Saturday, July 20, 2013

"Dynamic Societal Constitutionalism"--Paper Posted

(Pix (c) Larry Catá Backer 2013)

In his 2004 Storrs Lecture, Gunther Teubner asked:

how is constitutional theory to respond to the challenge arising form three current major trends—digitization, privatization and globalization—for the inclusion/exclusion problem? That is how today’s “constitutional question” ought to be formulated, by contrast with the 18th and 19th century question of the constitution of nation-states. While that had to do with disciplining repressive political power by law, the point today is to discipline quite different social dynamics.” (Gunther Teubner, Societal Constitutionalism: Alternatives to State-Centered Constitutional Theory,  Storrs Lectures, Yale Law School, 2003/04, p.2).
To this he posited ”three secular tends subverting state-centered constitutional thought and making societal constitutionalism on a global level empirically and normatively plausible." (Ibid., 7). These he calls the "dilemma of rationalization," (ibid., 7-10), "polycentric globalization (ibid., 10-12); "creeping constitutionalization (ibid., 12-15).  Together, these trends are producing a move toward autonomous non-state communities, these multiple communities produce multiple and simultaneously applicable overlapping governance regimes (polycentricity) that when internally coherent can be organized using the forms of public constitutions now applied to the social (that is beyond the political) sphere.

These ideas were expanded by a group of scholars at  an international conference on Transnational Societal Constitutionalism, organized by Gunther Teubner and Anna Beckers organised . The conference was hosted by HiiL, the International University College of Turin (IUC) and the Collegio Carlo Alberto. It took place at the Collegio Carlo Alberto, Torino from 17 to 19 May 2012. The papers from that conference will be published by the Indiana Journal of Global Legal Studies. I considered the possibility of theorizing a dynamic element to societal constitutionalism in a paper originally titled "Collisions of Societal Constitutions: Hierarchical Power Arrangements and Horizontal Effects in the Management of Human Rights Regimes," that, when published, will be titled: Dynamic Societal Constitutionalism: Transnational corporations’ outward expression of inward self-constitution: The enforcement of  human rights by Apple, Inc. The abstract and introduction follow.  Comments and reactions most welcome.


ABSTRACT: Societal constitutionalism presents us with alternatives to state-centered constitutional theory. But this alternative does not so much displace as extend conventional constitutional theory as a set of static premises that structure the organization of legitimate governance units. Constitutional theory, in either its conventional or societal forms, engages in both a descriptive and a normative project—the former looking to the incarnation of an abstraction and the later to the development of a set of presumptions and principles through which this incarnation can be judged. Constitutional theory is conventionally applied to states—that is, to those manifestations of organized power constituted by a group of individuals, bounded by a territory, and evidenced by the institution of government. But today a certain measure of disaggregation has managed to manifest a constituting power. Globalization has opened holes in the walls that used to serve to police and protect states and their power authority. Societal aggregations can exist now between borders. Groups of individuals (and not just natural persons) incarnate abstractions of governance and then judge them in ways that are consonant with constitutional theory. These emerging realities have produced societal constitutionalism. But like conventional constitutionalism, societal constitutionalism seeks the comfort of equilibrium and stasis as the basic operating premises of self-constituting governance systems. This paper considers societal constitutionalism in its dynamic element—as a system structures constant adjustment among the constituting elements of a governance unit (whether state, corporation, religion, etc.)—in three dimensional governance space. After an Introduction, Section I engages in framework setting, focusing on the structures of societal constitutionalism within the logic of globalization. Section II provides an illustration of a societally constituted enterprise operating in three dimensional dynamic governance space. Section III then develops the more important characteristics of this new dynamic and permeable constitutional framework. The paper concludes where it started—suggesting the need to expand our understanding of constitutional theory to include communication among systems in a complex polycentric constituting universe. Final version to be published as “Dynamic Societal Constitutionalism: Transnational corporations’ outward expression of inward self constitution: The enforcement of human rights by Apple, Inc.” in the Indiana Journal of Global Legal Studies.


