Constitutionalism between nation states and global lawChris Thornhill

Introduction: The global constitution and its featuresIt is widely diagnosed that contemporary global society is witnessing a process of legal globalization, and, as a result, the emergence of new forms of constitutionality. As yet, there is only limited agreement regarding the exact features of the global constitution. However, a diverse range of theoretical perspectives now converge around the transformation of global constitutional law as a chosen object of research. Broadly speaking, research on the constitution of global society can be divided into two quite separate lines of analysis.

On one hand, there now exists a large body of research which claims that the constitution of global society has developed through the reinforcement of international law, and it is determined, primarily, by the fact that international law constrains the abstract sovereignty of national states (see for example Fassbender 1998; Klabbers, Peters and Ulfstein 2009).1 On this account, the constitutionality of international law is particularly manifest in the fact that certain international laws, especially those concerning human rights norms contained in powerful international conventions, have standing as jus cogens for all actors in the global domain. This is taken to mean that, in their external activities, national states position themselves as subjects within an international hierarchy of legal norms, and their sovereign acts are bound by the jurisdiction of powerful international courts. This is also taken to mean that legal norms set by international courts and organizations penetrate deeply into national legal systems, so that, in their internal functions, states are no longer able exclusively to define the basic normative structure of their own national societies, and individual agents within societies have rights that are independent of national law (see Lauterpacht 1950: 33; Peters 2014: 341). Naturally, this view is not always proposed from a sympathetic perspective, and there are many theorists who deeply lament the passing of the simple hierarchy of national constitutional order (Grimm 1991: 3; Young 2003: 536, 542; Rabkin 2007: 70; Loughlin 2009). Across a broad spectrum from affirmation to obstruction, however, the claim is now widespread that international human rights law is able, potentially, to assume direct effect within national societies, placing individual subjects in national societies in an immediate relation to legal norms promoted at the supranational level. On this construction, human rights conventions act as sources of effective global constitutional law, and, across national divides, they increasingly ensure that all acts, both vertical between persons and national states and horizontal between

1Research for this Chapter was supported by the European Research Council (Advanced Grant, 323656 – STC). Early versions were presented in Bremen and Lisbon. My gratitude is due to Gunther Teubner for taking time to read and comment on an earlier version. This idea can be traced back at least to the 1920s, especially to the work of Verdross (1926).

1

single agents in national society, are regulated by appealable and justiciable norms of international provenance.

On the other hand, there now also exists a body of literature which examines global patterns of constitutionality in a more pluralistic, sociological perspective, and which views the emergent constitutional order of global society as a form produced by contingent legal interactions, often occurring below the level of formal-legal international instruments. Following this interpretation, contemporary society is capable of generating constitutional norms in highly contingent, acentric fashion, and de facto constitutional norms often result from creeping, hybrid processes of legal adaption and solidification. Researchers working in this field deploy many definitions of the precise constitutional essence of global constitutional law, and they devise different ways of explaining how contingently produced law can assume constitutional force.2 Across different lines of analysis in this field, however, the view is relatively constant that, owing to its deep intrinsic complexity, modern society generates laws to support its exchanges in unpredictable ways, often at a high level of sectoral specificity and pluralism.3 For this reason, constitutional laws should not necessarily be seen as positioned at the pinnacle of a universally applicable hierarchy of norms, bound to a clearly identifiable political system. On this account, the constitution of global society is produced through reflexive processes within society’s different functional domains, and it is marked by deep variations across different social sectors, and by multi-focal, sometimes relatively spontaneous, processes of norm production and legal ordering.

Quite manifestly, therefore, the globalization of the law in recent decades has triggered a number of quite divergent constitutionalist reactions. These reactions range from outlooks that posit a direct analogy between the vertical constitutions of nation states and the vertical construction of international law to outlooks that associate legal globalization with a re-structuring of the basic sources and the basic obligatory force of constitutional law. Despite these divergences, however, what clearly unifies these separate lines of inquiry is that they all construct the nascent constitutionality of contemporary society by distinguishing it from classical patterns of public-legal norm formation. Notably, both dominant lines in theories of global constitutionalism gravitate around the presumption that national constitutionalism had certain invariable foundations, and it was underpinned by certain constant physical-organizational realities. In particular, national sovereignty, territorial integrity, legal uniformity, legal certainty, and systemic closure are taken as fixed underpinnings and normative insignia of classical constitutional law. On this basis, then, it is usually argued that, in the global legal order, these principles have been partly invalidated, and the founding laws of 2 It is not possible to canvass all relevant literature in this field. The outstanding account of societal constitutionalism is Teubner (2012). But note also Fischer-Lescano (2003); Zumbansen (2010: 187). For a recent example of what might be called modified pluralism in transnational constitutionalism see Viellechner (2013: 301).3 See also Berman (2007: 1231).

2

public life no longer draw support from the same norm-productive foundations as classical public law.4 As a result, different patterns of reflection on global constitutionalism draw common substance from a particular construction of classical or national constitutionalism. In different approaches, the constitutional form of global society is most essentially defined by the fact that it collapses the classical closed hierarchy of national public law, and it diminishes the authority of institutions representing sovereign national communities (see Zumbansen 2010: 144).

The purpose of this Chapter is to contribute in a distinctively sociological manner to debates about the substance of global constitutionalism. In particular, this Chapter adopts a critical attitude towards the tendency, shared by many theorists in different lines of constitutionalist inquiry, to posit a strict caesura between national and global constitutionalism. In fact, it observes this assumption as reflecting certain general weaknesses in analysis of global constitutionalism. Inquiry into global constitutionalism, notably, tends to account for the bundle of processes grouped together as globalization as a historical finality, or as a deep structural rupture, which externally transforms the legal-political order of national societies, and brings into life patterns of legal ordering which are radically different from those that existed in national societies. A primary consequence imputed to globalization, in particular, is that it weakens, or at least deeply disrupts, the system of public law, and the institutions framed by public law, produced through the longer historical development of national societies. To be sure, most observers of global constitutional law are avowedly hostile to classical principles of positivism, which assert a strict dichotomy between national and international law.5 Despite this, however, the common perception of globalization as legal rupture means that many accounts of global constitutional law construct such law in categories that are residually indebted to positivism, and they define national and global law as pertaining to two quite distinct spheres of causality and validity.6 Above all, theorists of global constitutionalism often view global law as law that is produced externally to national societies, and which interrupts the more stable legal processes typical of national society.7 Owing to this dichotomous construction of globalization, analysis of global constitutionalism generally omits to evaluate the social foundations of processes of constitutional norm production in national 4 For a pronounced legal-pluralist account of the ‘hierarchy of norms’ as the defining feature of the ‘law of the nation state’ see Zumbansen (2001: 50). For a more standard account, see Grimm (2005). For analysis of national self-legislation as the basis of constitutionalism and the evacuation of this concept through globalization see Kuo (2010: 336). See also Hamann and Fabri (2008: 489); Wahl (2011: 356).5 Indeed, it is fundamental to theories of transnational law that the reject dualism. See, classically, Jessup (1959: 63). See more recently Unger (2008: 115).6 Note however that Teubner clearly identifies that importance of national constitutions and courts as sources of normative content within overarching transnational constitutions. For the classical positivist account of valid law as state law, separated from international law, see Austin (1995 [1832]: 18) and Triepel (1899); Schmitt (1940 [1939]: 262). 7 For a partial exception see Shaffer (2012: 245).

3

societies, and, in consequence, it avoids contemplation of the complex, historically embedded continuities between national and global law. On both counts, although global constitutionalism has clearly attracted legal theorists who work in the sociological margins of legal science, this field remains sustained by a rather historically simplified paradigm of global law, which, in closing itself to analysis of the interactions between national and international law, has at times impeded adequate interpretation of the deep-lying social origins of global constitutional norms.

Against this background, it is argued in this Chapter that, if we wish to comprehend global constitutional law, we need to recalibrate our understanding of national constitutions, and we need to probe, sociologically, at the underlying historical fabrics of classical constitutionalism – that is, of constitutions that defined the public-legal order of national societies. In fact, the sociological reconstruction of classical constitution norms is a precondition for sociologically refined examination of global constitutional norms: a sociology of national constitutional law is a prerequisite for a sociology of global constitutional law. In promoting a sociological inquiry into global constitutional law, therefore, this Chapter advocates a sociological or inner-societal re-orientation in the analysis of globalization: the globalization of law is seen here as a process that occurs simultaneously inside and outside national societies, and the origins of global constitutional norms need to be identified, in part, in the deep recesses of national legal structures.8 On this basis, we need to avoid the suggestion that the globalization of law, and globalization more generally, are phenomena that intrude externally on national trajectories of legal formation. On the contrary, the emergence of constitutional norms with global reach and global authority can be interpreted through a sociological description of national societies, and the rise of global law, accordingly, can be attributed to legal practices and formative processes that are deeply embedded in national society. Global constitutional law, in fact, can be most accurately examined through a perspective derived from historical political sociology, and classical sociological methodologies used traditionally to interpret national patterns of institutional formation can be very productively applied to analysis of global law.

To make these claims, this Chapter proceeds by setting out a sociological analysis of classical constitutionalism, explaining the basic sociological functions and foundations of classical constitutional law. It outlines a sociological theory of global constitutional norms by examining social processes linked to classical constitutions, which are re-articulated in the formation of global constitutional law. Global constitutional norms are construed as norms that reproduce, in new social and spatial dimensions, the adaptive-evolutionary functions of performed national constitutions in national societal environments.

8 Weber (1921: 18) famously refused to accept international law as law. However, despite Weber’s own view, a Weberian historical-sociological analysis of social structure can do much to illuminate the growth of international law.

4

Classical constitutionalism observed sociologically 1: Foundations and social differentiationi. Foundations: State formationFrom a sociological perspective, classical constitutions, and the distinctive norms that they contain, can be observed as institutions that acquired quite distinctive functions for national political systems, and they reflected a wider process of social transformation, which shaped the emergent form of modern national societies. First, for example, constitutionalism began to gain purchase as a doctrine for the administration of national political systems at a time, the eighteenth century, in which many societies, at least in Europe and some European colonies, were beginning to concentrate their political resources in a relatively delineated set of central institutions. Above all, this meant that in many societies the traditional vesting of political functions (i.e. collective decision making, establishment of common normative rules, organization of fundamental social relationships, implementation of judicial and fiscal arrangements) in actors whose authority was circumscribed by local/familial authority or corporate/sectoral position was in the process of being scaled back. In this setting, constitutions first evolved as instruments that facilitated the centralized organization of political power, and they played a key role in the process of state formation. Prior to the growth of states, of course, the corporations and other social orders in which social life was commonly regulated had possessed their own constitutions, and they had imprinted a pluralistic system of public/private law on society.9 Ultimately, however, the sectoral constitutions of corporations were replaced by, or integrated within, the central constitutions of national states, and, through their development, states gradually supplanted the pluralistic legal reality of early modern society. Liberal notions of constitutional formation typically claim that political constitutions were first created to reduce the power held in national states, and especially in the monarchies around which many European nation states first developed.10 In fact, however, most modern societies established states, not before, but through a process of constitutional construction, and the rise of statehood and the rise of constitutions were two sides of the same process of institutional centralization.

