NEVES, Marcelo. From Constitutionalism To Transconstitutionalism. 2017

8
From Constitutionalism
to Transconstitutionalism
Beyond Constitutional Nationalism, Cosmopolitan Constitutional
Unity and Fragmentary Constitutional Pluralism
marcelo neves
8.1 Constitutional Ubiquity?

When we examine constitutionalism, either from a legal-normative per-
spective or from a political-sociological point of view, it becomes essen-
tial to define the concept of the constitution.1 The application of the term
‘constitution’ in various areas of knowledge and its symbolic appeal in the
legal and political field mean that it is often used in a very imprecise way,
so that participants in a discussions concerning it often become involved
in ‘fallacies of ambiguity’ (Copi 1961: 73ff.). This term was coined in
logical analysis to describe the situation where the discussants of a theme
use the same word to imply totally different concepts and they therefore
employ conceptual referents that often contradict each other. The risk of
this occurring grows immensely when the term employed is applicable in
a number of different areas of social life. In this regard, Antonio
Hespanha (2004: 67ff.) points to the plurivocal character of the word
‘constitution’, which, beyond historical variations in its political and legal
meanings, also exceeds the scope of the cultural world, as it can denote
biological or physical dispositions. This is associated with the persistent
1
This chapter is the result of two research stays at two renowned institutions: first as
a Visiting Senior Research Fellow at the Adam Smith Foundation in the College of
Social Sciences at the University of Glasgow in 2014; second as a Senior Research
Scholar at Yale Law School in 2015. I wish to thank Emilios Christodoulidis and Marco
Goldoni for the enlightening conversations during my stay in Glasgow. I am also very
grateful to Robert Post, Paul Kahn, Bruce Ackerman, Daniel Markovits and Alec Stone
Sweet for opening the door for me to the excellent scholarly atmosphere at YLS. I have
translated the quotes from the foreign originals, unless I refer to an English translation
between brackets. I am very grateful to Klébert Machado for the linguistic revision of the
text.
267
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268 marcelo neves
error of nominalism to which Ackerman refers in his analysis of com-

parative constitutional law: ‘Important differences are frequently oblit-
erated by loose talk invoking a common label’ (Ackerman 1997: 794).
This problem does not only concern the relevance of the conceptual
ambiguity or logical vagueness in the argumentative process. It also
becomes part of political struggles and of academic conflicts around
conceptual uses and constructions. In this regard, the attribution of an
extremely positive evaluative meaning to a conceptual expression may
lead to the glorification of one group, which presents itself as identified
with the expression at stake, and the disdain of a different group, which is
presented as averse to it. This corresponds to what Reinhart Koselleck
(1989: 211, 213 [Engl. trans. 2004: 155–156]) calls ‘asymmetric counter-
concepts’, which imply a moral disqualification of those who oppose
them by introducing ‘a depreciative meaning’ that functions for their
adversaries ‘as a linguistic deprivation, in actuality verging on theft’. This
category undoubtedly covers the concept of the constitution in politics
and law. Such a circumstance relates to the fact that the constitution has
become a ‘support for hope’ (Biaggini 2000: 465). Indeed, the concepts of
both the constitution and constitutionalisation have become part of
a ‘victorious offensive’ (Biaggini 2000: 447ff.; Wahl 2002: 191), and they
are used as a ‘fighting political concept’ (Biaggini 2000: 464). In the USA,
the written constitution was called ‘the political bible of the State’:
‘Scarcely a family was without it’ (Paine 1992 [1791–1792]: 149; see
Preuss 1990: 17; Vorländer 1999: 9; Biaggini 2000: 446). In French post-
revolutionary period, Societies of Friends of the Constitution, better
known as Jacobin Clubs, sprang up all over France (Schmale 1988:
64–66), and the constitution was called ‘catechism of human race’ (see
Schmale 1988: 13).2 All this led to a veneration of the constitutionalists
and a disdain of persons considered non-constitutionalists or anti-
constitutionalists. But this distinction varied according to the meaning
attributed to the term constitution in the context of conceptual struggles,
since it was linked to a very diverse range of desires and interests.3
We can, for example, think of what ‘constitution’ expresses in the view
2
The weekly paper Révolutions de Paris (no. 20, dated 21–28 November 1789) included the
following assertion: ‘A Constitution is desired by all: every citizen sacrifices his fortune,
personal affairs and leisure to this goal’ (quoted by Schmale 1988: 13; see also Preuss
1990: 12).
3
This use is associated with a certain ‘constitutional fetishism’ (Walker 2002: 324–327),
later revived in ‘global’ form (Fischer-Lescano 2005: 208). In this context, Maduro (2006:
335ff.) refers to the ‘importance of being called a constitution’.
f r o m c o ns tit u t i o n a l i s m t o t r a n s c o n s tit u tio n a l i s m 269
of the Girondins, and what the same term means from the perspective
of the Jacobins (see, for example, Gauchet 1989: 216ff.). Of course, the
contention over the words had an impact, not only on the realm of mind,
but also on the bodies of the participants.
These conceptual struggles led to the temptation to consider ‘consti-
tution’ a mere metaphor for the political and legal language games in
society. Of course, it is always very unlikely that a word does not have
a metaphorical origin or potential. But it is worth distinguishing between
‘arbitrary metaphors’ and ‘conceptual metaphors’. Following this distinc-
tion, from the point of view of legal theory and political sociology it is not
appropriate to make ‘constitution’ an ‘arbitrary metaphor’ in terms of the
particular and specific scenario of interests and desires that surround it.
This means that one should not indiscriminately invoke the concept of
constitution in the most diverse contexts without support from corre-
sponding social structures. Without denying the social relevance of
metaphorical language games, I nevertheless suspect they may have an
inappropriate relation to structural contexts, insofar as they do not assist
either in understanding or resolving properly the social problems that
emerge from the deficiency of structures. Constitution in the modern
sense depends at the structural level on broad presuppositions, and at the
semantic level it requires conceptual clarity so that it acts as a category
that serves to clarify decisive problems of contemporary world society.
Another temptation is to reduce ‘constitution’ to a ‘floating signifier’ or
‘zero symbolic value’ in the sense of structuralism (Lévi-Strauss 1973
[1950]: XLIX–X, n. 1) or to an ‘empty signifier’ in post-structuralist terms
(Laclau 1994). These alternatives conceive constitutions either as
a structural benchmark with a hint of magical force, capable of conceal-
ing or cooling real conflicts in the most disparate contexts, or as
a significant benchmark invoked by the interests and desires of everyone
involved in social and political struggles, without being tied to specific
social structures. However, constitutionalism as a construct of modern
society implies certain contours of meaning that prevent an absolute
disconnection between constitutional semantics and structural change,
and enable crises in semantics to be related to emerging problems in the
sphere of structure. True, there are tensions between the semantics
developed at the level of society’s self-description or reflection and the
structural sphere of the selective delimitation of possible operations, but
structural change evidently influences changes in semantic artefacts and
vice-versa (see Luhmann 1980: especially 17, 22, 34). It is worth noting
not only that semantic innovations are related to structural changes
270 marcelo neves
(see Skinner 1989), but also that obsolescence of specific semantic arte-
facts may be associated with depletion of the respective structures, since
‘if the level of complexity of society changes, the semantics that orients
experience and action must adapt to that change, otherwise it loses the
connection with reality’ (Luhmann 1980: 22). And this is especially
pertinent for the relationship between social structure and the concepts
of constitution or constitutionalism, so that the semantic apparatus of
constitutionalism ought not to be decoupled from its historical and
functional meaning for the structural transformation that led to the
emergence of constitutions.
The third temptation is to resort to pan-constitutionalism. In this
regard, the most extreme proposal of a ‘historically universal concept’
(Canotilho 1991: 59) is offered by Teubner (2012: 63 [Engl. trans. 2012:
35]), who states: ‘not just ubi societas, ibi ius, as Grotius once said, but ubi
societas, ibi constitutio’.4 From this standpoint, constitutions are found
not only in pre-modern forms of social organisation with territorial basis,
where the political domination is at the top of the structure and is
supported by a comprehensive religious-moral semantics of the whole
society, but also in tribal societies. This is because these societies also have
boundaries that imply a distinction between identity and alterity; that is,
between the own tribal community and other tribes. Moreover, the tribal
identity is reflected in terms of religious worldviews with a magical
background, in terms of self-description in a set of narratives. In this
way, the concept of constitution loses its specificity, and it becomes
confused with the basic concept of social formation.
Although Koselleck does not adopt a pan-constitutional model, he
approaches such a position in attributing to the concept of constitution
a very broad meaning. He states, accordingly: ‘My proposal that the
history of the constitution should encompass all domains characterised
by repeatability by virtue of legal rules is therefore designed to bridge
the gap between pre-modern histories of law and modern histories of
the constitution so as to include not just interstate but also post-state
and to some extent supra-state phenomena of our times’ (Koselleck
2006: 370–371). In this way, constitutions are present in all social
4
The reference to Grotius appears only in the English translation. According to Teubner’s
formulation, it is necessary to expand constitutionalism (Teubner and Beckers 2013) into
very different social arenas. Following this path, see for instance Kjaer (2014; 2013);
Thornhill (2013); Kumm (2013); Berman (2013); Lindahl (2013); Prandini (2013);
Anderson (2013); Wielsch (2013); Renner (2013); Bailey and Mattei (2013); Rödl (2013);
Ellis (2013); Backer (2013); Bregvadze (2013); Teubner (2015).
f r o m c o n s t i t u t i o n a l i s m to tr a n s c o n s t i t u t i o n a l i s m 271
domains in which there is ‘repeatability by virtue of legal rules’. But

beside the fact that the notion of ‘repeatability by virtue of legal rules’ is
porous, it is very hard to find a social context in which such repeat-
ability does not exist. If we were prepared to admit that repeatability
has to do with ‘redundancy’ in acting according to normative expecta-
tions, Koselleck’s notion would be closer to a concept of law as stabi-
lisation and congruent generalisation of normative expectations in
the terms implied by systems theory (Luhmann 1987: 94ff. [Engl.
trans. 2014: 73ff.]; 1993: 131ff. [Engl. trans. 2004: 147ff.]). On this
account, constitutionalisation would not be distinct from legalisation.
Koselleck (2006: 370) in fact seems to confirm this understanding, as he
extends the concept of constitution to include ‘all legally regulated
institutions and their forms of organisation, without which a social
community of action is not politically capable of acting’. This concept
is linked by Koselleck to the notion of politically organised ‘commu-
nities of action’, so it excludes from the field of conceptual reference
tribal forms of social life as well as legal forms not related to a political
collectivity.5 Yet, apart from these restrictions, there is an identity
between constitution and law in Koselleck’s conception. Here the
concept lacks specificity and becomes superfluous.
Thornhill (2011: 11) also proposes a very broad concept of constitution
‘in terms that can be applied to many societies in different historical
periods’. While limiting his view of constitution to ‘the fact that it refers
primarily to the function of states [in general, not the modern states –
MN], and it establishes a legal form relating to the use of power by states,
or at least by actors bearing and utilizing public authority’ (ibid.), his
concept embraces the ‘pre-modern constitutions’, particularly the ‘med-
ieval constitutions’, in an evolutionary continuum (2011: 11–12, 20ff.).
Against this background, any organisation in which there is a functional
connection between law and public authority has a constitution. Again
this formulation lacks specificity, referring almost to a ‘historically uni-
versal’ concept of the constitution, which aims to encompass different
political and legal scenarios from antiquity to the modern era, as
5
Teubner (2012: 34 [Engl. trans. 2012: 16]) incorporates the reference to ‘post-state’ and
‘supra-state’ phenomena to embrace his notion of ‘civil constitutions’, which are built by
(not political) ‘private actors’, under Koselleck’s concept of constitution. However,
Koselleck restricts this concept to ‘a social community of action’ that is ‘politically capable
of acting’, irrespective of whether it is a state or an interstate, post-state or supra-state
community (2006: 370). In the framework of a critique of Teubner, see in this regard
Christodoulidis (2013: 649).
272 m a r c el o ne v e s
expressed, for example, in the title of the book by Charles Howard