Constitutional theory was once, and not so long ago,[1] the province of the state.[2] Its construction was meant to solidify and protect the ideology of a world order grounded on the state as the supreme (or in Marxist Leninist theory the sole[3]) construction of abstract social-political-economic societies. The state stood not merely as the sole self-constituting community, but also, like the God of the Old Testament,[4] produced an eco-system within a world populated by distinct and well-ordered subordinate enterprises that defined the international order,[5] but also the private ecologies of the modern non-governmental organization[6] and the economic enterprise.[7]

But globalization, like the apple well digested by Adam and Eve,[8] has expelled both constitution and constituting elements from the state of the Garden of Eden.[9] There has been scholarly movement away from the state and even public international organization paradigms,[10] to include private actors.[11] The result has been the production of a mass of self-constituting and constituted societies,[12] which exist in vertically and horizontally vectored arrangements of simultaneously governing, functionally differentiated[13] governance organs.[14] It has also produced a movement to advance another singular political project—the development of a single global government.[15] But it has also suggested the basic condition of fragmentation and power decentering as the basic condition within governance is constituted.[16] And it has also produced movements that suggest that what appears to be a broadening of constitutionalism outward from the state is instead the development of a kinetic element to governance grounded in networks,[17] or of institutions that now mediate between legal, political, and economic realms.[18] That religion is not included merely suggests an additional topic for the future when its constituting power becomes harder to avoid.[19] But most importantly, it has begun to interrogate the current limits of constitutional theory—moving analysis from a grounding in state to one in societal constitutionalism.[20] But does this alternative extend rather than displace conventional constitutional theory as a set of static premises that structure the organization of legitimate governance units?

Constitutional theory is grounded in two principal objectives—the first is to incarnate an abstraction, and the second is to develop a set of presumptions and principles through which this incarnation can be judged.[21] With respect to the first objective, constitutional theory can be understood as engaging in a descriptive project. This project, of course, is one that also evidences choices among characteristics deemed necessary to reify the idea of the constituent elements, the constituting acts, and the outlines of the object constituted.[22] Foucault,[23] perhaps, understood this best, without understanding its application to constitutional theory, when he described the way in which mass society has itself been incarnated from out of the mass of statistics, measures, habits, affinities, and characteristics that serve as an aggregation of circumstantial evidence of the object identified, and thus identified, given “life” (reality).[24] That is, abstractions like society and government are understood only by reference to the means by which their presence and effects are measured. The choice of what to measure, then, also becomes a choice about how to construct society, its premises and characteristics. Gunther Teubner[25] understood best the functional characteristics of the formerly functionally constrained notion of law.[26] But the descriptive project of constitutional theory does not produce a singular incarnation (despite the often misleading assertions of advocates of one or another of the forms it has taken). As such, constitutional theory must also be grounded judgment, and thus the second objective.

With respect to this second objective, constitutional theory can be understood as engaging in a normative project—a project that speaks to fundamental values in the relationship of the entity to its members and to others,[27] and to constrain politics.[28] This is a project that is meant to help distinguish among incarnations of institutional actors,[29] as well as among those societal aggregations from which such constructions might arise. It thus is meant to tie constitution to the greater project of social normative construction. Constitutional theory speaks of these distinguishing values/premises in terms of democracy, human rights and dignity, sustainability, and the like. But again, even the construction of social normative structures occurs in the plural. So, constitutional theory must also account for the normative values that would be central to its normative project—developing a basis for judging the choice and use of normative values in the incarnation of a constituted social object. To this end, legitimacy becomes a central component of the normative project of constitutional theory, with the evaluation of the “guts” of the incarnated (constituted) being the great focus. Constitutional theory speaks of these distinguishing values/premises in terms of rule of law, process, accountability, participation, and the like. That discussion is as possible within non-state governance units as it is within states. That is part of the urtext of societal constitutionalism, at once primal, seminal, or prototypical.

