional set-up
introduced by the Olympic Charter. More precisely, I will analyse the operation of the
secondary rules imposed by the Charter for the production of norms and their enforcement by
the International Olympic Committee (IOC) and the Court of Arbitration for Sport (CAS).
Thereafter, I will highlight the fundamental principles, and fundamental rights, promoted by
the Olympic Charter and show how they have influenced and shaped the case law of the CAS
and the public debates around the Olympic games. Finally, I will reflect on the dynamics of
politicization of the Olympic Charter. For this purpose, I will rely on a case study on the
changes introduced inside the Charter’s constitutional system through a recent reform process
- the Olympic Agenda 2020 - triggered by public criticisms after the Sochi Winter Olympics
in 2014.
Fatima Kästner, University of Bonn
Fabricating Lex Transitus: On the Constitutionalisation of a New Global Legal Regime
of Transitional Justice in World Society
Since the mid-1980s states that had been confronted with a violent past of systematic human
rights abuses have attempted to come to terms with their history through transitional justice
instruments such as ad hoc, special or hybrid international criminal tribunals and truth and
reconciliation commissions. Over a period of only thirty years, more than fifty instances,
mostly associated with periods of radical political change following past oppressive rule, have
occurred in countries of Latin and South America, Africa, Asia, Central and Eastern Europe,
Oceania and currently even in Arab-Islamic states, like Tunisia and Morocco, too. In view of
the fact that effective mechanisms to force sovereign states to implement processes of
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transitional justice are lacking in international politics, this is a rather astonishing observation.
How can this development be explained?
The paper aims to generate an understanding of the rapid globalization of transitional justice
from a neo-institutional and systems theoretical perspective. Building on that it describes the
emergence of this new model of dealing with the past as a direct result of the influence of
structural and interpretive patterns derived from world society and world culture. Based on
sociology of post-national legal orders the paper reconstructs the socio-historical
preconditions and the structural dynamics that have led to the hybrid legal structure of
transitional justice. Finally the paper identifies transnational agents who contribute to the
global diffusion of norms, standards and institutions of post-conflict justice and specifies the
social function of the new global legal regime of transitional justice in world society.
Atina Krajewska, Sheffield University
Transnational Health Law
(abstract to follow)
Poul F. Kjaer, Copenhagen Business School
From Space to Time: The Evolution of the Pharmaceutical Constitution
The distinction between modern and non-modern constitutions has traditionally been
understood as a distinction between mutable and immutable constitutions. The gradual switch
to a new form of modern constitutions can however also be understood as a characterized by a
switch from spatial ordering to time based stabilization. This structural move from space to
time was not only central to state-based – public – constitutions but also to private
constitutions and constitutional arrangements transcending the public/private divide. The
evolution of constitutions therefore implies a reconfiguration of the space/time
relationship. This will be illustrated on the basis of a case study reconstructing the
pharmaceutical constitution and its evolution from a framework of localistic ordering to a
structure of global stabilization.
Jan Klabbers, University of Helsinki
Constitutionalism 2.0 in Public International Law: Inter-legality as Constitutional
Irritant
This paper will make three distinct steps. First, I aim to track the current state of debate on the
constitutionalization of international law. A decade ago this was a highly prominent debate,
spurred by the perceived fragmentation of international law, with everyone and their uncle
feeling the need to contribute. Yet, after the judgments of the CJEU in Kadi and the US
Supreme Court in Medellin and some publications suggesting the implausibility of
constitutionalization on the global level (Nico Krisch’s Beyond Constitutionalism in
particular), the debate seems to have fallen completely silent. Or has it?
Second, I aim to suggest that much of the debate has been displaced by a new conversation,
aiming to find a pluralist perspective on fragmentation under the heading of inter-legality.
New ‘constitutional irritants’ have presented themselves, in particular in the form of a
perceived need to respect pluralism while doing justice in individual cases.
Third, I bring these strands together by suggesting that inter-legality can best be seen as
constitutionalism in disguise, safeguarding some of its virtues without the implausible
baggage often associated with constitutional thought in international law.
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Horatia Muir Watt, Sciences Po
Transnational Private Law
(abstract to follow)
Oren Perez, Faculty of Law, Bar-Ilan University
Networked Governance
The article discusses the idea of networked governance using insights from legal theory and
social network analysis. It argues generally that the idea of network can provide a new
framework for explaining the emergence of authority outside the conventional spaces of
authority (state law and public international law). Former accounts of transnational networks
are unsatisfactory I will argue both in their theoretical design and in their lack of empirical
support. This question is particularly pertinent given the weaknesses of the conventional
system of global governance. In particular, it highlights the importance of the interplay
classical treaty-based organizations and private regulatory instruments and questions the
extent to which hybrid forms of governance can improve global governance. I support the
theoretical argument with the findings of empirical study of the network structure of the
global system of CSR codes, based on a dataset, which includes 61 transnational CSR codes
and 31,987 firms. The study demonstrates that this network exhibits a significant level of
cohesiveness, despite the fact that it has evolved outside the hierarchical structure of public
international law. Drawing on a social network analysis of the network of CSR codes and
member corporations, it shows a positive correlation between firms’ sustainability
performance and their membership in CSR codes as well as their network characteristics. It
shows further that membership in multiple codes and the firms’ position (centrality) in the
CSR codes network constitute credible indicators of green-sustainability behaviour. The
effectiveness of the CSR codes network is explained by a model based on the network
synergistic properties and on a distinctive network-embedded signalling dynamics. These
findings highlight the potential role of CSR codes as global governance mechanisms and
indicate that CSR codes are not mere greenwash.
Cesare Pinelli, 'La Sapienza' University of Rome
Constitutionalization of financial markets?