McIlwain: Constitutionalism: Ancient and Modern (1940).6
The tradition of constructing the constitution in these terms dates
back not so much to the Roman constitutio, which referred in a generic
way to a legislative enactment by the Roman emperor and included the
‘edicts, decrees (judicial decisions) and rescripts (written answers to
officials or petitioners)’ (Roberts 2007: entry ‘constitutions’), as rather
to the notion of politeia in ancient Greece.7 Politeia of course found
a remarkable definition in Aristotle’s work: ‘[. . .] a constitution
(πολιτεία) is the regulation (τάξις) of the offices of the state in regard to
the mode of their distribution and to the question what is the sovereign
power in the state and what is the object (τελος) of each community’
(Aristotle 1944: 281 [IV. I. 5, 1289a]; see 173 [III. I. 1, 1274b], 201 [III. IV.
1, 1278b]). This definition referred both descriptively to elements of the
real power structure (McIlwain 1940: 28; Maddox 1989: 51), and to the
teleological dimension of the organisation of the polis (Mohnhaupt 1995:
9), so that until the end of the eighteenth century the term politeia was
not translated into English as ‘constitution’, but more approximately as
‘government’ (Stourzh 1989: 3ff.; Mohnhaupt 1995: 8).8 In the work of
Aristotle, however, politeia included, not only monarchy, aristocracy and
6
It is remarkable that while proposing a broad semantic scope to the concept of constitu-
tionalism, McIlwain defines it in much more limited terms in a passage of his work: ‘it is
a legal limitation on government; it is the antithesis of arbitrary rule’ (1940: 24). However,
it is difficult to apply this definition to innumerable political formations or regimes not
only of antiquity but also the modern age.
7
In some passages, Cicero employs ‘constitutio’ in the sense of ‘politeia’. An example of this
is his description of the mixed form of government: ‘haec constitutio primum habet
aequabilitatem quandam magnam, qua carere diutius vix possunt liberi, deinde firmitudi-
nem’ (‘Such a constitution, in the first place, offers in a high degree a sort of equality, which
is a thing free men can hardly do without for any considerable length of time, and
secondly, it has stability’) (Cicero 1928: 104/105 [I.XLV.69]). In another passage, the
expression reappears in these terms: ‘Nunc fit illud Catonis certius, nec temporis unius
nec hominis esse constituionem rei publicae’ (‘Now we have further proof of the accuracy of
Cato’s statement that the foundation of our State was the work neither of one period nor of
one man’) (1928: 144/145 [II.XXI.37]). McIlwain (1940: 27–8) attributes to these passages
the ‘first use’ of ‘the word “constitution” in its accepted modern sense’. This view needs to
be refuted. In fact, his first passage refers to ‘constitutio’ as a synonym for ‘conformatione
republicae’ (the structure of the republic), pointing to one of its forms: ‘moderateque
permixta conformatione rei publicae’ (‘the mixed and evenly balanced constitution’) (1928:
144/145 [II.XXI.37]). The second relates rather to the foundation or construction of the
political community, as can be inferred from the translation quoted above.
8
A widely read twentieth-century translation of the Politics contains the following sentence:
‘the constitution is the government’ (Aristotle, 1944: 201 [III. IV. 1, 1278b]). See also ibid.
205 [III. V. 1, 1279a].
f r o m c o n s t i t ut i o n a l i s m t o tr a n s c o n s t i tut i o n a l i s m 273
polity as just/right forms of government, ‘which aim at the common

advantage’, but also tyranny, oligarchy and democracy as unjust/deviant
forms of government, which ‘aim at the rulers’ own advantage only’
(Aristotle 1944: 205ff. [III. IV. 6ff., 1279aff.]). Its translation by ‘constitu-
tion’ is a typical anachronism of the era of liberal revolutions (an
‘Enlightenment anachronism’),9 which has hindered the correct under-
standing and explanation of the problems and aspirations that emerged
in the context of structural transformations of modern society and led to
the constitutionalist movement and the increasing significance of the
constitution in the modern sense. Apparently, one might justify such
usage by invoking the idea of a ‘resignification’ of terms, but this only
makes sense if there is a core of continuity, revision and expansion or
displacement of an old concept.10 However, the meaning of politeia or
the very polis in general was restricted to the heads of the households
(Oikiai or Oikoi).11 Structural normative requirements excluded the
other human beings (i.e. the vast majority) from it, as they were kept in
the domestic space as dependents or slaves. In contrast to this, constitu-
tionalism emerged as a new semantics pointing to normative structures
aimed at the universal inclusion of any person under the rights, despite all
the well-known socio-structural limits to its accomplishment and devel-
opment. I do not think, therefore, that it is appropriate to invoke the
‘resignification’ of an exclusionary political-legal model to understand
and explain an – at least at the normative level – inclusionary political-
legal model.
The temptations of retrieving ‘older political vocabularies’ to embrace
new concepts, such as ‘constitution’, that arise in the constitutionalist
movement disregard the fact that these vocabularies ‘are almost impos-
sible to resurrect and revitalize’ and ‘earlier political languages are better
studied and appreciated than revived’ (Ball and Pocock 1988: 11). In the
age of liberal revolution, the new emerging word ‘constitution’ and its
9
This is an expression used in another context by Koselleck (1989: 180 [Engl. trans. 2004:
131]), who refers to ‘pure anachronism’ as ‘the egocentric destruction of the intersubjec-
tively experienced world’, associating it with ‘schizophrenia’ (ibid. 291 [Engl. trans. 215])
10
This is the case unless we accept the notion of ‘radical reoccupation and resignification’
proposed by Butler (1997: 104). On this view, ‘in its resignifications, the law itself is
transmuted into that which opposes and exceeds its original purposes’ (ibid. 99]; but it is
related to ‘mobilization against subjection’ (ibid. 104), which seems not to be the case with
the constitutional anachronism or pan-constitutionalism which I shall avoid.
11
It is worth noting that oikos (pl. oikoi) had a broader meaning than oikia (pl. oikiai), in
that it included the property owned by the head of household outside the home as
a physical domestic space (see MacDowell 1989: 10).
274 marcelo neves
meaning corresponded to structural transformations in society

(Luhmann 1990a: 177).12 It is very hard to analyse the specificity of the
meaning and function of the constitution in the modern sense when the
analytical tools to be used are historical-universal concepts, which
attempt to find the same concept in entirely different socio-historical
contexts (see Luhmann 1990a: 212). From this perspective, Luhmann did
not – contrary to Thornhill’s (2011: 9) suggestion – accept ‘latitude in the
definition of the constitution’. On the contrary, he proposed a very strict
concept of constitution: ‘My theses will be that the concept of constitu-
tion – contrary to the first impression – responds to a differentiation
between law and politics, even more: to a complete separation of these
both functional systems and to the requirement arising from this separa-
tion for linkage’ (Luhmann 1990a: 179–180).13 Two qualifications should
be considered in relation to this view. On the one hand, the modern
constitution does not appear as a legally all-embracing ‘fundamental
order of the community’ (see, for example, Hesse 1980: 11; Hollerbach
1969: 46; Böckenförde 1983: 16ff.),14 but as an artefact associated with
a specific relationship between politics and law in the modern state.
On the other hand, it is not appropriate to restrict the concept of
constitution to one of the few ‘achievements of modern civilisation’
that are the ‘result of intentional planning’ (Luhmann 1990a: 176),
much less to maintain that ‘Americans invented not only the thing, but
also the name of it’.15 Although it is admissible to speak of constitutional
invention parallel to ‘democratic invention’ (Lefort 1981), it is not plau-
sible to reduce the emergence of the constitution to the result of acts of
a constituent will in a ‘constitutional moment’, as exemplified in the
12
In this respect, Luhmann invokes Skinner (1989).
13
While Thornhill (2008: 161–162, 165–166, 170, 175, 179; 2011: 13; 2012: 376; 2013: 583)
invokes Luhmann’s systems theory as a model for his sociology of constitutions, he does
not accept Luhmann’s core conception of constitution as a result and factor of the
differentiation between law and politics (Thornhill 2014: 358). In this way, it seems to
me that Thornhill’s constitutional sociology is closer to a functionalist reading of
Schmitt’s concept of the constitution (Thornhill 2014: 360; Seitzer and Thornhill 2008)
than to Luhmann’s systems theory of functional differentiation, especially in its emphasis
on the autonomy of law in face of politics on the basis of the constitution.
14
According to Luhmann (1973: 2), this view presupposes ‘that also in our society “con-
stitutive” structures take on the form of an expectation of behaviour’.
15
Adams (1980: 65) refers directly to the phase ‘constituent power’ in this passage, but also,
indirectly, to the ‘constitution’ as expressing a modern artifact not resulting from legisla-
tion, but from ‘constitution making’. In a somewhat different, but still similar way, Klug
(2000: especially 600–601) points to the US-American Constitution as a worldwide
constitutional starting point and model.
f r o m c o n s t i t ut i o n a l i s m t o tr a n s c o n s t i tut i o n a l i s m 275
French and American experiences. The rising importance of the con-

stitution also encompasses dilated historical processes of institutional
separation in which politics and law gradually become functionally
differentiated, although interdependent, as exemplified in the British
experience.16 From this perspective, I shall consider in the following
the constitution of constitutionalism by rejecting any claim for consti-
tutional ubiquity in the terms of the dominant pan-constitutional
catharsis.
8.2 The Constitution of Constitutionalism

8.2.1 The Problems: Structural Transformations and the Semantics
of Rights against Arbitrary or Particularistic Power
A functional-structural analysis always involves defining problems and
finding solutions, whether by typically functional mechanisms, functional
equivalents or the emergence of new phenomena. In consequence, under-
standing the constitution of constitutionalism requires specifying the
structural problems that gave rise to the constitutionalist semantics, and
to which the ‘invention’ of the constitution as a political and legal artefact
of the modern state appeared as a solution.
In the overarching framework of society, the basic problem of the rise
of the constitution relates to structural constraints that impeded differ-
entiation between the human being and society and between different
spheres of communication in a society that was in the process of becom-
ing highly complex. On the one hand, the rise of the constitution reflected
the claim to autonomy of the human being towards society through the
notion of the person in the modern sense of the word – as a form of
differentiation, and thus as a two-sided form (Luhmann 1995). On the
other hand, it reflected a claim to autonomy of various functional areas
within society. This situation, however, only became explicitly manifest
in some – as it were – privileged social sectors; namely, in the politically
segmented and state-delimited regions of modern society. In these domi-
nant centres of world society, the consequences of differentiation did
not only resonate in the emergence of a global ‘differentiated’ economic
system. They also reverberated in the political and legal spheres.
16
The notion of ‘constitutional moment’ was proposed by Ackerman (1991: 3–33) in the
framework of the US-American constitutional history, but it is not thus extensible to all
constitutional experiences. For a critical review of the notion of ‘constitutional moment’,
see Benvindo (2015).
276 marcelo neves
In the legal framework of the European metropolis, reflected also in

North America, there arose a semantic appeal for inalienable and funda-
mental rights of the individual, which was expressed in the revolutionary
rhetoric of ‘droit de l’hommes’ (Gauchet 1989: especially 15–16) and
‘rights of man’ (Paine 1992 [1791–1792]). This semantic referred initially
to the search for legal responses to the differentiation of the human being
vis-à-vis society through the concept of the person in the modern sense.
This differentiation contained two distinct forms of consideration: the
freedom of the human person as autonomy ‘towards outside’; human
dignity as autonomy ‘towards inside’. The first concerns the idea that the
human being as a person in principle is free to act in society; the second
relates to the idea that the human person must be protected from the
arbitrary insertion of society, especially through the agency of state power
(Luhmann 1965: 77).
Associated with this semantics of freedom and human dignity as
inalienable rights, a semantic scenario developed, which aimed at defin-
ing fundamental rights related to social spheres that, to varying degrees,
were becoming differentiated (Luhmann 1965). At the outset, this
semantic gained highest prominence in relation to the economy, which
implied the semantic consecration of the right to private property and
business freedom as undeniable natural rights. But it also gained promi-
nence in relation to science, religion and art, and the discourse of
scientific, religious and artistic freedom expanded intensively in the
seventeenth and eighteenth century. With regard to the differentiation
and autonomy claims of the political system itself, the reaction from the
point of view of law presented itself in the language of political freedom
and the right to vote. With the intensification of differentiation, further,
other languages concerning rights linked to other social spheres, such as
education, developed, which raised the question of the right to education.
From the viewpoint of the differentiation of politics, the revolutionary
semantics refer, on the one hand, to the legal limitation and control of
political power, which was aimed at preventing any form of arbitrary
power,17 and simultaneously at making the chain of power more efficient
(see Luhmann 1973: 11–12). On the other hand, such semantics point to
the idea that power might secure a general support, which, replacing
traditional particularistic sources of support for power, would to the
comprehensive ‘legitimation’ of the political system (Luhmann 1981a:
17
This is the current design, which, as is well known, dates back to Montesquieu (1979
[1748]: 294–304, Book XI, Chapter VI).
f r o m c o n s t i t u tio n a l i s m t o t r a n s c o n s t i t ut i o n a l i s m 277
165, n. 19). These two processes are intertwined as a conception of

politics limited by rights and supported by rhetorical figures, such as
‘people’ or ‘nation’, that express unity. Both aim at overcoming the power
diluted by the persistent particularistic characteristics of feudalism or by
power instrumentally concentrated in a sovereign with absolute claim in
terms of natural law but factually linked to concrete and particular
scenarios of social forces.
8.2.2 The Solution: The Constitution between Constitutional Rights