Constitutional theory, traditionally, has been applied to creations holding political power—that is, to those manifestations of organized power constituted by a group of individuals, bounded by a territory, and evidenced by the institution of government.[30] Territory and power served as the boundaries from within which these incarnations of aggregated existence operated—whether in legitimate or illegitimate form. Power was understood to be plenary (and thus political) in the sense that it could extend to the management of the life, property, and liberty of individuals subject to its will.[31] Such creations (national states) were autonomous and supreme within their territory. These territories would have to deal with other territories differently from the way they interacted with persons or entities within their territory. These states developed methods of communication with each other that, in its day, were understood by the monikers international law and relations. For some, those monikers remain the unique boundary posts of constitutional discourse, within which all else ought to be subsumed.[32] The extension of traditional constitutional theory is sometimes structured within notions of cosmopolitanism—though ones in which like systems are always matched with like systems. [33]

In contrast, societal constitutionalism is grounded in the insight that today a certain measure of disaggregation has managed to manifest a constituting power, manifestations that are understood to exist within a constitutional framework.[34] Globalization has opened holes in the walls that used to police and protect states and their power authority. Societal aggregations can exist now between borders. Groups of individuals (and not just natural persons) incarnate abstractions of governance and then judge them in ways that are consonant with constitutional theory. The territorial demarcations of these “states” are functional, and their power is bounded by the logic of the purpose of their existence. Yet, even without territory or the full panoply of political power, they can manifest an autonomous self-awareness and functionality that recalls the constitutional structures of states.[35] Though not states, they exist as constitutional entities all the same. These entities are developing methods of communicating with each other and with states through a variety of mechanisms—only some of which are grounded in the forms and content of traditional structures of law.[36]

The absence of territory also makes demarcation more nebulous. These societal constitutional organisms exist without the orderly arrangement of states (and the entities they have spawned within the international sphere). More complicated still, these societally constituted organisms exist alongside, within, between, and among states. Polycetricity, thus, marks the new world order for constitutional organisms.[37] This sometimes produces a tendency to develop meta-management approaches.[38] In a world infused with incarnated constitutional beings existing polycentrically in a virtual three-dimensional bowl filled with the stuff of constitutional possibility, the bowl itself will not be visible and the constitutional possibilities within it will resist management of any effective kind. [39]

Like conventional constitutionalism, societal constitutionalism seeks the comfort of equilibrium and stasis as the basic operating premises of self-constituting governance systems. This paper considers societal constitutionalism in its dynamic element—as a system structures constant adjustment among the constituting elements of a governance unit (whether state, corporation, religion, etc.). Building on Gunther Teubner’s insights of communicative hypercycle and ultra cycle,[40] it introduces the concept of dynamic societal constitutionalism. The dynamic element of societal constitutionalism posits disequilibrium as the equilibrium state for societally constituted systems. Equilibrium is aberrational, though the coherence of the institutions within which dynamic interaction happens is itself relatively stable. The self-referencing communication at the core of dynamic institutional coherence creates conditions for a constant state of dynamic flux as stakeholders and the governance apparatus adjust behavior to maximize welfare. Systemic integrity is grounded in the constitutional norms within which a governance unit is organized, but even these are connected to frameworks of common standards shared by governance unit stakeholders. Dynamic societal constitutionalism suggests that just as the absence of territory as a basis for constituting a governance space has made regulatory frameworks more fluid and permeable, it also reduces the importance of stability as a necessary ingredient for institutional coherence and societal stability.

After an introduction, Section I engages in framework setting, a consideration that necessarily structures societies and their constitution from a spatially static and inward looking perspective. That investigation is divided into two parts: first, the parameters for the ordering system of states and non-state actors, and second, a brief consideration of the constitution of corporate actors within this framework. The specific object of the second part is the multinational corporation, an exemplar of a self-constituted enterprise at the center of an autonomously constituted governance system, with its focus on Apple, Inc.

Section II provides an illustration of a societally constituted enterprise operating in three dimensional dynamic governance space; it seeks to describe the dynamics of societal constitution within dynamic polycentric structures of effect and communication. The focus is Apple, Inc.; the context is the enforcement of international human rights norms through the governance activities of Apple Inc. and its supply chain, specifically the spaces where systems converge, harmonize, and collide. The object is to consider a societally constituted governance unit operating in three-dimensional space that is in constant motion, but within which the entity remains stable. Like the state within a dynamic international system, Apple Inc. assumes a central place around which, and through its operations, produces collisions between its societal constitution, its formal place within the constitution of states, and its functional role within the constitution of global economic society within this multidimensional governance space, and the permeability of its operations and structural coupling while retaining a stable internal governance framework. This suggests a dynamic element of societal constitutionalism that tends to be overlooked in standard accounts that posit a static governance universe, even if a layered one.