The paper consists of three parts. In Part I, I will concentrate on the one hand to the fact that
global financial markets tend to escape the fulfilment of private not less than of public law
rules, and on the other hand to the weak regulations of these markets that states and
international organizations enacted in the aftermath of the 2008 financial crisis. Part II will be
devoted to the effects of the formation and development of global financial markets both on
the stability and on the principles of constitutional democracies and of the EU institutional
system. In Part III I will tentatively inquire into whether and how these markets are likely to
constitutionalize themselves in the sense of societal constitutionalism.
Jiří Přibáň, Cardiff University
Legitimation Beyond Legality: On Potentia and Potestas in Societal Constitutions
Constitutionalism is another name for power legitimised by legal rules and the political bond
between rulers and the ruled. Legal rules convert societal potentia to the constitutional
potestas, yet this authority is secured by the idea of the self-rule of the constitutional polity. In
transnational law, this modern transformation of societal power to the constitutional authority
of the polity does not exist. However, the absence of such constitutional polity in societal
constitutions does not make them exclusively legitimized by their social efficacy and steering
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capacity. Transnational legal subsystems and regimes actually constitute their specific
polities, such as the market polity evolving in the economic constitution of the EU, the
welfare polity evolving in the EU social constitution, and the civic polity evolving in the EU
constitution of political rights. Societal constitutions are thus organizations of non-state power
legitimized by the internally constructed and self-referential concept of the polity.
Transnational legal subsystems operate independently of the foundational constitutional
recourse to the pre-existent national polity and reformulate the idea of the constitutional
polity's self-rule as the self-constitution of societal power. In societal constitutions, power not
only effectively avoids legal constraints of authority but actually transforms them into the
specific complex of productive non-juridical norms. Societal constitutions are thus
paradoxically the holders of power beyond politics and legitimation beyond legality.
Chris Thornhill, University of Manchester
The Citizen of Many Worlds
This paper begins by proposing a world model of constitutional citizenship. It argues that the
normative implications of national citizenship proposed in the late 18th Century only became
real through the intricate interaction between national constitutional law and international law,
which occurred in the course of the 20th Century: the primary rights of national citizens were
only fully elaborated on a transnational normative foundation. In particular, rights of
citizenship were only stabilized, at a national level, as the citizen was defined and legally
structured through principles articulated in the transnational judicial domain, which separated
rights of citizenship from the intense cycles of inner-societal politicization originally
expressed through the norm of the citizen. Through this process, the secondary, constitutional
dimensions of citizenship were consolidated and universalized. However, at the same time,
the primary, constituent dimensions of citizenship were diminished. Underlying this process
was a progressive global internalization of the political system within the legal system, though
which primary political functions were increasingly determined and pre-formed by law.
On this foundation, this paper proceeds to argue that the rise of the world model of
citizenship has led to a transformation of democracy, in which practices imagined as political
in classical modern democracy –- that is, as defining the primary legal form of society – have
been displaced into the legal system. However, this model has also released new patterns of
political agency, which are visible at the level of secondary norm production. These patterns
of agency can be partly described through the lens of Gunther Teubner, and they become
evident in processes of litigation, in modes of legal mobilization, and in patterns of legal
subject construction, which are specific to particular sectors of society. The world model of
citizenship thus entails, not only the legal universalization of some citizenship rights, but also
the multiplication of citizenship practices into forms adapted to the differentiated functions of
global society.
Gert Verschraegen, University of Antwerp
Constitutionalizing Scientific and Technological Innovation
Faced with new lines of scientific and technological research emerging in the past decades
(e.g. nanotechnology, synthetic biology or human genomics), societies have tried to strike a
new balance between enabling the dynamics of scientific innovation as well as protecting
themselves against science unleashing it’s potential for catastrophic harm (e.g. synthetic
pathogens escaping from the lab), destruction of the natural environment (e.g. persistent
organic pollutants) or harming individuals’ autonomy and integrity (e.g. cloning human
individuals). In this contribution I’ll review how different transnational norms of
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constitutional relevance have emerged around scientific and technological innovation, aiming
to constitute as well as to limit techno-scientific innovation.
My presentation will bring into dialogue two different approaches. Firstly, I’ll discuss the
classical, Mertonian approach of professional scientists’ self-regulation, which - under the
self-description of scientific positivism – has long regulated the autonomy of science. By way
of peer evaluation of science, ‘codes-of-conduct’ type of regulation (e.g. 1947 Nuremberg
Code) and independent risk assessment, modern society has tried to guard the boundaries
between science and its societal environments. Current boundary conflicts with politics (e.g.
executives intimidating scientists to alter data or withdrawing funds from scientific agencies),
economy (pharmaceutical companies manipulating clinical studies) or religion (e.g. religious
conservatives blocking scientific education) can still be usefully interpreted according to this
paradigm. Secondly, I’ll discuss a varied array of recent norm-constituting initiatives (e.g.,
technology assessment, ethics bodies, public engagement strategies, initiative aimed at
‘responsible research and innovation’) which emphasize structural couplings of the scientific
system and aim to calibrate techno-scientific research with it’s different environments
(industry, politics, environmental protection, etc.). Although this second group of initiatives
remains inchoate and uncodified, it attests to the erosion of old agreements concerning the
autonomy of science and its relations with politics, law and the economy. In setting up new
forms and forums of norm-making (e.g. expert bodies in areas such as environment, global
health, safety and security) it has challenged scientists’ professional autonomy over the
definition of standards of evidence and proof. By stressing the fundamental uncertainty of
science and technology in the making and highlighting its linkages with the exertion of power
it has raised questions over the certification and reliability of knowledge and over how
knowledge-making should be calibrated with broader societal concerns.
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