This formative function of classical constitutions is clearly observable in the first wave of classical constitution making. The 1789 Constitution of 9 Originally, in some polities in high medieval Europe, especially the Italian city states and the cities of the Holy Roman Empire, the constitutions of corporations were also the corporations of the public domain more widely. See examples in the Padovan comune (Gloria 1873: 6) and the Bolognese comune (Fasoli and Sella 1937: 5). Of course, the idea that the guild constitution could form a template for the state constitution remained long into the modern era, challenging the idea of the state as a monolithic leak person. This is exemplified, at different junctures, by Althusius (1614: 169), Gierke (1873: 134) and Durkheim (1926 [1893]: 31). . . 10 This was implied in the leading doctrines of classical constitutionalism set out by, for instance, Locke, Montesquieu, Madison, and Kant. As a result, it is a commonplace in more contemporary research. For exceptions to this, see Holmes (1995); Cameron (2013).

5

the USA is paradigmatic in this regard. Although it provided for an awkwardly integrated political system, in which political power (sovereignty) was to be exercised concurrently by federal and state-level institutions, the Federal Constitution projected a basic formulation of governmental legitimacy to support and centrally to integrate the diffusely connected organs of the new American Republic (see Kahn 1997). Even more indicative in this respect were the first constitutions created in revolutionary France. In key respects, these constitutions acted to transform the pluralistic construction of French society under the ancien régime, whose power structures had been based in multiple localities and corporations, into a more compactly organized socio-political order, in which directive authority was attached to identifiably mandated central institutions (Church 1981). In both these classical constitutional settings, in fact, the state- or system-building role of constitutions was clearly expressed in the basic vocabulary of constitutional discourse. Although the constitutions of revolutionary America and revolutionary France showed great variation in the techniques they used for allocating powers in the state, these constitutions were all shaped by a strong doctrine of national sovereignty, often configured as a theory of constituent power.11 As a result, the normative core of these constitutions resided in the principle that governments obtained legitimacy solely to the extent that their institutions were founded in the sovereign will of the people, and that imperatives derived from this will were enacted through organs of state. In each case, the task of the constitution was to anchor the state in the national will, and to ensure, as far as possible, that the momentary exercise of governmental power did not deviate from the content of this will. Notably, the assumption that the political system extracted its authority from a general construction of the people or nation meant that the political system was able to explain its laws across widening social spaces by reference an abstract overarching source of authority, and it claimed legitimacy for its use of power on easily generalizable normative premises. In practical terms, this provided a basis for the formation of a political system which could separate its power from the local/corporate structures of early European modernity, which could justify power through simplified and reproducible normative ideas, and which could distribute power across society, relatively inclusively, from fixed, centralized institutions.12 Overall, the core constitutional norm of national sovereignty evolved in the early era of classical constitutionalism as a central part of a conceptual apparatus in which society as a whole could rationalize, and react to, deep-lying changes in its functional structure, and through which it could extricate its political system from the condition of regional, familial and corporate dispersal in which it had 11 The theory of constituent power in early American constitutionalism was expressed in exemplary fashion in Tucker (1983 [1784]). In France, it was expressed in Sieyès (1789b: 19, 21). 12 Constitutions were sometimes used to centralize power by getting rid of monarchies. Revolutionary France exemplifies this. But constitutions were sometimes used centralize power by strengthening the power of monarchies against feudal estates and corporations. This was the case in Spain where the 1812 constitution preserved the monarchy, but was flanked by rafts of anti-feudal legislation.

6

previously operated. The normative vocabulary of classical constitutionalism formed a reservoir of functional meanings, which adaptively simplified the evolution of a relatively centralized political system in early national societies.

ii. Foundations: Abstraction and circulation of political powerIn promoting the basic centralization of the national political system, early classical constitutions also had implications which extended beyond the sphere of objective institutional design. In fact, one consequence of early constitutions was that they transformed the basic shape of political power, defined as an abstracted medium of exchange, and they reconfigured the conditions for power’s distribution across society. As mentioned, it is not accurate, as is so often suggested, to assume that in Europe of the ancien régime society was dominated by fully formed powerful states, whose monarchical executives were able to impose personal directives on their subjects with limited social constraint. On the contrary, in early modern Europe, political authority was diffusely organized, and it was mainly condensed in different corporations: professions, families, towns, manufacturing units, courts, guilds etc. In such contexts, on one hand, political power was constructed in highly localized, sectorally determined fashion, and the extent to which political or legal decisions could be generalized, to overarch different corporations, and different societal locations, was limited. Even core members of monarchical dynasties could only rarely articulate commands that prevailed over the vested practices and customs of corporations.13 This is amply exemplified by evidence from pre-revolutionary France, in which the corporate design of society was widely recognized as obstructing the emergence of a strongly articulated political system.14 In such contexts, on the other hand, political power was highly personalized, and it was integrally attached to the status of single persons and families: authority to perform coercive ordering of social relations was usually linked to a person’s position in a given hierarchy (a court, a profession, a guild, a family, etc.), and the entitlement to exercise power was not easily formalized in general terms, which could be replicated across society’s structural partitions. Indeed, constructions of political authority could not be straightforwardly transplanted from one corporation or from social location to another.

This status-determined diffusion of political power was transformed, however, by the emergence of constitutional law as a dominant explanation of legitimate governance in the eighteenth century. First, the growth of the concept of national sovereignty in early classical

13 Note for example that the French monarchy attempted to abolish corporations in 1776 but was able to do so. In many respects the French monarchy was itself merely one corporation among others (Sewell (2008: 37).14 Before the revolution, Turgot informed King Louis XVI in plain words about the cause of the fiscal malaise of his state. He observed (1787[1775]: 9): ‘The cause of the evil, sire, results from the fact that your nation does not have a constitution. It is a society composed of different badly unified orders, of a people whose members are barely connected by social bonds. As a consequence almost nobody cares for anything but his own particular interest’.

7

constitutionalism meant that the political system could explain its power as an abstractly authorized phenomenon. In fact, as the political system defined its power as derived from the constituents of the people or nation, the political system established the legitimational principle that its power was internally constructed by the same persons to whom it was applied, across all parts of society: that the people, acting collectively, authorized the power of the state, which was then applied, singularly, to its members.15 To this degree, the conceptual apparatus of constitutionalism distilled political power into a relatively abstracted, simplified, recursive form, whose authority could be intuitively explained to its addressees. As political power began to presume general constitutional authorization, consequently, it was projected as a medium of exchange that was clearly distinguishable from the persons factually exercising it, and which could be applied, in constantly self-identical fashion, in all social locations and to all social persons. In fact, in referring to the will of the national sovereign people as the source of its legitimacy, political power evolved, rapidly, to a high level of internal self-reproducibility, and the political system was increasingly able to circulate political power, in easily iterable form, across the multiple domains in society, each of which had traditionally possessed a distinct status-defined power structure.16 From this time onwards, therefore, the constitutional reference to national sovereignty formed a primary inner-medial formula for the iteration and simplified circulation of political power. Using this formula, national political systems were able quickly to assume an abstract monopoly of power within their societies, which had previously proved impossible for monarchical executives which had not been able to sustain their authority with constitutional norms.

It was not only the concept of constituent power in classical constitutions that contributed to this abstraction of political power. Alongside this concept, most early constitutions also developed the concept of basic rights as a vocabulary for justifying the exercise of political authority by state institutions. Through the rise of constitutionalism, most national states increasingly explained the legitimacy of their power by defining it as power that was internally proportioned to rights, and which included within it a formal recognition of persons subject to power as rights holders. Subjects of early constitutional states were invariably defined as holders of certain core rights, and, to a greater degree than any participation in political will formation, the possession of certain rights can be viewed as a constitutional minimum. This process was of course deeply linked to the construction of ideas of citizenship during the period of classical constitutionalism, which implied that all members of nationally constituted societies were entitled, equally, to certain basic rights – both rights of legal equality, and (with greater restrictions) rights of political participation. Indeed, the two great constitutional revolutions of the late 15 This is formulated paradigmatically by Rousseau (1975: 243).. 16 As a result, for example, early legal acts in the French Revolution banned all corporations, from guilds to artisanal combinations, all of which were seen as obstructing the generalization of power through the state. One historian says that ‘politics in the modern sense of the word did not exist’ in pre-1789 France (Sonenscher 1989: 46).

8

Enlightenment revolved around a conceptual juncture between constitution making, the solidification of nationhood, and the imputation of rights to citizens (see Bendix 1996: 90; Gosewinkel 2001: 138; Gironda 2010: 70, 343) .

Seen sociologically, the rise of basic rights played a distinctive role in hardening the medial abstraction of political power, and the constitutional attribution of basic rights facilitated the uniform, simply iterated transmission of power across society. Notably, the designation of persons as citizens, with equal and uniform legal rights and titles, led to a clear consolidation of the social, legal and geographical boundaries of the national state (see Caramani 2004). Moreover,, the fact that, under classical constitutions, political systems defined their power as power applied to rights holders meant that persons receiving power across society were perceived by the political system in identical fashion, and political decisions and laws could be applied to these persons in highly simplified, internally consistent, and easily reproducible procedures.17 Through the rise of basic rights as constitutional norms, therefore, an internal construction of power’s addressee was instilled within the political system, and the political system was able to establish relatively consistent control of all social domains and all persons in society.

In each of these respects, the emergence of constitutionalism profoundly redefined the basic medial form of political power. Constitutional norms translated political power into an abstracted and more simply consumable social phenomenon, detached from singular patterns of local status and affiliation. In doing this, the rise of constitutionalism exponentially increased the quantities of political power that societies were able to use,18 and the constitutional ordering of government meant that political institutions were able to generate more law, on simplified normative and procedural foundations, in order to address the increasingly complex requirements for legislation that defined the expanding societies in which they were located. In each respect, the rise of constitutionalism produced a system of norms that allowed society as a whole, and its political system in particular, to react to the growing demands for law caused by the underlying process of societal differentiation. Constitutionalism evolved as an inclusionary structure for the political system, which allowed it to adapt to new legal pressures and to changes in the societal consumption of law.

iii. Foundations: Nation makingIn the above respects, the vocabulary of earlier constitutionalism did not only act, functionally, to differentiate and cement the initial form of the modern political system (the state). In addition, constitutional concepts acted to solidify the broader social environment for the modern state, and they played a vital role in transforming the pluralistic societal geographies of early modernity into relatively even, homogenous societies, subject in predictable fashion to the basic functions political and legal functions of 17 See pp. XXX below18 See the account of this in Luhmann (1984:40-41).

9

central government: that is, into nations. Most obviously, of course, early constitutions acquired a nation-building function because, as discussed, they distilled the source of the authority of the political system into the image of the popular sovereign or the constituent power.19 In so doing, they made it possible for the political system to radiate power, constructed through the national sovereign, in even and inclusive form across all society. To this extent, the constitutional idea of the state as defined by the constituent people impacted in structurally transformative manner on society by levelling it into a uniform social surface (a nation), in which all persons, notionally, were equally subject to law and equally subject to political authority.20 Less obviously, but equally importantly, however, the constitutional diction of basic rights also had a profound impact on the surface structure of society, and basic rights also contributed to the extension of society, beyond the corporate partitions imposed by late-medieval pluralism, into a uniform system of national inclusion.