Section III then develops the more important characteristics of this new dynamic and permeable constitutional framework. If societies can be understood as subject to certain principles for their inward constitution, to what extent might there be principles that affect the outward expression of inward self-constitution? That consideration requires both an examination of the way in which societally constituted entities may be felt and seen by outsiders and also the way that expressive communication can have inward-affecting consequences. For that purpose, Gunther Teubner’s notions of addiction[41] and chaos[42] and Hans Lindahl’s notions of spatiality and communication[43] serve as a starting point. Proceeding from the intuitions derived from Section II, deepens the insights of a dynamic element within societal constitutionalism. Thought of merely as a static structuring—conventional analysis may fail to capture the critical importance of structural coupling in defining both the autonomy of systems and their communicative intimacies among systems in a complex polycentric constituting universe. Building on networks and irritants in the governance space, this section uses a recent episode in the operations of Apple, Inc. as an example of the behavior of systems within a governance space characterized by fragmentation, fluidity, polycentricity, and permeability.[44] The example may illustrate a possible difference between public and private constitutional spaces. Public law-based constitutionalism, positing stasis and equilibrium as the normal state,[45] treats conditions of disequilibrium, a constant state of change or revolution, as aberrational.[46] Equilibrium is a sign of system integrity and success.[47] Dynamic societal constitutionalism produces a more complex model of the well-known but utterly two dimensional “living constitution”[48] through which mass preferences are in constant dialogue with common norms to produce stable governance under conditions of constant change that may or may not be dependent on the state or any specific judicial apparatus.[49]

The paper concludes where it started—in constitutional theory. It suggests the need to expand our understanding of constitutional theory beyond incarnation and judgment, to include communication among systems in a complex polycentric constituting universe. It suggests the dynamic consequences of this emerging societal framework of hierarchical power arrangements and horizontal effects for constitutional theory among this amalgam of states and other societally constituted organisms.


[1] See Westel W. Willoughby, The Fundamental Concepts of Public Law 30 (1924).

[2] See generally J.P. Nettl, The State as a Conceptual Variable, in 1The State: Critical Concepts 9 (John A. Hall ed., Routledge 1994) (1968) (discussing how the state’s role in constitutional design and the social sciences has declined over the past fifty years).

[3] One must make a distinction between classical Marxist theory, which posited the withering away of the state but in which the theory of the state remain ambiguous at best, see Clyde Barrow, The Marx Problem in Marxian State Theory, 64(1) Science and Society 87-118 (2000), with Leninism and post Leninist theory. The Historical Experience of the Dictatorship of the Proletariat (Peking: Foreign Language Press, 1959); available Cf. Vladimir Lenin, The State and Revolution, Collected Works, Volume 25, p. 381-492; Lenin Internet Archive ( 1993, 1999. Available (especially The "Withering Away" of the State, and Violent Revolution”).

[4] See Genesis 1:1.

[5] See José E. Alvarez, International Organizations as Law-Makers (2006) (providing a description of these enterprises).

[6] See generally Bob Reinalda & Bertjan Verbeek, Theorizing Power Relations Between NGOs, Intergovernmental Organizations, and States, in Non-State Actors in International Relations 145 (Bas Arts et al. eds., 2001) (assessing the influence of non-governmental organizations on international and transnational politics, as well as the importance of non-state actors).

[7] See generally Larry Catá Backer, Introduction to Harmonizing Law in an Era of Globalization: Convergence, Divergence, and Resistance (Larry Catá Backer ed., 2007).

[8] See Genesis 3:6.

[9] See, e.g., Gunther Teubner, Societal Constitutionalism: Alternatives to State-Centred Constitutional Theory?, in Transnational Governance and Constitutionalism 3 (Christian Joerges et al. eds., 2004) (discussing the effects of globalization on the governance of international regulations like the Internet).

