Book Review Series: "Constitutional Fragments: Societal Constitutionalism and Globalization" by Gunther Teubner

Reviewed by: Kyle Reinert  Genre: Constitutional Law, Human Rights

About the Author:  Gunther Teubner is Professor of comparative private law and legal sociology at the International University College at Torino. He is former Otto Kahn Freund Professor at the London School of Economics. At present he is Principal Investigator at the Excellence Cluster "Normative Orders" at the Goethe-University Frankfurt. He taught at the European University Institute Florence, Italy, and at the universities of Bremen and Frankfurt. He was Visiting Professor in Berkeley, Ann Arbor, Stanford, Leyden, Toronto, Berlin, and Maastricht. He received honorary doctorates from the universities Lucerne, Napoli, Tiflis, Macerata, Lund.

Constitutional Fragments is an exploration of the growing constitutionalization of not only political entities, but of social functions.  International entities, multinational corporations, and transnational groups are consistently playing bigger roles across the globe and, simultaneously, consistently raising bigger concerns.  The original constitutional theories and methods of constitutionalization simply are not equipped to deal with today’s problems of fragmentation, and Teubner writes to address both this fact and to better explore the modern global outlook of worldwide non-state constitutions.  In pursuit of his goal, Teubner proposes societal constitutionalism, or constitutional sociology as a practice, to explore, encourage, and ultimately institutionalize, the informal constitutionality present in trans- and multi-national entities and organizations in a way that can accept and respond to the growing fragmentation of constitutionalization.

Teubner asserts that nation-state constitutions are no longer equipped to deal with the modern era, pointing to the growing fragmentation of social functions into increasingly complex, and increasingly transnational organizations.  Teubner explains this position by examining nation-state and global constitutionalization theories and finding them lacking in dealing with transnational regimes, due to power, political, and social concerns.  Teubner goes on to explain the idea of constitutional fragmentation, that smaller, more specialized constitutions, based not in the state constitutional power, but within a national or transnational organization itself, are best equipped to deal with the modern complexity and fragmentation of social and transnational organizations and problems.

Constitutional Fragments: Summary

Are modern constitutional thinkers and state polities any longer capable of playing the role of law-giver and constitutional grounding for all sectors of society?  The modern era has given rise to a wide variety of problems that original constitutional thinkers never had a chance to consider.  Teubner points to corporate human rights scandals, accusations that the WTO endangers the environment or health in the name of free trade, and corruption among medicine, science, and sport, as examples of modern concerns.  States remain the main power players in the modern era, but they are ill-equipped to deal with the growing fragmentation of organizations and their problems, all which fall into different functional areas of society.  Modern theorists advocate new schools of thought to deal with the complications of the modern era but Teubner believes that, as of yet, the discussion has focused on the wrong issues.

Teubner explains that existing schools have focused too heavily on the original arguments of nation-state constitutionalists and global constitutionalists.  Nation-state constitutionalists focus on the legitimacy and power of nation-states and their constitutions, and would see transnational entities and constitutions rise only out of nation-state sovereignty.  Anything less would be seen as an affront to national sovereignty.  At the other extreme are the global constitutionalists, who clamor for a world-wide constitution and for regulatory policies to be established by global actors.  Teubner also attempts to rebut the assumption held by most existing constitutional theorists that a constitutional emptiness exists outside of the nation-state—that constitutions only exist within and for the state.  Rather, he claims that recognizable constitutional norms exist among transnational regimes and that these can and should be encouraged (73-74).  Teubner proposes that fragmented constitutionalization, with smaller, specialized constitutions for different functions of society, such as economic, artistic, or scientific spheres, is the best way forward for understanding and dealing with increasingly complex global and societal diffusion.

Constitutions have existed for multiple sections of society in the past, but within the nation-state, these constitutions have had myriad problems.  Teubner uses these examples to show the unsuitability of nation-state constitution-making for modern social and transnational organizations.  Generally, Teubner believes that politics as a system has played too much of a role in establishing constitutions for other systems, such as the economy, where that system needs greater autonomy.  This is represented in totalitarian constitutional theories, wherein full social systems are brought under the strict control of politics, often allowing control of all social systems by single or few actors within the nation-state.  The other constitutional extreme is the liberal tradition, which Teubner notes has largely sidelined non-political systems and left them completely outside of national constitutional thought.  In the modern era, welfare state constitutional theories have struck a better balance between the two extremes, Teubner argues, by taking responsibility for certain social functions, such as education, while leaving others, such as the economy, undisturbed.  Teubner celebrates the partial inclusion of systems other than politics into constitutional discussion, especially where the welfare state establishes the framework for constitutions focused on specific sections of society, such as economics or education, but in most cases, still finds too much injection of politics into these other systems.  The “ordoliberal” school of thought, a school proposing the supremacy of economics over politics, proposes extreme autonomy of the economic system within a proper constitutional framework, to address this problem.  Teubner notes that it does so at the expense of other systems, however.  Teubner rejects all of these approaches as lacking in some important way when dealing with fragmented constitutional thought for organizations between and outside of states.  Teubner believes, instead, that nation-states will need to step back from the constitutional process, and encourage it without attempting to control it.