First, the fact that constitutional states applied power to persons constructed as rights holders meant that all members of society were defined, in principle, as equal, and as able, equally, to claim rights in a number of different social domains. Notably, many of the rights allocated by classical constitutions (for example, rights of personal integrity rights of free expression, rights of free movement, and free exchange of contract, rights of access to impartial justice) were enforceable in many different areas of social practice. This meant, immediately, that the state assumed a primary role in guaranteeing rights across society, that personal obligations defined by corporations were weakened in force, and that distinctions of status, family, and region which had traditionally obstructed the formation of societies as nations were partly dissolved.21 Equality in rights holding became a pervasive force in the emergence of unified, evenly inclusive societies, in which basic media of social inclusion, especially law and power, assumed an intensified presence in all social domains, across historically divided landscapes. Second, the constitutional construction of legitimate power as power proportioned to personal rights meant that the most essential lines of intersection between the government and society assumed more consistent form, and actors in all different parts of society entered a more even, inclusive relation to the political system. At one level, for instance, as states constructed their power as applied to rights holders, they began to devise legal codes which could be applied inclusively across all parts of society, and which drew these societies together in the form of nations, with single economies and single labour markets. This was visible in the development of civil law. In the aftermath of the French Revolution, notably, many European states evolved simple, uniform civil codes, based in the construction of the 19 For Sieyès (1789a: 79) in fact the nation and the constituent power were indivisible. 20 This is the classic theory of state legitimacy set out by Rousseau (1975: 243). It then became the dominant thread throughout classical constitutionalism and it continues through contemporary political and constitutional reflection. See for example Ackerman (1991); Habermas (1992).21 See p. XXX above

10

person as a holder of certain immutable monetary rights, which imprinted a generalized legal order on the economic functions of society.22 To a large degree, this process of codification entailed the formalization of already established principles, but it was clearly linked to the growing authority of state institutions. This was also visible in criminal law. After 1789, most European societies consolidated criminal codes, which, proceeding from the idea of the person as a holder of procedural rights, defined standard principles of criminal responsibility for all persons.23 In most of Europe, moreover, the abstraction of rights as a central principle of governmental legitimacy meant that states began to reform their judicial institutions, they eradicated the corporate-patrimonial residues of their court systems, and they defined equal provision of justice as an essential norm of legitimacy, under public law (Wienfort 2001: 35).

In each of these respects, the growth of constitutional rights led to a more uniform proceduralisation of the exchanges between the political system and agents in society, and the regional and structural differences impacting on society’s articulation with the political system were reduced. In each of these respects, the constitutional diction of rights, like the concept of national sovereignty, ironed out the social environment of the political system, and it established a relation of heightened immediacy (nationhood) between the state and its addressees across society.

iv. Foundations: Systems of inclusionIn each of these respects, the conceptual form of early constitutionalism assumed a deeply transformative role in the evolution of modern society. The structural reconfiguration of society, which occurred through the development of the modern political system, is not easily comprehensible without analysis of the rise of constitutional law, and its defining normative elements. In the broader context of a the transition from the European ancien régime to modern society, constitutions distilled revolutionary principles which promoted the centralization of political institutions, the basic medial abstraction and generalization of political power, and the surface expansion of national society as a whole. In each of these respects, in fact, the defining norms of classical-modern constitutionalism assumed the particular function that they intensified and extended the inclusionary order of society. At one level, constitutions 22 This was of course resisted by theorists who wished to preserve the local fabric of law, and who proposed a more organic, less legally abstracted concept of nationhood. On the first point see Savigny (1840a; 1840b 21-2).23 Many European societies established penal codes before the French Revolution, notably in Austria (1787) and Bavaria (1751). But, starting with the French penal code in 1791, most states saw a growing formalization of criminal procedure, notably (again) France (1810), Bavaria (1813) and most German states subsequent to this. Tellingly, it was argued by one of the leading theorists of criminal law at this time that ‘the constitutional participation’ of representative bodies in drafting penal codes made them more generally acceptable amongst the people (Mittermaier 1841: 208). Notably, the author of the Bavarian criminal code, which led the way in the development of criminal law in the German states, subscribed to an immovably constitutionalist idea of state authority, in which all law was founded in a generalized constitutional contract (Feuerbach 1798: 112).

11

transformed the political system of society into a system of inclusion. Through the growing prominence of constitutional norms, the political system evolved an inner normative grammar which allowed it to apply and reproduce its power across the structural, geographical and temporal divides contained within the expanding form of society. As a result, the political system was able to react to pressures for legislation created by the rising complexity of society. Above all, it was able to presuppose internally conserved norms to sustain its functions, and it was able positively to perform acts of legal and political inclusion, at a relatively high level of abstraction, across the fissures between historically separated societal locations. In addition, the rising salience of constitutionalism meant that society as a whole evolved as a massive system of inclusion (a nation). In this context, all actors were able to claim access to law and power in similar ways, egregious sectoral variations in the circulation of law and power were slowly removed, and all functional domains were able to utilize law made available by the political system. Overall, the basic concepts of classical constitutionalism – national sovereignty and basic rights – became primary norms of inclusion for society. Overall, in fact, constitutions transposed all of society, and its political system in particular, onto positive inclusionary foundations, and they constructed inclusion as the formative principle of society as a whole.24

The last point in this enumeration of the sociological functions of classical constitutions throws particular light on the development of constitutional law in more contemporary society, and on the ultimate evolution of constitutional law as a transnational or global order. As constitutions were established as pivotal points in the inclusionary functions of modern society, namely, they instilled in society an escalating dynamic of inclusion, which impacted in enduring and decisive fashion on the development of modern society and its political system. On one hand, as discussed, constitutions, based in popular sovereignty and basic rights, formed the basic inclusionary architecture of national society, allowing the political system of society to absorb pressures of inclusion and demands for legislation caused by its increasing underlying differentiation and its exposure to a widely extended social environment. On the other hand, however, classical constitutions also refracted, intensified, and even released further pressures of inclusion, which stimulated a continued evolution of constitutional law in national society, and which ultimately confronted national political systems with expectations of inclusion which, on their own, they were not able to resolve. This second dimension of classical constitutionalism – that is, the fact that it engendered unforeseen pressures of inclusion – is of central importance for any sociological discussion of the recent rise of global constitutional law.

24 For the theoretical basis for this see Luhmann (1997: 1025). Here Luhmann sees universal inclusion as a characteristic of post-feudal society, in which inclusion is no longer limited by ‘stratification’, ‘religious affiliation’ ‘provenance’, ‘family’ etc.

12

Classical constitutionalism observed sociologically 2: Pressures of inclusioni. Monetary rightsThe logic of inclusion expressed in classical constitutions was reflected, first, in the fact that constitutions articulated the joined concepts of national sovereignty and basic rights as elements of society’s inclusionary structure. In this regard, however, classical constitutions initially only created a structure of limited inclusion for the political system, and, typically, they only enabled national political institutions to circulate law and power through society in relation to a very restricted set of exchanges and interactions. Striking in this respect, above all, is the fact that early constitutions provided a normative substructure for political systems whose functions of inclusion were mainly concentrated on private monetary rights, and which strategically privileged monetary rights over other rights, as the basis of political inclusion.

This privileging of monetary rights was perceptible, on one hand, in the fact that, under most classical constitutions, only persons with substantial wealth and revenue were allowed access to core spheres of political participation (e.g. voting, party membership, standing for election). Under classical constitutions, the exercise of representational rights was specifically conceived as a means of avoiding fiscal depredation, of protecting independent income, and of securing the inviolability of monetary advantages.25 This privileging of monetary rights was evident, on the other hand, in the fact that, under classical constitutions, most rights that were subject to constitutional guarantee were constructed as rights positioned outside the governmental system: as rights that needed to be consolidated against governmental encroachment. That is to say, under classical constitutionalism, most secured rights were phrased as negative or protective rights, designed to ensure that certain practices in society could be exercised relatively apolitically: rights were articulated in national constitutions in order to fence off economic freedoms (exchange of property, contract, labour), to secure certain religious freedoms, and also perhaps to guarantee literary, scientific and academic freedoms. Once constitutionally covered by negative rights, then, these freedoms were legally withdrawn from the reach of state authority: the constitutionalization of rights in the state’s own system of public law was designed for the strict protection of certain rights, and of practices covered by these rights, from the state itself.26

In both respects, early constitutionalism only offered inclusionary protection to persons in thinly abstracted dimensions of their lives. In fact, early constitutionalism included persons in the systems of politics and law, paradoxically, by positioning them, in their everyday functions, outside the reach of government, and it provided legal guarantees for holders of

25 Representation and taxation were famously connected in classical constitutionalism. Indeed, opposition to unmandated taxation was a primary cause of the English Revolution, the American Revolution and the French Revolution. 26 See classic critique in Schmitt (1928: 164).

13

social liberties while at the same time displacing these liberties from the sphere of immediate political control. Under classical constitutions, accordingly, the centration of society around a national political system only became reality at a superficial level, and society’s inclusionary immediacy to the state only became fully pronounced in society’s monetary and economic functions.27 Through the rising force of basic rights, many societies acquired an increasingly unified form in their economic dimensions. Beneath the level of economic or monetary inclusion, however, most societies retained their localized structure, most legislation lacked deep societal support, and the national population remained clearly outside, excluded from, the political system.

In the longer wake of the foundation of classical constitutions in the late Enlightenment, in sum, national societies were defined, largely, by a process of highly asymmetrical inclusion through monetary rights. As a result of this asymmetry, societies were only selectively nationalized, and, indicatively, national populations only entered the political system in very select spheres of interaction, notably in their monetary-economic practices.28 Through the prominence which they ascribed to monetary rights, classical constitutions specifically ensured that the national people, from whose sovereign acts of will formation they purported to extract legitimacy, remained factually external to the political system, such that national inclusion always retained a rather ideological quality.

ii. Political rights Despite their limited inclusionary reach, nonetheless, classical constitutions clearly extended the purchase of the political system, and, as discussed, states based in early constitutional orders experienced an exponential increase in their ability to legislate across society. However superficially, growing constitutional protection of monetary rights evidently established a basic system of inclusion for national society. More notably, moreover, as societies were exposed to centralized legal inclusion in their economic dimensions, they also, by consequence, began to experience heightened inclusion in other spheres of interaction – especially, in the political domain. In fact, political inclusion usually followed on the heels of economic inclusion. As societies developed unified rights-based national economies, political institutions in society were required to generate laws to underpin economic interactions at a rising level of abstraction and centralization, and states were increasingly forced to construct more robust sources of national support for their laws as they reached further and more inclusively into society. This ultimately meant that guarantees over political rights, securing stronger foundations for the political system, became more extensive, and more strictly formalized. On one hand, for example, the inclusionary unification of society in its monetary dimensions meant that legislators could not rely on 27 This explains the dominance of civil-law codes in much of Europe after 1789. Contemporary observers have been quick to appreciate the fact that early post-1789 theorists of private law saw private law as imprinting a non-political unity on society. For comment in this regard see Joerges (2014).28 This was famously diagnosed by Marx (1958-68 [1844]).

14

traditional or late-feudal elites and prominent local notables to provide support for acts of law, and they were forced to transpose law onto substantially generalized foundations.29 Alongside this, most economically unified societies demanded increasingly large quantities of law, and states were obliged, without deep local support, to produce a growing volume of legislation in order to stabilize the mass of economic exchanges which society produced.

