1
Gunther Teubner
Societal Constitutionalism: Alternatives to State-centred Constitutional Theory

Storrs Lectures 2003/04 Yale Law School.

I. A Right of Access to Cyberspace?
A group of globalisation critics are suing a commercial host provider of the
Internet. They are appealing to the principle of free speech in order to enforce
their alleged right of access judicially. The host provider who offers content
providers the possibility on its computers to set up websites, had long got caught
up in the tangles of state attorneys and private collective actions because some
of the websites contained child pornography and Nazi propaganda. The decisive
factor came with the decision of the Paris Tribunal de Grande Instance, Order of
20 November 2000, ordering Yahoo Inc to bar access by French users to
auctions of Nazi objects1 The final blow came with the new trends toward publicprivate
co-regulation which exempts providers from liability when they cooperate
with state agencies.2The provider thereupon electronically barred access to all
websites where it regarded the risk of criminal or civil actions as too high. The
bar also affected political groups rated by Compuserve as politically radical or too
close to violent protest campaigns. In a civil action, these groups are now
seeking to compel access to the host provider.
The case ties together in a single focal point a range of fundamental problems
that the digitisation of communication is throwing up anew. It is not just technical
legal questions of compulsory contracting for private providers, a right of access
to internet institutions, the validity and implementation of national norms in the
transnational internet, or the third party effect of fundamental rights in cyberspace
that are up for debate.3 Rather, we are faced with the more fundamental
1 TGI Paris, Ordonnance de réferé du 20 nov. 2000 at
http://www.juriscom.net/txt/jurisfr/cti/tgiparis20001120.htm. This decision confirmed the earlier ruling of May 22, 2000 ordering Yahoo! to block access to material that was judged illegal to display in France under Article R. 645-1 du Code Pénal. See TGI Paris, Ordonnance de réferé du 22 mai 2000 at http://222.juriscom.net/txt/jurisfr/cti/tgiparis20000522.htm.
2 USA: 1990 Protection of Children from Sexual Predators Act, Section 42 U.S.C. § 13032; 1998 Digital Millenium Copyright Act, 17 U.S.C. 512 (C). Europe: Directive 2000/31.
3 These issues, particularly problems of free speech in the internet, are discussed in B Frydman and I Rorive, "Regulating Internet Content through Intermediaries in Europe and the USA", 23 Zeitschrift für Rechtssoziologie 2002, 41-59; B Holznagel, "Meinungsfreiheit oder Free Speech im Internet: Unterschiedliche Grenzen tolerierbarer Meinungs?u?erungen in den USA und Deutschland", 9 Archiv für Presserecht 2002, 128-133; B Holznagel, "Responsibility for Harmful and Illegal Content as well as Free Speech on the Internet in the United States of America and Germany" in C Engel (ed.), Governance of Global Networks in the Light of Differing Local Values (Baden-Baden, Nomos, 2000); B Holznagel, "Responsibility for Harmful and Illegal Content as well as Free Speech on the Internet in the United States of America and Germany" in C Engel (ed.), Governance of Global Networks in the Light of Differing Local Values (Baden-Baden,
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question of a universal political right of access to digital communication.
Ultimately, problems of exclusion from global communication processes are
raised. In the background lurks the theoretical question whether it follows from
the evolutionary dynamics of functional differentiation that the various binary
codes of the world systems are subordinate to the one difference of
inclusion/exclusion.4 Will inclusion/exclusion become the meta-code of the 21st
century, mediating all other codes, but at the same time undermining functional
differentiation itself and dominating other social-political problems through the
exclusion of entire population groups?
From the many problems our harmless legal case raises, I wish to single out one
question: how is constitutional theory to respond to the challenge arising from the
three current major trends-digitisation, privatisation and globalisation-for the
inclusion/exclusion problem? That is how today's "constitutional question" ought
to be formulated, by contrast with the 18th and 19th century question of the
constitution of nation-states. While that had to do with disciplining repressive
political power by law, the point today is to discipline quite different social
dynamics. This is in the first place another question for theory. Will constitutional
theory manage to generalise its nation-state tradition in contemporary terms and
re-specify it? Can we, then, make the tradition of the nation-state constitution
fruitful, while at the same time changing it to let it do justice to the new
phenomena of digitisation, privatisation and globalisation?5
II. Reactions in Constitutional Theory
Contemporary generalisation and re-specification-this is a problem where
several ambitious attempts to postulate a universal world constitution beyond the
nation-state have laboured away at in vain. This is true of legal efforts to see the
United Nations Charter as the constitutional law of the "international community"
put into force by a world sovereign and legitimising the exercise of global political
power.6 It is, however, also true of a number of philosophical endeavours in the
Kantian tradition to conceive a universal world constitution where the introduction
of new political institutions and procedures of global statehood is supposed to be
Nomos, 2000); DJ Goldstone, "A Funny Thing Happened on the Way to the Cyber Forum: Public vs. Private in Cyberspace Speech", 69 Colorado Law Review 1998, 1-70.
4 For inclusion/exclusion in global society, N Luhmann, Das Recht der Gesellschaft (Frankfurt,
Suhrkamp, 1993) 582ff.
5 On the use of historical experience for the globalisation of law, P Zumbansen, "Spiegelungen von Staat und Gesellschaft: Governance-Erfahrungen in der Globalisierungsdebatte" in M. Anderheiden, S Huster and S Kirste (ed.), Globalisierung als Problem von Gerechtigkeit und Steuerungsf?higkeit des Rechts: Vortr?ge der 8. Tagung des jungen Forums Rechtsphilosophie, 20. und 21. September 2000 in Heidelberg (Stuttgart, Steiner, 2001).
6 Explicitly B Fassbender, "The United Nations Charter as Constitution of the International
Community", 37 Columbia Journal of Transnational Law 1998, 529- 619; P Dupuy, "The
Constitutional Dimension of the Charter of the United Nations Revisited", 1 Max Planck Yearbook of United Nations Law 1997, 1 - 33.
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used to set up a federative centre and forum of common world internal policy.7 All
attempts can be reproached with not generalising the traditional concept of the
constitution sufficiently for today's circumstances, nor re-specifying it carefully
enough, but instead uncritically transferring nation-state circumstances to world
society. In particular, the changes the concept of constitution would have to go
through in relation to sovereignty, organised collectivity, hierarchies of decision,
organised aggregation of interests and democratic legitimacy, if no equivalent of
the state is to be found at world level.8
There is more realism in attempts to dissociate state and constitution clearly, and
explicitly conceive of a global constitution without a world state. This innovative
construction has most recently been exhaustively deployed in the debate on the
European constitution, but at world level too, the attempt is made to track down
constitutional elements in the current process of an international politics that has
no central collective actor as subject/object of a constitution.9 Especially the
attempt to see the co-existence of nation-states as a segmental second-order
differentiation of world politics and their interaction as a spontaneous order of a
secondary nature, a "world constitution of freedom", lend a world constitution respecified
in this way as a structural link between decentralised world politics and
law quite a different shape.10 Yet here too the generalisation does not go far
enough to do justice to the decentralisation of politics in world society. In
particular, this sort of spontaneous constitution of states has to contend with the
problem of whether and how non-state actors and non-state regimes can be
incorporated in the international process of constitutionalization.
This shortcoming is in turn the starting point for positions that explicitly transform
actors not traditionally recognised as subjects of international law into constitutional subjects.11 These actors are on the one hand international
7 O H?ffe, "K?nigliche V?lker": Zu Kants kosmopolitischer Rechts- und Friedenstheorie (Frankfurt, Suhrkamp, 2001); J Habermas, Die postnationale Konstellation: Politische Essays (Frankfurt, Suhrkamp, 1998); J Rawls, "The Law of Peoples" in S Shute and S Hurley (ed.), On Human Rights: The Oxford Amnesty Lectures (New York, Basic Books, 1993).