Teubner believes that a form of constitutional pluralism, dividing constitutional authority, legitimacy, and function among parallel constitutions for specific social systems, is necessary to provide for both the autonomy and framework concerns.  Teubner's theory of constitutional fragmentation strikes this balance by granting autonomy to “collegial formations” which are to be legitimized, politically guaranteed, and legally secured.  For examples of this theory in motion, Teubner points to historical religious autonomy and free organizations.  This sort of complex arrangement will only work within the confines of a nation-state, however, where there are sufficient power and resources to manage the multiple social systems.

Teubner then poses the question of how to move constitutional pluralism from within the nation-state to the transnational arena.  A few attempts have had limited success.  At first glance, there are major institutions such as the UN, the WTO, IMF, World Bank, and myriad others, which have an established, internal constitutional structure.  Still, Teubner points out major difficulties for establishing constitutional structures for non-state organizations.  For public actors, nation-states are often politically invested, and are likely to heavily politicize any attempt at constitutionalization.  This detracts from the necessary autonomy of the organization, and injects concerns aside from the efficient and proper functioning of the organization.  For their part, private actors establishing a constitutional organization must be willing to work together in a very long-term situation, with trust and reciprocity beyond the normal partnership agreements, which may simply be outside of many private ability to do.  Risk-averse corporations and organizations may not be willing to invest in constitutional structure which can fall apart if other actors back out, especially in an area ruled not by the consistent laws of states, but by the more vacuous international law.

While theorists often view transnational regimes as incapable of being subjects capable of constitutionalization, Teubner asserts that not only are transnational public institutions constitutionalizing, but transnational private institutions, such as Social Accountability International (56). are as well.  Other theorists argue that, where some see constitutionalization occurring, in reality, organizations have simply juridified, but do not approach true constitutionalization since the rules go no further than allowing for dispute settlement or arbitration.  Teubner argues the opposite, that the fragmentation of society across the globe into constitutional regimes defined by their function is a reality.  He goes on to lay out four major criteria to examine the quality and status of a constitutional norm, by which we can identify organizations which are constitutionalizing.  First, one must examine whether the norms produced by the transnational regime perform more than merely regulatory or conflict-solving functions.  Second, one must examine whether it is possible to identify different arenas of constitutionalization, comparable to organized political processes and spontaneous processes of public opinion.  Third, one must examine whether the legal norms of regime develop a sufficiently close connection to their social context, comparable to that between constitutional norms of nation states.  Finally, one must examine whether the regimes form constitutional structures comparable to those in national states, especially the supremacy of constitutional and judicial rules and review.

Constitutional Fragments: Analysis

Teubner raises many interesting and important ideas.  Indeed, constitutional problems faced today are different and more complicated than those faced two-hundred, a hundred, or even fifty years ago.  He refutes many existing understandings of transnational entities and their constitutionalization.  While Teubner seems to overemphasize the distinction between juridification and constitutionalization, it was not his distinction in the first place.  In responding to it, he convincingly portrays possible transnational constitutions in the light of true constitutionalization.  The concept as a whole that Teubner is advocating, that states will likely need to take a much more hands-off approach to constitutionalization, is an interesting counterpoint in a world where states would prefer to do anything but.  Otherwise, it does seem that the regimes will be negatively affected by politicization.  Teubner also explains well why many of the existing examples of constitutionalization which exist within nation-states are not easily transferable to the transnational arena.

That said, Teubner’s outlook on the future of constitutionalization may be a little optimistic.  The de-politicization of major organization, especially public organizations originally established by powerful states, is nearly impossible in the current atmosphere.  While it is true that certain organizations have been able to emancipate themselves from their founding circumstances, such as the UN, in practice an emancipation strong enough to allow for true constitutionalization would likely result in the withdrawal of multiple states from that organization’s authority.  In conclusion, Teubner identifies multiple areas of concern for transnational politics and constitutionalization.  Until states are more willing to give up political power, or until private actors become the more important focus of constitutionalization, Teubner’s insights and propositions may not be easily practicable.