The primary constitutional process of societal inclusion through monetary rights, in consequence, began to engender secondary pressures on the political system. Indeed, the ability of the political system to satisfy requirements for unified economic legislation gradually presupposed the mobilization of more substantial political support, at least across the extended elite strata of society. In most societies, the decades between 1789 and 1840 were dominated, largely, by a concentration of systemic inclusion around monetary inclusion and monetary rights. From roughly 1840 onward, however, many European states began, almost of necessity, to promote political inclusion, which they secured through the progressive distribution of political rights – through rights of representation, electoral participation, party-political formation and membership, etc. In many European societies, the period after 1848 saw a rapid growth in the reach and standing of political rights, and most political systems began, to some degree, to stabilize their inclusionary functions through the distribution of political rights. At this time, political systems defined by national constitutional law slowly made good on their original claim to extract legitimacy from the sovereign nation, and they began to distribute political rights to incorporate the sovereign people more comprehensively within the political system. In this process, crucially, political rights came to form a secondary stratum of rights positioned above the first inclusionary tier of economic-monetary rights which constitutional states had established, and national political systems increasingly stabilized their foundations in society through two separate tiers of rights. The tier of political rights resulted directly from inclusionary pressures on the political system created by the circulation of private rights as instruments of inclusion, and these two layers of rights fused together to solidify an inclusionary basis for the increasingly expansive political-systemic order of national society.

iii. Socio-material rightsThe propulsion towards social inclusion articulated and intensified by the rise of national constitutional law reached its first apotheosis as political rights were cemented through society. In much of Europe, national societies began to secure relatively expansive male franchises by the 1870s, and, within a century of the first constitutional revolutions in France and the USA, many European states could claim some basic 29 In most European countries, for example, the dominance of local and aristocratic estates was ended, not through revolution, but through the national monetarization of exchange relations. After 1815, estates were re-established through much of Central Europe, but, owing to the expansion of a market economy based in Napoleonic civil law, they had lost much of their importance by 1848.

15

inclusionary/democratic support in the masculine half of their national constituencies. Through this process, however, the trajectory of inclusion promoted by constitutional rights underwent a dramatic inflation. In particular, the deepening penetration of political rights had the outcome, in most societies, that states were required to include their national populations, not only in their private-economic and formal-political dimensions, but also, to an increasing degree, in their socio-material dimensions. That is to say, as soon as states cemented their foundation in society through a second tier of political rights, they were forced to recognize the fact that the political rights holders which they had internalized held radically divergent material interests, typically expressed through industrial conflicts. States were then required to balance and mediate between these interests as a condition of their political stability and legitimacy.

Where national inclusion was promoted through the broad allocation of political rights, therefore, this gave rise, almost inevitably, a tertiary dynamic of rights-mediated inclusion. That is, the growing circulation of political rights led, directly, to the intensified allocation of socio-material rights (rights to welfare, to participation in economic legislation, to trade-union activities, and to other organizational freedoms), which were intended to soften the most acute conflicts between politically integrated social groups, and to create social conditions conducive to the legitimization of state functions. In most societies, therefore, the establishment of a broad political franchise was closely correlated with the rise of labour law and the entrenchment of industrial rights as instruments for palliating class conflict. The constitutionalization of political democracy typically led to the construction (either formally or informally) of a constitution of labour law, in which delegations of organized labour played an important integrated role in the state, especially in matters relating to employment legislation and industrial productivity. In most of Europe, notably, the final transition to full political democracy occurred in constitutions created around the end of World War I. In this setting, political democracy was shaped by a social background in which societies had been comprehensively mobilized for war, and trade unions had assumed a vital, legally formalized, position in the political endeavour to galvanize industrial production for the war effort.30 As a result, organized labour was able to demand full political enfranchisement as a means to obtain recompense for social loyalty, industrial collaboration, and abstinence from revolutionary activities during the war, and it was then able to expand the system of political democracy to augment the material rights already partly concretized during the years of conflict.31 Generally, the constitutional establishment of political democracy was driven by a transformation of industrial relations, in which labour law acted as an increasingly formalized system of social mobilization and representation.

30 See discussion in Thornhill (2011: Chap 4). 31 On this process in the UK see Morgan (1979: 109). On this process in Germany see Albertin (1974: 660). In Germany the basic constitutional structure of the Weimar Republic grew out of inter-party agreements established during the war.

16

Once established, then, political democracy was usually tied, briefly, to an expansion of labour rights, and most early democracies created after 1918 gave exponentially heightened protection to interests of organized labour. Socio-material rights, thus, came to overlie earlier strata of rights as the basic premise for the inclusionary functions of the political system, extending the reach of the political system to integrate all actors in national society.32 Ultimately, in short, the logic of inclusion inherent in national constitutionalism meant that political systems finally incorporated their populations through a set of socio-material rights, largely constructed through the organizational activities of trade unions.

iv. The crisis of constitutional inclusion Over a long period of time, national constitutions evolved as structures of inclusion, through which the political systems of different national societies progressively integrated the national people (the popular sovereign) which they originally projected as the source of their legitimacy. At each stage in its development, national constitutions evolved as adaptive reactions to inclusionary pressures impacting on the political system, and the constitutions of most political systems were solidified as states deployed different strata of constitutional rights (private rights, political rights and socio-material rights) in order both to incorporate their addressees and to stabilize their own functional foundations. Progressively, this meant that national political systems institutionalized a three-level panoply of rights to integrate their national constituencies. The commitment to popular sovereignty expressed in the earliest revolutionary constitutions slowly became a material reality, from 1789-1918, through a slow three-stage constitutional thickening of the rights structure that underscored the political system.

Ultimately, however, the trajectory of popular integration initiated by classical constitutional law was not a success, and it did not establish a basic system of national inclusion. On the contrary, in most settings, the near simultaneity of national inclusion through political rights and national inclusion through socio-material rights placed burdens on national state institutions, which few states were able to withstand.

In most of the European states that approached full political democracy around or after 1918, for example, the expectation that the allocation of political rights and material rights should be conducted at the same time had disastrous implications. The main examples of such states – Germany, Italy, Austria, and, rather later, Spain – balanced demands for political and material inclusion by establishing corporatist constitutions or at least constitutions with some corporatist elements, in order to facilitate the integration of historically adversarial social groups. These constitutions were designed as mechanisms to co-ordinate political inclusion and material inclusion at the same time, and they distributed both political rights and socio-material rights to their constituencies in order to solidify a

32 For exemplary early analysis of this, see Heller (1971: 444-5).

17

basis of support for the political system through society.33 In each case, however, the attempt at corporatist-constitutional class equilibration misfired, and most corporatist states quickly converted to highly coercive exclusionary patterns of corporatism (often known as fascism), in which dominant private elites colonized the political system, and the trajectory of consensualist political and material inclusion was abruptly terminated.34

Most Latin American societies experienced similar processes, albeit at a slightly later date.35 In most Latin American societies, full political enfranchisement also coincided with a dynamic of social and material enfranchisement, in which organized labour became a central political and constitutional actor, and in most cases this was reflected in the promotion of corporatist constitutional models, distributing political and material rights at the same time. In most such corporatist constitutions, labour law was originally elaborated and deployed as an instrument of democratic-consensual inter-class mediation, facilitating political inclusion and material inclusion as two elements in the same process of national integration and representation.36 In most of Latin America, however, democratic experiments in corporatist constitutionalism were short-lived. Such arrangements were supplanted by far more authoritarian, exclusionary patterns of corporatism, in which dominant economic groups selectively deployed corporatist legal institutions to secure enactment of their own economic prerogatives through the state.37 Still more acutely, similar dynamics can also be discerned in the process of decolonization in Sub-Saharan Africa (Shaw 1982: 256; Branch and Cheeseman 2006: 15).38

If constitutionalism developed as trajectory of national inclusion through the deepening societal penetration of political rights, in consequence, it is very striking that this process only rarely led to the emergence of a balanced system of political inclusion. In fact, this process was only successful (and even in such cases, only partly successful) in national societies, for instance France and the UK, which had reached high levels of political integration before they were forced to distribute social-material rights (Luebbert 1987). The basic constitutional logic of national inclusion through rights usually led, first, to the construction of corporatist constitutions. In turn, this usually led, second, to a fragmentation of the national political system, as select social groups invaded the political 33 See p. XXX below34 On the essential privatism of fascism see Rebentisch (1989: 283); Costa Pinto (2011); 206-7).35 See p. XXX below.36 The classic example of this would be the Consolidation of Labour Laws introduced by Vargas in Brazil in 1943, which were designed both to integrate the population in a system of relative material security and, in so doing, to integrate the population in nationally expensive society. 37 This transition from inclusionary to exclusionary corporatism caused endemic privatistic state collapse in many different countries in Latin America. On Argentina see Peruzzotti (2001: 145). On Bolivia see García (1966: 598, 606); Balenciaga (2012: 112). On Chile see Remmer (1989). 38 On similarities between Africa and Latin America in the process of state privatization see Sangmpam (1993: 92).

18

system to cement their own prerogatives. This then led, third, to a de-nationalization of society, as, under authoritarian corporatist regimes, societies reverted in part to their pre-modern local structure, and powers of political coercion were once again placed in the hands of private local elites (Thornhill 2011: 325-26). In fact, most states that defined their legitimacy through corporatist class equilibration ultimately experienced a process of acute privatization. Usually, in short, the dynamic of national inclusion first triggered by classical constitutionalism eventually induced a deep crisis of political inclusion, in which states were exposed to acute inclusionary pressures, caused by their own basic conceptualization of their legitimacy, which they could not absorb, or resolve, or survive.

The national origins of the global constitutionThe remaining sections of this Chapter are intended to propose a sociological reconstruction of global constitutional law. In particular, the remainder of this Chapter argues that global constitutional norms can be explained, sociologically, as norms that are produced by the same patterns of inclusionary social formation that generated the normative substance of classical constitutions. At one level, the continuities between national and global constitutional norms are evident in the basic systemic functions performed by both categories of legal norm. To this degree, established descriptions of global constitutionalism make an unnecessarily sharp distinction between national and global law. Different models of global constitutionalism can in fact be subsumed, at least sociologically, under an explanation of classical constitutionalism. This is addressed in the sections immediately below. However, continuities between national and global also run deeper. If we accept the sociological analysis of classical constitutional laws as causes of inclusionary crisis set out above, global constitutional laws can be located on a profound causal continuum with the founding public-legal norms of national states. The deep-lying causal linkages between national and classical constitutions are then examined in the final section below.

i. The global constitution: International law As outlined above, some researchers tending to impute constitutional characteristics to global legal norms adopt a strictly international-legal approach to global constitutionalism. Observers in this lineage concur in claiming, above all, that the global constitution is the outcome of a progressive elevation of individual human rights to the position of norms with overarching jus-cogens rank. On this account, starting from relatively modest beginnings with the founding of the United Nations (UN) in 1945, global society as a whole has evolved a complex constitution, centred around powerful international organizations and judicial institutions, and capable, in principle, of giving direct effect to globally proclaimed rights within national societies. As mentioned, the rise of this global legal order is typically distinguished quite sharply from classical patterns of constitutional normativity, which, it is suggested, extracted primary legitimacy from the authorizing presence of a national sovereign people.