8 A brilliant critique of the "great normative phantasmogories" of a political world society offers A Schütz, "The Twilight of the Global Polis: On Losing Paradigms, Environing Systems, and Observing World Society" in G Teubner (ed.), Global Law Without A State (Aldershot, Dartmouth Gower, 1997).
9 On Europe C Joerges, Y Meny and JHH Weiler (ed.) What Kind of Constitution for What Kind of Polity? Responses to Joschka Fischer (Florence: Robert Schuman Centre, 2000) Robert
Schuman Centre, Firenze 2000); U Di Fabio, "Eine europ?ische Charta", 55 Juristenzeitung
2000, 737-743; A v Bogdandy, "Supranationaler F?deralismus als Wirklichkeit und Idee einer
neuen Herrschaftsform: Zur Gestalt der Europ?ischen Union nach Amsterdam" (Baden-Baden, Nomos, 1999); on the constitution of the international community, R Uerpmann, "Internationales Verfassungsrecht", 56 Juristenzeitung 2001, 565-573; CTomuschat, "Obligations Arising for States Without or Against Their Will", Recueil des Cours 1993, 195-374.
10 S Oeter, "Internationale Organisation oder Weltf?deration? Die organisierte Staatengemeinschaft und das Verlangen nach einer 'Verfassung der Freiheit'" in H Brunkhorst (ed.), Globalisierung und Demokratie: Wirtschaft, Recht, Medien (Frankfurt, Suhrkamp, 2000).
11 Important steps toward a constitutional pluralism on the global level, N Walker, "The Idea of Constitutional Pluralism", 65 Modern Law Review 2002, 317-359; C Walter, "Constitutionalizing
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organisations, multinational enterprises, international trade unions, interest
groups and non-governmental organisations as participants in global decisionmaking,
and on the other individuals, only hesitantly and marginally accepted by
international law as legal subjects, as the bearers of fundamental and human
rights.12 Implicitly, such pluralist conceptions recognise that the processes of
digitisation and global networking are decisively carried by non-state actors, the
existence of which a world constitution too would have to take cognisance of.
The question is, however, whether a merely personal extension of a
constitutionalisation process is still adequate, and whether quite different
structures and processes ought not to be included.
Finally, yet a further step is taken by ideas of the horizontal effect of fundamental
rights, no longer asserting fundamental rights-positions exclusively against
political bodies, but also against social institutions, in particular vis-à-vis centres
of economic power. Nation states are supposed to have corresponding protective
obligations imposed upon them, in order to combat threats to fundamental rights
in areas remote from the state13. Even if this debate is only at the very
beginnings in the international sphere, in view of the massive human rights
infringements by non-state actors it points out the necessity for an extension of
constitutionalism beyond purely intergovernmental relations.14
III. The Thesis: Constitutionalisation without the State.
These four concepts of a global constitution constitute quite dramatic extensions
from the constitutional tradition, yet ultimately they cannot free themselves of the
fascination of the nation-state architecture, but merely seek to compensate for its
obvious inadequacies with all sorts of patches, add-ons, re-buildings,
excavations and decorative facades- altogether merely complexifying the
construction instead of building ex novo. But the design error already lies in the
(Inter)national Governance: Possibilities for and Limits to the Development of an International Constitutional Law", 44 German Yearbook of International Law 2001, 170-201.
12 A Fischer-Lescano, "Globalverfassung: Verfassung der Weltgesellschaft", 88 Archiv für Rechtsund Sozialphilosophie 2002, 349-378.
13 M Ruffert, Vorrang der Verfassung und Eigenst?ndigkeit des Privatrechts: Eine
verfassungsrechtliche Untersuchung zur Privatrechtswirkung des Grundgesetzes (Tübingen,
Mohr Siebeck, 2001); HD Jarass, " Die Grundrechte: Abwehrrechte und objektive
Grundsatznormen. Objektive Grundrechtsgehalte, insbes. Schutzpflichten und
privatrechtsgestaltende Wirkung" in P Badura and H Dreier (ed.), Festschrift 50 Jahre
Bundesverfassungsgericht, (Tübingen, Mohr Siebeck, 2001); K Preedy, "Fundamental Rights and Private Acts: Horizontal Direct or Indirect Effect? - A Comment", European Review of Private Law 2000,125-133.
14 For the European context, D Schindler, Die Kollision von Grundfreiheiten und
Gemeinschaftsgrundrechten: Entwurf eines Kollisionsmodells unter Zusammenführung der
Schutzpflichten- und Drittwirkungslehre (Berlin, Duncker-Humblot, 2001); A Clapham, Human
Rights in the Private Sphere (Oxford, Oxford University Press, 1996); J Paust, "Human Rights
Responsibilities of Private Corporations", 35 Vanderbilt Journal of Transnational Law 2002, 801-825; P Muchlinski, "Human Rights and Multinationals: Is There a Problem?", 77 International Affairs 2001, 31-48.
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state-centring of the constitution.15 For all the courage to rethink the constitution
in a direction of political globality, in the light of an intergovernmental process,
through the inclusion of actors in society, and in terms of horizontal effects of
fundamental rights, they nonetheless remain stuck at seeing the constitution as
tied to state-political action.
At the same time they are tied to a strange distinction, between the poles of
which they continually oscillate.16 While the constitution ought institutionally to
confine itself to political processes, at the same time it ought to constitute the
whole of society. The political organisation of the state apparatus is supposed to
represent the constitution for the nation. This oscillation between the political
and the societal is transferred to world society today. If one can only manage to
constitutionalise the interaction of state-political institutions in international
relations, then that ought to be enough to produce a constitution appropriate to
world society. If this distinction was already problematic in the nation-state, then
in world society it has once and for all been overtaken. But what is there in the
blind-spot of the distinction? An all-embracing constitution for global society? A
network of national and transnational constitutions? An autonomous legal
constitution? Or what?
If in seeking to illuminate the blind-spot one abandons the state centring of the
constitution, then the real possibilities of constitutionalisation without the state
become visible. For constitutional theorists this amounts to breaking a taboo. A
constitution without a state is for them at best a utopia, but a poor one into the
bargain.17 But this formula is definitely not an abstract normative demand for
remote, uncertain futures, but an assertion of a real trend that can today be
observed on a world-wide scale. The thesis is: emergence of a multiplicity of civil
constitutions. The constitution of world society comes about not exclusively in the
representative institutions of international politics, nor can it take place in a
unitary global constitution overlying all areas of society, but emerges
incrementally in the constitutionalisation of a multiplicity of autonomous
subsystems of world society.18
The raging battles in the internet about cyberanarchy, governmental regulation
and commercialisation front-rank constitutional policy conflicts, the chaotic
course of which is gradually showing us the shape of nothing other than the
organisational law of a digital constitution.19 It is no coincidence that the
15 N Walker (above n. 11).
16 For this argument N Luhmann, Die Politik der Gesellschaft (Frankfurt, Suhrkamp, 2000)
201, 207f., 217.
17 D Grimm, "Braucht Europa eine Verfassung?", 50 Juristenzeitung 1995, 581-591.
18 International law scholars who come close to this position are Walker (above n. 11) and Walter (above n. 11) 188ff. It remains to be seen, however, whether they accept a radical legal pluralism which embraces the notion of constitutionalization without the state, when it comes to "private" governance regimes.