and Constitutional People
How did the modern state as a geographically segmented organisation in
the emerging world society react to these problems? How was this
expressed in legal and political semantics linked to structural changes?
The classical semantics of constitutionalism found their structural coun-
terpart in the emergence of state constitutions. With varying degrees of
success, these also offered legal and political solutions to the new
problems.
With regard to the law, the constitution of constitutionalism has
defined a list of fundamental rights or human rights through formal
declarations. Although at first some of these were not legally binding or
had a purely symbolic character, they gained legal-normative force over
time (Lefort 1981: 67ff., 82). Fundamental constitutional rights
responded to both the autonomy of the person in society in general
(general freedom and human dignity) and to the claim of autonomy of
various social spheres (mainly right to property, freedom of enterprise,
scientific, artistic and religious freedom, and universal right to educa-
tion). On one hand, this differentiation of rights associated with social
differentiation has been assessed in positive terms, as the ‘disentangle-
ment of power, law and knowledge’ through the ‘democratic invention’,
as formulated by Claude Lefort (1981: 64). On the other hand, this has
been evaluated in negative terms, as ‘decomposition of man’ (Marx 1988
[1844]: 357), expressed in Marx’s critical attitude to the ‘rights of man’
(‘as distinct from the rights of the citizen’) (ibid.: 361ff.), which he
derided as ‘simply the rights of a member of civil society, that is, of egoistic
man, of man separated from other men and from the community’
(ibid.: 364).
Alongside the constitutional declaration of rights, the constitution
developed the notion of the rule of law (in the tradition of ‘common
law’) or of the Rechtsstaat/L’état de Droit (in the tradition of ‘civil law’) in
278 m a r c e l o ne v e s
response to the challenges of structural change, seen primarily from the

standpoint of law. Two separate aspects of this need to be considered.
One regards the viewpoint of self-reference of the legal system. The rule
of law or Rechtsstaat is the mechanism of autonomy of the legal system,
especially in face of political power. But at the same time it serves to
enable a secondary coding of power (Luhmann 1997: Vol. 1, 357, 367
[Engl. trans. 2012: 213, 220]), and it ensures that politics is, in a way,
linked to the law. This condition entails an external (legal) restraint to
power, but incorporated into the politics through a ‘re-entry’, which
switches its meaning. From the legal standpoint, it serves the autonomy
of law; from the point of view of politics, it reacts to the expansive and
dispersive potential of power. Finally, from an overarching perspective,
the rule of law or Rechtsstaat principle implies reflexivity, involving the
essential legislative process of law in term of constitutionality (Neves
2000: 3–4, n. 4).
From the standpoint of politics as a social sphere oriented towards
making and implementing collectively binding decisions, the constitu-
tion responds, firstly, to the challenges of functional differentiation and
the related semantics by promoting the so-called ‘separation of powers’.
This solution was already present in the model of ‘checks and balances’,
which while dating back to a notion of Montesquieu (1979 [1748]:
168–179, Book XI, Chapter VI) was introduced into the constitution of
the United States through the work of the Federalists (Madison,
Hamilton and Jay 1987 [1788]: 302–322, Nos. XLVII-LI [Madison]).
It is also evident in Art. 16 of the Declaration of the Rights of Man and
the Citizen, passed by the National Constituent Assembly of France
in August 1789: ‘Any society in which no provision is made for guaran-
teeing rights or for the separation of powers has no constitution’. At first
glance, the model of the ‘separation of powers’ appears to be designed
simply to limit political power, preventing its destructive expansion in
face of other social spheres, especially the law and its rights. In these
terms, it was defined as the (formal) ‘organizational principle’ of the
liberal state, guaranteeing its (substantial) ‘distributional principle’
related to fundamental rights (Schmitt 1993 [1928]: 126–127 [Engl.
trans. 2008: 170]). But this reading is incomplete because the ‘separation
of powers’ promoted a specific differentiation of functions, which inten-
sified the efficiency and operational capacity of the branches of state
power, ensuring different particular forces could not undermine the
autonomy of the political system in its totality. The ‘separation of powers’
(always an inaccurate term), which legally limits political power and
f r o m c o n s t i t u t i o na l i s m t o t r a n s c o n s t i t u t i o n a l i s m 279
makes it functionally more efficient under complex social conditions,

refers to the plurality and circularity of procedures in the constitutional
state (Neves 2000: 142–149).
A corollary of the ‘separation of powers’ is the internal distinction of
political system between politics (in a narrow sense) and (bureaucratic)
administration. While the latter is more closely linked to the legal system,
the former is more flexible, representing the summit of the executive
power in connection with the parliamentary majority. The idea of
a bureaucratic administration linked to the law and independent of the
rulers has a crucial role in preventing the spread of power contrary to
rights, serving even the practical realisation of the principle of equality.18
But also with regard to that difference, it can be seen that it has served
both to increase policy efficiency by means of an expert bureaucracy as
well as to secure the autonomy of the political system, making difficult to
manipulating it ad hoc by particular power correlations.
The constitutional delimitation of the differentiated contours of the
political system goes beyond the internal differentiation of politics
through the ‘separation of powers’, and it extends to the constitutional
institutionalisation of political opposition, which led to ‘the split of the
summit of the differentiated political system through the distinction
between government and opposition’ (Luhmann 1987b: 127). In this
respect, on one hand, constitutionalism transformed the difference
between powerful and powerless or superior power (authority) and
those subordinate to it in pre-modern or early-modern terms.
In addition, constitutionalism transmuted the distinction between rulers
(holders of power) and the ruled (addressees of power), adding the
difference government/opposition as embracing the political system
(Luhmann 1986: 199; 1993: 436 [Engl. trans. 2004: 378]; 2000: 97–98).
Through this difference, it became possible to imagine the legitimacy of
the political system as a formula of contingency, which serves the
motivation of action and communication in the political system (see
Luhmann 2000: 122ff.) and constitutes a paradox that cannot be defi-
nitely transcended, but only controlled and resolved in concrete proce-
dural cases. The difference between government and opposition refers to
the permanent possibility of criticism of the government. It means that
we admit that there is always something ‘missing’ in the political system.
On this subject, Luhmann says: ‘So this means politics becomes active
18
It ‘enables the principle of equality to be applied in practice’ in the sphere of state
bureaucracy (Luhmann 1965: 155)
280 marcelo neves
under conditions of legitimacy, just like economics with regard to the

problem of scarcity’. He adds: ‘And while politics must see this in the
sense that unless there is a need for legitimation, politics becomes
unnecessary, external description sees the situation the other way
around: without a differentiated political system, there are no legitimacy
problems’ (Luhmann 2000: 126). In consequence, eliminating the para-
dox of legitimacy as a formula for contingency would mean the end of
a differentiated political system. This might occur through a regressive
dedifferentiation toward traditional politics (still present at the start of
the modern era in the absolutist state) oriented to the ‘common good’
(Luhmann 2000: 120–122). Alternatively, it might occur through the
construction of a ‘paradise’, derived from a communitarian moral con-
sensus, in which the necessity of legitimacy disappeared. Both these
models would of course be incompatible with the constitution of con-
stitutionalism. In short, if the institutionalisation of the difference ‘gov-
ernment/opposition’ lacks, one cannot speak of legitimacy of
a differentiated political system.
Finally, observed from the perspective of politics, the constitution
presents another important response to the challenges of functional
differentiation, establishing a model of generalised support for the poli-
tical system and thus replacing particularistic mechanisms for an ad hoc
support for power by introducing the idea of ‘people’. People in this
context should not be confused with the actual population or with an
alleged cultural unity as the ‘nation’ (although this language has been
used in the constitutionalist rhetoric), but rather understood as
a heterogeneous unity built by the constitution through a procedural
complex, such as, notably, elections and direct popular consultations.
While the ‘public’ as recipient of decisions is a passive plurality that reacts
sporadically to the outputs of the political system, the ‘people’ as hetero-
geneous constitutional unity that operates through the procedures closes
the political system. Resuming the classical constitutionalist semantics,
Luhmann is suggestive in this regard: ‘Closure of the system occurs at the
point where the public, made up of individuals, groups and organiza-
tions, recipient of orders, administratively importuned, becomes the
people; at the point where la volonté de tous becomes la volonté
générale’ (Luhmann 2000: 265). In consequence, it should not be seen
only as a mere fiction. This language is totally misplaced and will be
absurd if one applies it to a totalitarian or authoritarian system, which
precludes any channel of popular ‘participation’. In order for the people
as a constitutional construct to have practical significance in the
f r o m c o n s t i tut i o n a l i s m to tr a n s c o n s t i tut i o n a l i s m 281
circulation of power, it is necessary for the constitution to establish

political participation procedures that involve the uncertainty of the
outcome and can actually influence decision-making, not being reduced
to mere rituals (see Luhmann 1983: especially 51–52 and 172–173). Only
then it is pertinent to speak of democracy as generalised political inclu-
sion. This does not mean that we should foster the illusion of the unity of
government and ‘people’, but rather that the ‘people’ as a permanent
procedural instance irritating the political system is fundamental to its
legitimacy, because there is always a gap between ‘popular demands’ and
governmental responses to such demands.
The notion of constitutional people as institution closing the political
system does not imply that it is the subject of the political system, let
alone of the constitution. From a different perspective, in fact, Habermas
himself came to modify his position regarding the ‘public sphere’ in
stating later that this is not a collective subject (Habermas 1990: 33ff.).
In fact, he also went on to claim that the people ‘does not comprise
a subject’ that ‘with will and consciousness’ is the holder of sovereign
power: ‘It only appears in the plural, and as a people it is capable of
neither decision nor action as a whole’ (1992a: 607 [Engl. trans.
1997: 41]). However, Habermas insists on the rational consensus
model, arguing that the ‘subjectless forms of communication’ in which
popular sovereignty expresses itself can ‘regulate the flow of discursive
opinion- and will-formation in such a way that their fallible outcomes
have the presumption of practical reason on their side’ (Habermas 1992a:
626 [Engl. trans. 1997: 58]). This assumption of the people intersubjec-
tively constructed in the pragmatic formal terms of a rational discourse
carries an overloaded moral idealism that goes far beyond any pertinent
legal-sociological analysis. In fact, it seems appropriate to consider the
constitutional people as a transsubjective instance (see Fischer-Lescano
2013: 17–22; Ladeur 2014), which makes the political system able to
channel, absorb and dissipate the structural dissent underlying the public
sphere and society. The people thus represent a plexus of procedurally
structured communications based on the constitution.
With regard to the emergence of the constitutions of constitutional-
ism, the people do not necessarily imply the notion of constituent
power. This notion only makes sense in the first revolutionary experi-
ences of constitutionalism in the USA and France, followed by other
constitutional experiences in the nineteenth and twentieth century, espe-
cially in Europe and in the former colonies. It is, indeed, the decision-
making power to establish a written constitution. The constituent power
282 m a r c e l o ne v e s
was presented as something internal to politics and external to the

positive law of the state. In fact, it was limited by the constraints of
international law and certain socially relevant discourses invoking so-
called ‘moral rights’, typical of pre-revolutionary language. I do not think,
however, that the notion of constituent power applies to all constitutional
experiences of the modern state. For instance, in the English experience,
where the constitution of constitutionalism arose in a gradual historical
process, both by developing the rule of law through the common law
(see Tomkins and Scott 2015) and through rare acts of constituted
legislator,19 it becomes difficult and artificial to apply the notion of
constituent power, and there is even no functional equivalent. In this
sense, it does not seem appropriate to talk about a ‘post-constituent
constitutionalism’ in the experience of the emerging European constitu-
tion (Walker 2007), as the classic constitutionalism, in part, was ‘not
constituent’; moreover, I do not understand why it is appropriate to insist
on a new reading of the ‘constituent power’ to explain and justify new
constitutional experiences developed worldwide by courts protecting
rights under the law (see Thornhill 2012; 2013; 2014).20 The relation of
constitutional people and constitutional rights to the constituent power
is contingent on the classic constitutionalism.
The constitution of constitutionalism did not only imply the differ-
entiation between politics and law. It also established a relationship of
interdependence between both systems. In many ways, it is possible to
identify a reciprocal dependence-independence, tension-complementarity
relationship between the two systems. At one level, the constitutional
19
This historical process of constitutionalisation was ongoing until the twentieth century.
However, the Parliament Act (1911) basically transferred the legislative authority (not the
‘sovereignty’) from the King (or Queen) and the two parliamentary houses to the king (or
queen) and the House of Commons, essentially reducing the legislative power of the
House of Lords and thus overcoming an old-regime reminiscence (see alternatively
Dicey, 1982 [1915], xxxvii ff.).
20
When Thornhill refers to a ‘constitutional tendency towards the partial supersession of
constituent power by constituted power in contemporary society’ (2014: 365), he develops
a typical Euro-centric or Western-centric narrative, which disregards many recent
experiences in other regions of world society, such as the current constituent process in
Chile (see Chia and Quezada 2015; Correa Sutil 2015; Soto Barrientos 2014; Zúñiga
Urbina 2013). Moreover, constituent processes as a whole were not absent in the post-
communist constitution-makings in Eastern Europe, unless one associates them strictly
to a unifying demos (Preuss 2007: 227–228) or to the presence of ‘constitutional consti-
tuent assemblies’ in classical terms (Teitel 1994: 172). See also on the debate in Catalonia
Castellà Andreu (2015). For a recent view on the UK and other contexts around the world,
see Renwick (2014).
f ro m c o n s t it utio n al i s m t o t r an s co nstitutionalism 283
connection between positivity as functional autonomy of law and democ-