19

However, the construction of the global constitution proposed by theorists of international law need not necessarily be taken to reflect a complete caesura vis-à-vis earlier patterns of constitutional norm production. In some respects, the rise of a system of global constitutional norms, centred around international human rights law, performs functions that are directly continuous with the state-making functions of classical constitutions. In fact, the growing constitutionalization of international law has clearly replicated some of the primary functions of constitutional law in domestic societies.

First, for example, the intensified reinforcement of international norms has made it possible for state-like institutions, or institutions with some state-like functions, to develop outside national societies. This is evident, notably, in the growth of some international organizations, such as the European Union (EU) or the United Nations (UN), which quickly assumed regulatory and legislative functions analogous to those classically performed by states, and whose authority was sustained by a clearly hierarchical order of public law.39 Notably, in fact, most powerful international organizations that developed after 1945 used human rights law as a core foundation for their authority, and they typically learned to conduct their functions on premises of legitimacy extracted from human rights norms.40 To this degree, global constitutional norms underpin processes of institutional foundation and stabilization in much the same way as the constitutional laws of national societies. The support brought by constitutional laws to international organizations is not qualitatively distinct from the role played by constitutional law in the construction of national state institutions.

Second, higher-ranking constitutional norms situated outside the national domain serve, in many respects, to reinforce the basic structure of national states, and they provide a legal order in which national states adapt to and soften the pressures to which they are exposed in the interstate arena. Illustration of this reinforcing role of international law can be found, on one hand, in the fact that the accelerated expansion of international law occurred at a time when states were, often for the first time, exposed to multiple challenges in their external activities, many of which could not be resolved through the classical diplomatic instruments of sovereign states. In particular, the importance of international law increased exponentially in the wake of World War II, a period which saw the mass displacement of populations, the unprecedented exposure of civilians to violent death, and the frequent appearance of politically isolated ethnic and minority groups through the fracturing of European Empires.41 In this context, the intensification of international law provided 39 On the similarity of such organizations to states see Caruso (2006: 4).40 Soon after its foundation, the UN began to define its functions and legal personality in relation to human rights law. See for example Reinisch (2007). Even more strikingly, the legal/constitutional order of the EU was also elaborated through human rights law. See for one account amongst many Weiler (1991).41 This was reflected, for example, in the Geneva Conventions, the Genocide Convention, and the Refugee Convention.

20

an organizational matrix, in which it became possible for states to presuppose a normative order for exchanges escaping classical patterns of state jurisdiction. Indeed, state reactions to these phenomena were widely underpinned by international law.42 As a result, international law helped to extend functions historically performed by states into spheres of legal interaction marked, at least partly, by statelessness or even powerlessness. In such cases, international law typically stepped into social domains which state power could not easily penetrate, and it created a normative order which securitized the otherwise precarious exercise of political power in contexts beyond the limits of state jurisdiction. Illustration of this reinforcing role of international law can be found, on the other hand, in the fact that the rise of international law occurred in the period of decolonization in the 1950s and 1960s, which was marked by the rapid proliferation of national states, or, more accurately, by the globalization of statehood as a dominant mode of social organization. During this time, international norms were typically promulgated as guidelines to determine the conditions under which political entities could be viewed as states, and international organizations often played a role in facilitating the recognition of new states.43 The rise of international law thus made it possible for states to react to other states, and it produced a normative framework in which the increasingly complex mass of inter-state relations, located in a domain populated by rapidly growing quantity of states, could be simplified. In these respects, the emergence of a global constitutional order is integrally linked to the essential fabric of statehood, and global norms of public law have widely acted to stabilize sovereign statehood as a common, globalized mode of socio-political organization.

In each of these respects, the growth of global constitutional law occurred, like the growth of national constitutional law, as a process which constructed a basic system of inclusion for society. On one level, global constitutional law formed an inclusionary foundation for an emergent global political system. On a different level, global constitutional law helped to form modern society as a whole as a massive inclusionary system, in analogy to the original constitutional construction of nations as systems of inclusion. If constitutions are perceived, from the outset, as documents that reflect and articulate a logic of societal inclusion, the formation of transnational constitutional norms is not discontinuous with the normative consequences of national constitutions. On the contrary, global constitutional law brings the underlying inclusionary logic of national constitutions towards full realization.

ii. The global constitution: pluralistic ius-generation

42 On the centrality of refugee law in the early UN and on the close linkage between refugee law and general international human rights law see Hathaway (2005: 24). 43 Examples of this are UN directives on decolonization, notably the UN Declaration on the Granting of Independence to Colonial Countries and Peoples (1960). Note also that only states could be members of the UN, so membership in the UN, with attendant duties of compliance with international norms, became a means by which new states were able to signal to other states that they had acquired statehood.

21

The global constitution is not only continuously related to national constitutional law if the global constitution is construed as a system of international law. Similar continuities can be observed if we follow more pluralistic constructions of global constitutionalism. As mentioned, in recent years an analysis of global constitutionalism has been proposed which rivals the more conventional interpretation of international law as a world constitution. This second account of global constitutionalism argues that global constitutional norms are formed in partial, pluralistic fashion, often through self-organizational legal acts in different function systems of society. In particular, this approach, with variations from exponent to exponent, is sensitive to very informal patterns of constitutionalization, and it identifies in soft law, in regulatory frameworks, and even in informal codes, the basis for a series of partial, sectoral constitutions.

It remains, of course, a matter of dispute whether such norms correspond to sustainable definitions of constitutionalism.44 In principle, however, the sociological account of global constitutionalism advanced in this Chapter, defining a constitution as the basis for a system of political inclusion and abstraction, can easily accommodate more pluralistic interpretations of global constitutional law. On one hand, first, it is discernible that most informal constitutional norms remain underpinned by more conventional higher-order norms, especially human rights law. In many respects, if we accept the existence of the partial constitutions in global society, these can be seen as evolving on the basis of a meta-constitution constructed by human rights law, and the essential source of authority for the constitutional ordering of different social functions is usually traceable to references to more formally declared international instruments.45 As a result, the rise of sectoral constitutions clearly perpetuates, in altered form, the wider functions of constitutional law. The evolution of societal constitutions, if we recognize them as social facts, is also a process of inclusionary systemic formation, in which a society projects meta-norms to facilitate the rapid, positive production of law and to distribute law rapidly, contingently, yet still authoritatively, across increasingly complex social environments, and in which decisions with collectively binding authority, at least for distinct functional sectors, are generated at a high level of abstraction and immediacy.46 On this basis, if we accept the existence of sectoral constitutions of global society, these can be seen as subsidiary, or perhaps parasitic, moments in the broader constitutionalization of the transnational legal domain. As such, these constitutions cannot easily be separated from earlier functions of classical constitutions. In certain respects, in fact, the rise of sectorally auto-constituted law reflects a process, in which human rights laws dictate a deepening grammar of inclusion for the extra-national spaces of global society, such that more and more exchanges are translated into a

44 See the conventional challenge by Grimm (2009).45 For examination of this point see Renner (2009: 554); Viellechner (2013: 226); Kanalan (2014: 278).46 See discussion by Teubner in this volume

22

constitutional form, and law can authoritatively penetrate new areas of social interaction.

On these grounds, despite the theoretical brilliance of much of the relevant literature, both typical constructions of global constitutional law revolve, to some degree, around a rather simplified, literalistic description of classical constitutional law. The dichotomous analysis of the relation between classical and global constitutionalism is only sustainable if classical constitutions are taken at face value: if we literally believe their normative claims to concretize the objective will of the people as the basis of a hierarchical system of public law, and to ensure that the people is represented in legislative acts as an aggregate of rights holders. If we look beneath the literal surface of classical constitutions, we can see that their basic normative content is both correlated with a series of submerged sociological processes (especially functional differentiation, systemic abstraction, temporal and geographical extension), and, above all, it contributes deeply to the formation of modern society as a system of inclusion. If construed in this way, it is difficult to identify a final rupture between classical and global constitutional law. On the contrary, global constitutional laws often accentuate and intensify, at a higher level of abstracted autonomy, the original inclusive system-building functions of classical constitutions.

iii. Inclusionary pressuresContinuities in the relation between classical and global constitutional laws are not only visible in the fact that the laws of global society perpetuate, in transnational settings, the functions performed by classical constitutions in national settings. On the contrary, the deep and integral connections between different categories of constitutional law can equally be observed in the fact that the construction of constitutional laws in the global dimension of society is induced, even causally, by the inclusionary limitations of national constitutional laws. In fact, global constitutional laws at times enable national political systems to conduct acts of inclusion vis-à-vis their own national populations, which, using constitutional norms defined within an exclusively national horizon, they were not able conclusively to perform. Seen in this light, global constitutional laws are constructed, in part, because they facilitate national processes of inclusion more effectively than merely national laws.

As discussed above, with a few exceptions, national constitutions initiated and crystallized specific trajectories of inclusion, focused on the political and material inclusion of divided national populations, through which, typically, they sought to construct a legitimational substructure for the political system. In most cases, however, national constitutions were not very successful in bringing these trajectories to completion, and they did not realize their own basic impulse in constructing and stabilizing inclusive national societies. In many cases, in fact, the logic of national inclusion through multiple strata of rights, which defined the inclusionary foundation of modern society, only approached realization as national

23

constitutions began extensively to integrate and elaborate a fourth stratum of rights – international human rights. In many cases, it was only as international human rights slowly cemented a fourth tier of inclusion in national societies that these societies, and the political systems around which they were centred, were able to cope with the inclusionary pressures which they had released and encountered through their original constitutional logic, and that they began to assume enduringly inclusive (i.e. national) form. On this basis, the rise of global constitutional law can be seen as a process which was integrally linked to patterns of constitutional norm construction and institutional formation in national societies, and the growth of global constitutional norms enacted an inclusionary spill-over from the formative dynamics of national societies: global constitutional law allowed national societies to compensate for the inadequacy of national constitutional laws in establishing reliable systems of national inclusion. To this degree, global constitutional law does not contradict national constitutional law: it flows directly and inevitably from it.

Important examples of this can be found in the processes of post-authoritarian state building in Italy, West Germany, and Japan, which took place in the first wave of transnational rights consolidation following 1945. In their interwar form, these states had all been brought to crisis by the attempt to integrate polarized populations, and the fact that they were exposed to simultaneous inclusionary pressures resulting from the distribution of political and socio-material rights led to an acute depletion of their autonomy. In each of these societies, albeit with marked variations, a corporatist constitutional system had evolved, in which states were forced to assume high levels of responsibility for problems of labour integration, and they were required to demonstrate legitimacy by means of effective arbitration of industrial disputes, class-conflict pacification, and selective distribution of material rights, each of which duties placed their functions under acute strain.47 In each case, moreover, the corporatist emphasis of the constitution created a situation in which the state was exposed to widespread infiltration by powerful private groups, which ultimately re-constructed the state on an exclusionary/authoritarian corporatist model.48

However, one clear distinction between the authoritarian states of Europe and East Asia before 1945 and their successor states after 1945 was that the post-1945 states were based in constitutions that accorded high prominence to international law. In particular, these constitutions assigned a non-derogable quality to single personal rights, and they constructed the legitimacy of domestic legal acts (primary or statutory) through reference to a formal, externally constructed system of

47 See discussion in Thornhill (2016: Chap. 5). 48 On the role of private power in weakening the Weimar Republic see Böhret (1966: 104, 125); Grübler (1982: 189). On Italy, see Mellis (1988: 262-3). See Garon (1987: 112). On the role of private groups in undermining the proto-democratic system in Taisho Japan see the account in Johnson (1982: 23).

