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7/25/2019 Constitarena Inger Sand
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Inger-Johanne Sand, Univ. of Oslo
Preliminary, very early draft - not for citation
Incomplete references
Previously presented at workshop on Transnational Governance
and Constitutionalism, at EUI
Poly-contextuality as an alternative to constitutionalism
I. Background:
The role of constitutionsConstitutionalism has been an inherent and interwoven part of modern legal systems
as well as of the concept, the traditions and the definitions of the modern nation-state.
Constitutionalism implies a boundedness, in space and normatively. The setting of
boundaries, in different ways, is often a prerequisite for the creation of institutions.
Territorial boundaries also means the setting of cultural, social and/or linguistic
boundaries which then also becomes part of the territorial and institutional
boundaries. Normatively constitutionalism first implies a general adherence to
boundedness to the constitution, and thus to law, and then secondly to specific
constitutional principles and norms. Constitutions, law and institution-building have
thus been vital instruments in the enabling of the evolution of nation-states. They
have also been vital parts of the evolution of modernity, however in more complex
ways, cfr. below. Constitutionalism understood as such a many-faceted form of
boundedness can both emphasize different aspects and be taken to various degrees. It
may thus in practice come to mean many different things. In this context two aspects
are vital. The first is the role of constitutions in stabilizing (culturally and
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institutionally) the boundaries of the nation-states and thus of establishing the nation-
states as entities or actors vis-à-vis other nation-states and in global society.
Constitutions have enabled strong and stable institutions. The question which may be
raised today, is if this has stabilized the nation-states also beyond their functionality.
The other aspect is the role of constitutions in carrying specific normative principles,
some of which are connected to the boundedness, others which are more general. Also
here the coupling between the nation-states, constitutionalism and certain principles
may have contributed to a relative stability, but also with the possibility of
transcending the functions or the reasons for each one of these.
Sovereignty, delimitation of power and the guarantee of democracy and basic
human rights have together been the carrying ideas of modern nation-states, their
institutions and their constitutions. Sovereignty and constitutions have implied on the
one hand an identification and a delimitation of a demos and a territory and on the
other hand a comprehensiveness of the legislative power within that territory. It is the
coupling of the delimitation of the nation-state, the comprehensiveness of its internal
statal powers and constitutionality as the basis which have given the nation-states
their specific character and power. The delimitation has been expressed and embodied
institutionally by the nation-state, and principally and normatively through the
constitution.
Nation-states are often founded on historical, cultural and/or linguistic
boundaries and traditions, but boundaries have also been contingent, and they have
further stabilized whatever boundaries were previously there. The simultaneous
existence of cultural, social, linguistic, political and legal traditions and structures
have mutually enforced and stabilized each other to the extent that it has become
difficult to distinguish what are the primary social and legitimating forces.
Nation-states and constitutions have been part of both a pre-modern period and
of modernity. As institutional forces they have probably contributed to and enabled
the changes from absolutist and pre-modern regimes to the opening up of modern,
differentiated and democratic regimes. Constitutions do this by putting certain
procedures and certain norms above specific persons or families and thus enabling a
de-personification of power and continuity over time.
The nation-states and their constitutions have thus been vital parts of the
evolution of modernity. Departing from monarchs, the power of the church and
feudalism first cities and then nation-states and their institutions became new
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structures for the coordination of society. They were secular, but normatively based
on democratic procedures and ideas of freedom and integrity of individuals. This
enabled a freedom in relation to both religion and other metaphysically based
traditions of government. It enabled a freedom for the evolution of new knowledges
and their application. The delimitation of the nation-states did however offer some
kind of structure and framework for the evolution of new institutions and thus for
some kind of relative stability for the first part of modernity.
What should be noticed here, is how several institutions, concepts and
principles have evolved in parallell and have become entangled and interdependent
over time. They do not constitute one institution today, but they have become
interdependent to the degree that at some points they may seem inseparable or
difficult to distinguish. Boundaries, comprehensive legislative power and
comprehensive constitutions have been vital and entangled elements of the nation-
states. Parts of these elements are changing, but because they also are so entangled,
some of their functions and symbolic value will stay on. This may make it very
difficult to understand the changes of the nation-states. Some of the qualities of the
institutions of the nation-state may be kept primarily because they have become parts
of the others. The interdependence among several elements contribute to stabilisation
and to a many-faceted functionality, but it may also contribute to making change, and
the understanding of it, more complex.
The differentiation of power: Law and politics
Absolutism and metaphysical sources of power gave way to proceduralisation and
constitutionalism. This enabled another institutionalisation of power: the
differentiation of power and of politics in particular. With the secularisation and the
differentiation of society politics and law became the communicative systems through
which power could be communicated, and where decisions could be relatively
stabilized. The relative autonomy of such communicative systems and the
institutionalisation of specific procedures have meant that power on a societal level
could be dealt with irrespective of specific persons or specific political values. Law
and politics became communicative expressions concerning power in an increasingly
pluralistic and democratic society. Law and politics became the communications, the
procedures and the institutions by which modern societies were coordinated and
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governed. Politics has been the open and dynamic communication. Political decision-
making at times takes place as legislation. Law then serves as the relative stabilisation
of political decisions. Legal decision-making on the basis of legislation then takes
place in public administration and in courts. The “meanings” from the various social
sub-systems have been brought to the more comprehensive systems of politics and
law and have there been filtered and transformed into political and legal expressions.