19 The debate between L Lessig, Code and Other Laws of Cyberspace (New York, Basic Books,
1999) and D Johnson and D Post, "The New 'Civic Virtue' of the Internet: A Complex System
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famous/notorious Declaration of the Independence of Cyberspace uses the
constitutional rhetoric of the founding fathers, telling the "Governments of the Industrial World, you weary giants of flesh and steel ... ,the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have
no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear".20
One of the fundamental rights problems of the digital constitution presents itself
in our legal case. Whether a right to access vis-à-vis a host provider for the
internet exists or not is to be decided on the basis of the inclusion principles of
digital communication.21 It is not the principles of an external political constitution
(which one? The US-constitution? Other national constitution? A transnational
constitution?), aimed at power accumulation and policy formulation for the
internet, but the principles of an internet constitution proper, aiming at freedom of
communication and electronic threats to it, that is the adequate sedes materiae
of the digital constitutional norms. But these principles have still to be worked out
and validated in the course of constitutionalising the internet.22 The open
question in our case is whether business operators, even stimulated by economic
stimulation in private-public co-regulation, should be entrusted with deciding on
the limits of human rights.23
Extending the combat area, from Seattle to Genoa, what is taking place in the
conference halls and on the street is fights over a constitution of the global
economy, the outcome of which will give constitutional impetus to the World
Bank, IMF and WTO. A constitution of the global health sector is taking shape in
the fiery debates inside and outside science on embryo research and
reproductive medicine, and on the hunt for medically adequate equivalents for
traditional state-related fundamental rights. And since 11 September 2001,
attempts to institutionalise debates among world religions more strongly in legally
constituted institutions of inter-religious dialogue have been multiplying.
Model for the Governance of Cyberspace",
http://www.temple.edu/lawschool/dpost/Newcivicvirtue.html 1998, is couched explicitly in
constitutional terms.
20 JP Barlow, Cyberspace Declaration of Independence
(http://www.eff.org.//Publications/John_Perry_Barlow, 2002).
21 The court decisions LG Bonn MMR 2000, 109 and OLG K?ln MMR 2001, 52 dealing with the parallel problem of access to a chat room of a provider attempt to develop legal principles of internet-access on the basis of a strange mixture of property and contract. KH Ladeur,
"Rechtsfragen des Ausschlusses von Teilnehmern an Diskussionforen im Internet: Zur
Absicherung von Kommunikationsfreiheit durch netzwerkgerechtes Privatrecht", 5 Multimedia und Recht 2002, 787-792 asks explicitly for the development of a network-adequate private law.
22 For an internet-adequate transformation of the constitutional right of free speech in ICANNpanels, see V Karavas and G Teubner, "http://www.CompanyNameSucks: Grundrechte gegenüber ?Privaten' im autonomen Recht des Internet?" in W Hoffmann-Riem and K-H Ladeur (ed.), Innovationsoffene Regulierung des Internet (Baden-Baden, Nomos, 2003 forthcoming).
23 Frydman and Rorive (above n. 3) 59.
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IV. Three Trends of Development
To shift the focus from the one political constitution of the nation-state to the
many civil constitutions of world society, immediately raises the question what
circumstances justify overthrowing the model of an exclusively political
constitution that seems to have proven itself through the centuries. Very
schematically and in much abbreviated fashion, I wish to sketch out three secular
trends subverting state-centred constitutional thought and making societal
constitutionalism on a global level empirically and normatively plausible.
Diagnosis I: Dilemma of Rationalisation
Here the theory of societal constitutionalism developed by the American
sociologist David Sciulli supplies initial starting points.24 Starting from the
dilemma of the rationalisation process of modernity analysed by Max Weber, he
raises the question what counter-forces may exist to a massive evolutionary drift
manifested in four thrusts: (1) fragmentation of logics of action, with
consequences of highly advanced differentiation, pluralisation, and regional
compartmentalisation of separate social spheres; (2) dominance of instrumental
calculation as the sole rationality meeting with recognition across the domains;
(3) comprehensive replacement of informal co-ordination by bureaucratic
organisation; (4) increasing confinement in the "iron cage of servitude to the
future", especially in social spheres. This drift would inevitably end society-wide
in a situation of intensive competition for positions of power and social influence,
highly formalised social control and political and social authoritarianism.
Additionally, it has the nature of a dilemma, because every conscious attempt to
achieve collective control over the drift itself gets caught up in this logic and only
strengthens the drift.25
The only social dynamic that has effectively worked against this evolutionary drift
in the past and can offer resistance in the future is, according to Sciulli, to be
found in the institutions of a "societal constitutionalism":
"Only the presence of institutions of external procedural restraint
(on inadvertent or systemic exercises of collective power) within a
civil society can account for the possibility of a nonauthoritarian
social order under modern conditions."26
24 D Sciulli, Theory of Societal Constitutionalism (Cambridge, Cambridge University Press, 1992);
see also D Sciulli, "Corporate Power in Civil Society: An Application of Societal
Constitutionalism", 2001; D Sciulli, "The Critical Potential of the Common Law Tradition", 94
Columbia Law Review 1994, 1076-1124; D Sciulli, "Foundations of Societal Constitutionalism:
Principles from the Concepts of Communicative Action and Procedural Legality", 39 British
Journal of Sociology 1988, 377-407.
25 Sciulli 1992 (above n. 24) 56.
26 Sciulli 1992 (above n. 24) 81.
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The decisive point is to institutionalise procedures of (in the sense of rational
choice) non-rational norms that can be empirically identified in what he calls
"Collegial formations", that is, in the specific organisational forms of the
professions and other norm-producing and deliberative institutions:
"it is typically found not only within public and private research
institutes, artistic and intellectual networks, and universities, but
also within legislatures, courts and commissions, professional
associations, and for that matter, the research divisions of private
and public corporations, the rule-making bodies of nonprofit
organizations, and even the directorates of public and private
corporations."27
The public policy consequence is to legitimate the autonomy of such collegial
formations, guaranteeing it politically and underpinning it legally. Beyond the
historically achieved guarantees of autonomy for religious spheres, institutions of
collective bargaining and free associations, these guarantees should also apply
to "deliberative bodies within modern civil societies as well as
professional associations and sites of professionals' practice within
corporations, universities, hospitals, artistic networks, and
elsewhere."28
This theory of societal constitutionalism had its forerunners in ideas about private
government in the US and about co-determination and other forms of
democratisation of social sub-systems in Europe, exposing non-governmental
formal organisations to constitutionalisation pressure.29 Today, it can link up
directly with post-Rawlsian approaches to deliberative theory of democracy that
seek to identify democratic potential in social institutions, and to draw normative
and institutional consequences.30 The important thing here is that deliberative
democratisation is not seen as confined to political institutions but explicitly
considered in its extension to social actors in the national and the international
context.31 Even more important are the parallels to the constitutional theory of
systems sociology, which portrays a quite similar developmental dynamics of
27 Sciulli 1992 (above n. 24) 80.
28 Sciulli 1992 (above n. 24) 208.
29 P Selznick, The Moral Commonwealth: Social Theory and the Promise of Community
(Berkeley, University of California Press, 1992), 229ff.; P Selznick, Law, Society and Industrial
Justice (New York, Russell Sage, 1969); J Habermas, The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society (Cambridge, Polity, 1992).
30 MC Dorf and C Sabel, A Constitution of Democratic Experimentalism (Cambridge (Mass.),
Harvard University Press, 2003, forthcoming); J Cohen and C Sabel, "Directly-Deliberative
Polyarchy", 3 European Law Journal 1997, 313-342.
31 O Gerstenberg and C Sabel, "Directly Deliberative Polyarchy: An Institutional Ideal for
Europe?", 2002, 289-341; J Cohen, "Can Egalitarianism Survive Internationalization?" in W
Streeck (ed.), Internationale Wirtschaft, nationale Demokratie: Herausforderungen für die
Demokratietheorie (Frankfurt, Campus, 1998).
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system expansion and its concomitant restraint. From a systemic viewpoint, the
historical role of the constitution is not, especially when it comes to fundamental
rights, exhausted in norming state organisation and individual legal rights, but
consists primarily in guaranteeing the multiplicity of social differentiation against
swamping tendencies.32 Considered historically, constitutions emerge as a
counterpart to the emergence of autonomous spheres of action typical for
modern societies. As soon as expansionist tendencies arise in the political
system, threatening to ruin the process of social differentiation itself, social
conflicts come about, as a consequence of which fundamental rights, as social
counter-institutions, are institutionalised precisely where social differentiation
were threatened by the tendencies to self-destruction inherent in it. Individual
conflicts between private citizens and the administrative bureaucracy at the same
time serve to set up legally institutionalised guarantees of a self-restraint of
politics.