24

international human rights.49 In their domestic application, one key function of international human rights in these polities was that they were utilized, in part, to soften the constitutional pressures which corporatism imposed on the state, and generally to depoliticize class relations. In particular, the application of international norms as principles to support legal authority was promoted to diminish the importance of industrial conflict resolution as a main source of state legitimacy. This was the case, first, because, in each of these states, the constitutional emphasis on personal, singular rights after 1945 meant that collective/corporate organizations lost influence. Notably, the political standing of large-scale delegatory and sectoral bodies (i.e. trade unions, lobbies, peak associations, cartel representatives) was reduced, and the extent to which members of such organizations could gain access to organs of state was subject to stricter control. Generally, the highly integrated techniques for managing economic conflict in the interwar era were replaced by more societalized mechanisms.50 As a result, states began to apply law to persons, not as members of integrated associations, but as single rights-entitled legal subjects, categorically situated, and performing legally relevant activities, outside the state.51 However, this was also the case, second, because the constitutions of these states established Constitutional Courts with strong powers to review statutes for compliance with human rights norms, including rights norms originating in international law. These courts were able to utilize basic rights to accord legitimacy to laws, they were able to explain the validity of laws on socially abstracted, formal-normative grounds, and, in so doing, they alleviated national legislatures of the need to mobilize factual support for all acts of law through appeals to, and attempts to pacify conflicts between, potent organizations in their constituencies.52

In both these respects, the rising constitutionalization of international human rights law in the post-authoritarian states created after 1945 served to heighten the distinction of the national political system, and it simplified the basic inclusionary order of society as a whole. This is most obvious exemplified by the key case of Germany. In the interwar era, the German political system had suffered egregious destabilization through 49 The defining example of this is West Germany in 1949, whose constitution specifically derived legitimacy from an external normative domain: through its commitment to Völlkerrechtsfreundlichkeit [friendliness to international law] declared in Arts 24, 25, 26 and 100(2). Notably, the Grundgesetz also dramatically reduced expectations of social inclusion vis-à-vis organized labour, and it clearly separated trade-union activity from the state by sanctioning union rights of collective bargaining.50 Even theorists of political economy who accentuated processes of recorporatization in post-war Europe were clear that this had to be differentiated from interwar corporatism, and they observed neo-corporatism as a model for the selective devolution of public regulatory powers to associational groups, strictly distinct from the ‘colonization’ of the state by such groups (see Streeck and Schmitter 1985: 131). For a broad analysis of the switch from corporatism to neo-corporatism see Kjaer (2014). 51 See West German Constitutional Court, 1 BvR 629/52(1954); Italian Constitutional Court 10/1957; 1/1963.52 In West Germany, notably, the Constitutional Court was progressively understood as an organ of state, equal in standing to the legislature and the executive. See Leibholz (1957: 149-50).

25

the fact that, constitutionally, it established extensive socio-material rights, it defined corporatist resolution of labour conflicts as a sphere of integrated constitutional practice, and it defined its legitimacy through objective incorporation of large-scale social organizations. In the West German state founded after 1945, by contrast, labour legislation conferred a less strictly political character on trade unions, and it partially renounced the collectivist legal design of interwar political economy (Nautz 1985: 45). Notably, this was first reflected in legislation of 1949 that guaranteed autonomy in collective bargaining for trade unions, placing industrial relations and wage disputes outside the immediate purview of state power (Rütten 1996: 160-2). Then, the general anti-collectivist impulse of the period also gave rise to legislation, in 1957, restricting (albeit only partially) the power of cartels, which had previously been highly institutionalized. In the new West German state, moreover, the grammar of basic rights, which was supported in part by the emerging diction of international human rights law (Schorkopf 2010), was specifically utilized by the Constitutional Court to underwrite the state’s monopoly of normative force, and the assertion of inclusionary societal control by the political system was conducted, not through economic collectivism, but in the specific, universal register of basic human rights.53 In this respect, to be sure, some nuance is needed. It would be inaccurate to see the West German Constitutional Court as purely monist in its jurisprudence. In some early rulings, the Court opted for a distinctively dualist jurisprudence; in some, it reflected a more monist orientation.54 However, the basic authority of international law in the Grundgesetz itself was so high that, whether the Court followed monist or dualist leanings, internationally sanctioned norms remained at the core of the domestic legal system. Notably, during the drafting of the Grundgesetz it had been argued that the new constitution should ensure that international law directly conditions ‘domestic legal life’ and ‘addresses the individual German immediately’, imposing direct individual ‘rights and obligations’.55

Under these conditions, ultimately, in West Germany a state emerged which was marked by a heightened degree of autonomy and inclusionary stability in relation to social and economic organizations. Unlike the political institutions of interwar Germany, this state was able to apply human rights law as a foundation on which it could legislate in inclusive fashion for all society, and which, unlike the political institutions of interwar Germany, was able consistently to legislate inclusively for all society, to imprint normative unity on society as a whole, and also to separate different function spheres from factual state control.56 In other 53 For brilliant commentary see Vorländer (2006).54 See rather divergent positions in BVerfGE 6, 309 (Reichskonkordat); BVerfGE 6, 290 (Washington Abkommen) BVerfGE 23, 288 318 (Kriegsfolgelasten II).

55Speech by Carlo Schmid in Parlamentarischer Rat (1949: 65)). For a very dualist interpretation of the orientation of the Constitutional Court see Ohler (2015: 40-41).56 See the seminal ruling pronounced in the famous »Lüth-Urteil« (1958). See outstanding discussion of the role of human rights jurisprudence in separating different social domains from the state in Scholz (1971: 294; 1978: 219).

26

words, the penetration of international human rights into domestic constitutional law proved a foundation on which the national political system was able to evolve as a national system of inclusion, and on which national society as a whole assumed a broad inclusionary form.

Across all different lines of state building, however, surely the most illuminating example of the inclusionary, structurally reinforcing function of international human rights in a national society can be found in Argentina – notably, during the post-military transition under Alfonsín, starting in 1983.

It is widely documented that, historically, questions of labour integration and material rights distribution had played an intensely polarising and deeply destabilising role in Argentine society. Traditionally, the Argentine political system possessed a very low degree of autonomy in its relation towards rival factions in the industrial economy. Depending on the inner-societal balance of class forces, different social groups sought openly to monopolise state resources in order to secure privileged political protection for select social prerogatives. The general weakness of the state was exacerbated by the fact that, after 1946, Perón created a corporatist constitutional system in Argentina, and he proclaimed legitimacy for his government by consolidating group rights for organized labour and by integrating trade unions in the state, thus transforming the state into a socio-economic battlefield. From 1946, in fact, lines of political polarisation ran along the deep fissure between Peronists, who favoured (albeit often very coercive) corporatist labour integration, and anti-Peronists, who promoted a more exclusionary system of corporatism, centred on a fusion of selective co-optation of labour and repressive anti-union legislation (see Collier and Collier 1991: 148).57 In consequence, the political system was exposed to inclusionary overstretch, and it lacked sufficient institutional stability to incorporate, or at least mollify, the rival demands directed towards it from different social groups that it was required to integrate and represent. One obvious result of this was that control of the political system was usually transferred, often violently and invariably without due use of democratic procedure, from groups favouring integration of labour in the state and groups favouring forcible repression of the labour movement.

During the Argentine transition, however, Alfonsín strategically steered a course between the more extreme points in the spectrum of societal polarization. Invoking the authority of international human rights organizations and the newly founded Inter-American Court of Human Rights (IACtHR), he utilized international human rights as key normative elements in a strategy of ex-nihilo political structure building and systemic formation, designed to elevate the publicly inclusive distinction of the

57 Representing a huge volume of literature on this point, see the claim that both factions viewed politics in ‘zero-sum terms’ in Epstein ((1989: 14). On the coercive aspects of Perón’s labour policies, see Baily (1967: 102–116).

27

state, and to weaken the internally corrosive impact of societal polarization on the political system.

Distinctively, from the outset, Alfonsín employed international human rights norms as a vocabulary of legitimacy for the new democratic regime in its entirety, and he derived basic authority for governance by recognizing international courts as norm providers and by reflecting the programmes of international human rights organizations (see Brysk 1994: 95, 107; Lutz and Sikkink 2000). However, this use of human rights was conceived, in particular, as a governmental technique with implications for labour regulation. Quite manifestly, Alfonsín did not pursue anti-labour policies, and his policies were not strictly anti-corporatist. Ultimately, in fact, Alfonsín reserved certain special privileges for representatives of the Peronist labour movement, and some unions retained quasi-monopolistic positions in the margins of the state.58 Nonetheless, Alfonsín devised a strategy of using international human rights to downplay the symbolic importance of labour integration as a source of democratic legitimacy, to depoliticize trade unionism, and emphatically to detach the state and its legitimacy from functions of corporatist mediation (Munck 1998: 155; Cook 2007: 64). Tellingly, for example, senior advisors on constitutional reform to the early Alfonsín government specifically advocated the promotion of a constitutional order based strictly in single subjective (not group-based) rights, and they sought to accentuate single rights as a basic constitutional grammar because this offered a mechanism for organizing democratic government whilst also protecting the state from excessive coalescence with private/economic organizations (Nino 1998: 154). Accordingly, one of Alfonsín’s first legislative packages (Ley de Reordenamiento Sindical, 1983/84), although it clearly recognized the freedom of trade unions, was designed to weaken the corporatist structure of trade union organization, and it imposed a pattern of single rights holding through society in order to separate units of economic organization from the state itself (Patroni 2001: 268; Gaudio and Domeniconi 1986: 427). This law was ultimately not approved by the senate. But it was followed by further, albeit diluted, acts of legislation to democratize trade-union structures.

To some degree, these policies had the outcome that the state was able to deflect from itself the collective conflicts that had traditionally undermined its independence,59 and it gradually consolidated a political culture in which political authority could be defined autonomously in relation to potent private organizations. Ultimately, the de-emphasis of class in Argentina under Alfonsín terminated the so-called impossible

58 See recent challenges to this arrangement in the Supreme Court: Argentine Supreme Court Rossi, Adriana María c/Estado Nacional – Armada Argentina (9.12.2009); Asociación Trabajadores del Estado contra Ministerio de Trabajo sobre Ley de Asociaciones Sindicales»/ ("Fallo ATE"), case 201, L. XL.59 In support see Peruzzotti (2001: 142, 145). Close to my position, Peruzzotti sees the process of ‘constitutionalization’ in Argentina as expressed through a growing ‘institutional differentiation between state and society’, induced by the ‘emergence of rights-oriented politics’ (148).