The institutions, the procedures and the forms of argumentation of politics and law
have over time formed patterns and become entangled and interdependent – at the
same time as they also have become specialized and extremely different. Law and
politics have been extremely vital parts of the institutionalisation of modernity. They
have been part of the functional differentiation and specialisation of modernity, and
they have at the same time enabled communication across social and communicative
boundaries. They have been able to carry the risk of communicative differentiation,
and they have also been perceived as legitimate due to the procedures used.1
The qualities of law and politics have also been their openness and flexibility.
They have, particularly in the welfare states, taken on almost any regulatory challenge
because this has been the ethos of the welfare state. At the same time there has been
some sort of blindness to the complexity of the challenges which step-by-step have
been taken on. The hierarchical state and its legal, administrative and economic
instruments (and the equivalent types of control) is still the apparatus available for
implementing political and legal decisions. Such instruments also have their
limitations. What is less dealt with in the literature, are the consequences of the
qualitative changes and challenges when knowledgebased expertise and practices
become the vital tools for the implementation of new policies. The application of such
tools also challenge the whole top-down approach of public bureaucracies. That this
also has its dark side is remarked by Niklas Luhmann: “The impossibility for the
political system effectively to control other systems with an adequate grasp of
consequences and limited risk, is inversely proportional to the facility with which
such decisions can be put into force…”.2 Politics has taken the responsibility for so
many tasks that it risks bending over far too often. The impotence of politics becomes
visible increasingly often. This is particularly true in global affairs. One of the
1 Niklas Luhmann, ”Das Recht der Gesellschaft”, ch.1, 1993, and „Risk: A Sociological Theory“, ch.8
„Demands on Politics“, 1993 A; Inger-Johanne Sand, „Changing Forms of Governance and the Role ofLaw“, ARENA wp. 14/2000.2 Niklas Luhmann, ibid., 1993 A, s.145.
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challenges today is to assess in what cases politics and law seem incapable of
performing their functions, why this is so, and how this should be approached.
The presupposition that politics can handle any theme and any policy
orientation, may also presuppose that all such themes and policies are communicable
or translateable to a common political language of social interests, in the more classic
sociological meaning of the term. This has implied, in a way, that all such interests are
comparable and then possible to balance vis-à-vis each other, within a political
scheme. The existing institution of politics implies a comprehensiveness in the
qualities of politics as communication. This presupposes that any social problem can
be identified and presumably solved within a context of political communication. One
of the theses in this article is that this no longer the case, and also less so then in some
previous periods. It is however probably more correct to say that this has never been
the case, but for part of the last fifty years, and also earlier, politics has to large extent
been presumed to be relatively comprehensive and at least symbolically omnipotent
on a communicative level. The other part of such a theses would be that some of the
other communicative systems of modern societies, such as economics and science,
have become increasingly dynamic and dominant at the cost of politics and law.
Below some examples of the latter will be discussed in more detail. Here I will
shortly mention a couple of examples. First: The problems of defining free trade
legally on global and regional levels have indirectly lead to equivalent problems of
defining when it would legitimate to protect human health and the environment vis-à-
vis free trade. Defining legally when precaution or ethical reasons should be applied
on a cross-cultural basis seem quite difficult, so far. Secondly: One of the most
serious problems in the world today is the unfair distribution of resources between
different parts of the world. The debt crisis is one element of this. This also seems to
be a problem which it so far has not been possible to thematize within the legal
discourse, even within the political discourse there are problems here.
When considering the abilities and the qualities of law and politics, the
following should be emphasized: Besides the institutional and normative qualities law
and politics have in their functions to a large extent relied on the existence of some
kind of common cultural, linguistic and socio-economic frame of reference. There
have been some common reality perceptions and values against which to interpret and
understand the condensed language of law and politics which may be both generalised
and specialised in some fields. The interpretation and understanding of law and
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politics in much more cross-cultural and heterogeneous environments are in many
ways a quite different and more complex endeavour and challenge.
The functions of law and politics to coordinate and integrate modern society
and the nation-states throughout the last two hundred years can probably not be
underestimated. This is not to say that there may be a variety of arguable opinions as
to how “successful” this has been, or how it actually has functioned. The main part of
the practices of law and politics have also taken place within the framework of the
nation-state. Three main changes in this pattern are now occurring or becoming more
visible. First law and politics are increasingly taking place on several institutional
levels, nationally, regionally and internationally. This may in itself lead to vital
changes in the functions of law and politics. Secondly as some of the other general
communicative systems are becoming increasingly autonomous and dynamic the
abilities of law and politics to be the “immune” systems of society are endangered.
This may again lead to some vital reconsiderations of the relations between the most
general systems and of their specific qualities. Thirdly private actors are now also
entering the fields of law and politics. This may also seriously change legal and
political practices.
II. Challenges:
A. Global and regional problems
The institutional emphasis on the nation-state has also implied the possibility of
solving vital and current problems within that entity. Many social and communicative
dynamics have however become increasingly global or regional. This may be most
dramatically true for environmental and climate changes. The industrial and the risk
society have exploited the natural resources intensively and applied new chemicals
with uncertain effects extensively. With the increasing global trade and production the
effects of such environmental exploitation and production have both increased and
become more global, factually as well as regarding responsibility. Vital environmental
and climate changes will now have to be dealt with on global and regional levels.