[10] See, e.g., Layna Mosley, Private Governance for the Public Good?: Exploring Private Sector Participation in Global Financial Regulation, in Power, Interdependence, and Nonstate Actors in World Politics 126 (Helen V. Milner & Andrew Moravcsik eds., 2009) (discussing globalization effects on international markets and the roles played by private actors).

[11] For an early and influential call to this effort, see generally Robert O. Keohane & Joseph S. Nye, Power and Interdependence (3d ed., Longman 2001) (1977). See also Peter R. Baehr, Non-Governmental Human Rights Organizations in International Relations (2009).

[12] I avoid the term “communities” because of its close connection with the work of another century and another sensibility. See, e.g., Ferdinand Tönnies, Community and Civil Society (Jose Harris ed., Margaret Hollis trans., Cambridge Univ. Press 2001) (1887).

[13] See, e.g., Anders Esmark, The Functional Differentiation of Governance: Public Governance Beyond Hierarchy, Market and Networks, 87 Pub. Admin. 351 (2009) (exploring the relation between the historical constitution of modern society’s governance traditions and the transformation of public governance).

[14] See generally David Schneiderman, Constitutionalizing Economic Globalization: Investment Rules and Democracy’s Promise 1-21 (2008).

[15] See Richard Falk & Andrew Strauss, A Global Parliament: Essays and Articles 13-18 (2011); Alexander Wendt, Why a World State is Inevitable, 9 Eur. J. Int’l Rel. 491, 491 (2003).

[16] See Andreas Fischer-Lescano & Gunther Teubner, Regime Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law, 25 Mich. J. Int’l L. 999, 1017-1044 (2004).

[17] See Anne-Marie Slaughter, A New World Order (2004) (arguing that a new manner of global governance has emerged through the use of ad hoc or treaty-based security and financial networks); Lars Viellechner, The Network of Networks: Karl-Heinz Ladeur’s Theory of Law and Globalization, 10 German L.J. 515, 517-518 (2009) (citing Karl-Heinz Ladeur, Globalization and the Conversion of Democracy to Polycentric Networks: Can Democracy Survive the End of the Nation State?, in Public Governance in the Age of Globalization 89, 99, 113 (Karl-Heinz Ladeur ed., 2004)) (“[H]e rather recognizes an adequate pattern of social organization for a radically fragmented and globalized society in a ‘network of networks’ of heterarchical social relationships generating collective order as a secondary transsubjective effect of individual cooperation and coordination under conditions of uncertainty.”).

[18] See Moritz Renner, Occupy the System! Societal Constitutionalism in Transnational Corporate Accounting, 20 Ind. J. Global Legal Stud. __ (2013).

[19] See Larry Catá Backer, Theocratic Constitutionalism: An Introduction to a New Legal Global Ordering, 16 Ind. J. Global Legal Stud. 85, 99, 106 (2009).

[20] See Gunther Teubner, Fragmented Foundations: Societal Constitutionalism Beyond the Nation State, in The Twilight of Constitutionalism 327, 328-329 (Petra Dobner & Martin Loughlin eds., 2010) (“[H]ow is constitutional theory to respond to the challenges arising from these two major trends of privatisation and globalisation? This is what today’s ‘constitutional question’ ought to be. Today’s constitutionalism moves beyond the nation state. It does so in a double sense: constitutionalism moves into the transnational context and into the private sector.”).

[21] See Larry Catá Backer, From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems, 113 Penn St. L. Rev. 671 (2009).

[22] See Kaarlo Tuori, The Failure of the EU’s Constitutional Project: A Cultural Discrepancy, in Constitutionalism: New Challenges: European Law from a Nordic Perspective 103, 109 (2008) (“In the political system, the constitution fulfills both an organizational and a legitimizing function. The organizational part … defines the basic institutional structure of political power …. The constitution channels the legitimacy of the law into the political system.”).

