Vienna, RCSL at ISA Forum 2016
Wednesday 13 July
Chair: Alberto Febbrajo and Håkan Hydén
Nowadays the transaction towards a “world society” and the emergence of transnational issues are challenging the most important pillars of the state: sovereignty, demos and territory. In this theoretical framework the borders of traditional constitutions are fading, and on the other side a clear trend towards the so-called “transconstitutionalism” is emerging. Starting from the “neo-pluralism” developed by Teubner and Febbrajo, I will in general focus attention on the paradox regarding the need to combine conservation and change, normativity and cognitivity, closure and openness of the system, and I will try to propose a new semantics, not only to describe but also to test a different model of analysis. In particular I will firstly consider the Teubner’s oxymoron of the globalized fragmentation, as a sort of Costitutionalism 2.0, implemented by transnational actors. Secondly I will apply economic models in order to deepen Febbrajo’s use of a “continuum” between closure and openness of the constitutional system, through a “trade off” able to find “optimal points” of balance and the “budget constraint” required by legal evolution. In this way the problem of the inclusion of cognitive aspects into the normative sphere, will be inserted into the market model of “demand and supply” and “balance points” on flexibility or rigidity of the procedures and on the dyscrasia between material and formal constitutions. Finally, in the present complex scenario, the key factor for a new constitutionalism will be found in the osmosis between the borders of different systems and in intersystemic communications. The Luhmannian concept of “structural coupling” will be integrated with the concept of “transversal rationality” developed by Neves, understood as possible synapsis for a connective constitutional law.
Key words: Sociology of costitutions,
System theory, Transconstitutionalism, Closure/Openess, Structural coupling
Custom and tradition in a legal sense are not the same. Their relationship is debated and controversial in both legal and interdisciplinary scholarship. Through a selection of English-language sources and relying heavily on H. Patrick Glenn’s scholarship, I attempt to show that tradition is normative information, which is transmitted over time horizontally and vertically and that people willingly adhere to, while custom is factual information, which members of a given group of society create and maintain and which, if supported by state authority, becomes binding law. The constantly changing spheres of both tradition and custom cause them to overlap and make their differentiation more difficult. Yet, custom is more closely related to the society within which it is observed while tradition truly gains significance when examined with regard to its timeline, primarily its pastness and the process of transmission. Based on the respective differences, both custom and tradition could be aligned with legal culture to help establish their role in legal sociology and jurisprudence.
Nowadays the claims of rights – raised by individuals, communities, organizations – seem difficult to meet in a world society, characterized by a communicative network of global dimensions (Luhmann, 1997) and by growing interconnections of economic, financial, social, cultural processes. The paper will try to demonstrate that national law systems are inadequate to face a world society; that State’s boundaries are uncertain and cultural traditions are increasingly blurred; that social inequalities are growing not only in an economic perspective, but also in cultural, juridical, and civil dimensions (education, access to services, employment, health, etc.); that these trends substantially limits the effectiveness of fundamental rights, that by definition should be universal. In this scenario, constitutions that not only determine “the form of the state”, but also contain references to general rights, and corresponding duties of the State towards people, are really suitable to continue to perform their function? And even if we consider still indispensable to defend a certain amount of traditional values and rights, is it concretely possible guaranteeing them through law? From a system theory perspective, the task of constitutions consists in keeping future options open for situations that may turn out to be significant. This ensures a minimum of protection to individual and collective subjects, to overcrowded but generally available social channels of communications, to selective mechanisms of structural couplings used for connecting different social systems. In this context the evolutionary achievement for the XXI century constitutions could be a “transcostitutionalism” which involves norms, values, rights and duties typical for different social systems. Therefore traditional constitutions appear no longer indispensable and require differentiated definitions in order to underline the loss of their characteristic uniqueness and centrality.
Keywords: Fundamental Rights, World Society, Constitutions, Luhmann
The main purpose of this paper consists in analyzing the role of participation within Luhmann’s thought. This effort is oriented to determine whether (and how) the considerations emerging from his works can be still considered current (thereby providing useful suggestions to the present-day constitutionalist). His standpoint could be defined ‘skeptical’: in "Partizipation und Legitimation" (1987) Luhmann emphasized a tendency to regard the claims to wider and more effective participation as «eine abgeschlossene Phase der neuren Ideengeschichte». Particularly, his argumentation is developed by interconnecting the notion of participation with that of legitimation. In this conceptual binomial he analyzed how expectations towards better (and more democratic) agreements have been transformed in a series of disillusions, determining a sort of crisis of participation and legitimation, but perhaps even more of the chance that these two terms may be intersected in order to make concretely possible democratic (and ‘democratizing’) effects. The key points of Luhmann’s theory will be reconstructed in this paper, especially in reference to historical changes of society and phenomena that have produced these notions, as e.g. the reorganization of the semantics of individuality (determined by structural changes), the tension between upper and lower classes, the consultation procedures actually adopted, the role of morality and political rhetoric. A special focus will be dedicated to the risk that participation may become «an organization in the organization, a bureaucracy in a bureaucracy». Indeed, this risk is more effectively possible and dangerous at the present time, where participatory democracy is being re-launched in the institutional processes. This risk will be investigated with attention not only to ordinary (state and regional) laws, but also to constitutional dispositions and procedures, aiming to understand what elements in Luhmann’s theory can be helpful in order to subtract law and constitution-making process (and implementation) from pathological deviations in future scenarios.
Currently, the modern approach to state-building is not working in conflict-affected States. This thesis argues that the current method of State-building, based on the copy-paste of Western Model Democracy is bound to fail due to the fact that it does not take into consideration the local traditional values and societal structures of the conflict-affected States. It follows that, in order to model a functional state-building approach, it is necessary to use democratic principles and incorporate the social realities to create a national identity, and a virtue of shared membership in that nation.
The contemporary legal landscape is marked by a heterarchical and poly-contextual law that has lost its unity and centrality with respect to other social spheres. In this context, the foundational principles of justice are increasingly fragile. Courts seem no longer able to ensure either formal or substantial justice. Moreover, jurisdiction is no longer immune from criticism, controversy and dissent. Indeed, it appears that injustice, whether presented as miscarriages of justice, judicial errors (due to subjectivism, politicisation, incompetence) or unfair trials (for example, trial by media before a case is heard in court), is now no longer the exception but the norm. These phenomena are clearly visible in the case of Italy, which, as is well known, has some unique characteristics in terms of the organisation, autonomy and power of the judiciary. In addition, the administration of justice in Italy is characterised by inefficiency and uncertainty (the excessive length of proceedings, the large number of judgments overturned on appeal) and is consequently viewed with a high level of distrust by citizens and companies. In Italy as in other countries, therefore, the urgent constitutional problem is to balance the autonomy of the judiciary with its social responsibility and need for legitimacy. The paper will explore the paradoxes of this scenario, based firstly on the seminal study by Luhmann of legitimation through procedure and secondly on the recent theoretical and empirical developments arising from the emerging “functionalism of links” approach. In this way, it will evaluate the drivers of change occurring in both formal and the material constitutions, the effects of which, however, may also be dysfunctional with respect to the control and correction of injustice.
Keywords: sociology of constitution, jurisdiction, legal culture, associations of judges