The decisions to emphasize and give priority to free trade have also meant an
increasing realization of a global distribution of production. Environmental effects
can thus also be exported. This underlines the global responsibility for environmental
damages and their repair. “Free trade” implies already a legal institutionalisation, but
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within a risk society its side effects may also require regulation on the same levels
that of the free trade, cfr. the gradual increase of the scope of regulation both in the
EC and in WTO.
New information and telecommunications technologies are also to a large
extent global in their functioning and effects. The technology is irrespective of
national boundaries. Many aspects of their functioning will thus have to be regulated
globally, or at least in similar ways in order to be effective.
The evolution of complex technologies and other types of knowledge, and
their application, are increasingly occurring as parts of international processes. The
possibilities for the spreading of both technologies and production may also lead to
incentives for similar or parallell types of their regulation. The interdependence
between new technologies, production and free trade is also becoming more vital to
understand, partly because the principle of free trade is extended to an increasing
number of areas and thus also including the trade of services and intellectual property
rights, and partly because some aspects of the new bio- and genetic technologies and
their application also are controversial and connected with uncertain and unintended
side-effects. When intellectual property rights concerning biological material is given
to transnational corporations and applied on the production of goods which are traded
globally, there may be a need of global coordination of how this is regulated.
Comprehensive and intensive environmental change, the new
telecommunications, the increasing scopes of free trade and the coupling of the latter
with new and controversial technologies are all vital reasons for the inevitability of
legal and political regulation on global and regional levels. What is illustrated here is
the increasingly global dynamics of the generalised communicative systems of
modern societies.3 The opening up of free trade and the evolution of new knowledge
and technologies seem to have functioned as dynamic factors of globalisation
effecting other surrounding areas. The increasingly global factual dynamics of many
areas have become so intensive that also problemsolving and regulation may have to
be done on such levels.
3 Gunther Teubner, ”The King´s Many Bodies”, Law and Society Review, vol.31, no.4, 1997.
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Challenges:
B. Risk society
One could also say that “risk society” in the meaning of an extremely knowledge and
technology based society effectively functions relatively irrespective of national
boundaries and geographical distances. Knowledge and technology based discourses
will travel and be both developped and applied cross-culturally. Modernity defined as
moving from monoistic to pluralistic and functionally differentiatied communicative
societies has also meant an increasing and at times dominating emphasis on
knowledgebased discourses and forms of communication. Society moves from a
domination of traditions to a domination of forms of knowledge, which again implies
a further diffusion and differentiation of knowledges.4 Traditions are slow to change
and very culturally embedded. Knowledgebased practices are much easier to change,
can evolve quite autonomously and are in many cases quite socially and culturally
disembedded. Some of the new information and bio technologies are examples of this.
However, also social areas which still are partly embedded in traditions, such as the
family, are being heavily influenced by knowledgebased discourses. In general it is
probably fair to say that modern societies are quite dominated by different types of
knowledgebased discourses – in contrast to both feudal and early modernity societies
which were more based on traditions. Certain new technologies, such as information
and telecommunication technology, are also having relatively comprehensive and
significant impacts on our social and communicative infrastructure. Bio- and genetic
technology has comprehensive impacts on how vital foodstuffs and medicine are
produced. New technologies may then have enormous social impacts established over
short spans of time and without being embedded in existing cultural and valuebased
structures.
One of the most vital consequences of this may be that social change is
occurring faster and more often than previously, and also often caused by factors
external to the specific community, such as global economic changes or the
application of new technologies.
Another implication of the more intensive use of specialised knowledge and
new technologies in risk society is an increasing amount of unintended and
4 Anthony Giddens, ”Consequences of Modernity”, 1990.
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unpredictable consequences.5 Technologies and knowledge which at first sight may
seem to be advantageous, may turn out to have problematic side-effects which were
not calculated.
A part of the evolution of modernity has also been a change from the more
class-based industrial society to the domination of a large middle class, with
information and knowledgebased service workers, and with relatively sufficient levels
of social welfare, in risk society. This has made it much more intransparent and open
to question what the appropriate politics may be for different groups.
This has meant a change of the preconditions of how politics is thematized and
differentiated. Themes or preferences which previously could be more easily
identified as connected to specific class or social interests, are today more attached to
and dependent on different knowledge or discursively based views, often with more
vague relations to specific social classes or groups. Politics is thus becoming more
contingent and volatile partly because social change is occurring faster and more
unpredictable, and partly because such change is often disembedded from existing
social structures. Knowledgebased social discourses may be more unclearly linked to
specific social interests.
Challenges:
C. Functional and communicative differentiation
The challenges discussed above illustrate the influence of economic and scientifically
or knowledge based dynamics in modern societies, and how this occurs possibly at the
cost of the more traditionally governing communicative systems of politics and law.
The processes of specialisation and differentiation within scientifically (or
knowledge) based communicative systems have made them more complex internally
and thus also more complex to govern by external systems such as politics and law.