There follows a general definition of constitutions in the process of
modernisation. Polanyis' famous double movement - the implementation of the
market and the setting up of a protective cladding of cultural institutions - finds its
generalisation here to the extent that the dynamics corresponding to it also
includes other expansive social systems.33 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 societywide
expansion. These expansive trends have manifested in historically very
diverse situations, earlier chiefly in politics, today more in the economy, in
science, technology and other social sectors. Strengthening the autonomy of
spheres of action as a counter-movement to trends of de-differentiation seems to
be the general response at work in both the political constitutions of the tradition
and the emerging civil constitutions. If it was the central task of political
constitutions to uphold the autonomy of other spheres of action against the
expansion of the polity, specifically in relation to political instrumentalisation, then
in today's civil constitutions it is presumably to guarantee the chances of
articulating so-called non-rational logics of action against the dominant social
32 The systemic reformulation of the institutional role of constitutional rights starts with N
Luhmann, Grundrechte als Institution: Ein Beitrag zur politischen Soziologie (Berlin, Duncker &
Humblot, 1965). For an elaboration in different contexts KH Ladeur, "Helmut Ridders Konzeption der Meinungs- und Pressefreiheit in der Demokratie", 32 Kritische Justiz 1999, 281-300; C Graber and G Teubner, "Art and Money: Constitutional Rights in the Private Sphere", 18 Oxford Journal of Legal Studies 1998, 61-74; D Grimm, "Grundrechte und Privatrecht in der bürgerlichen Sozialordnung" in D Grimm (ed.), Recht und Staat in der bürgerlichen Gesellschaft (Frankfurt, Suhrkamp, 1987); H Willke, Stand und Kritik der neueren Grundrechtstheorie: Schritte zu einer normativen Systemtheorie (Berlin, Duncker & Humblot, 1975).
33 K Polanyi, The Great Transformation: Politische und ?konomische Ursprünge von
Gesellschaften und Wirtschaftssystemen, (Frankfurt, Suhrkamp, 1995); for an interpretation of
economic law in such a perspective, M Amstutz, Evolutorisches Wirtschaftsrecht: Vorstudien zum
Recht und seiner Methode in den Diskurskollisionen der Marktgesellschaft (Baden-Baden,
Nomos, 2001).
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rationalisation trend, by conquering areas of autonomy for social reflection in
long-lasting conflicts, and institutionalising them.34
But ought this not to become the primary task specifically of a genuinely political
constitution of world society? This deep-rooted prejudice would seem very hard
to remove. Yet effective shifts in the balance between politics and other social
processes in the globalisation process are compelling the contemplation of a
further decisive change to constitutionalisation.
Diagnosis II: Polycentric Globalisation
World society is coming about not under the leadership of international politics
but at most reactively accompanied by the latter- as the globalisation of
terrorism has shown recently. Nor can it be equated with economic globalisation,
to the convulsions of which all other spheres of life can only respond. Instead,
globalisation is a polycentric process in which simultaneously differing areas of
life break through their regional bounds and each constitute autonomous global
sectors for themselves.35 Globalization is a
"multidimensional phenomenon involving diverse domains of activity
and interaction including the economic, political, technological,
military, legal, cultural, and environmental. Each of these spheres
involves different patterns of relations and activity."36
The outcome is a multiplicity of independent global villages, each developing an
intrinsic dynamic of their own as autonomous functional areas, which cannot be
34 For this view on the constitutionalisation of private law, see G Teubner, "Global Private
Regimes: Neo-spontaneous Law and Dual Constitution of Autonomous Sectors?" in KH Ladeur (ed.), Globalization and Public Governance (Oxford, Oxford University Press, 2003,
(forthcoming); G Teubner, "Contracting Worlds: Invoking Discourse Rights in Private Governance Regimes", 9 Social and Legal Studies 2000, 399-417; G Teubner, "After Privatisation? The Many Autonomies of Private Law", 51 Current Legal Problems 1998, 393-424. Further analyses in this direction, G Calliess, "Reflexive Transnational Law: The Privatisation of Civil Law and the Civilisation of Private Law", 24 Zeitschrift für Rechtssoziologie 2002(forthcoming);P Zumbansen, "The Privatization of Corporate Law? Corporate Governance Codes and Commercial Self-Regulation", 3 Juridicum 2002, 32-40.
35 This view of a polycentrical globalisation is shared by diverse camps of the debate, the neoinstitutionalist theory of "global culture", JW Meyer, J Boli, GM Thomas and FO Ramirez, "World Society and the Nation-State", 103 American Journal of Sociology 1997, 144-181;
post-modern concepts of global legal pluralism, BdS Santos, Toward a New Common Sense:
Law, Science and Politics in the Paradigmatic Transition (New York, Routledge, 1995).
systems theory studies of differentiated global society, R Stichweh, Die Weltgesellschaft:
Soziologische Analysen (Frankfurt, Suhrkamp, 2000). and various versions of "global civil society", K Günther, "Recht, Kultur und Gesellschaft im Proze? der Globalisierung", 2001; M Shaw, "Civil Society and Media in Global Crisis", 1996.
36 D Held, Democracy and the Global Order: From the Modern State to Cosmopolitan
Governance (Cambridge, Polity Press, 1995), 62.
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controlled though the outside. Globalisation, then, does not mean simply global
capitalism, but the worldwide realisation of functional differentiation.37
The decisive thing for our question is now that the globalisation of politics by
comparison with other subsystems has relatively lagged behind, and will no
doubt continue to for the foreseeable future. In view of the notorious weaknesses
of the United Nations institutions, world politics is at bottom still inter-national
politics, that is, a system of interactions between autonomous nation-states into
which international organisation too are gradually drawn, without replacing the
world of nation-states or even being able to push it into second place. This
asymmetry of fully globalised subsystems of society and merely internationalised
politics takes the ground from under the above-mentioned situation where the
political institutions with their own constitutions could at the same time also be
the constitution for the whole of society. The nation-state was still able,
continuing old concepts of a hierarchical political society in which the monarch
was the head of society, to make it credible that the subsystem of politics at the
same time through its state constitution constituted the whole nation, even if the
fragility of this construction was already plain. This is shown by the repeated
emergence of ideas of an independent economic constitution, but also of other
constitutions in social subsectors, along with concepts of the horizontal effect of
fundamental rights in civil society, rather than them being merely ordered by the
state.38 For world society, however, such a claim can simply no longer be
asserted. Seeing the United Nations as a world sovereign at work giving not just
the UN organisations but also international politics, indeed even the nongovernmental
systems of world society, a constitution with a claim to bindingess,
legitimacy and enforceability, as some international lawyers seek to do, is a mere
illusion.
That by contrast a real constitutionalisation process is actually taking place in
international politics and in international organisations in the narrower sense, as
noted by many international lawyers, is not thereby to be disputed, but indeed to
be emphasised.39 The development of human rights applying worldwide vis-à-vis
the powers of nation-states is the clearest evidence of this start. The decisive
point from our view is that this represents the constitutionalisation of
international politics only, a sub-constitution of world society among others, which
37 Explicitly, Luhmann (above n. 16) 220ff. See also, M Albert, Zur Politik der Weltgesellschaft:
Identit?t und Recht im Kontext internationaler Vergesellschaftung (Weilerswist, Velbrück, 2002);
M Albert, "Observing World Politics: Luhmann's System Theory of Society and International
Relations", 28 Millenium: Journal of International Studies 1999, 239-265; H Brunkhorst, "Ist die
Solidarit?t der Bürgergesellschaft globalisierbar?", 2000, 274-286, 282ff.
38 On constitutional pluralism in general Walker (above n. 11); for the discussion of a global
economic constitution, P Behrens, "Weltwirtschaftsverfassung", 19 Jahrbuch für Neue Politische ?konomie 2000, 5-27;
39 For a recent comprehensive analysis, Walker (above n. 11); A Fischer-Lescano,
Globalverfassung: Die Geltungsbegründung der Menschenrechte im postmodernen ius gentium
(Frankfurt, Juristische Dissertation, 2002), Ch. 5 and 6.