racy as functional autonomy of politics is to be noted: the positivity of law
presupposes democracy; democracy presupposes the positivity of law
(Luhmann 1981a: 148–149; see also 1983: 151–154). In another formula-
tion, one might equally point to the relationship between the rule of law
and democracy: democratic procedures shall be bound by the legal
norms of the political game; legal norms need a democratic support
(see Luhmann 1981b). This relationship, which is always paradoxical
and problematic, can be expressed in a more encompassing manner in
the connection between constitutional law and the constitutional people.
Naturally, while the latter operatively closes the political system, the
former ‘closes the legal system’, superseding its traditional reliance on
natural law (Luhmann 1990a: 187). However, a kind of link arises
between them, which in the terms of systems theory is referred to as
‘structural coupling’, enabling permanently and continuously reciprocal
irritations and influences through constitutionally established proce-
dures: (Luhmann 1990a: 193ff.; 1993: 470ff. [Engl. trans. 2004: 404ff.];
2000: 389–392; 1997: Vol. 2, 782–783 [Engl. trans. 2013: 112]). One can
go even further to claim that the realisation of the constitution of con-
stitutionalism occurred in the establishment of a transversal rationality
between politics and law. That is, it culminated in the emergence of
a rationality in which both systems could learn from each other in
a manner based on pre-selections made by each other, and therefore by
observing complexity already structured by each other (Neves 2013: 27ff.,
42ff.).21 The relation of these systems is not a realm of harmony, but
rather a domain where dialogical and agonistic relations between law and
politics, between ‘constitutional rights’ and ‘constitutional people’ per-
manently alternate.
8.2.3 The Paradox: Externalising Exclusions and Arbitrariness

from Centres to Peripheries
It is evident that the constitution of constitutionalism has had some
success – though with varying degrees – in the dominant and constitu-
tion-irradiating centres of world society. In such locations, the privileged
structural conditions enabled legal and political inclusion, albeit not
21
In this context, transversal rationality is understood as an inter-systemic rationality, not
precisely according to Wolfgang Welsch’s concept of ‘transversal reason’, which
embraces all ‘language games’ (Welsch 1996; 2002: 295ff.). Anyway, this concept was
my starting point to go beyond the notion of ‘structural coupling’.
284 marcelo neves
immediately and completely, but in gradual and generalised fashion.

However, we cannot find these conditions on the peripheries of world
society. Is this exclusively a problem of the peripheries? It seems to me
that this is not the case.
In the first instance, a clarification is in order. When I use the simplify-
ing difference ‘centre(s)/periphery(ies)’, I am aware that it is not an
absolute difference, much less one exclusively embracing world society
in its entirety. Of course, there are other simplifying differences, such as
those between Occidentalism and Orientalism, fundamentalism and
liberalism, and – until recently relevant – socialism and capitalism.
Modernity is not only plural in cultural terms, as might be understood
according to Eisenstadt (2000: especially 10), but also in the multiplicity
of relevant differences that it contains. Furthermore, there is a fluid scale
between centres and peripheries, which has led some observers to assert
the existence of ‘semi-peripheries’ or ‘semiperipheral states’ in terms of
world economy (Wallerstein 1979: 50ff.; Habermas 2004: 28ff.). There is
also ‘mobility’ between centre and periphery positions (Luhmann 2000:
224). Nonetheless, the distinction between centre and periphery as a form
of socio-theoretical complexity reduction possessed and may still possess
meaningful significance for understanding the asymmetry between
regions that are politically segmented as states in modern society. This
remains the case despite the fact that it has been weakened by a certain
paradoxical ‘peripherizing’ of the centres (Neves 1998: 153ff.) and may
consequently lose all meaning over time.
The distinction between centre and periphery may be understood as
a result of processes of colonisation and neo-colonial or post-colonial
dynamics after former colonies gained independence as ‘states’. Although
in the centres the conditions for legal and political inclusion determined
by constitutionalism developed in a relatively satisfactory manner, in the
peripheries there remained a persistent structural exclusion of broad
sectors of the population, generating an ‘unconstitutional constitutional
reality’ (Grimm 1989: 637).22 Of course, exclusion has existed and
recently increased (especially by the new illegal immigration flow of
‘refugees of exclusion’) in the centres,23 but this has hitherto been
a ‘secondary exclusion’, which only limits the validity of the law and
22
From a post-colonial view, Baxi (2005: 540) speaks of ‘the paradox of “constitutions
without constitutionalism”’.
23
As was stated in a newspaper headline: ‘A Mass Migration Crisis, and It May Yet Get
Worse’ (Rod Nordland, New York Times, 31 October 2015).
f ro m c o n s t it utio n al i s m t o t r an s co nstitutionalism 285
the constitution (Müller 1997: 50–51). In the peripheries, the ‘primary

exclusion’ (ibid.) affects the essential normative force of the Constitution,
whether by a symbolic constitutionalisation (constitutional text as
a facade for the political discourse rather than an artefact for concretising
constitutional standards as legal norms) (Neves 1998) or by an autocratic
instrumentalism making permanently ‘constitutional laws’ to secure
a continuous ‘state of exception’.
If inclusion is understood as dependency and access of people to social
systems – including to politics and the law (Luhmann 1981c: 25) –
structural exclusion in peripheral countries has occurred, not only as
an absence of access to, but also as a lack of dependency on, social
systems. From the standpoint of law, especially constitutional law, this
means, on the one hand, that large portions of the population do not have
access to basic rights and, on the other hand, that privileged groups are
largely located ‘above’ the law and the constitution, even presuming
a guarantee of impunity. The former are the ones who I have called
‘under-integrated’ or ‘under-included’ (excluded from ‘below’), while the
latter are the ‘over-integrated’ or ‘over-included’ (excluded from ‘above’).
In constitutional language, we can speak of relations of ‘under-
citizenship’ and ‘over-citizenship’ (Neves 2005). We can never observe
a purely under-integrated or an absolutely over-integrated person or
group. Moreover, there are segments of the population which are not
in one of these situations at all. However, the persistence of relations of
under-citizenship/over-citizenship implodes the constitution as a basic
order of political and legal communication. The constitutional text
drawn up according to the constitutionalist model becomes basically
a symbolic facade with regard to fundamental rights and the legal control
of power, or is pushed aside by autocratic regimes that impose constitu-
tional laws of exception.
As this essential distinction suggests, this does not seem to be a matter
only of peripheral countries. The centres irradiating constitutional ideas
have at the same time externalised or ‘exported’ to a large extent the
problems of legal and political exclusion to the peripheries of world
society, supporting exclusion and anti-constitutional regimes that were
favourable to them. To illustrate this, for example, we can consider the
question of the ‘black code’, adopted in France in 1685 by Louis XIV in
the Edict called Le Code Noir, and enforced only in French colonies.24
24
The text is in: https://archive.org/stream/lecodenoirouedi00fran#page/n5/mode/2up.
In this regard, see Sala-Molins (1987); Mignot (2007); Richard (2010).
286 marcelo neves
It remained in force until 1843, without been questioned during the

Revolution nor in the post-revolutionary period. There was no objection
to the black code, even amongst the principal authors of the European
enlightenment. Sala-Molins (1987: 206ff.; 2006) pointed with acuity to
the silence or complicity of authors such as Montesquieu, Rousseau,
Diderot and Voltaire towards slavery in the colonies.25 This position
meant that constitutionalism appeared as a set of provisions for the legal
and political inclusion of white European (and, later, US-American)
citizens as whole persons, without any commitment to those who, in
the peripheries, worked for the increasing welfare of the central coun-
tries. These remarks do not deny that sectors of the privileged elite of the
periphery benefited from this state of affairs, but only that its existence is
constructed primarily from the centres, insofar as they externalise and
export exclusion measures.
Indeed, this situation was not restricted to the colonial period itself, in
which Europe played a key role. In ‘neo-colonial’ and ‘post-colonial’
terms, the ‘advances’ of constitutionalism in regard to legal and political
inclusion in the dominant centres during the twentieth century were
associated with strategic geopolitical fighting positions, which presup-
pose fully anti-constitutional positions on the part of the same political
agents in foreign countries. When, in 1963, the statute was passed
providing for affirmative action in the USA, the democratic government
of Lyndon Johnson was busy at the same time in preparing, in conjunc-
tion with the Brazilian military, a coup to overthrow a democratically
elected civilian government, which proposed political and social reforms
in the search for new pathways to inclusion. Claiming justification owing
to the danger of communism and the protection of individual rights, the
USA supported oppression in the foundation of the dictatorship, includ-
ing the dispatch of US-American warships to an area close to the Port of
Santos, which would have intervened in the event of the failure of the
operation of the Brazilian military (cf. Corrêa 1977). Moreover, the USA
supported oppression through the maintenance of the dictatorship: for
instance, more than 300 Brazilians went to the United States Army
School of the Americas, located then in Panama (moved in 1984 to
Fort Benning, Georgia), to learn more efficient methods for torture and
for other serious violations of human rights with their US counterparts,
as announced in December 2014 in the final report of the Truth
25
Against this background, one may refer to ‘the imperialism of constitutional democracy’
(Tully 2007: 328ff.).
fr o m c o n s t it utio n al i s m t o t r an s c onstitu tionalism 287
Commission established by the Brazilian government (Brasil 2014:

330ff.).26
One might ask, then, whether, just as the presence of a functionally
autonomous legal system relevant to society appears as a ‘European
anomaly that might well be weakened with the evolution of global
society’ (Luhmann 1993: 586 [Engl. Trans. 2004: 490]),27 constitutional-
ism might not be an ‘anomaly’ of some Western states, tending to lose in
significance within the global society. Constitutionalism emerged in the
centres of world society, but it corresponds to normative expectations of
legal and political inclusion that have spread in world society despite
hotspots of resistance and limited achievement. Nonetheless, its expan-
sion depends on the reduction of structural asymmetries in world society
between countries that constitute privileged islands of wealth and
numerous regions in which poverty and structural exclusion are domi-
nant. It is something that is far from the horizon of possibilities of the
global situation of the moment. Such a situation, however, does not
preclude consideration of the problem that constitutionalism presents
to the whole world society: political and legal inclusion. It is clear that the
solutions to this can be very different, and do not necessarily impose
a single liberal individualistic model, from the Western matrix. Just as the
challenges raised by constitutionalism found very different solutions in
the Scandinavian countries and the United States, nothing prevents the
development of various forms of constitutionalism: Western versus
Eastern, Latin American versus North American, liberal versus socialist,
countries with Islamic traditions versus countries with Christian or
Jewish traditions, etc. And just as we must be aware of the irony
expressed in the idea of a ‘European anomaly’, it seems to me that we
must also guard against some post-colonialist pundits, who tend to
reduce the problem to a semantic question of domination by
a language inducing imposed, deformed and heteronomous understand-
ings, and to cover up the structural asymmetries through the euphemistic
distinction between ‘Global North’ and ‘Global South’.28 The problems
posed by constitutionalism in relation to general political and legal
inclusion by fundamental rights and democracy, regardless of its origin,
form a challenge for global society. Constitutionalism as a challenge
26
Brazilian Army Officials were also sent to England to learn methods of torture with their
British counterparts (see Brasil 2014: 333ff.).
27
The English translation is misleading in this passage because, instead of translating
‘abschwächen’ into ‘weaken’, ‘lessen’ or ‘attenuate’, it was translated into ‘level off’.
28
See with some qualifications Rajagopal (2012); Ochoa and Greene (2011).
288 marcelo neves
should neither be overvalued in cosmopolitan terms, because of its