This would also be true for the economic system. The increasing globalisation of the
latter has also contributed to making it more difficult for nationally based politico-
legal institutions to interfere with them in sufficiently efficient ways. The
communicative power of economic and scientifically based systems should mean that
our thinking, our understanding and our concepts of governing should be extended
from law and politics and also include these systems, in one way or another.
5 Ulrich Beck, ”Risk Society”, 1992.
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The point to be made here is that changes within and in the relations between
the general communicative systems of society have resulted in changing preconditions
for politics and law and for their functional abilities to govern and to communicate
across boundaries of social differentiation. The traditional institutions of politics and
law have been strongly attached to the concepts of the nation-state and
constitutionalism and thus also to particular types of boundaries which have been
territorial, cultural and social at the same time. The challenges which have been
pointed to above, imply that such boundaries cannot function any longer in the ways
which they have done for the last two hundred years or so. Vital dynamics within
economic and scentifically based systems have both become more complex and more
global thus making them more complex for external institutions to interfere with. The
further argument is that such changes in the preconditions of politics and law are so
vital that the further discussion and understanding of the evolution of politico-legal
institutions and of governing should be taken with a more comprehensive perspective
than the normative and constitutional and thus also include a socio-legal
understanding of the changes within and in the relations between the general
communicative systems.
Modern societies are characterised by not being run from one centre or by one
type of government, but rather by the existence of several parallel increasingly
autonomous and complex communicative systems such as law, politics, economy,
religion, science etc. These systems are general and comprehensive, and they
communicate normatively different about the same themes. In the course of modernity
these systems have become increasingly autonomous and complex. The parallel
existence of several comprehensive social systems will mean that they also observe
and communicate about each other and thus create different reality constructions. The
different constructions will influence each other, but they are not placed hierarchically
in relation to each other. The functionally differentiated society does not have one
centre. The different communicative systems interact and are dependent on each other
in continuous processes. Each system is however complex and comprehensive. The
interaction will create unintended consequences and misunderstandings. This situation
creates what is called hypercomplexity. The systems are internally specialised and
complex. When they communicate and coordinate with each other hypercomplexity is
created. There is not one truth. Decisions are only “final” within the meaning of each
specific system. A legal decision may be considered unfair within the political system.
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A scientifically based decision may also be difficult to communicate within the
political system, and vice versa.
Law and politics have for some time and to some extent been able to
communicate meanings which have been accepted throughout society. They are
however increasingly challenged by the degrees of specialisation and autonomy of the
other systems and of the complexity in the communication between them. This is
particularly the case with the economic and scientific systems. It seems that the latter
functions more dynamically on the global level. Law and politics are becoming
overburdened both on the national and on the regional and international levels.6 Their
instruments and institutions are not able to grasp and deal with vital parts of the
dynamics of the systems of economy and science, at the same time as these systems
are becoming increasingly vital within society. This may lead to vital social problems
not being dealt with by law and politics – or any other external regulatory system.
The systems and institutions of “government” are then being challenged in their
functions.
The increasing functional differentiation of society has then led to serious
challenges for the existing systems of law and politics. Partly it leads to an increasing
autonomy and complexity of other communicative systems making them difficult to
deal with for law and politics. Partly it leads to a hypercomplexity in the relations
between the systems and thus to serious problems for governing in general. Partly it
leads to increasingly regional or global dynamics in many fields and thus to
challenges for the nationally based political and legal governing institutions and also
for the nationally based constitutions and their functions.
The result may be that the existing political and legal institutions and their
constitutions have problems evolving further in their existing patterns. I would
suggest that in this situation socio-legal and politico-legal theories are needed to
understand these changes, their basis and their implications. They may be necessary
for the rethinking of how political and legal institutions may function, or may be
supplemented by other institutions.
6 Niklas Luhmann, ibid. 1993 A.
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II. Linking constitutionalism and its challenges:
Constitutionalism, democratic institutions and global communications
Democratic and judicial institutions have so far primarily been developped within and
with direct relation to nation-states and their boundaries. This has meant that such
institutions have coincided with specific cultural and social values and traditions, and
one, or more, common language(s). The present democratic institutional traditions
have been attached to the existence of free and open elections, freedom of speech, the
existence of public spheres, transparency and accountability and control. These
institutional characteristics have evolved into their more specific formations within
each nation-state on the background of the specific cultural values and social history
of that state. Politics and law as communicative systems have then evolved within this
combination of institutional qualities and common cultural and social values. One
may argue that the boundedness of these variables have enabled political and legal
communication to be carried that far. The legitimacy and the functions of these
institutions have clearly been vital variables for the evolution of modern societies.
There is general agreement that so far the same type of democratic institutions
have not been developped on regional and global levels. The decisionmaking takes
place via international negotiations and the secretariats of the organisations. The
procedures take their democratic legitimacy from the participation of democratic
nation-states. At the same time increasingly comprehensive areas which also involve
internal affairs, such as trade, environmental, health and social protection and human
rights, are being regulated by such regional and international treaties and by
decisionmaking according to such treaties. Significant areas which previously were
regulated upon nationally, are then now regulated internationally within institutional
frameworks which have much more indirect democratic procedures and legitimacy.