12
can no longer use any pars pro toto claim.40 This takes the ground away from
under the politics-centred constitutional thinking. If one then seeks for other
constitutional elements in world society, one has to look for them in the separate
global subsystems outside politics. The ongoing constitutionalisation of
international politics has no monopoly over constitutionalising world society. A
kind of constitutional competition is set into motion by the autonomisation of
global sub-constitutions.41
Diagnosis III: Creeping Constitutionalisation
If it is accordingly true that international politics can at best pursue its own
constitutionalisation, but not that of the whole world society, and if it is further true
that the evolutionary drift of global rationalisation processes necessitates to
guarantee spheres of autonomy for reflexion, then the question arises whether
the sectors of global society at all possess the potential for constitutions of their
own.42
The point here is to establish an important connection between juridification and
constitutionalisation. Necessarily, every process of juridification at the same time
contains latent constitutional normings. In the words of a constitutional lawyer:
"Not every polity has a written constitution, but every polity has
constitutional norms. These norms must at least constitute the main
actors, and contain certain procedural rules. Theoretically, a constitution
could content itself with setting up one law-making organ, and regulating
how that organ is to decide the laws."43
Ultimately, this establishes the constitutional quality of any emergence of a legal
system, which leads directly into the thorny issues of the non-foundational
foundations of law, around which the major legal theories of our time circle. The
technical problems that present themselves here are known as: self-justification
of law, resulting paradoxes that block the process of law; the practical "solutions"
of these paradoxes, which always also remain problematic, through autological
qualities of constitutionalisation. These qualities have been played out in ever
new variations, by Kelsen in the relationship of the basic norm to the highest
constitutional norms, by Hart in the theory of secondary rules and the ultimate
rule of recognition, by Luhmann in the relationship between legal paradox and
constitution, and by Derrida in the paradoxical violence that is the non-
40 Succinctly, A Fischer-Lescano, "Globalverfassung: Verfassung der Weltgesellschaft", 88 Archiv für Rechts- und Sozialphilosophie 2002, 349-378.
41 Walker (above n. 11).
42 For an excellent analysis of legal globalism in a systemic perspective, S Oeter, "International Law and General Systems Theory", 44 German Yearbook of International Law 2001, 72-95.
43 R Uerpmann, "Internationales Verfassungsrecht", 56 Juristenzeitung 2001, 565-573, 566.
Similarly Tomuschat (above n. 9), 217.
13
foundational foundation for law.44 The point is continually to understand the
paradoxical process in which any creating of law always already presupposes
rudimentary elements of its own constitution, and at the same time constitutes
these only through their implementation.
In our context, the need is now no longer to confine the problematic relationship
between juridification and constitutionalisation to the political community. Grotius'
famous proposition ubi societas ibi ius has to be reformulated in the conditions of
functional differentiation of the planet in such a way that wherever autonomous
social sectors develop, at the same time autonomous law is produced, in relative
distance from politics. Law-making also takes place outside the classical sources
of international law, in agreements between global players, in private market
regulation by multinational concerns, internal regulations of international
organisations, interorganisational negotiating systems, world-wide
standardisation processes that come about partly in markets, partly in processes
of negotiation among organisations.45
"Regulations and norms are produced not only by negotiations
between states, but also by new semi-public, quasi-private or private
actors which respond to the needs of a global market. In between
states and private entities, self-regulating authorities have multiplied,
blurring the distinction between the public sphere of sovereignty and
the private domain of particular interests"46
And legal norms are not only produced within conflict regulation by national and
international official courts, but also within non-political social dispute settling
bodies, international organisations, arbitration courts, mediating bodies, ethical
committees and treaty systems. If it is true that the dominant sources of global
law are now to be found at the peripheries of law, at the boundaries with other
sectors of world society, not any longer in the existing centres of law-making-
national parliaments, global legislative institutions and intergovernmental
44 H Kelsen, "General Theory of Law and State" (Cambridge, Mass., Harvard University Press,
1946), 116ff.; HL Hart, The Concept of Law (Oxford, Clarendon, 1961), 77ff.; N Luhmann, "Two
Sides of the State Founded on Law" in N Luhmann (ed.), Political Theory in the Welfare State
(Berlin, de Gruyter, 1990); J Derrida, Otobiographies: L'enseignements de Nietzsche et la
politique du nom propre (Paris, Galilée, 1984).; J Derrida, "Force of Law: The Mystical
Foundation of Authority", 11 Cardozo Law Review 1990, 919-1046.
45 M Albert, Zur Politik der Weltgesellschaft: Identit?t und Recht im Kontext internationaler
Vergesellschaftung (Weilerswist, Velbrück, 2002); J Robe, "Multinational Enterprises: The
Constitution of a Pluralistic Legal Order" in G Teubner (ed.), Global Law Without A State
(Aldershot, Dartmouth Gower, 1997); J Robe, "Multinational Enterprises: The Constitution of a Pluralistic Legal Order" in G Teubner (ed.), Global Law Without A State (Aldershot, Dartmouth Gower, 1997); BdS Santos, Toward a New Common Sense: Law, Science and Politics in the Paradigmatic Transition (New York, Routledge, 1995).
46 J Guéhenno, "From Territorial Communities to Communities of Choice: Implications for
Democracy" in W Streeck (ed.), Internationale Wirtschaft, nationale Demokratie:
Herausforderungen für die Demokratietheorie (Frankfurt/M, Campus, 1998), 141.
14
agreements- then this at the same time means that norms of constitutional
quality are always also being produced there.
The new phenomena of global juridification thus imply the possibility that
constitutionalisation processes too may be played out outside national and
political institutions.47 One should hasten to add that this does not mean that
every sector of society now produces its constitutional norms under its own
auspices solely. Just as the global juridification of social subsectors always
shows a proportionate mix of autonomous and heteronomous law-making, the
emergence of global civil constitutions is also a process in which external and
internal factors combine.48 The legal system is always involved, since these
processes come about simultaneously within the social subsystem and on the
periphery of law. And to a greater or lesser extent, international politics does play
a part in the formation of global subconstitutions, by irritating these through
political constitutional intervention. How in detail the mixing proportion between
external political and autonomous social constitutionalisation takes shape is
ultimately a difficult empirical and normative question that depends on unique
historical situations. But to the extent that autonomous global law rests upon its
own resources, and international organisations, non-governmental organisations,
the media, multinational groups, global law firms, professional associations and
global arbitration courts push the global law-making process forward,
autonomous rule-production is also decisively involved in forming their sectorial
constitutions.
Ultimately, a remarkable latency phenomenon can be seen here. Civil
constitutions will not be produced by some sort of big bang, a spectacular
revolutionary act of the constituent assembly on the American or French model.
Nor do the global regimes of the economy, research, health, education, the
professions have a single great original text embodied as a codification in a
special constitutional document. Instead, civil constitutions are formed in
underground evolutionary processes of long duration in which the juridification of
social sectors also incrementally develops constitutional norms, although they
remain as it were embedded in the whole set of legal norms. In the nation-state,
the glare of the political constitution has been so blinding that the individual
constitutions of the civil sectors have not been visible, or at best have appeared
as part of political constitutions. And on the global scale, too, they are equally
present only latently, remarkably invisibilised.
As so often, hereto much can be learned from the special case of Britain. Though
the prejudice is readily cultivated on the continent that Britain has no constitution
at all or is at least constitutionally underdeveloped, nonetheless, in the light of
47 Walker (above n. 11).
48 This needs to be stressed to avoid misunderstanding legal pluralism. Economic international
law is a mixture of economic and political law making which is empirically variable. G Teubner,
"Global Bukowina: Legal Pluralism in the World Society" in G Teubner (ed.), Global Law Without
A State (Aldershot, Dartmouth Gower, 1997).