European origin nor despised, in post-colonial terms, according to the
discourse of cultural authenticity:29 it only makes sense if it is responsive
and flexible to the immense diversity of world society.
8.3 Constitutionalism without the Constitution beyond the State

and Pluralism: Limits and Possibilities of Transconstitutionalism
in an Asymmetric World Society
In the late twentieth century, owing to the intensive development of
world society, which led finally to the prevalence of its self-description
in terms of the semantics of globalisation, constitutional problems
extended beyond the borders of states, involving different legal orders
and social contexts neither controlled by a state nor directly or exclu-
sively regulated by a state’s constitution. State constitutions do not
entirely disappear nor lose their significance, but issues concerning
fundamental rights or human rights and legal control of power very
often cannot be solved under a ‘parochial’ (Slaughter 2000: 1117–1118)
or ‘provincial’ constitutionalism. This does not mean that the state has
become a ‘local hero’, in which fact reside ‘its limitation and strength’
(Willke 1992: 362ff.), as it is also no longer lord over the definition of
whether a constitutional problem will remain locally confined or exceed
its borders.
This issue has been recognised by constitutional scholars linked to
state constitutionalism, including the academic mainstream of a country
with a strong chauvinistic tradition of constitutionalism, the USA.
In this sense, Mark Tushnet (2008), for example, pointed to ‘the inevi-
table globalization of constitutional law’. In turn, Bruce Ackerman (1997)
referred to the ‘rise of world constitutionalism’, admitting that that
‘American practice and theory have moved in the direction of emphatic
29
One should not just admit: ‘The task of finding purely African narratives is no easier if we
shift our attention from university scholars to the peasantry’ (Feierman 2003: 198); over
and above that, one has to acknowledge that it is no longer possible in today’s world
society to find purely local, regional or national narratives. In this way, one may accept at
least to some extent: ‘The frequently raised complaint about the post-colonial exploitation
of peripheral countries by the industrial nations under the headings of dependency or
marginality is, whatever one thinks of its substance, an argument for and not against
global society’ (Luhmann 1993: 572 [Engl. trans. 2004: 480]). But, unlike Luhmann’s view,
this is not a result of a worldwide ‘primacy of functional differentiation’ (ibid.), but an
effect of the worldwide interweaving of communications under several differences, such
as system/environment, inclusion/exclusion and centre/periphery.
f r o m c o n s tit u ti o n a l i s m t o t r a ns c o n s t i t u tio na l i s m 289
provincialism’, and stressing that ‘we should resist the temptations of

a provincial particularism’ (1997: 773, 794).
The recognition of a new global framework for constitutionalism did
not lead in any way to either uniform or harmonic responses in cognitive
or normative terms. One response has been to focus on a constitution of
the international community to prevail over the constitutions of the
states, according to an internationalism that affirms the unity of the
‘law of nations’. This statement is not so recent; as long ago as 1926,
Alfred Verdross argued that there was a ‘constitution of the international
legal community’, based on the experience of the League of Nations.30
However, in the late twentieth century, the reference to a unitary inter-
national constitution has become frequent, and its proponents either
attribute such a function to the UN Charter itself (Fassbender 1998;
2007: 281ff.; Dupuy 1997),31 or they assign the institutions of public
international law and international politics a broader remit.32
While this kind of constitutional internationalism presupposes
existing constitutions, there are models with a counterfactual charge,
30
A little later, in the 1930s, the expression ‘international constitutional law’ makes a few
scattered appearances (see Mello 2000: 3ff., noting the ambiguity of the phrase).
31
On this topic, Giegerich (2003: 11) says ‘the U.N. Charter is currently the only world
constitution capable of consensus’. Much earlier, Alf Ross (1950) already referred to the
‘Constitution of the United Nations’. Verdross and Simma (1984: 69ff.) also use this
expression.
32
See, for example, Tomuschat (1995: 7), who also refers to ‘international law as the
Constitution of mankind’ (1997). With certain restrictions, Kadelbach and Kleinlein
(2008) propose a model based on constitutional principles from international law.
Verdross and Simma (1984: 59ff.) refer to the ‘Constitution of the non-organised com-
munity of states’ and ‘constitutional principles of the community of states’. Others prefer
to speak of ‘international constitutional law’ (see Uerpmann 2001; Mello 2000), although
the use of this expression is highly ambiguous. Some treat the constitutionalisation of
international public law, more cautiously, as a process (Wahl 2002: 192, 199ff.; Biaggini
2000: 470ff.; Frowein 2000; Giegerich 2003: 2–3). Von Bogdandy (2004: 242) acknowl-
edges the fragility of ‘international constitutionalism’, but stresses its potential compared
with other options. Peters (2006) rejects a model based on affirmation of
a constitutionalisation of international law, preferring ‘international constitutionalism’
to compensate for deconstitutionalisation in the domestic sphere, but strictly speaking
her thesis points to the development of ‘multilevel’ global constitutionalism (610). While
referring to ‘indicators of the constitutionalisation of international law, at least within
Europe’ Stone Sweet (2009: 632, 643) sketches ‘a perspective that considers the interna-
tional system’s pluralist and constitutionalist features simultaneously’. In turn,
Koskenniemi (2004: 206), discussing the problem of hegemony in international law,
argues that ‘something like the constitutionalisation of international law could not
resemble the formation of a constitution in the domestic space, not only for lack of
a constituent power in the international sphere, but also because ‘the constitution it
would enact would not be one of an international but an imperial realm’.
290 marcelo neves
suggesting a normative claim to a global constitution. This version has

been strikingly proposed by Habermas. Initially, it was expressed in the
form of a project of a ‘world domestic politics without a world govern-
ment’ (Habermas 1998a: 156, 165 [Engl. transl. 2001: 104, 110]33; 2004:
133–134; 2007: 452),34 which would imply a ‘world citizenship’ grounded
in ‘consciousness of an obligatory/compulsory cosmopolitan solidarity’
(id. 1998a: 88–89, 168 [Engl. trans. 2001: 55–56, 112]; 1998b: 77–78) and
a ‘global welfare regime’ (id. 1998b: 75, 80; 1998a: 86 [Eng. trans.
2001: 54]) as well as the construction of procedures to legitimise inter-
ventions in defence of human rights (‘humanitarian interventions’) (id.
1996: 225–226; 2000). Later, this model of global supranational politics
was developed to include a project for the ‘constitutionalization of inter-
national public law’ (id. 2004; 2011), which, along with the normative
model of a ‘political constitution for the pluralist world society’ (id. 2005
[Engl. trans. 2008]), was intended to secure a ‘cosmopolitan constitution
without a world republic’ (id. 2007: 447ff.) or a ‘democratic constitution
of world society’ (id. 2011: 86ff.). The difficulty in this would lie in the fact
that such a constitution would not be related to an ethical community,
but only based on a rational morality with claim to universality (see id.
1998b: 163). In any case, Habermas’s reflections in this regard suggest
a search for, and an affirmation of, a comprehensive constitutional unity
for global society.
Against these models, several formulations of a pluralistic and frag-
mented constitutionalism have appeared, which support the emergence
of several constitutions in new transnational, supranational and interna-
tional organisations, institutions and regimes, whether global or regional.
The most extreme formulation of this trend is found in the work of
Gunther Teubner, according to which, not only international or supra-
national public regimes, but also transnational private or quasi-public
regimes imply a constitution as structural couplings between the law
and the corresponding social subsystem at the reflexive level.35 Teubner
places emphasis on fragmentary autonomy of a system or procedure
and on the danger of their imperial expansion at the expense of others
(see Teubner 2008). Civil or societal constitutions of world society,
33
The English translation makes use of the word ‘policy’ instead of ‘politics’, which,
however, does not make any sense in this context.
34
For an analogous formulation, see Ferrajoli (1997: 51–52).
35
See Teubner (2012: especially 159ff. [Engl. trans. 2012: 102ff.]); Teubner (2000: 446ff.
[Engl. trans. 2004b: 82ff.]); (2003: especially 17–26 [Engl. transl. 2004b: 18–28]); (2015);
Fischer-Lescano and Teubner (2006: 53ff.); Teubner and Beckers (2013).
defined as reflective instances of both coupled systems,36 play a key role

in facing this danger (see Fischer-Lescano and Teubner 2006: 25–33;
Teubner 2012: 129–132 [Engl. trans. 2012: 81–83]).
Although this is not the space to resume a critical analysis of the
unitary international or global constitutionalism or the fragmentary
constitutional pluralism, there is room for some remarks on these
models.37 It seems that Luhmann remains correct when he observed
that ‘the structural coupling of the political system and the legal system
through constitutions does not have an equivalent at the level of global
society’ (Luhmann 1993: 582 [Engl. trans. 2004: 487–488]).38 This
means that the structural conditions that made possible the appear-
ances of the constitution of the modern state as an interdependence
mechanism between politics and law are absent at that level. Although
there has been a widespread emergence of relevant individual and
collective claims under the cover of human rights, law/rights and
politics remain largely decoupled on the international and global
level. The ‘arbitrary’, ‘paternalistic’ and ‘selective’ character of inter-
vention for the protection of human rights has been highlighted not
only by social theorists (Brunkhorst 1999: 382; Maus 1997: 168, 190),39
but also by international legal scholars with extensive experience in
international legal practice, such as markedly Koskenniemi (1995:
especially 325–326). The extremely asymmetrical geopolitics of interna-
tional relations, which involves the essential imperialism of human rights
through its symbolic use (Neves 2007: 432, 436),40 makes a unitary global or
international constitutional regime highly unlikely. In this context, the
conditions for a widespread support for legal and political procedures
able to absorb the structural dissent in world society are, most evidently,
36
Despite another theoretical starting point and other implications, Teubner (2012: 14, 67ff.
[Engl. trans. 2012: 3, 38ff.]; 2003: 8–9 [Engl. trans. 2004b: 10–11]) resorts to Sciulli’s
‘theory of societal constitutionalism’ (Sciulli 1992) in developing his own concept of civil
or societal constitution.
37
For details see Neves (2013: 55ff.).
38
Teubner (1996a: 260 [Engl. trans. 1997: 6]; 1996b: 248) invokes this passage to give it an
opposite sense, that is, as if Luhmann would be referring to the possibility of
a constitution without the structural coupling of law and politics on the global plane.
Indeed, Luhmann was speaking of the absence of a constitution on the global level.
39
Indeed, while Brunkhorst (2014; 2012: 137ff., 229ff., 307ff.) supports a normative project
oriented towards a democratic constitutionalism at the global level (see also Holmes
2013), Maus (2015; 2011) criticises strongly any idea or conception of a global constitu-
tionalism or democracy.
40
Accordingly, Koskenniemi (2002: 500) points out: ‘Rational imperialism turned out to be
a façade for cynical imperialism’.
292 marcelo neves
asymmetric coupling
weak reflexivity strong coding
lex mercatoria world economy
Figure 8.1 Asymmetric Coupling between World Economy and Lex Mercatoria
absent – these are the conditions that made the emergence of the constitu-
tion of constitutionalism possible.
Conversely, plural and fragmentary models of constitutionalism tend
towards pan-constitutional catharsis without carefully checking whether
there is a functional equivalent to the constitution of the modern state in the
new legal and political organisations and institutions that have emerged and
are developing at the international, transnational and supranational level.
Although one can observe in the European Union a precarious functional
equivalent to the constitution of constitutionalism, it is difficult to transport
it to any public and private regime involving a bond between politics or
a functional subsystem and law or rights (Neves 2013: 55ff.). With an
inflation of ‘constitutions’, the term or the concept ‘constitution’ loses its
historical and functional significance.41 In most scenarios identified as
constitutional, it is the instrumentalisation of the law by the corresponding
social system. The law acts as a ‘means’ for the efficiency of the respective
regime or functional system, as is the case with the lex mercatoria, the lex
sportive, and the lex digitalis. With regard to the lex mercatoria, for example,
while the reflexivity of the economy is high and solid, reflexivity of the law is
weak, given that the code of law in this context is fragile in relation to the
code of the economy (Figure 8.1). This applies to other situations, such as
the law of the World Trade Organization, which is relevant here, beyond
economic interests, in terms of political power. The relationship in such
contexts is not a structural (horizontal) coupling between law and politics
or any other functional system on the reflexive plane, but a structural
subordination of the law to a certain social sphere. This does not necessarily
mean systemic corruption, for these legal forms are designed in principle,
not to ensure inclusion (social integration), but to ensure systemic
integration.42 And the constitution of constitutionalism requires a certain
41
With regard to ‘citizenship’, see in the same sense Zolo (1993: 259); concerning human
rights, see Bobbio (1996: xi).
42
I do not use system integration and social integration here as terms denoting the
difference between system and lifeworld according to Habermas (1982: 173ff. [Engl.
trans. 1987: 113ff.]). Rather, I use them as terms referring to the degree of dependency
f r o m c o n s t it utio n al i s m t o t r an s constitu tionalism 293
‘system disintegration’ (less dependence on functional systems), so that