This has provoked criticisms of democratic deficits. On the other hand there has also
been wide-ranging agreement on the fact that at least in some of these areas,
particularly concerning environmental regulation, international and regional
regulations have been necessary and urgent in order to be able to at all solve the
problems. Another factor is the wide-spread existence of extraterritorial effects of
national decisions or events. The implication of this is that even well-functioning
national democracies may be partially undemocratic. Globally or regionally
functioning societies may also have to extend their political and legal institutions to
such levels if these institutions are to keep their legitimacy.
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Another comment concerning the limitations of nationally functioning
democracies has to do with the challenges of risk society or knowledge society
mentioned above. In some areas we use new and extremely specialised technologies
which we also know there may be some uncertainty as to the consequences of. We
may also know that in some cases these consequences may be far into the future and
quite unpredictable. In such cases the participation of experts in some way or another
is vital. Purely democratic and representative decisionmaking may be insufficient. In
some cases the technologies are so specialised that discussing the issues within
national fora of experts may seem inadequate. Procedures involving comparative
efforts may secure qualities which national procedures cannot. In other cases the
problems may be that there are too close connections between industrial interests and
the relevant expert environments. In such cases regional or international procedures
may be preferable because they may break up too close corporative ties, as the
research on comitology has shown. In other cases again the complexities of the
regulatory problems may concern the application of new technologies or other types
of knowledge in society and the weighing of technological, economic, environmental,
social or ethical aspects within one situation of application.
With the view to these problems of existing democratic institutions various
directions have emerged within theory.
IV. Theoretical approaches to the present situation
A. Democracy and normative constitutionalism
So far it is within the context of EU law that the problems of democracy and
constitutions beyond the nation-state primarily have been discussed, theoretically as
well as politically. Within EU constitutional law Joseph Weiler´s works are
predominant. For Weiler nationhood and constitutionalism is about more than the
existence of a constitution which can be interpreted and applied within a positivist-
legal tradition. Nationhood seems to come before constitutions and is attached to such
primordial ideas as “belonging and originality”.7 The belonging of the nationhood
transcends those of the family and the tribe. Belonging is then defined as the existence
of a common social place or framework to which we belong independently of
7 J.H.H.Weiler, ”To be a European Citizen: Eros and Civilization” in ”The Constitution of Europe”,
1999, p.338.
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achievements. “To be accepted” however also implies the obligation “to accept” the
others which also belong. Nationhood is not identical with a common ethnicity, but in
Weiler´s conception there is a recognition of the values of a common space and the
potentials of that for creating identity. Nationhood is also accepted as the expression
of a cultural specificity or uniqueness underscoring a commonality.8 The spatial and
the existence of the nation-state as boundary-drawing are also recognised as
significant for the possibilities of organising a society and thus for realizing human
potentials or “originality”. The nation is more about something primordial, the state is
an instrument to realize something. The nation-state is the combination of the two.
Others would go further than Weiler in emphasizing nationhood as historically
based and as an expression of common values, and thus as enabling community in a
totally different way than regional or international organisations. On this view
redistribution and sharing on a more stable basis require also shared values.
The project of European integration is then seen as two-fold, partly an attempt
to control the excesses of the nation-state, and partly to offer an alternative to the
liberal only vision of international law and society. It is about “belonging”, but on
another level than the national. It is also seen as community and not only as a liberal,
rule-of-law and neutral balancing of various national interests. It is seen more as an
extension of the idea of community and belonging than as another type of
international organisation in the purely liberal tradition. Weiler insists on a substantial
definition of the membership in the European Union. It is then defined as a
committment to the shared values of the constituent documents to the union.9 This is
seen as commitments to a civic society which is wider than on the national level, and
which transcends the cultural commonalities which are nationally defined. It is then a
civil society which is more liberally defined, but which still sees itself as a community
and with the shared values of keeping that civil society together. The Europeans are
not seen as a new demos, rather as co-existing multiple demoi, but still a European
specificity is defined to include the mutual social responsibility and the ethos of the
welfare state as well as the human rights embodied in th European Convention on
Human Rights. There is thus also a commonality of values defining the European
Union.
8 J.H.H.Weiler, ibid., p.342.9 J.H.H.Weiler, ibid., p344.
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Weiler is open in his criticism of the democratic deficits of the EU and its
institutions. He thus sees the EU as a new kind of polity. Part of this is seeing also the
regulatory issues and conflicts which arise as political. Weiler is sceptical towards
some of the analysis and evaluations made of Comitology as being too positive or too
inclusive of the work of expert committees also within a constitutional framework. He
upholds in principle a separation between the scientific and the political discourses of
some of the regulatory arenas, and maintains that in the end any social problem or
conflict must be solved on a political basis and by politically accountable
institutions.10
It is implied in this that expert participation and the use of scientifically
based argumentation should not be seen as part of the constitutional framework. He is
sceptical towards both the committees and the Court in their acceptance of scientific
evaluations as the ultimate answers to complex and social questions. Implied in his
discussions of this is that all issues brought before political institutions can be defined
and decided upon politically.