[23] Michel Foucault (1926-1984) was a highly influential though controversial philosopher and social theorist well known for his work on the nature of governance and institutional power and control. For biographies, see, Didier Eribon, Michel Foucault. (Betsy Wing, trans., Cambridge, MA: Harvard University Press, 1991); David Macey, The Lives of Michel Foucault (New York: Pantheon Books. 1994)

[24] Michel Foucault, Security, Territory, Population: Lectures at the Collège de France 1977-1978 110 (Michel Senellart ed., Graham Burchell trans., Macmillan 2007) (2004).

[25] Professor Teubner is a German legal scholar and sociologist, best known for his works within the field of Social Theory of Law.

[26] See Gunther Teubner, “Global Bukowina”: Legal Pluralism in the World Society, in Global Law Without a State 3, 3-5 (Gunther Teubner ed., 1997).

[27] See Larry Catá Backer, God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century, 27 Miss. C. L. Rev. 11 (2008).

[28] Pedro Cruz Villalon, La formacíon del sistema Europeo de control de constitucionalidad (1918-1939) (1987) (analyzing European constitutional experiences between the First and Second World Wars).

[29] For example constitutionalism’s normative project has as an objective the creation of structures of taxonomies of governments by type and of ways to distinguish among them. See, e.g., Louis Henkin, A New Birth of Constitutionalism: Genetic Influences and Genetic Defects, in Constitutionalism: Identity, Difference and Legitimacy Theoretical Perspectives 39 (Michel Rosenfeld, ed., Durham, NC: Duke University Press, 1994)..

[30] See Dieter Grimm, The Constitution in the Process of Denationalization, in Constitutionalism: New Challenges: European Law from a Nordic Perspective, supra note 21, at 71, 81 (“From a historical perspective, the constitution presupposes the state as a form of political community.”).

[31] Cf. U.S. Const. 14th Amendment (the state’s power to deprive individuals of their life, liberty or property limited only by concepts of due process).

[32] Id. at 80.

[33] See Vlad F. Perju, Cosmopolitanism and Constitutional Self-Government, 8 Int’l J. Const. L. 326 (2010).

[34] See, e.g., David Sciulli, Theory of Societal Constitutionalism: Foundations of a Non-Marxist Critical Theory (1992).

[35] See, e.g., Gunter Teubner, Constitutional Fragments: Societal Constitutionalism and Globalization (Oxford: Oxford University Press, 2012). Cf., Richard Albert, The Cult of Constitutionalism, 39 Fla. St. L. Rev. 373 (2012). .

[36] See Larry Catá Backer, Governance Without Government: An Overview, in Beyond Territoriality: Transnational Legal Authority in an Age of Globalization 87 (Günther Handl et al. eds., 2012).

[37] Larry Catá Backer, From Institutional Misalignments to Socially Sustainable Governance: The Guiding Principles for the Implementation of the United Nations’ “Protect, Respect and Remedy” and the Construction of Inter-Systemic Global Governance, 25 Pac. McGeorge Global Bus. & Dev. L.J. 69 (2012) (analyzing an example of the framework of the U.N. Guiding Principles on Business and Human Rights). See also Inger-Johanne Sand, Polycontextuality as an Alternative to Constitutionalism, in Transnational Governance and Constitutionalism, supra note 8, at 41.

[38] See, e.g., Paul Schiff Berman, Procedural Principles for Managing Global Legal Pluralism, 20 Ind. J. Global Legal Stud. __ (2013).

[39] Christian Joerges, Conflicts-Law Constitutionalism, Societal Constitutionalism and the Power of Technicity, 20 Ind. J. Global Legal Stud. __ (2013).

[40] See, Gunther Teubner, Self-Constitutionalizing TNCs? On The Linkage Of “Private” And “Public” Corporate Codes Of Conduct,, 18 Ind. J. Global Legal Stud. 617, 632-35 (2011)

[41] See Gunther Teubner, Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences, in The Europeanisation of Law: The Legal Effects of European Integration 243 (Francis G. Snyder ed., 2000).

[42] Gunther Teubner, A Constitutional Moment? The Logistics of ‘Hit the Bottom’, in After the Catastrophe: Economy, Law and Politics in Times of Crisis (Poul F. Kjaer and Gunther Teubner (eds.), 2010).