‘social integration’, especially in the form of political and legal inclusion,
can be increased (see Luhmann 1997: Vol. 2, 618, 631–632 [Engl. trans.
2013: 16, 25]; 1993, 584 [Engl. trans. 2004: 489]; 1995: 259–260).
Despite the celebratory remarks reflected in the pan-constitutional
catharsis, we have not seen the rise of a multitude of constitutions.
In fact, constitutional problems, particularly with regard to fundamental
rights and human rights, persist beyond the state, involving legal
systems without a constitution. Thus, paradoxically, a constitutionalism
that is independent of the constitution has emerged. I have used the
term transconstitutionalism to describe the way in which this kind of
constitutionalism without or beyond the constitution has developed.
Transconstitutionalism means that two or more legal orders or organisa-
tions, whether of the same kind or of different kinds, engage simulta-
neously in the same constitutional case or problem. State legal orders
(based on a constitution), international (founded on treaties and con-
ventions that primarily involve states), supranational (founded on
a constitutional treaty integrating states) and transnational (built by
agreements or practices established between private and quasi-public
actors) legal orders as well as extra-estate native normative orders
(based on customs of indigenous communities) increasingly come face
to face, as they are involved in solving the same constitutional problem.
Although the judges and courts assume a key and leading role in trans-
constitutional relations, these also involve the legislator, the executive
power and civil society actors as well as, in some settings, members of
tribal communities. The transconstitutional entanglements have been
considered in terms of interconstitutionality between the European
supranational order and constitutional orders of the European states
(Canotilho 2006: 265ff.; Pires 1997: 101ff.), but these extend beyond
that particular experience of collision. For example, between the
American Human Rights System and the legal systems of Latin
American and the Caribbean countries intense problems of constitu-
tional transversality have developed. Between the WTO and the
European Court, divergences concerning typically constitutional matters
have arisen, as well as between the WTO and its member states.
The cross-reference between state orders in constitutional matters
of social systems on each another (system integration) and to the extent to which persons
have access to the benefits of social systems. In this respect, ‘social integration’ refers to
the difference ‘inclusion/exclusion’, close to the implication in Luhmann (1997: Vol. 2,
618 [Engl. trans. 2013: 16ff.]).
294 marcelo neves
supranational transnational
Human Rights
local international
national
Figure 8.2 Transversal Network of Human Rights
expresses another form of transconstitutionalism. At the level of the

relationship between international law and state constitutions, on the
one hand, and customary orders of the indigenous communities in South
America, many of them until recently isolated, on the other hand, severe
collisions have occurred in the field of fundamental rights and human
rights. These conflicts have even included controversies over the right to
life and the practice of killing newborn children, leading to huge para-
doxes related to the characterisation of human rights as rights of integrity
of body and mind.43 Would it, for example, be appropriate to convict and
to arrest all adults belonging to Ianommami communities who practise
acts of killing newborns according to certain core beliefs? (Were the
death penalty in force in Brazil like in most US states, it would likely
imply the death of all convicted adults.) This means that a linear reading
of fundamental or human rights in terms of the Eurocentric and Western
cosmopolitanism is highly controversial.44 In terms of Figure 8.2, the
transconstitutionalism related to human rights involves a transversal
network of normative expectations, which refers both to claims for
generalised legal inclusion in the global society and claims for isolation
and immunisation of native communities in the face of their contamina-
tion by world society, especially in the form of the imperialism of human
rights.
Transconstitutionalism, involving both empirical and normative
dimensions, is ambivalent, since the transversal rationality that it unfolds –
the ‘transition’ and ‘entanglement’ (Welsch 1996: 748ff.) between hetero-
genic rationalities involved therein – constitutes, on the one hand,
dialogues and, on the other hand, agonistic communications. Both of
43
As defined by Teubner 2006: 175, 180 [Engl. trans. 2006: 338, 341].
44
For an anthropological analysis of this case, see Segato (2011); for a constitutional
approach, see Neves (2013: 139ff.).
f r o m c o n s t it utio n al i s m t o t r an s constitu tionalism 295
these forms are related to a process of permanent learning in conditions of

double contingency.45 We should not presume, however, that these are
communicative forms designed to secure a consensus. On the contrary,
they are aimed at absorbing and dissipating structural dissent involving the
constitutional problems of world society. The transconstitutional dialogues
between legal orders indicate that there is a willingness to learn from each
other, and a readiness to rebuild identity based on alterity.46 But such
dialogues are not always possible. Transconstitutionalism can avail itself
of agonising postures that are minimally reflexive and therefore capable of
promoting mutual learning a posteriori. That is why transconstitutional
engagements reject an optimising balancing method between competing
perspectives between legal orders in a typically constitutional manner
(Neves 2013: 171ff.). Instead of promoting an optimising narcissism
from the standpoint of an exclusive constitutional identity, transconstitu-
tionalism demands containment in the face of the order of the other,
assuming that the identity is reviewed through observation of each other.
This is not to deny that every observer has a blind spot (von Foerster 1981:
288–289), and it does not dispute the fact that ‘I see something you
don’t see’ (Luhmann 1990b [Engl. trans. 2002]). The transconstitutional
argument is underpinned by the assumption that ‘the other can see your
blind spot’ (Neves 2013: 184). And this conceptual basis is incompatible
with both a Eurocentric or Western cosmopolitanism and with a post-
colonialism linked to cultural identities not contaminated by any constitu-
tional flow.
The transconstitutional entanglements do not occur in normatively
idealised terms in the deeply asymmetric world society in which we live.
Of course, although transconstitutional problems occur in many con-
texts, there are empirical limitations to our ability to find normatively
satisfactory solutions for them. It can also be said that transconstitution-
alism bears within itself a positive dimension, the development of
transversal rationality among legal orders, and a negative dimension,
45
Double contingency entails the mutual assumption of ‘degrees of freedom’ (an alter’s
actions may be entirely different from those expected by ego and vice-versa) (Luhmann,
1984: 186 [Engl. trans. 1995: 133]), which converts behaviour into action: ‘Behavior
becomes action if it is found free to be determined differently’ (ibid.: 169 [Engl. trans.
120]). In this regard, see Neves (2013: 169ff).
46
‘Dialogue’ in the sense implied here might have an analogous meaning to that formulated
by Feyerabend (164–165): ‘It can show the effect of arguments on outsiders or on experts
from a different school’, as well as ‘demonstrate the chimaerical nature of what we believe
to be the most solid parts of our lives’.
296 marcelo neves
the blocking and destructive relations between them.47 In particular, the

asymmetries of legal forms create obstacles or impairments to transcon-
stitutionalism by virtue of the fact that in certain contexts one is stronger
than another and ignores the other’s claims and demands. This super-
imposition of one legal form over another does not imply the formation
of a hierarchical order or organisation in the traditional sense of
a stepped structure, but instead leads to diffuse mechanisms of oppres-
sion or negation of the autonomy of some legal forms by others.
In international relations, expansion of the power code to the detriment
of the legal code is associated with the immunisation and untouchability of
the legal orders of the so-called ‘great powers’. A significant aspect is the
impotence of international organisations to control US-American legal
practices and impose appropriate sanctions on the USA.48 As far as judicial
competence is concerned, for example, US-American courts are unwilling
to acknowledge the competence of international courts to judge cases in
which public international law claims are brought against the USA and,
in exceptional cases, against US-American official bodies, organisations
or citizens. The Guantanamo Bay Detention Camp is exemplary in this
regard. The US-American judiciary has categorically refused to admit any
possibility of a decision by an international court, even though the char-
acteristics of the litigation show that the case involves not only an internal
matter relating to violations of the US-American Constitution or the rule
of law, but also an important question relating to violations of public
international law (Wolfrum 2003: especially 52–62, 77–78; Amann 2004;
Jinks and Sloss 2004; Siehr 2004; Hillgenberg 2005). Consequently, anti-
constitutional practices develop in the interior of constitutional states and
their ‘migration’ (Scheppele 2006; Roach 2006) undermines the normative
claim for transconstitutional case solutions.
Analogously, the relations of private regimes with forms of law in
peripheral countries are distant from the transconstitutional model in
most cases. Systematic corruption of the forms of law in fragile states via
47
Neves (2013: 175ff.) contains a more detailed discussion of the content of the following
paragraphs.
48
Elsewhere, Luhmann points out: ‘It will become unacceptable that an individual state,
even if it is the United States, conducts itself as judge and sanctioning power (when it has
itself refused to be subjected to the Inter-American Court of Human Rights’ (Luhmann
1993: 580 [Engl. trans. 2004: 486]). Against this background, he argues that ‘it is no longer
enough to refer to the positive law of states (for instance, in the form of constitutions)
because positive law can also be used to cover up violations of human rights or to make
kidnapping and breaches of international law possible, as for instance in the decision of
US Supreme Court in the case of Álvarez Marchain (1992)’ (ibid.: 579 [Engl. trans. 486]).
f r o m c o n s t i t u t i o na l i s m t o t r a n s c o n s t i t u t i o n a l i s m 297
private self-regulation on the transnational plane, benefiting large, multi-

national corporations, is not something to be considered only from the
perspective of a left-wing critique of capitalism. This problem should
also be taken seriously with a view to recognising or strengthening the
discursive autonomy of the plural spheres of world society. Transnational
private legal orders, in which the law is a ‘medium’ for the economy,
develop a type of instrumental rationality in the legal sphere according to
which all emergent normative claims of the forms of law in weaker coun-
tries tend to be judged as disruptions of their expansionary dynamics.
In this regard, Christodoulidis (2013: 642) points out that ‘[r]elations
between core and peripheral states are a vital part of the “rationalization”
of the transnational, an edifice which is premised on power asymmetries’.
This is why such orders tend to ignore the claims in question, with
destructive effects for the respective forms of law. In the field of patent
protection, this problem is evidenced by the example of bio-piracy (see
Teubner and Fischer-Lescano 2008). In this case, the developmentalist
argument may be merely a cover for forms of misappropriation of material
and immaterial assets by transnational groups, to the detriment of the
citizens of the respective states and also of members of the corresponding
native communities.
In connection with this problem, it is also important to stress that the
central instances of the state are often unwilling to support or collaborate
with local forms of law. This results in oppression of local legal claims in
the name of state unity. The opposite is not unusual: blind separatism on
the part of local communities that are unwilling to coexist with the
heterogeneity of a people and the plurality of the public sphere in
a constitutional state. Destructive reciprocal effects often derive from
conflicts between the unity claim of a federal, regional, or unitary state
and the autonomy claims of their respective member states, regions,
provinces, or departments. However, unofficial forms of law are also
making increasingly strong claims to legal autonomy, often associated
with oppressive measures by the state, as well as non-negotiable conflicts
originating in local demands for autonomy. In this case, it is rather
a question of negative entanglements, because no room is left for reci-
procal learning in terms of transconstitutionalism. On the contrary, the
situation is dominated by conflicts of intolerance, which ultimately
cannot be treated or resolved by means of legal forms and in the last
instance may lead to armed violence and a refusal of the rule of law.
From what has been expounded above, it can be inferred that transcon-
stitutionalism is a scarce resource of world society. Stable transconstitutional
298 marcelo neves
entanglements among legal orders have so far occurred only in very

limited portions of the ‘multicentric’ world system in territorial or func-
tional terms. The outlook remains unfavourable to positive develop-
ments. Nothing could be more illusory than the idea that experiences
of transversal rationality in transconstitutionalism among legal orders
are generalised or in a position to become so in the short or medium
term. These experiences are part of the privileges of some legal spheres in
an acutely asymmetrical world society.
Transconstitutionalism is part of the functional requirements and
hence of the normative claims of world society. Nevertheless, from an
empirical standpoint the persistent exploitations of legal discourses in
the context of asymmetrical forms of law impose themselves very solidly
against such requirements and claims. These exploitations of law drive
growth of the exclusion sectors of world society in a manner incompa-
tible with the development of transconstitutionalism.
8.4 Final Comment: From Transconstitutionalism

to Post-Constitutionalism?
The limits of the constitution of constitutionalism, affirmed in the
privileged centres to the detriment of its normative force in the periph-
eries, and of transconstitutionalism, deformed by the enormous asym-
metry of power in today’s world society, lead to the question of whether
we do not need a new sociological and legal imagination to consider the
opening of a post-constitutional era. This is not a ‘post-national plur-
alism’ that would go ‘beyond constitutionalism’, since also that ‘plural-
ism’ is a cosmopolitan construct in terms of the legal and political status
quo of world society.49 The problem is that political and legal inclusion,
which are the core normative expectations of constitutionalism, sat on
economic and technical-scientific structures (cognitive expectations) of
world society that only made possible social inclusion in a few regions
organised as states, promoting broad exclusion in large areas of the
globe. And with broad social exclusion, any constitutionalism aimed
at the systemic autonomy of law and politics and at legal and political
49
In this way, while claiming for a new perspective ‘beyond constitutionalism’ and with the
focus on ‘the pluralist structure of post-national law’, Krisch (2010: 302–303) falls back on
challenging the traditional dualistic ‘distinction between domestic and international law’
in order to emphasise ‘the problematic nature of both cosmopolitan and nationalist
visions of institutional development’. In fact, however, the issue of post-constitutionalism
goes far beyond cosmopolitan and nationalist mainstream visions.
f r o m c o ns tit u t i o n a l i s m t o t r a n s c o n s tit u tio na l i s m 299
inclusion becomes a symbolic facade or at least an expression of ‘good