I would be thoroughly sympathetic with essential parts of Weilers normative
constitutionalism including his solution of multiple levels of political institutions,
with a focus on the new supranational level, and multiple demoi. I also agree with his
insistence on the basic qualities of democratic institutions. The problem is rather that
in some cases democratic and classical legal procedures are not sufficient. The
complexity of the areas to be regulated demand more varied, deliberative and cross-
disciplinary procedures supplementing the existing democratic and politico-legal
procedures. In some cases this is because the issues involved are extremely
specialised, in other cases because they involve the balancing between several
complex and conflictual discourses or disciplines. More specifically: One problem I
see in the emphasis on normative constitutionalism is a lacking interest in the
problems created by the uses of new and complex technologies and knowledges, and
their unintended consequences. Another problem is in the particular types of legal
argumentation brought on to the court and other instances by the insistence on an
efficiently defined free trade regime. First I would argue that the regulation of new
and complex technologies with uncertain, but possibly significant and future
consequences, raises questions which transcend traditional politico-legal discourses.
Complex questions are involved which at least partially must include the use of
10 J.H.H.Weiler, ”Epilogue: ”Comitology” as Revolution” in ”EU Committees”, eds. Joerges, Vos,
1999, p.344-349..
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experts and scientifically based discourses in the descriptions of the risks involved,
and to some extent also as advice to the more discretionary decisions of what risks to
allow or disallow for. In such complex areas deliberative procedures involving either
specialised or cross-disciplinary boards or committees may part of the solution.
Secondly: If a fully consequential free trade regime is to be upheld, exceptions to it
must be definable in relatively objective ways. I have problems seeing how we can
avoid the use of scientifically based argumentation here. I do however agree that in
some cases the drive towards “scientific” evidence alone may seem too crude. There
is then a need to make this argumentation more nuanced. One alternative would be to
create a more nuanced argumentation still based on scientific knowledge, but
including elements of uncertainty and doubts. Another alternative could be to work on
ways to find indication on when to use the principle of precaution, still accepting its
contingency.11
B. The neo-liberal direction
The increasing emphasis on free trade regionally and globally has been a significant
part of the increasingly global dynamics. The arguments for free trade have come
from the economic system, but they have then been conveyed politically and also by
the legal system. Treaties favouring free trade have contributed to the creation of
more stabilising structures and institutions. It is probably the combination of the
economic, political and legal communicative systems which have given free trade
such a dominating place in our current regulatory systems. Free trade has been
strengthen by legal obligations and institutions. The increasing effects of free trade
have then been used as an argument for further globalisation of law and politics.
Within the international debate on how to describe the new forms of international and
regional governance some theorists insists that it is possibly to delimit the regultion
concerning free markets from other types of regulation, and thus to delimit also the
international and regional forms of governance to the implementation of a free
market. They also maintain that such forms of regulation are technocratic and value-
free. They do not in themselves contain or adhere to other substantial values. It is
however argued that free markets and a liberal economy are the most efficient forms
11 Inger-Johanne Sand, ”The legal regulation of the environment and new technologies – the changing
relations of law, politics and science”, to be published in Zeitschrift für Rechtssoziologie, 2001.
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of organising the economy, and that they maximise the output for consumers and for
welfare in general. It is also argued that such forms of regulation can function on their
own as forms of negative integration and do not implicitly lead to other more
substantial forms of regulation.
The first problem with this argumentation is the maintaining of free markets as
a value-free, politically neutral and technocratic arrangement. This view disregards
the various negative consequences of free competition regimes. They are considered
irrelevant because liberal markets are considered to produce welfare in the most
efficient way. They are thus deemed to be above politics in some kind of way. The
implication of this would be that they also do not create any constitutional or
democratic problem, and thus not any problem for legitimacy. Such economic
systems are considered legitimate because they produce results. The next problem
is the insistence that it is possible to have negative integration without positive
integration. The implementation of both the EC/EU and the WTO have illustrated the
complexities of this. The attempts to regulate free markets in efficient and
consequential ways have shown that this indirectly and de facto will lead to regulation
of environmental, consumer and social matters as a consequence of decisions
concerning how far the free competition principle can be drawn. When this is to be
done in an efficient and consequential way, it will also implicitly come through as a
regulation of the environmental or other social issues involved. Parts of the
regulations on health, the environment etc. are then established, but indirectly via
another field. Thirdly the argumentation above maintains the optimal efficiency of
free markets also on welfare. It seems to me that what optimal efficiency on welfare
is, is much more complicated and cannot be settled with such simplicity.
Parts of the intergovernmental side in this debate would also use some of the
arguments above. Primarily they maintain the possibilities of keeping separate
national, supranational and international authorities, procedures and regulations.
Implicitly however they also maintain the possibility of having only negative
integration without having to go into the more politically demanding positive
integration. Also on this view negative integration is not seen as a constitutional or
democratic problem because it is limited to spheres which are not particularly
political.
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C. Deliberative supra-nationalism
Some authors have focussed on some of the more recent aspects of international or
transnational governance concerning preparation and implementation of legislation in
areas where experts or interest organisations are used. Some of the foremost
contributions in this vein have come from Christian Joerges and Jürgen Neyer on their
project on comitology.12
This is a discussion which at first hand discusses the
evaluation of certain procedures within the EC/EU, but it also has consequences on a
more general level. Their research concerns more directly how negotiations
concerning regulation are done (a) in areas involving specialised and new knowledge,
uncertainty in the application of such knowledge and complex balancing of
substantially different factors, (b) in environments which include representation from
several constitutional levels, in some cases also private representatives or experts, and
(c) where problems typically on the borderlines between politics, administration and
expertise are dealt with. Their research concerns both how these processes actually
function, and how they should be evaluated within a public and constitutional legal
framework, including their degrees of legitimacy.