28

game), which, caused by the deep split between Peronist and anti-Peronist factions, had debilitated Argentine democracy (Ranis 1992: 54, 61). After the 1980s, Argentine trade unions began to renegotiate the terms of their engagement with the political system, and, although many elements of political corporatism remained intact, trade unions assumed an increasing independent role (Murillo 1997: 431, 440). In consequence of this, gradually, the policy-making options of the state increased, and the transparent porosity of the state to the prerogatives of influential collective actors was diminished. As a result of this, moreover, the basic inclusionary force of the state increased, and successive governments were able to legislate in increased autonomy against powerful private interests, and they were able to impose legislation, relatively uniformly, across all society.60 As in the post-authoritarian democracies created after 1945, therefore, the constitutional transition in Argentina exemplifies a process in which actors in a national political system were able to utilize international human rights to soften the inclusionary pressures to which it was exposed, and in which a political system relied on international human rights law to construct itself, to some degree, as a more effectively inclusive (national) set of institutions.

Many more examples of the domestic importance of international human rights as instruments of inclusionary backstopping can be found in the political systems of national societies, especially, but not exclusively, in societies that have undergone post-authoritarian systemic transformation. It is in fact a widespread phenomenon that national constitutions have consolidated more robust political systems as they have secured strong protection for international human rights, using human rights norms to articulate their legitimacy towards their domestic populations. Through this process, above all, national states have been able to apply international human rights through society in order to depoliticize their historical confrontation with endemic societal conflicts, enabling them to perform acts of societal inclusion without extreme destabilization by antagonisms in their national societies. In most cases, this has occurred because states whose constitution assimilated international law have been able to muster legitimacy for acts of legislation which is stored, relatively abstractly, within the political system itself, and they have not been obliged to make their legitimacy absolutely contingent on the concrete incorporation and resolution of particular social antagonisms. The constitutionalization of international law, in consequence, has elevated the autonomy of national political systems because it has separated them from their national populations, and it has allowed them to perform acts of inclusion without relying for legitimacy on their ability to mediate between objective social groups in society. In so doing, paradoxically, the constitutionalization of international law has also increased the ability of national political systems to legislate and to include their national societies: the separation of the constitution from

60 For analysis of changing relations between state and trade unions after 2000, reflected in the fact that Kirchner’s government was able to promote pro-labour policies without full convergence with organized labour see Wylde (2011).

29

national populations, accomplished through international human rights, has widely enabled national political systems to act as more reliable centres of even national inclusion.

In these respects, the rise of constitutions with a global dimension, in which national states are locked into a transnational system of norms, is deeply and continuously linked to the formative institutional pressures, which first created national constitutions, national political systems, and national societies more widely. Indeed, national states have tended to accept integration in a global constitutional system because this allows them effectively to operate as national states, and thus to secure the inclusionary reality which they originally projected under national constitutional law. The basic telos of national inclusion initiated through classical constitutionalism has usually only approached completion in societies in which international law interrupts the concrete legitimational fixation of the state on its own population. Usually, states only learned to include their populations as they developed an inclusionary structure based in internationally defined rights, which detached the state’s construction of its legitimacy from its own constituency. The ability of states to act as national states, therefore, commonly depends on the fact that international law, in part at least, supplants national sovereignty, and rights directed towards the immediate inclusion of the sovereign people, as the constitutional ground of legal-political inclusion.

Conclusion: Logics of inclusionThe common assumption that modern society is marked by a pattern of constitutionality that differs radically from classical constitutionalism is shaped, in some respects, by a sociologically reductive account of classical constitutions. This Chapter attempts to modify this approach by highlighting the functional position of classical constitutions, and by drawing attention to their role in establishing a system of inclusion for modern societies. Through this paradigm shift, constitutions can be observed as evolutionary structures, which react to pressures induced by the functional differentiation of society, and which cement a foundation for the political system through the construction of a multi-tiered set of rights. If constitutions are approached as expressions of a logic of societal inclusion, the transformation of society’s constitutional order linked to the process of globalization appear, in different ways, as a continuous extension of classical constitutional norms. Vitally, the rise of constitutions with a global or transnational dimension can be observed as a process of compensatory inclusion, establishing a normative apparatus to absorb inclusionary pressures which national constitutions partly engendered, yet which they could not, without transnational normative sustenance, resolve. In each respect, global constitutional norms are connected by a causal deep thread to formative processes that are structurally embedded in national societies.

30

31

BibliographyAckerman, Bruce (1991), We the People, vol I: Foundations. Cambridge Mass: Harvard University Press.

Albertin, Lothar (1974), ‘Faktoren eines Arrangements zwischen industriellem und politischem System in der Weimarer Republik’, in Hans Mommsen et al (eds.), Industrielles System und politische Entwicklung in der Weimarer Republik. Düsseldorf: Droste, pp. 658-74.

Althusius, Johannes (1614), Politica, third edition. Herborn.

Austin, John (1995 [1832]), The Province of Jurisprudence Determined, edited by W. Rumble. Cambridge: Cambridge University Press.

Baily, Samuel L. (1967), Labor, Nationalism, and Politics in Argentina. New Jersey: Rutgers University Press.

Balenciaga, Aitor Iraegui (2012), La democracia en Bolivia. La Paz: Plural.

Bendix, Reinhard (1996), Nation-Building and Citizenship. Studies of our Changing Social Order, new and enlarged edition. New Brunswick: Transaction Press.

Berman, Paul Schiff (2007), ‘A Pluralist Approach to International Law’, Yale Law Journal 32: 300-329.

Böhret, Carl (1966), Aktionen gegen die kalte Sozialisierung 1926-1930. Ein Beitrag zum Wirken ökonomischer Einflußverbände in der Weimarer Republik. Berlin: Duncker und Humblot.

Branch, Daniel and Nicholas Cheeseman (2006), ‘The Politics of Control in Kenya: Understanding the Bureaucratic-Executive State, 1952-78.’ Review of Africa Political Economy 33: 11-31.

Brysk, Alison (1994), The Politics of Human Rights in Argentina. Protest, Change, and Democratization. Stanford: Stanford University Press.

Cameron, Maxwell (2013), Strong Constitutions: Social-Cognitive Origins of the Separation of Powers. Oxford: Oxford University Press.

Caramani, Daniele (2004), The Nationalization of Politics. The Formation of National Electorates. Cambridge: Cambridge University Press.

Caruso, Daniela (2006), ‘Private Law and State-Making in the Age of Globalization.’ New York University Journal of International Law and Politics 39(1): 1-74.

32

Collier, Ruth Berins and David Collier (1991), Shaping the Political Arena. Critical Junctures, The Labor Movement, and Regime Dynamics in Latin America. Princeton University Press.

Cook, Maria Lorena (2007), The Politics of Labor Reform in Latin America. Between Flexibility and Rights. University Park, PA.: Pennsylvania State University Press.

Costa Pinto. António (2011), ‘Ruling Elites, Political Institutions and Decision-Making in Fascist-Era Dictatorships: Comparative Perspectives’ in António Costa Pinto (ed.), Rethinking the Nature of Fascism. Comparative Perspectives. Basingstoke: Palgrave, pp. 197-226.

Church, Clive (1981), Revolution and Red Tape. The French Ministerial Bureaucracy 1770-1850. Oxford: Clarendon.

Epstein, Edward C. (1989), ‘Labor, Populism and Hegemonic Crisis in Argentina’ in Edward C. Epstein (ed), Labor Autonomy and the State in Latin America. Boston: Unwin Hyman, pp. 13-38

Fasoli, Gina and Pietro Sella (eds) (1937), Statuti di Bologna dell’anno 1288, in 2 vols. Vatican: Biblioteca Apostolica Vaticana.

Fassbender, Bardo (1998), ‘The United Nations Charter as Constitution of the International Community.’ Columbia Journal of Transnational Law 36(3): 539-619.

Feuerbach, Paul Johann Anselm (1789), Anti-Hobbes. Erfurt: Henningsche Buchhandlung.

Fischer-Lescano, Andreas (2003), ‘Die Emergenz der Globalverfassung.’ Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 63: 717- 760.

García, Antonio (1966), ‘Los sindicatos en el esquema de revolución nacional: El sindicalismo en la experiencia boliviana de nacionalización y desarrolo.’ El triestre económico 33(132((4)): 597-629.

Garon, Sheldon (1987), The State and Labor in Modern Japan. Berkeley: University of California Press.

Gaudio Ricardo, and Héctor Domeniconi (1986), ‘Las primeras elecciones sindicales en la transición democrática.’ Desarrollo Económico 26(103): 423-454.

Gierke, Otto (1873), Das deutsche Genossenschaftsrecht, vol. II: Geschichte des deutschen Körperschaftsbegriffs. Berlin: Weidmann.

33

Gironda, Vito Francesco (2010), Die Politik der Staatsbürgerschaft. Italien und Deutschland im Vergleich 1800-1914. Göttingen: Vandenhoeck und Ruprecht.

Gloria, Andrea (ed.), Statuti del Comune di Padova del secolo XII all’anno 1285. Padua: Sacchetta.

Gosewinkel, Dieter (2001), Einbürgern und Ausschließen. Die Nationalisierung der Staatsangehörigkeit vom Deutschen Bund bis zur Bundesrepublik Deutschland. Göttingen: Vandenhoeck und Ruprecht.

Grimm, Dieter (1991), Die Zukunft der Verfassung. Frankfurt am Main: Suhrkamp.

Grimm, Dieter (2005), ‘The Constitution in the Process of Denationalization.’ Constellations 12 (2005): 447-463.

Grimm, Dieter (2009), ‘Gesellschaftlicher Konstitutionalismus – Eine Kompensation für den Bedutungssschwund der Staatsverfassung?’ in Matthias Herdegen, Hans Hugo Klein, Hans-Jürgen Papier and Rupert Scholz (eds), Staatsrecht und Politik. Festschrift für Roman Herzog zum 75. Geburtstag. Munich: Beck, 67-81.

Grübler, Michael (1982), Die Spitzenverbände der Wirtschaft und das erste Kabinett Brüning: Vom Ende der Großen Koalition 1929/30 bis zum Vorabend der Bankenkrise 1931. Düsseldorf: Droste.

Habermas, Jürgen (1992), Faktizität und Geltung. Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats. Frankfurt am Main: Suhrkamp.

Hamann, Andrea and Hélène Ruiz Fabri (2008), ‘Transnational Networks and Constitutionalism.’ International Journal of Constitutional Law 6(3-4): 481-508.

Hathaway, James C. (2005), The Rights of Refugees in International Law. Cambridge: Cambridge University Press.

Heller, Hermann (1971), Sozialismus und Nation, in: Heller, Gesammelte Schriften, edited by Martin Drath, in 3 vols. Leiden: Sijthoff, Vol. I: pp. 439-526.

Holmes, Stephen (1995), Passions and Constraint. On the Theory of Liberal Democracy. Chicago: Chicago University Press.

Jessup, Philip C. (1959), The Use of International Law. Ann Arbor: University of Michigan Law School.

34

Joerges, Christian (2014), ‘Legitimacy without Democracy in the EU? Perspectives on the Constitutionalization of Europe through Law’ in Miguel Maduro, Kaarlo Tuori and Suvi Sankari (eds), Transnational Law: Rethinking European Law and Legal Thinking. Cambridge: Cambridge University Press, pp. 248-68.