intentions’. The very idea of human rights has been captured by the
mainstream of international domination (Koskenniemi 2010), becom-
ing largely a symbolic mechanism to the detriment of their normative
force.
The path towards a new political and legal imagination cannot be
a post-colonial quest for expansion of alleged authentic cultural identities
in the so-called ‘Global South’. Such a view, especially in the formulation
of some scholars from the ‘Global South’ who flock to the universities in
the ‘Global North’, covers up forms of exclusionary domination preva-
lent in the peripheries of the global society. It seems to me that the
emergence of a post-constitutional perspective within world society
implies a focus shift to the economic structures contrary to both the
autonomy of law and politics as social systems and, correspondently, the
political and legal inclusion (these structures found an effective counter-
point only in the restricted domain of the constitutional state in core
countries). From this perspective, one should not expect, in the fore-
ground, the emancipating potential of a legal ‘revolution’ at stake in
worldwide ‘evolutionary’ processes (Brunkhorst 2014), but first,
a deeper ‘revolution’ in the world economic system (with the supersession
of ‘capitalism’?!), enabling the emancipation of rights in various life
forms of world society. No doubt this goes far beyond a sociological
explanation, but should be reflected in a critical perspective of systems
theory.50 It will likely demand a turn from the focus on autonomy and
functional differentiation, which supported the relation between politics
and law in classic constitutionalism, to an emphasis on the difference
‘inclusion/exclusion’,51 which implies a normative problem of world
society (see Lindahl 2010: 222ff.; Neves 2013: 180ff.), involving not only
‘human rights as the rights of strangers’ (Lindahl 2010: 239ff.), but also
the hitherto unaccomplished realisation of the constitutionalism for
universal inclusion.
50
This is meant precisely not in the sense of the ‘critical systems theory’ proposed by
Fischer-Lescano (2013). Fischer-Lescano’s outlook, on the one hand, insists on an
unquestionable worldwide primacy of functional differentiation. On the other hand, it
tries to reconcile Theodor Adorno’s negative dialectics concerning the relation between
human being and society (Adorno 2003) with Niklas Luhmann’s reflexive theorisation
regarding the paradoxical difference society/human beings expressed in the concept of
person.
51
This is meta-difference or a meta-code of world society as suggested by Luhmann (1997:
Vol. 2, 632) [Engl. trans. 2013: 25]; 1993: 583 [Engl. trans. 2004: 489]). See, with
qualifications, Neves (2000: 188ff.).
300 marcelo neves
Bibliography
Ackerman, Bruce (1991). We the People 1: Foundations. Cambridge, MA/London:
Harvard University Press.
(1997). ‘The Rise of World Constitutionalism’, Virginia Law Review 83,
pp. 771–797.
Adams, Willi Paul (1980). The First Americans Constitutions: Republican Ideology
and the Making of the State Constitutions in the Revolutionary Era. Chapel
Hill: University of Carolina Press.
Adorno, Theodor W. (2003). ‘Individuum und Organisation: Einleitungsvortag
zum Darmstädter Gespräch 1953’, in T. W. Adorno, Gesammelte Schriften,
Vol. 8, Soziologische Schriften 1. Frankfurt am Main: Suhrkamp, pp. 440–456.
Amann, Diane Marie (2004). ‘Guantánamo’, Columbia Journal of Transnational
Law 42, pp. 263–348.
Anderson, Gavin W. (2013). ‘Societal Constitutionalism, Social Movements, and
Constitutionalism from Below’, Indiana Journal of Global Legal Studies 20,
pp. 881–906.
Aristotle (1944). Politics. With an English translation by H. Rackham. Cambridge,
MA/London: Harvard University Press.
Arlt, Herbert (2002). ‘Konzeptuelle Metaphern und gesellschaftliche Prozesse’,
TRANS. Internet-Zeitschrift für Kulturwissenschaften 13, September 2002
(http://www.inst.at/trans/13Nr/arlt13.htm).
Backer, Larry Catá (2013). ‘Transnational Corporations’ Outward Expression of
Inward Self-Constitution: The Enforcement of Human Rights by Apple, Inc.’,
Indiana Journal of Global Legal Studies 20, pp. 805–879.
Ball, Terence and Pocock, J. G. A. (1988). ‘Introduction’, in T. Ball and
J. G. A. Pocock (eds), Conceptual Change and Constitution. Lawrence, KS:
University Press of Kansas, pp. 1–12.
Bailey Saki and Mattei, Ugo (2013). ‘Social Movements as Constituent Power:
The Italian Struggle for the Commons’, Indiana Journal of Global Legal
Studies 20, pp. 965–1013.
Baxi, Upendra (2005). ‘Postcolonial Legality’, in H. Schwarz and S. Ray (eds),
A Companion to Postcolonial Studies. Malden, MA/Oxford/Victoria:
Blackwell, pp. 540–555.
Benvindo, Juliano Zaiden (2015). ‘The Seeds of Change: Popular Protests as
Constitutional Moments’, Marquette Law Review 99 (2), pp. 363–426.
Berman, Paul Schiff (2013). ‘Jurisgenerative Constitutionalism: Procedural
Principles for Managing Global Legal Pluralism’, Indiana Journal of Global
Legal Studies 20, pp.665–695.
Biaggini, Giovanni (2000). ‘Die Idee der Verfassung – Neuausrichtung im Zeitalter
der Globalisierung?’, Zeitschrift für Schweizerisches Recht 141 (119 in the new
series), pp. 445–476.
Blumenberg, Hans (1998). Paradigmen zu einer Methaphorologie. Frankfurt am
Main: Suhrkamp.
Bobbio, Norberto (1996). The Age of Rights, Engl. trans. by A. Cameron.
Cambridge: Polity Press.
Böckenförde, Ernst-Wolfgang (1983). ‘Geschichtliche Entwicklung und
Bedeutungswandel der Verfassung’, in A. Buschmann, G. Otte, W. Schubert,
and F.- L. Knemeyer (eds), Festschrift für Rudolf Gmür. Bielefeld: Gieseking,
pp. 7–19.
Brasil, Comissão Nacional da Verdade (2014). Relatório, Vol. 1. Brasília: CNV.
Bregvadze, Lasha (2013). ‘Constituting Constitutions beyond the State:
Polycontextural Constitutionalism of the World Society’, in A. Febbrajo and
G. Harste (eds), Law and Intersystemic Communication: Understanding
‘Structural Coupling’. Surrey, UK/Burlington, VT: Ashgate, pp. 327–341.
Brunkhorst, Hauke (1999). ‘Heterarchie und Demokratie’, in H. Brunkhorst and
P. Niesen (eds), Das Recht der Republik. Frankfurt am Main: Suhrkamp,
pp. 373–385.
(2012). Legitimationskrisen: Verfassungsprobleme der Weltgesellschaft. Baden-
Baden: Nomos.
(2014). Critical Theory of Legal Revolutions: Evolutionary Perspectives.
New York: Bloomsbury.
Butler, Judith (1997). ‘Subjection, Resistance, Resignification: Between Freud and
Foucault’, in J. Butler, The Physic Life of Power: Theories in Subjection.
Stanford: Stanford University Press, pp. 83–105.
Canotilho, J. J. Gomes (1991). Direito constitucional, 5th edn. Coimbra: Almedina.
(2006). ‘Brancosos’ e interconstitucionalidade: Itinerários dos discursos sobre
a historicidade constitucional. Coimbra: Almedina.
Castellà Andreu, Josep Maria (2015). ‘La propuesta de secesión catalana: entre la
consulta popular y los problemas de constitucionalidad’, Revista de Derecho
Público 82, pp. 13–39.
Chia, Eduardo A. and Quezada, Flavio (eds) (2015). Propuesta para una Nueva
Constitución (Originada en Democarcia). Santiago: Instituto igualdad/
Facultad de Derecho Universidad de Chile/Friedrich Ebert-Stiftung.
Christodoulidis, Emilios (2013). ‘On the Politics of Societal Constitutionalism’,
Indiana Journal of Global Legal Studies 20(2), pp. 629–663.
Cicero, Marcus Tullius (1928). De Re Publica, De Legibus, with an English transla-
tion by C. W. Keyes. London: William Heinemann/New York: G. P. Putnam’s
Sons [De Re Publica, pp. 12–285].
Copi, Irving M. (1961). Introduction to Logic, 2nd ed. New York: Macmillan.
Corrêa, Marcos Sá (1977). 1964 visto e comentado pela Casa Branca. Porto Alegre:
L. & PM.
Correa Sutil, Sofía (2015). ‘Los Procesos Constituyentes en la Historia de Chile:
Lecciones para el Presente’, Estudios Públicos 137, pp. 53–85.
302 marcelo neves
Dicey, A. V. (1982). Introduction to the Study of the Law of the Constitution.
Indianapolis: Liberty Classics [reprint of the 8th edn., London: Macmillan,
1915].
Dupuy, Pierre-Marie (1997). ‘The Constitutional Dimension of the Charter of the
United Nations Revisited’, Max Planck Yearbook of United Nations Law 1,
pp. 1–33.
Eisenstadt, S. N. (2000). Die Vielfalt der Moderne, German trans. by B. Schluchter.
Frankfurt am Main: Velbrück.
Ellis, Jaye (2013). ‘Constitutionalization of Nongovernmental Certification
Programs’, Indiana Journal of Global Legal Studies 20, pp. 1035–1059.
Fassbender, Bardo (1998). ‘The United Nations Charter as Constitution of the
International Community’, Columbia Journal of Transnational Law 36, pp.
529–619.
(2007) ‘“We the Peoples of the United Nations’: Constituent Power and
Constitutional Form in International Law’, in M. Loughlin and
N. Walker (eds), The Paradox of Constitutionalism: Constituent Power
and Constitutional Form. Oxford: Oxford University Press, pp. 269–290.
Feierman, Steven (2003). ‘African Histories and the Dissolution of World
History’, in R. H. Bates, V. Y. Mudimbe and J. O’Barr (eds), Africa and
the Disciplines: The Contributions of Research in Africa to the Social
Sciences and Humanities. Chicago/London: University of Chicago Press,
pp. 167–212.
Ferrajoli, Luigi (1997). La sovranità nel mondo moderno. Nascita e crisi dello Stato
nazionale. Rome/Bari: Editori Laterza.
Feyerabend, Paul K. (1991). Three Dialogues on Knowledge. Oxford: Basil
Blackwell.
Fischer-Lescano, Andreas (2005). Globalverfassung: Die Geltungsbegründung der
Menschenrechte. Weilerswist: Velbrück.
(2013). ‘Systemtheorie als kritische Gesellschaftstheorie’, in A. Fischer-Lescano
(ed.), Kritische Systemtheorie: Zur Evolution einer normativen Theorie.
Bielefeld: Transcript Verlag, pp. 13–39.
Frowein, Jochen A. (2000). ‘Konstitutionalisierung des Völkerrechts’, in
Völkerrecht und Internationales Recht in einem sich globalisierenden interna-
tionalen System – Auswirkung der Entstaatlichung transnationaler Rechtsbe-
ziehungen (Berichte der Deutschen Gesellschaft für Völkerrecht 39). Heidelberg:
Müller, pp. 427–445.
Gauchet, Marcel (1989). La Révolution des droits de l’homme. Paris: Gallimard.
Giergerich, Thomas (2003). ‘Einführung: Transnationale Konstitutionalisierung
als Antwort auf die Globalisierung’, in T. Giegerich, Europäische Verfassung
und deutsche Verfassung im transnationalen Konstitutionalisierungsprozess:
Wechselseitige Rezeption, konstitutionelle Evolution und föderale Verflechtung.
Berlin: Springer, pp. 1–13.
Grimm, Dieter (1989). ‘Verfassung’, in Görres-Gesellschaft (ed.), Staatslexikon:
Recht • Wirtschaft • Gesellschaft, 7th edn. Freiburg/Basle/Vienna: Herder),
Vol. V, columns 633–643.
Habermas, Jürgen (1982). Theorie des Kommunikativen Handelns, 2nd ed.
Frankfurt am Main: Suhrkamp, Vol. 2 [Engl. trans. (1987): The Theory of
Communicative Action. Boston: Beacon Press, Vol. 2].
(1990). ‘Vorwort zur Neuauflage 1990’, in J. Habermas, Strukturwandel der
Öffentlichkeit: Untersuchungen zu einer Kategorie der bürgerlichen
Gesellschaft. Frankfurt am Main: Suhrkamp, pp. 11–53.
(1992a). ‘Volkssouveränität als Verfahren (1988)’, in J. Habermas, Faktizität und
Geltung: Beiträge zur Diskurstheorie des Rechts und des demokratischen
Rechtsstaats. Frankfurt am Main: Suhrkamp, pp 600–31 [Engl. trans. (1997):
‘Popular Sovereignty as Procedure’, in J. Bohman and W. Rehg (eds),
Deliberative Democracy: Essays on Reason and Politics. Cambridge, MA/
London: The MIT Press, pp. 35–65.]
(1992b), ‘Recht und Moral (Tanner Lectures 1986)’, in J. Habermas,
Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des
demokratischen Rechtsstaats. Frankfurt am Main: Suhrkamp, 541–599