As I read their research and articles there is an emphasis in their descriptions
and evaluation on what we may call knowledge or risk society with their
comprehensive use of new technologies with at times uncertain and significant
consequences, and the challenges of regulating such uncertainty and complexity. The
regulation of new technologies mean that the regulators have to deal with
technologically complex questions, the possibilities of uncertain and significant risks
and thus also at times difficult ethical questions. The implication is that such complex
matters may require additional or more qualitative methods or procedures than those
which already exist within the more traditional governmental, constitutional and
international institutions. The questions inspiring such research have been whether the
more traditional bargaining methods of national interest representation in international
negotiations have been applied here. The answers have been that when confronted
with “new” and complex regulatory questions the negotiating parties have accepted
more open and deliberative methods in order to reach as good results as possible for
12 Jürgen Neyer, ”The Comitology Challenge to Analytical Integration Theory”, and Christian Joerges,
””Good Governance” Through Comitology”, in ”EU Committees. Social Regulation, Law andPolitics”, eds. Christian Joerges and Ellen Vos, 1999, cfr. also the many other contributions in the same
volume; Christian Joerges, ””Deliberative Supranationalism” – A Defence”, manuscript, 2001.
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the regulatory problems involved. There has not been a primary focus on the
protection of national interests.
The most plausible explanation of this seems to me to be that there has been
and is a recognition of at least some of these regulatory challenges as new and
complex and thus requiring an open attitude as to how they should be solved. There is
also the question of the participation of experts who can understand the technological
complexity of the questions, and the use of cross-disciplinary fora where many
perspectives can be combined in order to grasp the social and more comprehensive
consequences of the application of new technologies. There is further the question of
whether the negoytiative procedures are sufficiently comprehensive, critical and
thorough.
Through this research it has been shown that in the comitology committees of
the EC/EU system negotiations have not only or primarily been political or interest-
balancing in the more traditional political sense. They are also evaluated as being
deliberative. That is: The various national representatives or experts have not started
out with taking care of vested interests, but have rather explored the area from an
open and a knowledge or experience point of view. New information has been
regarded. Experiences have been compared.
My further reading of this research is that the negotiations concerning
implementation and delegated legislation have been deemed as vital parts of the
whole process of legislation. Primary legislation is often very general and
discretionary leaving very significant parts of the substantive legislation to the
secondary legislative processes and the implementation. In many technological and
knowledge-based fields the vital decisions or distinctions to be made do not surface
until the implementing processes. In areas with much uncertainty and risks concerning
such decisions it is even more vital how these decisions are taken. The final decisions
on the scope of the application of genetically modified organisms are, for example,
not taken before the decisions granting concessions have been given, or before a
pattern of argumentation concerning such cases have been worked out.
The significance of regulatory and implementing decisions taken in
interrnmnetal or transnatio nal committeesmay be such that it may seem strange to
exclude them from the territory of constitutionalism. They are de facto part of it. The
arguments concerning legitimacy for the placing of such procedures within a
constitutional framework, are first the aspects of “nation-state failure”, and then the
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need of new qualities of the politico-legal and administrative processes within such
areas as here pointed to. Regarding such issues as only solvable by traditional political
interest-weighing may be insufficient and reductionist.
The argumentation is then that within a public law and a constitutional
framework we need a more varied set of decision-making procedures in order to take
care of all the different challenges emanating from the complexity of regulating late
modern or risk societies. The problem-solving challenges are many-faceted.
Legitimacy may then also have to be achieve
d in more varied, combined and comprehensive way. It should however be openly
admitted that how such matters should be dealt with, and how legitimacy for the
various dimensions of the problems may be achieved, is still an open question. The
constitutional relevance of such procedures do not mean that they have reached a
constitutionally recognizable form, nor that we are certain as to where the boundary -
lines as to what is “constitutional”, are finally found.
D. Democratic experimentalism and deliberative polyarchy
The challenges discussed under the headline of deliberative supranationalism are
discussed on a more exploritative level by some writers under the labels of democratic
experimentalism and deliberative polyarchy.13
In these contributions the universalist
presumptions of sovereignty and its unity are questioned as well as the universality of
language and meaning. In stead the “public” is put in the place of the universal notion
of sovereignty. The public is then presumed to be an open and varied group with
underlying notions of inherent pluralism. The areas/objects to be regulated are in
continuous change, complex and fragmented. There is thus a pervasiveness of
uncertainty in decision-making. The present complex and ever-changing societies can
thus not evolve consensual and universal processes of meaning, at least in many vital
areas. In stead of consensus continuous learning processes and an acceptance of
language as ambiguous are put. The implication of this is that questions are put to the
traditions of legislative and governmental processes where it is presumed that the
13
Charles Sabel and Oliver Gerstenberg, ”Directly Deliberative Polyarchy. An Institutional Ideal forEurope?”, manuscript, 2000; Charles Sabel and Joshua Cohen, ”Democratic Experimentalism”,
Columbia Law Review”, vol.98, 1998, and ”Sovereigny amd Solidarity in the EU”, manuscript, 2001.
