By Martin Loughlin
On his retirement from the Rectorship of the Wissenschaftskolleg in 2007-08, Dieter Grimm convened a focus group of legal scholars and political scientists on the theme of Constitutions beyond the Nation-State. The issue that drove this inquiry is this: that modern constitutions have emerged over the last 250 years as a template for legitimate democratic rule, but the process of their maturation is now coinciding with an erosion of some of the basic conditions on which the achievements of constitutionalism have come to rest. Specifically, constitutional discourse is growing in influence at precisely the moment when the governing power it seeks to institutionalize is increasingly being exercised in inter-, supra- and trans-national institutions that remain unstructured by constitutionalist thinking. That is, the exercise of constitution-making and attention given to constitutional matters is increasing in domestic political discourse at a time when governmental tasks are increasingly being carried out through international institutions (such as the WTO), supranational institutions (such as the EU) and transnational institutions (such as the lex digitalis of the Internet) that are not structured by constitutionalist norms.
Even if it is accepted that that is an accurate characterization of the issue – and there is debate over that - what is the solution? Should efforts be made to ‘constitutionalize’ these post-national governmental forms? Or, more radically, do these trends in governing arrangements force us to re-think the nature and function of the practices of modern constitutionalism? Has constitutionalism had its day? Can there in fact be a practice of ‘constitutionalism beyond the state’.
The group convened by Professor Grimm consisted of six members: Petra Dobner (now Professor of Political Science, University of Halle-Wittenberg), myself (Professor of Public Law, London School of Economics & Political Science), Fritz Scharpf (Emeritus Director of MPI for the Study of Societies in Cologne), Alexander Somek (Professor of Law, University of Iowa), Gunther Teubner (Professor - now Emeritus - of Private Law and Legal Sociology, University of Frankfurt), and Rainer Wahl (Professor - now Emeritus - of Public Law, University of Freiburg). Our working methods remained flexible. We met in weekly seminars but were otherwise left to get on and pursue our own scholarly projects. These seminars were invariably challenging and exhilarating. Even if we disagreed on everything else, I’m fairly confident that all group members would agree that our course of seminars constituted a rather unique academic venture.
The group’s method was simple: we considered a specific aspect of this broad-ranging theme for each seminar, generally by reading and analysing a paper written by a group member or one chosen as worthy of intensive study. This proved to be a successful approach; indeed, I’ve never participated in such a seminar progamme in which one had to work so hard to get a word in edgeways. By the end, we may not have achieved agreement on the solution to the problem - or even had come to an agreed statement of the nature of the problem - but we were all much better informed of its complexity and variety of dimensions.
Towards the end of our year, we organized a small workshop to provide a forum for the exchange of ideas with leading scholars in this field. We invited ten scholars to join us in a discussion over two days in June 2008. This yielded a specific outcome: although we had asked them only to provide a short statement of what they believed to be the key issues, we later encouraged them to develop their contributions into more conventional scholarly papers. The resulting volume, which contains essays from all members of our focus group together with invited contributors, was published by Oxford University Press in 2010, as Petra Dobner and Martin Loughlin (eds), The Twilight of Constitutionalism?
The timing of that event was especially fortuitous because in 2008 I had been invited by OUP to co-edit a new series they were establishing: Oxford Constitutional Theory. This volume became the first in what has rapidly established itself as (in the words of the blurb for the series) ‘the primary point of reference for theoretical reflections on the growing interest in constitutions and constitutional law in domestic, regional and global contexts’. By March 2014, fourteen volumes had been published, which in itself provides some indication of the growing significance of scholarly inquiry into constitutional questions.
More pertinently, the published volumes in this series include one from a member of the focus group and another volume from a group member is currently in press and due to appear later in 2014. Other significant works have resulted from this year of research inquiry, including Petra Dobner’s Wasserpolitik: Zur politischen Theorie, Praxis und Kritik globaler Governance (Suhrkamp, 2010), Dieter Grimm’s Die Zukunft der Verfassung II: Auswirkungen von Europäisierung und Globalisierung (Suhrkamp, 2012), Fritz Scharpf’s Community and Autonomy: Institutions, Policies and Legitimacy in Multilevel Europe (Campus, 2010) and my own Foundations of Public Law (OUP, 2010). But because they offer illuminating and contrasting insights into the nature of our inquiries, I will focus only on the two monographs in the Oxford Constitutional Theory series.