Johnson, Chalmers (1982), MITI and the Japanese Miracle. The Growth of Industrial Policy, 1925–1975. Berkeley: California University Press

Kahn, Paul W. (1997), The Reign of Law. Marbury v. Madison and the Construction of America. New Haven: Yale University Press.

Kanalan, Ibrahim (2014), Die universelle Durchsetzung des Rechts auf Nahrung gegen transnationale Unternehmen. Tübingen: Mohr.

Kjaer, Poul (2014), ‘Toward a Sociology of Intermediary Institutions: The Role of Law in Corporatism, Neo-Corporatism, and Governance’ in Mikael Rask Madsen and Chris Thornhill (eds), Law and the Formation of Modern Europe. Perspectives from the Historical Sociology of Law. Cambridge: Cambridge University Press, pp. 117-141.

Klabbers, Jan, Anne Peters and Geir Ulfstein (2009), The Constitutionalization of International Law. Oxford: Oxford University Press.

Kuo, Ming-Sung (2010), ‘The End of Constitutionalism as we know it? Boundaries and the State of Global Constitutional (Dis)ordering.‘ Transnational Legal Theory 1(3): 329-369.

Lauterpacht, Hersch (1950), International Law and Human Rights. London: Steven & Sons.

Leibholz, Gerhard (1957), ‘Einleitung: Der Status des Bundesverfassungsgerichts.’ Jahrbuch des öffentlichen Rechts, Neue Folge 6: 110-221.

Loughlin, Martin (2009), ‘In defence of Staatslehre.’ Der Staat 48(1): 1-27.

Luebbert, Gregory M. (1987), ‘Social Foundations of Political Order in Interwar Europe’, World Politics 39(4): 449-478.

Luhmann, Niklas (1984), ‘Widerstandsrecht und politische Gewalt.’ Zeitschrift für Rechtssoziologie 5(1): 36-45.

Luhmann, Niklas (1997), Die Gesellschaft der Gesellschaft. Frankfurt am Main: Suhrkamp.

Lutz, Ellen L. and Kathryn Sikkink (2000), ‘International Human Rights Law and Practice in Latin America.’ International Organization 54(3): 633-659.

35

Marx, Karl 1958-68 [1844]. Zur Judenfrage, pp. 347-377 in Marx and Engels, Werke, in 43 vols. Berlin: Dietz. Volume I.

Mellis, Guido (1988), Due modelli di amministrazione tra liberalismo e fascismo. Burocrazie tradizionali e nuovi apparati. Rome: Ministro per i beni culturali.

Mittermaier, C.J.A. (1841), Die Strafrechtsgesetzgebung in ihrer Fortbildung geprüft, I. Heidelberg: Karl Winter.

Morgan, Kenneth O. 1979. Consensus and Disunity. The Lloyd George Coalition Government 1918-1922. Oxford: Clarendon,

Munck, Gerardo L. (1998), Authoritarianism and Democratization. Soldiers and Workers in Argentina, 1976-1983. University Park, PA.: Pennsylvania State University Press.

Murillo, M. Victoria (1997), ‘La adaptación del sindicalismo argentino a las reformas de Mercado en la primera presidencia de Menem.’ Desarrolo Económico 37(147) (1997): 419-446.

Nautz, Jürgen P. (1985), Die Durchsetzung der Tarifautonomie in Westdeutschland. Das Tarifvertragsgesetz vom 9. April 1949. Frankfurt am Main: Lang.

Nino, Carlos Santiago (1989), ‘Transition to Democracy, Corporatism and Constitutional Reform in Latin America.’ University of Miami Law Review 44: 129-164.

Patroni, Viviana(2001), ‘The Decline and Fall of Corporatism? Labour Legislation Reform in Mexico and Argentina during the 1990s.’ Canadian Journal of Political Science 34(2): 249-274.

Peruzzotti, Enrique (2001), ‘The Nature of the New Argentine Democracy. The Delegative Democracy Argument Revisited.’ Journal of Latin American Studies 33(1): 133-155

Peters, Anne (2014), Jenseits der Menschenrechte. Die Rechtsstellung des Individuums im Völkerrecht. Tübingen: Mohr.

Rabkin, Jeremy A. (2007), Law without Nations? Why Constitutional Government requires Sovereign States. Princeton: Princeton University Press.

Ranis, Peter (1992), Argentine Workers. Peronism and Contemporary Class Consciousness. Pittsburgh: University of Pittsburgh Press.

36

Rebentisch, Dieter (1989), Führerstaat und Verwaltung im Zweiten Weltkrieg. Verfassungsentwicklung und Verwaltungspolitik 1939-1945. Stuttgart: Franz Steiner.

Reinisch, August (2007), ‘The Immunity of International Organizations and the Jurisdiction of their Administrative Tribunals.’ Chinese Journal of International Law 7(2): 285-306.

Remmer, Karen L. (1989), ‘Neopatrimonialism: The Politics of Military Rule in Chile, 1973-1987.’ Comparative Politics 21(2): 149-170.

Renner, Moritz (2009) ‘Towards a Hierarchy of Norms in Transnational Law?’ Journal of International Arbitration 26(4): 533-555.

Rütten, Wilhelm (1996), ‘Gewerkschaften und Arbeitsrecht nach dem Zweiten Weltkrieg (1945–1950/52)’ in Bernhard Diestelkamp, Zentarô Kitagawa, Josef Kreiner, Junichi Murakami, Knut Wolfgang Nörr and Nobuyoshi Toshitani (eds), Zwischen Kontinuität und Fremdbestimmung. Zum Einfluß der Besatzungsmächte auf die deutsche und japanische Rechtsordnung 1945 bis 1950. Tübingen: Mohr, pp. 149-166.

Sangmpam, S.N. (1993), ‘Neither Soft nor Dead: The African state is Alive and Well.’ African Studies Review 36(2): 73-94.

Savigny, Friedrich Carl von (1840a), Vom Beruf unserer Zeit für Gesetzgebung. Heidelberg: J.C.B. Mohr.

Savigny, Friedrich Carl von (1840b), System des heutigen Römischen Rechts, in 9 vols. Berlin: Veit und Comp, vol. I.

Schmitt, Carl (1928), Verfassungslehre. Berlin: Duncker und Humblot.

Schmitt, Carl (1940 [1939]), ‘Über die zwei großen ,Dualismen’ des heutigen Rechtssystems’ in Carl Schmitt, Positionen und Begriffe im Kampf mit Weimar-Genf-Versailles. Berlin: Duncker & Humblot, pp. 261-271.

Scholz, Rupert (1971), Die Koalitionsfreiheit als Verfassungsproblem. Munich: Beck

Scholz, Rupert (1978), Pressefreiheit und Arbeitsverfassung. Verfassungsprobleme um Tendenzschutz und innere Pressefreiheit. Berlin: Duncker und Humblot.

Schorkopf, Frank (2010), ‘Völkerrechtsfreundlichkeit und Völkerrechtsskepsis in der Rechtsprechung des Bundesverfassungsgerichts’ in Thomas Giegerich (ed), Der offene Verfassungsstaat des Grundgesetzes. Berlin: Duncker & Humblot.

37

Shaffer, Gregory (2012), ‘Transnational Process and State Change.’ Law & Social Inquiry 37(2): 229-264.

Shaw, Timothy (1982), ‘Beyond Neo-Colonialism: Varieties of Corporatism in Africa.’ The Journal of Modern African Studies 20(2): 239-261.

Sewell, William Hamilton (2008), Work and Revolution in France: The Language of Labor from the Old Regime to 1848. Cambridge: Cambridge University Press.

Sieyès, Emmanuel Joseph (1789a), Qu'est-ce que le Tiers-État?, second edition, Paris.

Sieyès, Emmanuel Joseph (1789b), Préliminaire de la constitution: Reconnaissance et exposition raisonnée des droits de l'homme & du citoyen. Versailles: Ph.-D. Pierres.

Sonenscher, Michael (1989), Work and Wages. Natural Law, Politics and the eighteenth-century French Trades. Cambridge: Cambridge University Press.

Streeck, Wolfgang and Philippe C. Schmitter (1985), ‘Community, Market, State—and Associations? The Prospective Contribution of Interest Governance to Social Order.’ European Sociological Review 1(2): 119-138.

Teubner, Gunther (2012), Constitutional Fragments. Societal Constitutionalism and Globalization. Oxford: Oxford University Press.

Thornhill, Chris (2011), A Sociology of Constitutions. Constitutions and Sate Legitimacy in Historical-Sociological Perspective. Cambridge: Cambridge University Press.

Thornhill, Chris (2016), A Sociology of Transnational Constitutions. Social Foundations of the Post-National Legal Structure. Cambridge: Cambridge University Press.

Triepel, Heinrich (1899), Völkerrecht und Landesrecht. Leipzig: Hirschfeld.

Tucker, Tudor Thomas (1983 [1784]), ‘Conciliatory hints, attempting, by a fair state of matters, to remove party prejudice’ in C.S. Hyneman and D.S. Lutz (eds), American Political writing during the founding era 1760-1805, edited in 2 vols. Indianapolis: Liberty Fund, I, pp. 606-630.

Turgot, Anne-Robert-Jacques (1787[1775]), ‘Mémoire sur les Municipalités’, in Turgot, Oeuvres Posthumes. Lausanne: n.p., pp. 1-181.

Unger, Moritz von (2008), Menschenrechte als transnationales Privatrecht. Berlin: Duncker & Humblot.

38

Verdross, Alfred (1926), Die Verfassung der Völkerrechtsgemeinschaft. Vienna: Springer.

Viellechner, Lars (2013), Transnationalisierung des Rechts. Weilerszwist: Velbrück.

Vorländer, Hans (2006), ‘Deutungsmacht – Die Macht der Verfassungsgerichtsbarkeit’ in Hans Vorländer (ed.), Die Deutungsmacht der Verfassungsgerichtsbarkeit (Wiesbaden: Verlag für Sozialwissenschaften, pp. 9-36.

Wahl, Rainer (2011) ‘Die Rolle staatlicher Verfassungen angesichts der Europäisierung und der Internationalisierung’ in Thomas Vesting and Stefan Korioth (eds.), Der Eigenwert der Verfassungsgeschichte. Was bleibt von der Verfassung nach der Globalisierung? Tübingen: Mohr, pp. 355-378.

Weber, Max (1921) Wirtschaft und Gesellschaft. Grundriß der verstehenden Soziologie. Tübingen: Mohr.

Weiler, Joseph H.H. (1991), ‘The Transformation of Europe.’ Yale Law Journal 100: 2404-2483.

Wienfort, Monika 2001. Patrimonialgerichte in Preussen. Ländliche Gesellschaft und bürgerliches Recht 1770-1848/49. Göttingen: Vandenhoeck und Ruprecht.

Wylde, Christopher (2011), ‘State, Society and Markets in Argentina: The Political Economy of Neodesarollismo under Néstor Kirchner, 2003-2007.’ Bulletin of Latin American Research 30(4): 436-452.

Young, Ernest A. (2003), ‘The Trouble with Global Constitutionalism.’ Texas International Law Journal 38: 527-546.

Zumbansen, Peer (2001), ‘Vergangene Zukunft des Völkerrechts.’ Kritische Justiz 34(1): 46-68.

Zumbansen, Peer (2010), ‘Transnational Legal Pluralism.’ Transnational Legal Theory 1(2): 141-189.

39