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decisions of “the sovereign” or the sovereign institutions are presumed to be
comprehensive and “final”, even if the majority may be slight.
It is further presumed that the predominance of “change, complexity and
uncertainty” must imply vital changes in the decisionmaking processes also on
governmental or constitutional levels both factually and legitimatewise. Complexity
and uncertainty necessitates also more qualitative and comprehensive research and
labour processes in order to investigate the problems and look into alternative
regulatory solutions. In the place of universalist presumptions and procedures aiming
at consensus are put learning processes, collaboration, comparisons and an acceptance
of disagreements and ambiguity in the language when “meaning” is attempted in
complex areas. Acceptance of disagreements and conflicts and a willingness to
continuously reexamine assumptions once made or decisions taken, seems vital. To
avoid fragmentation it seems vital to focus on procedural qualities such as
transparency, publicity, objectivity and availability of information to the public.
In a knowledge- and technologybased society, in contrast to a tradition-based,
identity and values will be more changeable and manyfaceted. Solidarity will then
also be formed on the basis of a more changeable and unstable society. The
accumulation of new knowledges contribute as much to new uncertainties as to
certainty. Stability in values is exchanged for an acceptance of continuous learning
processes.14
The institutional implication of this would be to accept a more manyfaceted
and qualitative institutional framework of decision-making both on the national and
international levels.
E. Transnational governance and risk-society
Recent years have brought significant changes as far as an increasing emphasis on and
scope of the inter-, trans- and supra-national levels of governance go. Part of this has
been an increase of legal norms on these levels concerning free trade, human rights
and environmental protection. The line of argumentation drawn above, as a kind of
contextual explanation of these trends, could be pursued further: Human beings now
possess complex and specialised knowledge and technologies which may have
14 Sabel and Cohen, ibid., 2001, p.23 flw.
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significant and uncertain consequences, which on several dimensions may exceed the
scope and qualities of nation-state decision-making.
First: When applied such technologies may have very far-reaching and
intransparent effects, both in space and in time. The use of bio and genetic
technologies will have consequences, possibly positive and negative, and uncertain,
far into the future and thus for future generation. The use of these and other
technologies may also have extraterritorial effects. Traditional democratic decisions
within the nation-state on the scope of application of such technologies are thus
problematic as far as democratic standards go because their effects will extend the
demos of the nation-state both in space and in time. The scope and the intransparency
of the effects may be arguments for international or regional regulations.
Consequences on the environment and the climate are illustrative examples of
extraterritorial and future effects.
Secondly: In a globalized society such knowledge and technologies will travel
without regard to state boundaries. There may be a need to coordinate effects or
exchange experience on their application. The various groups of scientific specialists
will often communicate internationally as much as nationally or locally.
Third: Some of these technologies are extremely complex and may also have
very complex, far-reaching and uncertain consequences, factually and ethically, when
applied. There may thus be a need both to cooperate, compare and exchange
experiences concerning both their application and regulation.
The application of complex and far-reaching knowledge and technologies, and
their relative significance and scope, have thus contributed drastically to changing the
preconditions and the significance of nation-states as closed entities of decision-
making and governing. Many of the most vital aspects of modern societies are in
effect coordinated across boundaries via common knowledge and technologies.
Political and legal regulation will to some extent have to replicate that.
The scope and the efficiency of free trade treaties inter- and supranationally
have also broken the spell of nation-state comprehensive sovereignty in legislation.
Efficient and comprehensive forms of free trade regulations have indirectly resulted in
environmental and social regulation as effects of how “free competition” and its
exemptions have been defined in practice. The production of commodities is so
enmeshed in the application of technologies, the use of chemicals etc. that the
definitions of “same” goods and parity, preconditions for definitions of free
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competition, often will either rely on or have implications for environmental or health
regulation. Negative integration cannot be done without some effects for more
substantial social regulations. Global free trade legally regulated contributes
substantially to fragmenting and reducing the sovereignty of the nation-states.
The same factors have contributed to emphasising the power of other than
politico-legal or constitutionally based actors such as multinational corporations,
NGOs, scientific experts etc. Their de facto power has contributed to the emphasis
now given to the transnational level and the more comprehensive term of
governance……..
One point put forward here is that societies which are dominated by complex
technologies and other forms of specialised knowledge, which have far-reaching and
uncertain consequences, will require additional qualities and forms of decision-
making and institutions. That could be deliberation, transparency, reflexive
reexaminations, interdisciplinary confrontations etc. Another point is that
communication producing such knowledge and technologies is to a large extent global
or regional, not enclosed by national boundaries, and that communication concerning
the possibly far-reaching, complex and uncertain consequences of the application of
such knowledges will have to be territorially unbounded in order to be problem-
understand and –solving. Extra-territorial effects, future effects, complex interaction
between different technologies, ethical problems etc. abound. Continuous learning
processes, comparisons, exchange of experiences and coordination of regulation
require territorial unboundedness. Constitutionally based entities are challenged and
changing, even if they are still used. “Constitutionality” as a concept is vitally
changing in so far as it has to accept the combinations and the simultaneity of several
institutions sharing or in conflict about competence. Fragmentation, incoherence,
pluralism and not always fully coordinated combinations of power are probably
unavoidable, and not necessarily undesirable, even on the levels which often function
as constitutional.