15
Dicey's analyses, the constitutional qualities of the British polity and the common
law have repeatedly been clearly worked out.49 Its substantive qualities in relation
to state organisation and fundamental rights, in particular their protective
intensity, can stand any comparison with continental constitutions. The point is
social institutionalisation, not the formal existence of a constituent assembly, a
constitutional document, norms of explicitly constitutional quality, or a court
specialised in constitutional questions. Mutatis mutandis, this is also true of the
civil constitutions of global society. Actualising the latency of constitutional
elements would then also imply normatively reflecting the de facto course of
constitutionalisation, and being in a position to influence its direction.
V. Basic Features of Civil Constitutions. Example: A Digital Constitution
What basic features must be present for demonstrating constitutional elements in
the various global sectors?50 In fact, the political constitution of the nation-state
may serve as the great historical model for civil constitutions. Here a stock of
historical experience, of procedures, terms, principles, and norms, is available as
an analogy for the present situation. Yet analogies must be handled with extreme
caution, since they can be over-hastily transposed, ignoring the specific features
of globalised social sectors.
This is already true of the quantitative extent of constitutionalisation. It is very
variable. Nowhere is written that the comprehensive juridification that covers the
whole political process with a dense fabric of constitutional norms has to be
repeated in the constitutions of social sub-sectors- one need only think of
research or art. Many of their fundamental principles - epistemology or artistic
styles - resist any constitutionalisation, while only a limited range - freedom of
research and freedom of art - can be brought into legal form. There is always a
need, as said at the outset, for careful generalisation and re-specification of the
constitutional phenomena simultaneously. Generalisation means separating the
constitutional concept from certain peculiarities of the political system and in
particular of the state apparatus, something that is, however, extremely delicate
in view of the close interpenetration of constitutional and political aspects. Respecification
is then a no less delicate matter, since the peculiarities of the subsystem,
its specific operations, structures, media, codes and programmes require
a far-reaching rethinking of constitutional institutions.
To make this clear by one constitutional problem of the global research: how can
freedom of research against economic influences be constitutionally protected?
Too close an analogy from political to economic power would adequately
generalise and re-specify neither the medium that threatens the fundamental
right, nor appropriate sanctions. The criterion cannot simply be, as politically
inspired considerations continually suggest, the social power of economic actors.
Instead the criterion must be the threat that comes from the specific
49 A Dicey, An Introduction to the Study of the Law of the Constitution (London, MacMillan, 1964).
50 See the analysis by Walker (above n. 11); Walter (above n. 11) 188ff.
16
communicative medium of the expansive social system. Research freedom is,
thus, endangered not by the repressive power structures of multinationals,
against which powerless individuals protest. Instead, the new and more subtle
dangers for research freedom derive particularly from structural corruption
through the medium of money. Research dependency on the market denotes the
new situation of seduction by economic incentives which obviously cannot be
counter-acted by constitutional guarantees of fundamental rights as a protected
sphere of autonomy. Posing the question of how to generalise and how to respecify
the constitutional problem and possible responses, suggests a more
effective constitutional guarantee, namely to multiply the monetary sources of
dependency of research. A constitutional guarantee would make sure that out of
the many dependencies a single new independence arises. Drive out the devil
with Beelzebub! 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.51
First Feature: Structural Coupling between Sub-system and Law
Civil constitutions are neither mere legal texts nor are they the de facto structures
of social systems.52 Elements of a civil constitution in the strict sense can be
spoken of only once an interplay of autonomous social processes on the one
side and autonomous legal processes on the other comes about. In systems
theory language: if long-term structural linkages of sub-system specific structures
and legal norms are set up.53 Only here can one find the remarkable duplication
of the constitutional phenomenon. Structural linkage excludes the widespread
perception of a single constitution embracing both legal system and social
system. A constitution is always bridging two real ongoing processes: from the
viewpoint of law it is the production of legal norms, which is interwoven with
fundamental structures of the social systems; from the viewpoint of the
constituted social system it is the production of fundamental structures of the
social system which at the same time inform the law and are in turn normed by
the law.54 The important effect of structural linkage is that it restrains both- the
legal process and the social process- in their possibilities of influence. The
possibility of one system being swamped by the other is blocked, its respective
autonomy enabled, and mutual irritation concentrated upon narrowly delimited
and openly institutionalised paths of influence.
51 For freedom of science in this perspective, T Kealy, "It's Us Against Them", May Guardian
1997, 7; for the freedom of art, Graber and Teubner (above n. 32).
52 Behrens (above n. 38).
53 On the concept of structural coupling of law to other social systems, G Teubner, "Idiosyncratic Production Regimes: Co-evolution of Economic and Legal Institutions in the Varieties of Capitalism" in J Ziman (ed.), The Evolution of Cultural Entities: Proceedings of the British Academy (Oxford, Oxford University Press, 2002); Luhmann (above n. 4), 440ff.
54 Luhmann (above n. 44).
17
The constitution is thereby, to the extent that it is institutionalised as a coupling
between two spheres of meaning, responding to a problem that arises in all
autonomous norm-building in society: the problem of structural corruption. Thus
the much disputed question today of whether, how and by what actors the
internet is to be regulated has to do precisely with this.55 National regulation
tends to fail due to implementation problems raised by the transnational nature of
digital communication. In contrast, an internet regulation, desired by all good men
today, through legitimate international law-making in turn threatens, alas, to fail
due to the difficulties in reaching intergovernmental consensus. This does not of
course exclude the possibility of continuing to try both, in part even with success.
Yet the de facto difficulties with both forms of regulation entail that self-regulation
of the internet as an autonomous system takes on dramatically more value.
Therefore, observers of internet regulation speak of a "trend toward selfregulation".
56 The internet's self-made law profits not just from the problems with
the other two forms of regulation, but additionally from the technical advantages
the code's architecture offers for highly efficient regulation. Thanks to electronic
means of constraint, it can largely do without regulation controlled by socio-legal
expectations, but the electronic means are in turn controlled by meta-legal
norms.57 The trend thus clearly goes in the direction of hybrid regulatory
regimes.58 There autonomous lex electronica, in parallel to the autonomous lex
mercatoria of autonomous economic law, plays an important role. The arbitration
panels of ICANN, which decide on the basis of the autonomous non-national
legal norm of §12 a of the ICANN policy on domain-issuing, legally bindingly and
with electronic enforcement, are a conspicuous part of autonomous digital lawmaking.
59 And in an exact parallel with global economic law, lex electronica
brings with it the problem of structural corruption, that is, the massive and
unfiltered influence of "private" interests on law-making. It is here that the
constitutional question of the internet arises.60
Here the chances and limits of a digital constitution must be realistically
assessed, if political constitutions that have responded to the problem of
55 B Holznagel, "Sectors and Strategies of Global Communications Regulation", 23 Zeitschrift für Rechtssoziologie 2002, 3-23; Committee to Study Global Networks and Local Values, Global Networks and Local Values: A Comparative Look at Germany and the United States (Washington, DC, National Academy Press, 2001); Lessig (above n. 19); Post (above n. 19).
56Holznagel and Werle (above n. 55), 18; J Goldsmith, "The Internet, Conflicts of Regulation and International Harmonization" in C Engel (ed.), Governance of Global Networks in the Light of
Differing Local Values (Baden-Baden, Nomos, 2000).
57 Lessig (above n. 19), 43ff.
58 H Farrell, "Hybrid Institutions and the Law: Outlaw Arrangements or Interface Solutions", 23 Zeitschrift für Rechtssoziologie 2002, 25-40.
59 J v Bernstorff, in this volume; D Lehmkuhl, "The Resolution of Domain Names vs. Trademark Conflicts: A Case Study on Regulation Beyond the Nation State, and Related Problems", 23 Zeitschrift für Rechtssoziologie 2002, 61-78; E Thornburg, "Going Private: Technology, Due Process and Internet Dispute Resolution", 34 University of California Davis Law Review 2000, 151-220.