Gunther Teubner’s book – Constitutional Fragments: Societal Constitutionalism and Globalization ¬– was published in 2012 as the sixth book in that series. Teubner’s basic thesis is that there is indeed a crisis in modern constitutionalism and it is primarily caused by a combination of the transnationalization and privatization of governmental activities. He argues, by way of example, that multinational corporations have violated human rights, that private actors in the internet have threatened freedom of opinion, and that the emergence of global capital markets have unleashed potentially catastrophic risks. Yet although these activities raise questions of accountability and rights protection, modern constitutional frameworks are unable to offer effective remedies. His book offers a solution to this perceived crisis in constitutional thinking.
Teubner argues that the problem lies in the construction of constitutional thought on the foundations of politics and the state. His solution is to develop a sociological approach which reorientates questions of constitutionalism away from the relationship between politics and public law and towards the entire society. This is his ‘societal constitutionalism’ thesis. He contends that, thus reorientated, constitutionalism has the potential to counteract the expansionist tendencies of social systems outside the world of politics and the state and is able to provide a frame for the protection of individual or institutional authonomy in such increasingly globalized spheres as economy, science and technology, and the information media. For Teubner, transnational regimes, particularly those operating in private spheres, emerge as the new constitutional subjects in a global society.
Whether or not one agrees with Teubner’s analysis or prescription – and his ideas did not command general consent within the group – there can be no doubting the fact that his is an original and provocative contribution to contemporary constitutional theory.
The other monograph accepted in the series takes an altogether different approach. Alexander Somek’s The Cosmopolitan Constitution offers a novel reworking of the evolutionary practices of modern constitutionalism. Somek seeks to show how constitutionalism is a modern project which uses a novel understanding of fundamental law to establish and constrain the exercise of public power. His innovation is to demonstrate how modern constitutionalism has undergone two momentous transformations, leading to the emergence today of what he calls ‘cosmopolitan constitutionalism’. He explains these by outlining three stages in the evolution of the constitutional project: constitutionalism 1.0, 2.0, and 3.0.
Somek shows how constitutionalism 1.0 seeks to protect individual liberty from the encroachments of public power; it expresses liberty in its negative form as freedom from coercive interference by the state. This takes form as the modern type of documentary constitution adopted as a result of the free choice of a people and establishing the machinery of institutional checks and balances, basic rights and judicial review. If constitutionalism 1.0 involves an exercise of voluntas, then constitutionalism 2.0 is a product of ratio. Constitutionalism 2.0, exemplified in the practices of post-war Germany, arises from an act of reasonable recognition concerning the supreme importance of human dignity and human rights. This is constitutionalism understood as a normative order of values, whose objective is to overcome a constitutional mindset that puts freedom of choice centre-stage and to replace it with an overarching set of positive human values incorporated in the idea of dignity. Rather than seeing the state simply as an institution to be constrained, constitutionalism 2.0 recognizes that the state is also the bearer of certain positive obligations.
What then is constitutionalism 3.0, otherwise cosmopolitan constitutionalism? Somek explains that the aim of constitutionalism 3.0 is to push the value order of the 2.0 project beyond national bounds. The link between constitutionalism and a sovereign people is removed; regimes retain legitimacy not as an expression of popular consent but only to the extent that they commit themselves to human rights protection. This is not, he emphasizes, constitutionalism beyond the nation-state so much as the reworking of the constitutions of nation-states under conditions of international engagement. It is a cosmopolitan constitution because cosmopolitans are not at home in a particular political community, but in the world at large. This is the constitutional structure of the disengaged individual, or the foreigner, and as such it marks the end of the link between constitutionalism and emancipation.
I offer these thumbnail skethches by way of illustrating the variety of responses to the question of constitutionalism beyond the nation-state. These important contributions offer some insight into the complexity of the question that Dieter Grimm has posed, and they show just why the answers with which we engaged in our focus group of 2007-08 are likely to continue to generate debate for some time to come.