Civil constitutions in the global society

Project leader: Prof. em. Dr. Dr. h.c. mult. Gunther Teubner

The project dealt with two questions: Can constitutional processes beyond the nation state be identified in the global space? Can constitutional elements beyond the nation state be identified in non-state, social, “private” global contexts? The aim was to clarify empirical and normative preconditions of the constitution of transnational private regimes.

The constitution of world society is not realized exclusively in the proxy institutions of international politics, nor can it take place in a world constitution that spans all areas of society; rather, it emerges incrementally in the constitutionalization of a multiplicity of autonomous world societal subsystems.

The question of the “horizontal” effect of fundamental rights in the transnational area, i.e. the question of whether fundamental rights impose direct obligations not only on state actors but also on private actors, takes on much more dramatic dimensions than it ever had in the national area. Here, the omnipresence of national state action and national state law is lacking, so that the conventional dogmatic constructs of state action and the structural effect of fundamental rights only apply in a few constellations. On the other hand, transnational private actors, especially multinational companies, regulate entire areas of life, so that the question of the validity of fundamental rights in private transnational orders can no longer be avoided.

In various global regimes, the two theses of regime-specific organizational constitutions and the equally regime-specific application of fundamental rights were to be examined in detail. The focus was on the question of global constitutional pluralism – heteronomy or autonomy of social constitutionalization processes? To what extent does this involve the constitutional self-organization of global regimes? To what extent are constitutional norms imposed on transnational regimes from the outside? Or is it a complex interplay of internal self-organization and external constitutional requirements? This ultimately leads to the question of whether a universal, albeit fragmented, “political” concept of constitution also makes sense for the global society or whether instead only a multiplicity of particular constitutions of the self-rationality and self-normativity of autonomous global social sectors can be expected, the integration of which then becomes the main problem of a global social constitutionalism.

The end result is mainly two complementary monographs. Prof. Teubner dealt with the topic of global civil constitutions primarily from a legal perspective. Prof. Kjaer took a more sociological perspective. The result was an intensive mutual influence between the disciplines and at the same time a deepening within the respective discipline.

Prof. Teubner’s research on social constitutionalism in globalization followed on from a series of public scandals that have raised the “new constitutional question” in recent years. Human rights violations by multinational corporations, corruption in the medical and scientific sectors, threats to freedom of expression by private intermediaries on the Internet, massive encroachments on privacy through data collection by private organizations and, with particular force, the unleashing of catastrophic risks on the global capital markets – they all raise constitutional problems in the strict sense. Whereas in the past it was a question of releasing the political power energies of the nation state and at the same time effectively limiting them under the rule of law, the new constitutional question is about releasing completely different social energies, particularly visible in the economy, but also in science and technology, in medicine and in the new media, and effectively limiting their destructive effects. Constitutionalism beyond the nation state – this means two things: the constitutional problems arise outside the boundaries of the nation state in transnational political processes and at the same time outside the institutionalized political sector in the “private” sectors of global society. Prof. Teubner’s research in the project dealt with the following complexes: (1) Partial social constitutions in the nation state, (2) Transnational constitutional subjects: Regimes, organizations, networks, (3) Transnational constitutional norms: Functions, areas of regulation, processes, structures (4) Transnational fundamental rights: horizontal effects (5) Collision and interconnectedness of transnational constitutions.

Prof. Kjaer reconstructed the historical evolution of state and transnational constitutional structures, especially the relationship between the globalization of modern statehood and the emergence of private and public transnational constitutional structures, from the European Union and the World Trade Organization to multinational corporations and non-governmental organizations. A particular focus was the relationship between the decolonization processes in the mid-20th century and the emergence of new private and public forms of global governance. Subsequently, a reconstruction of the concept of the constitution was undertaken in order to develop a contemporary concept of the constitution.

The most important publications in the research project include
Teubner, Gunther (2012): Constitutional fragments: social constitutionalism in globalization, Berlin: Suhrkamp.
Poul Kjaer (2014): Constitutionalism in the Global Realm – A Sociological Approach, London: Routledge.
Poul Kjaer (2010): Between Governing and Governance: On the Emergence, Function and Form of Europe’s Post-national Constellation, Oxford: Hart Publishing.

The most important events include:
“After the Catastrophe? International Conference on Economy, Law and Politics in Times of Crisis”, Thursday 25 March – Saturday 27 March 2010, Goethe University Frankfurt.
International Conference “Transnational Societal Constitutionalism”, Torino, 17-19 May 2012.