60 See the critique by Lehmkuhl (above n. 59), 67ff.; M Geist, "Fair.com? An Examination of theAllegations of Systemic Unfairness in the ICANN UDRP", 2001.
18
structural corruption of law by politics are to be used as a model.61 The diffuse
dependency of pre-modern law on political pressures, on political terror, and on
positions of social and economic power, was given the dual answer by
institutions of structural coupling that could of course not remove corruption but
nonetheless reduce it effectively: illegalisation of corrupting influences on the one
hand, and increase of legitimate irritability on the other. （中国对于互联网的前现代法律的严控。）For parallel problems of the corruption of law by the economy, it was not the political constitution that gave corresponding answers, but the economic constitution proper that took on a similar function, through the private law institutions of property and contract. The
venality of the legal conflict resolution itself was strictly ruled out, and the
economic irritations of law were channelled through the mechanism of contract
and property. At the same time, this made it possible to reserve ultimate
regulation of contract and property to law and politics.62 A realistic answer to
problems of structural corruption of cyberlaw ought similarly to come only from
the internet's own constitution, as long as it manages to bring about a functioning
structural coupling between fundamental digital structures and legal norms.在互联网的数字基本结构和法律规范之间实现结构耦合。
Whether and to what extent this sort of constitution of its own is issued politically
from outside, whether unilaterally by the US government or by international
agreement, or whether it takes shape as an internal self-organising process of
the internet, through institutions like ICANN, internal arbitration courts,
standardisation organisations like the World Wide Web Consortium or the
Internet Engineering Task Force, and digital civil movements, is quite a different
question.63 It does not, however, change anything about the need for a separate
digital constitution for an effective structural link between law and digital
communications.
Second Feature: Hierarchy of Norms - Constitutional versus Ordinary Law
Structural coupling of social system and law is a necessary condition for a civil
constitution, but not a sufficient one. For there are myriads of mutual irritations
that do not however take on constitutional qualities. This defeats a concept of
civil constitution which would be formulated in parallel with the concept of
economic constitution defined as the "totality of the legal rules binding for the
economies in society".64 In addition to the quality of legal norm and to its
structural coupling with a social system, a specific autological relationship, a
hierarchialisation between norms of "higher" constitutional quality and those of
"lower" quality of ordinary law must exist.
In the first place, there are rules of self-production, that is, constitutional norms
that meet the paradoxical requirement of regulating the lawful production of legal
norms, but at the same time also regulate their own production, or instead refer
to a revolutionary act of violence, a social contract, divine foundation or some
61 Luhmann (above n. 4), 468ff.
62 Luhmann (above n. 4), 452ff.
63 For these options, Farrell (above n. 58)
64 ME Streit, Theorie der Wirtschaftspolitik (Düsseldorf, Werner, 1991), 24.
19
other foundation myth. A particularly influential conception here has been Herbert
Hart's: he defines law by the existence of a constitutional difference between
primary norms (control of conduct) and secondary norms (production of law). He
is running thereby, however, into the problem of an infinite regress of
metameta…-norms, which is broken off through the arbitrariness of an ultimate
rule of recognition.65 The challenge for a civil constitution lies in identifying
separate self-production rules that overcome the narrow focus of the politicscentred
law-producing exercise. If even the political constitutional tradition had
difficulties with the quality as a legal norm of genuine judge-made law, of
international law, of private contracts, private organisational norms and
customary law, because in these cases the "official" secondary norms which in
positivised constitutions refer to parliamentary legislation failed, the problems
multiply in the case of autonomous legal systems in the expanses of world
society. There has been 30 years of vigorous debates in the case of lex
mercatoria;66 in the case of lex electronica, it is only gradually starting to heat
up.67 The discussion gets hotter once people realise that secondary norms give
an answer not just to the cognitive question "What is valid law?", but also to the
more intricate normative question "Who are the legitimate actors and what are
the legitimate procedures for producing law?".
What are the secondary norms that define the transformation of netiquette, i.e.
internet good manners (no spamming etc.) into digital customary law with
universal validity claims? What constitutional empowerment can the
standardisation organisations of the internet be based on when they proclaim
rules of digital communication and simultaneously implement them in internet
architecture? What rules of recognition guide the private internet courts of
arbitration that decide domain disputes with a claim to legal bindingness and
enforce them directly by electronic means once a brief period for appeal to
national courts is over? What secondary norms govern the legal quality of click
wrap rules, general terms of business of internet providers and host providers,
which, as in our harmless legal case, decide bindingly as to access to legal
institutions? Constitutionalists are taking too much of an easy way out when they
dismiss all this as legal fantasies of overexcited Harvard professors. A realistic
view will recognise that in the course of such self-organised legal practises,
which because of the necessary textualisation of digital communication are highly
formalised, constitutional secondary norms emerge, able to overcome the validity
65 Hart (above n. 44), 77ff.
66 For this debate, K Berger, "Understanding International Commercial Arbitration" in Center of Transnational Law (ed.), Understanding International Commercial Arbitration (Münster, Quadis, 2000); D Lehmkuhl, "Commercial Arbitration - A Case of Private Transnational Self-
Governance?", Preprints aus der Max-Planck-Projektgruppe Recht der Gemeinschaftsgüter
2000; G Teubner, "Global Bukowina: Legal Pluralism in the World Society" in G Teubner (ed.), Global Law Without A State (Aldershot, Dartmouth Gower, 1997); U Stein, Lex mercatoria:
Realit?t und Theorie (Frankfurt, Klostermann, 1995).
67 Lehmkuhl (above n. 59); Geist (above n. 59); AM Froomkin, "Semi-private International
Rulemaking: Lessons Learned from the WIPO Domain Name Process", 2000.
20
paradox of self-created digital law and decide selectively as to the quality as legal
norms of social norms.
Third feature: Judicial Review of Norms
A hierarchy of norms means not just rules for self-production, but also for selfreview
of law. The law itself declares legally enacted norms unlawful if they are
substantively in contradiction with higher level constitutional norms. In highly
developed political constitutions this has, as we know, led to the differentiation
between constitutional jurisdiction and ordinary jurisdiction, and between
constitutional law and ordinary law. If now such explicit differentiation cannot be
found in the various social sub-sectors, does this mean there are no hierarchies
of norms, or that no review of norms takes place? Judicial review of standard
business contracts, of private standards of due diligence, of standardisation by
private associations, of arbitration court decisions in both national and
international sphere, are examples of a de facto constitutional review of nonlegislative
law. One ought not to be deceived by the antiquated private law
review formulas of "good morals", "good faith", that the ordinary courts use as to
the fact that here, substantively, it is "ordre public", i.e. the fit between "private"
norms and constitutional norms, especially human rights, that is being decided.
Yet a closer look shows that they are being measured not by the political
constitution of the state but a constitution of their own. The resolve is
simultaneously a judicial liberation and a judicial constraint on the dynamics of a
system-specific rationality. The institutional dimension of constitutional rights is
invoked in private domains of society.68 Social norms on the periphery of the
legal system are in general accepted at the centre of the law, but a process of
judicial review of law fends off corrupting elements stemming from the
shortcomings of the external source of law measured against the standards of
due process and the rule of law. At the same time, however, the law
acknowledges the intrinsic rationality of the external law-making processes,
translates these into the quality of legal norms, and thereby brings about a
considerable social upgrading of them.
In its relationship to politics, judicial constitutional review of legislation has
presented the model that so far exists only rudimentarily in relation to other
subsystems. In what respect does the law have to adjust to the intrinsic
rationality of the other sub-systems, and to what extent must influences that
corrupt the law be warded off? The constitutional review of political legislation
has developed extensive review techniques that neutralise party-political
decisions, translate result-oriented "policies" into universal legal principles, fit
political decisions into legal doctrine in accordance with legal criteria of
consistency, and in the worst case pronounce legislative acts unconstitutional.
68 For the institutional dimension of constitutional rights in the private sector, O Gerstenberg,
"Privatrecht, Verfassung und die Grenzen judizieller Selbstregulierung", 74 Archiv für Rechts und Sozialphilosophie. Beiheft 1999, 141-156; Ladeur (above n. 32); Graber and Teubner (above n. 32).