[43] See Hans Lindahl, The Boundaries of Legal Orders in a Postnational Setting: Conceptual, Normative and Institutional Issues, in The Law of the Future and the Future of Law 355 (Sam Muller et al. eds., 2011), available at

[44] See Larry Catá Backer, The Structural Characteristics of Global Law for the 21st Century: Fracture, Fluidity, Permeability, and Polycentricity, 17 Tilburg L. Rev. 177 (2012).

[45] “[I]ndeed, it has always seemed to me that a primary purpose of constitutionalism is precisely to entrench certain principles and structures against change, particular change driven by popular pressure.” Ernest A. Young, Popular Constitutionalism and the Underenforcement Problem: The Case of National Healthcare Law, 75 Law & Contemp. Probs. 157, 185 (2012). See also, Russell Muirhead and Nancy L. Rosenblum, The Partisan Connection, 3 Cal. L. Rev. Circuit 99 (2012) (“The purpose of eighteenth-century constitutionalism was twofold, and each purpose was in tension with the other; on one hand, to facilitate popular power and empower “the common, recognizable interests of ordinary people, and nothing more.” On the other, to constrain popular power to ensure that majorities could not overwhelm the “permanent and aggregate interests of the community.”” Id., citing in part Philip Pettit, Democracy, Electoral and Contestatory, in 42 Nomos: Designing Democratic Institutions 134 (Ian Shapiro & Steven Macedo eds., 2000); and The Federalist No. 10 (James Madison) (Project Gutenberg Etext ed. 1992), available at

[46] It is easiest to contrast the equilibrium and stability of constitutionalism with notions of permanent revolution best described by Leon Trotsky. Leon Trotsky, The Permanent Revolution (1931). Available (“The permanent revolution, in the sense which Marx attached to this concept, means a revolution which makes no compromise with any single form of class rule, which does not stop at the democratic stage, which goes over to socialist measures and to war against reaction from without: that is, a revolution whose every successive stage is rooted in the preceding one and which can end only in the complete liquidation of class society.”). These might also have been in evidence during the Chinese Cultural Revolution. See, Mo Jihong, The Constitutional Law of the People’s Republic of China and Its Development, 23 Colum. J. Asian L. 137 (“The 1975 and 1978 Constitutions were influenced by the extreme leftist sentiments of the Cultural Revolution, which promoted a theory of continuing revolution under proletarian dictatorship, inconsistent with the basic principles of modern constitutionalism.” Id., at 139). Both have been rejected by notions of stability inherent in Western and Chinese constitutionalism, through policies of “general welfare” and “harmonious society”.

[47] See, e.g., William H. Rehnquist, The Notion of a Living Constitution, 54 Tex L Rev 693, 704-706 (1976) (on the judicial role in promoting constitutional stability)

[48] Two dimensional in the sense that communication is abstracted through the institutions of the state separated by function and each constructed to represent an aggregate understanding of popular sentiment. See, e.g., William C. Heffernan, Constitutional Historicism: An Examination of the Eighth Amendment Evolving Standards of Decency Test, 54 Am. U. L. Rev. 1355 (2005) (“ Advocates of the concept of a “living constitution,” for example, reason in terms of a body of constantly remade constitutional doctrine--surely an unhelpful approach given the continuity and stability characteristic of most areas of constitutional law.” Id., 1363); see also Paul Brest, The Intentions of the Adopters Are in the Eyes of the Beholder, in The Bill of Rights: Original Meaning and Current Understanding 17-8 (Eugene W. Hickok, Jr. ed., 1990) (focusing on stability and flexibility).

[49] Se, e.g., Gunther Teubner, Societal Constitutionalism: Alternatives to State-centred Constitutional theory?, in Transnational Governance and Constitutionalism , 3, 26-27 (Christian Joerges (Inge-Johanne Sand & Gunther Teubner eds., 2004). For a good discussion of the germinal literature form which these ideas arise, see, David Nelken, Eugen Ehrlich, Living Law, and Plural Legalities, 9 Theoretical Inquiries in Law 443 (2008).

1 comment:

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