21
On the other hand, constitutional law has liberated the intrinsic logic of politics by
"politicising" the law itself: teleological interpretation, policy orientation, balancing
of interests, impact assessment and result-orientation are indicators for an
adaptation of law to the rationality of politics.69
Where, however, are the analogous combinations of liberation and constraint
formed in relation to non-political sectors of society when non-legislative lawmaking
mechanisms are at work here? Evidently, the review criteria and
adjustment mechanisms of the political constitution must be replaced by those of
its own constitution. Global technological standards require different legal review,
different criteria, different procedures, from, say, international general terms of
trade or global codes of conduct of international professional associations.
The internet is concerned with the (in)famous "code", the digital incorporation of
behavioural norms in the architecture of cyberspace.70 Its liberation and
constraining is the general theme of the digital constitution, in parallel with the
liberation and constraining of the phenomenon of power in the political
constitution. In order to develop legal standards for the "code" one needs to
analyse the specific risks of the cyberspace architecture. What specific dangers
does the "code" entail for individual autonomy? How does the code impact on the
autonomy of social institutions? And the legal control standards need to be
reconstructed specifically for the architecture of the internet. What kind of legal
meta-rules have to be developed in order to secure individual and institutional
autonomy against the "code".
It is not primarily a matter of abuse of digital power, but the constitutional
consequences of the structural differences between "code" and law. Within its
reach of application the "code" transforms fundamentally the normative order of
the cyberspace. It is no longer the appellative character of legal rules, but
electronic constraints that regulates directly the communication in the internet.
The first relevant issue is the self-enforcing character of the code. In the
predominantly instrumentalist perspective of internet-lawyers this seems to be
the great advantage of the "code",71 but becomes in a constitutional perspective
the nightmare for principles of legality. Traditional law is based on an institutional,
procedural and personal separation of law-making, law application and law
enforcement. This is also true to a certain degree for law making in the private
sector. The strange effect of digitalisation is a kind of nuclear fusion of these
three elements which means the loss of an important constitutional separation of
power.
69 Cf. Teubner (above n. 34).
70 Lessig (above n. 19);JL Reidenberg, "Lex Informatica: The Formulation of Information Policy Rules Trough Technology", 76 Texas Law Review 1998, 553-584.
71 In this instrumentalist perspective of law, there is no great difference between the two
protagonists of law and internet, Lessig (above n. 19) on the one side and Johnson and Post
(above n. 19) on the other.
22
A second issue is the trias of regulation of conduct, construction of expectations,
and resolution of conflict.72 Traditional law cannot be reduced to one of these
aspects but realises them all, however within separate institutions, normative
cultures and principles of legality. There is a (hidden) constitutional dimension in
this separation. Again, the digital embodiment of normativity in the "code"
reduces these different aspects just to one, to the aspect of electronic regulation
of conduct. This entails a loss of spaces of autonomy.
The third issue is calculability of normativity. In traditional law, formalisation was
rather limited. The (in)famous effects of legal formalism have been relatively
harmless as compared with the effects of the "code" which allows for a hitherto
unknown formalisation of rules. The strict binary relation 0 - 1 which in the real
world was limited to the legal code in the strict sense of lega/illegal, is now
extended in the virtual world to the legal programs, to the whole ensemble of
substantive and procedural structures that condition the application of the binary
code. This excludes any space for interpretation. Normative expectations which
traditionally could be manipulated, adapted, changed, are now transformed into
rigid cognitive expectations of inclusion/exclusion of communication. In its day-today
application the code lacks the subtle learning abilities of law. The microvariation
of rules through new facts and new values is excluded. Arguments do
not play any rule in the range of code-application. They are concentrated in the
programming of the code, but lose their power in the permanent activities of rule
interpretation, application and implementation. Thus, informality, as an important
countervailing force to the formality of law, is reduced to zero. The code knows of
no exception to the rules, no principles of equity, no way to ignore the rules, no
informal change from rule-bound communication to political bargaining or
everyday life abolition of rules. No wonder that such a loss of "reasonable
illegality" in the cyberworld nurtures the myth of the hacker, who with his power to
break the code becomes the Robin Hood of cyberspace.
If these are code-specific risks for individual and institutional autonomy then it
becomes clear that certain policy proposals for the internet have indeed
constitutional quality. The open-source movement demanding transparency of
the code for any software program is constitutionally as relevant as the principle
of narrow tailoring which should be developed into a code-specific variation of the
constitutional proportionality principle which needs to be respected in the private
regime of the internet.73 Judicial review and other public controls of the metarules
of the code gain an importance which is - due to the code-specific risk -
even higher than judicial controls of standard contracts and the rules of private
organisations. And competition law needs to develop non-economic criteria for
72 Luhmann (above n. 4), 124ff.
73 L Lessig, The Future of Ideas, (New York, Random House, 2001), 49ff.; J Boyle, "Fencing Off
Ideas", Daedalus 2002, 13-25; Y Benkler, "Through the Looking Glass: Alice and the
Constitutional Foundations of the Public Domain", (Conference Paper, 2001) at http://jamesboyle.com.
23
the legal structure of information "markets" in order to allow for a high variety of
code-regulations.74
Fourth Feature: Dual Constitution of Organised and Spontaneous Sector
If political constitutional law has de facto to regulate two great areas of politics-
organisational law of the state and citizens' fundamental rights- how is this to be
appropriately generalised and specified? My suggestion is that the point is
always the norming of a formally organised sector and a spontaneous sector
within a sub-system, and in particular the precarious relationship between
them.75 The democratic character of a constitution seems to depend on whether
a dualism of formally organised rationality and informal spontaneity can be
successfully institutionalised as a dynamic interplay without the primacy of one or
the other. In politics, the point is mutual control by the formally organised sector
of political parties and state administration on the one side , and the spontaneous
sector of the electorate, interest groups and public opinion on the other. This is
continued in globalisation, in the relationship between the spontaneous sector of
international relations and of international organisations under other auspices. In
the economy, the relationship of tension between market-constituted
spontaneous sector and organisational sector constituted in enterprises is
certainly established- especially after the most recent globalisation thrust. In
world wide research too, there seem to be tendencies towards a development of
a global spontaneous sector as against formalised research organisations. In the
education, the world wide competition of universities seems to be taking on the
role of a spontaneous sector. In all these sectors the constitutional challenge
would be to underpin the duality of social autonomy in the sub-systems, that is,
the control-dynamics of spontaneous sector and organised sector, in normative
fashion too.
In cyberspace we again see similar developments. Lessig fears a development of
the internet towards an intolerable density of control by a coalition of economic
and political interests.76 Whereas in its anarchical beginnings the internet was
built up on the principles of the inclusion of all, of anonymity, freedom from
control and heterarchy, today the politically and economically motivated
tendencies towards the emergence of so-called intranets, i.e. closed networks,
based on exclusion, control, hierarchy, and strict goal-orientation, are growing
stronger. The same development can, however, also be interpreted differently,
namely as an internal differentiation of cyberspace into an anarchical
spontaneous sector (internet) and various highly organised special sectors
(intranet). The parallel with other social systems where a mutual control
relationship between formally organised sector and spontaneous sector has
grown up is clear. Politically, the point would not be, as Lessig et al think, to
combat a development to cybercorporatism, but to stabilise and institutionally
74 For these arguments, see Lessig (above n. 19), 43ff.
75 For this argument, see Teubner (above n. 34).
76 Lessig (above n. 19).
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guarantee the spontaneous/organised difference as such. The constitution of the
internet would distinguish between spontaneous public sectors (similar to the
fundamental rights section of the constitution, or to constitutional law of the
market) and highly formalised organised sectors (resembling the law of
organisation of the state, or company law), stabilised both in their intrinsic logic,
and see its main task as being to build up mutual control by them.
(translated by Iain L. Fraser)