[Engl. trans. (1988): ‘Law and Morality’ (The Tanner Lectures on
Human Values, delivered at Harvard University, 1 and 2 Oct. 1986),
The Tanner Lectures on Human Values, Vol. 8. Salt Lake City:
University of Utah Press, pp. 217–279].
(1996). ‘Kants Idee des ewigen Friedens – aus dem historischen Abstand von 200
Jahren’, in J. Habermas (ed.) Die Einbeziehung des Anderen: Studien zur
politischen Theorie. Frankfurt am Main: Suhrkamp, pp. 192–236.
(1998a). Die postnationale Konstellation: Politische Essays. Frankfurt am Main:
Suhrkamp [Engl. trans. (2001): Post-National Constellation: Political Essays.
Cambridge: Polity Press/Oxford: Blackwell].
(1998b). ‘Jenseits des Nationalstaats? Bemerkungen zu Folgeproblemen der
wirtschaftlichen Globalisierung’, in U. Beck (ed.), Politik der Globalisierung.
Frankfurt am Main: Suhrkamp, pp. 67–84.
(2000). ‘Bestialität und Humanität: Ein Krieg an der Grenze zwischen Recht und
Moral’, in R. Merkel (ed.), Der Kosovo-Krieg und das Völkerrecht. Frankfurt
am Main: Suhrkamp, pp. 51–65.
(2001). ‘Braucht Europa eine Verfassung?’, in J. Habermas (ed.) Zeit der
Übergänge: Kleine Politische Schriften IX Frankfurt am Main: Suhrkamp,
pp. 104–129.
(2004). ‘Hat die Konstitutionalisierung des Völkerrechts noch eine Chance?’, in
J. Habermas (ed.) Der gespaltene Westen: Kleine Politische Schriften X.
(2005). ‘Eine politische Verfassung für die pluralistische Weltgesellschaft?’, in
J. Habermas (ed.) Zwischen Naturismus und Religion: Philosophische Aufsätze.
304 marcelo neves
Frankfurt am Main: Suhrkamp, pp. 324–365 [Engl. trans.: “A Political
Constitution for the Pluralist World Society?”. In: J. Habermas, Between
Naturalism and Religion: Philosophical Essays. Cambridge, UK/Malden,
MA: Polity Press, 2008, pp. 312–52].
(2007). ‘Kommunikative Rationalität und grenzüberschreitende Politik: eine
Replik’, in P. Niesen and B. Herborth (eds), Anarchie der kommunikativen
Freiheit: Jürgen Habermas und die Theorie der internationalen Politik.
(2011). Zur Verfassung Europas: Ein Essay. Berlin: Suhrkamp.
Hespanha, António Manuel (2004). Guiando a mão invisível: direito, Estado e lei no
liberalismo monárquico português. Coimbra: Almedina.
Hesse, Konrad (1980). Grundzüge des Verfassungsrechts der Bundesrepublik
Deutschland, 12th edn. Heidelberg/Karlsruhe: Müller.
Hillgenberg, Hartmut (2005). ‘Incommunicado in Guantanamo’, in J. Bröhmer,
R. Bieber, and C. Callies (eds), Internationale Gemeinschaft und Menschenr-
echte: Festschrift für Georg Ress zum 70. Geburtstag am 21. Januar 2005.
Cologne/Berlin/Munich: Heymanns, pp. 133–140.
Hollerbach, Alexander (1969). ‘Ideologie und Verfassung’, in W. Maihofer (ed.),
Ideologie und Recht. Frankfurt am Main: Klostermann, pp. 37–61.
Holmes, Pablo (2013). Verfassungsrevolution in der Weltgesellschaft: Differenzier-
ungsprobleme des Rechts und der Politik im Zeitalter der Global Governance.
Baden-Baden: Nomos.
Jinks, Derek and Sloss, David (2004). ‘Is the President Bound by the Geneva
Conventions’, Cornell Law Review 90, pp. 97–202.
Kadelbach, Stefan and Kleinlein, Thomas (2008). ‘International Law –
a Constitution for Mankind? An Attempt at a Re-appraisal with an Analysis
of Constitutional Principles’, German Yearbook of International Law 50,
pp. 303–347.
Kjaer, Paul F. (2013). ‘Transnational Normative Orders: The Constitutionalism of
Infra- and Trans-Normative Law’, Indiana Journal of Global Legal Studies 20,
pp. 777–803.
(2014). Constitutionalism in the Global Realm: A Sociological Approach. London/
New York: Routledge.
Klug, Heinz (2000). ‘Model and Anti-Model: The United States Constitution
and the “Rise of World Constitutionalism”’, Wisconsin Law Review 2000,
pp. 597–616.
Koselleck, Reinhart (1989). Vergangene Zukunft: Zur Semantik geschichtlicher
Zeiten. Frankfurt am Main: Suhrkamp [Engl. trans. (2004): Futures Past:
On the Semantics of Historical Time. New York: Columbia University Press].
(2006). ‘Begriffsgeschichtliche Probleme der Verfassungsgeschichtsbeschreibu-
ng’, in R. Koselleck. Begriffsgeschichten. Frankfurt am Main: Suhrkamp,
pp. 365–401.
Koskenniemi, Martti (1995). ‘The Police in the Temple – Order, Justice and
the UN: A Dialectical View’, European Journal of International Law 6,
pp. 325–348.
(2002). The Gentle Civilizer of Nations: The Rise and Fall of International Law
1870–1960. Cambridge: Cambridge University Press.
(2004) ‘International Law and Hegemony: A Reconfiguration’, Cambridge
Review of International Affairs 17, pp. 197–218.
(2010). ‘Human Rights Mainstreaming as a Strategy for Institutional Power’,
Humanity: An International Journal of Human Rights, Humanitarianism, and
Development 1, pp. 47–58.
Krisch, Nico (2010). Beyond Constitutionalism: The Pluralist Structure of
Postnational Law. Oxford: Oxford University Press.
Kumm, Mattias (2013). ‘The Cosmopolitan Turn in Constitutionalism:
An Integrated Conception of Public Law’, Indiana Journal of Global Legal
Studies 20, pp. 605–628.
Laclau, Ernesto (1994). ‘Why do Empty Signifiers Matter to Politics?’, in J. Weeks
(ed.), The Lesser Evil and the Greater Good. The Theory and Politics of Social
Diversity. London: Rivers Oram Press, pp. 167–178
Ladeur, Karl-Heinz (1992). Postmoderne Rechtstheorie: Selbstreferenz –
Selbstorganisation – Prozeduralisierung. Berlin: Duncker und Humblot.
(2014). ‘Die transsubjektive Dimension der Grundrechte’, in T. Vesting, S. Korioth
and I. Augsberg, Grundrechte als Phänomene kollektiver Ordnung. Tübingen:
Mohr, pp. 17–38.
Lefort, Claude (1981). ‘Droit de l’homme et politique’, in C. Lefort, L’invention
démocratique: Les limites de la domination totalitaire. Paris: Fayard,
pp. 45–83.
Lévi-Strauss, Claude (1973). ‘Introduction a l’œuvre de Marcel Mauss’, in
M Mauss, Sociologie et Anthropologie. 5th edn. Paris: Presses Universitaires
de France, Vol. I, pp. IX–LII [1st edn. 1950].
Lindahl, Hans (2010). Fault Lines of Globalization: Legal Order and the Politics of
A-Legality. Oxford: Oxford University Press.
(2013). ‘We and Cyberlaw: The Spatial Unity of Constitutional Orders’, Indiana
Journal of Global Legal Studies 20, pp. 697–730.
Luhmann, Niklas (1965). Grundrechte als Institution: Ein Beitrag zur politischen
Soziologie. Berlin: Duncker und Humblot.
(1973). ‘Politische Verfassungen im Kontext des Gesellschaftssystems’, Der Staat
12, pp. 1–22 and 165–182.
(1980). ‘Gesellschaftliche Struktur und semantische Tradition’, in N. Luhmann,
Gesellschaftsstruktur und Semantik, Studien zur Wissenssoziologie der moder-
nen Gesellschaft. Frankfurt am Main: Suhrkamp, Vol. 1, pp. 9–71.
(1981a). Ausdifferenzierung des Rechts: Beiträge zur Rechtssoziologie und
Rechtstheorie. Frankfurt am Main: Suhrkamp.
306 marcelo neves
(1981b). ‘Machtkreislauf und Recht in Demokratien’, Zeitschrift für
Rechtssoziologie 2, pp. 158–167.
(1981c). Politische Theorie im Wohlfahrtsstaat. Munich: Olzog.
(1983). Legitimation durch Verfahren. Frankfurt am Main: Suhrkamp.
(1984). Soziale Systeme: Grundriß einer allgemeinen Theorie. Frankfurt am
Main: Suhrkamp [Engl. trans. (1995): Social Systems. Stanford: Stanford
University Press].
(1986). ‘Die Codierung des Rechtssystems’, Rechtstheorie 17, pp. 171–203.
(1987a). Rechtssoziologie, 3rd edn. Opladen: Westdeutscher Verlag. [Engl. trans.
(2014): A Sociological Theory of Law. 2nd edn. Abingdon, UK/New York:
Routledge].
(1987b) ‘Die Zukunft der Demokratie’, in N. Luhmann, Soziologische
Aufklärung 4: Beiträge zur funktionalen Differenzierung der Gesellschaft.
Opladen: Westdeutscher Verlag, pp. 126–132
(1990a). ‘Verfassung als evolutionäre Errungenschaft’, Rechtshistorisches
Journal 9, pp. 176–220.
(1990b). ‘Ich sehe was, was Du nicht siehst’, in N. Luhmann, Soziologische
Aufklärung 5: Konstruktivistische Perspektiven. Opladen: Westdeutscher
Verlag, pp. 228–234 [Engl. trans. (2002): ‘I See Something You Don’t See’,
in N. Luhmann, Theories of Distinction: Redescribing the Descriptions of
Modernity. Stanford: Stanford University Press, pp. 187–193].
(1993). Das Recht der Gesellschaft. Frankfurt am Main: Suhrkamp [Engl. trans.
(2004): Law as a Social System. Oxford: Oxford University Press].
(1995). ‘Die Form “Person”’, in N. Luhmann, Soziologische Aufklärung 6: Die
Soziologie und der Mensch. Opladen: Westdeutscher Verlag, pp. 142–154.
(1997). Die Gesellschaft der Gesellschaft. Frankfurt am Main: Suhrkamp, 2 tomes
[Engl. trans.: Theory of Society. Stanford: Stanford University Press, Vol. 1
(2012), Vol. 2 (2013)].
(2000). Die Politik der Gesellschaft. Frankfurt am Main: Suhrkamp.
MacDowell, Douglas M. (1989). ‘The Oikos in Athenian Law’, The Classical
Quarterly (New Series) 39, pp. 10–21.
Maddox, Graham (1989). ‘Constitution’, in T. Ball, J. Farr and R. L. Hanson (eds),
Political Innovation and Conceptual Change. Cambridge: Cambridge
University Press, pp. 50–67.
Madison, James, Hamilton, Alexander, and Jay, John (1987). The Federalist Papers
(1788). London/New York: Penguin.
Maduro, Miguel Poiares (2006). A Constituição plural: constitucionalismo e União
Européia. Cascais: Principia.
Marx, Karl (1988). ‘Zur Judenfrage’, in K. Marx and F. Engels, Werke. 15th edn.
Berlin: Dietz Verlag, Vol. I, pp. 347–377 [first published in: Deutsch-Französische
Jahrbücher. Paris, 1844].
f r o m c o n s t i t u tio na l i s m t o t r a n s c o n s t i t u tio n a l i s m 307
Maus, Ingeborg (1997). ‘Staatssouveränität als Volkssouveränität. Überlegungen
zum Friedensprojekt Immanuel Kants’, in W. Loth (ed.), Jahrbuch 1996 des
Kulturwissenschaftlichen Instituts im Wissenschaftszentrum NRW. Essen:
Altes Rathaus, pp. 167–194.
(2011). ‘Vom Nationalstaat zum Globalstaat oder: der Verlust der Demokratie’,
in I. Maus (ed.), Über Volkssouveränität: Elemente einer Demokratietheorie.
Berlin: Suhrkamp, pp. 375–406.
(2015). ‘Verfassung und Verfassunggebung. Zur Kritik des Theorems einer
“Emergenz” supranationaler und transnationaler Verfassungen’, in I. Maus
(ed.), Menschenrechte, Demokratie und Frieden: Perspektiven globaler
Organisation. Berlin: Suhrkamp, pp. 122–191.
McIlwain, Charles Howard (1940). Constitutionalism Ancient and Modern. Ithaca,
NY: Cornell University Press.
Mello, Celso de Albuquerque (2000). Direito constitucional internacional –
Introdução, 2nd edn. Rio de Janeiro: Renovar.
Mignot, Dominique-Aimé (2007). ‘La matrice romaine de l’Édit de Mars 1865, dit
le Code Noir’, in Jean-François Niort (ed.), Du Code Noir au Code Civil: Jalons
pour l’histoire du droit en Guadeloupe. Perspectives comparées avec
Martinique, la Guyane et la République d’Haïti. Paris: L’Harmattan, pp.
87–98.
Mohnhaupt, Heinz (1995). ‘Konstitution, Status, Leges fundamentals von der
Antike bis zur Aufklärung’, in H. Mohnhaupt and D. Grimm (eds),
Verfassung: Zur Geschichte des Begriffs von der Antike bis zur Gegenwart;
zwei Studien. Berlin: Duncker und Humblot, pp. 1–99.
Montesquieu (1979). De l’Esprit des Lois. Paris: Garnier-Flammarion, Vol. I [1st
edn. 1748].
Müller, Friedrich (1997). Wer ist das Volk? Die Grundfrage der Demokratie –
Elemente einer Verfassungstheorie VI. Berlin: Duncker und Humblot.
Neves, Marcelo (1992). Verfassung und Positivität des Rechts in der peripheren
Moderne: Eine theoretische Betrachtung und eine Interpretation des Falls
Brasilien. Berlin: Duncker und Humblot.
(1998). Symbolische Konstitutionalisierung. Berlin: Duncker und Humblot.
(2000). Zwischen Themis und Leviathan: Eine Schwierige Beziehung – Eine
Rekonstruktion des demokratischen Rechtsstaats in Auseinandersetzung mit
Luhmann und Habermas. Baden-Baden: Nomos.
(2005). ‘Between Under-Integration and Over-Integration: Not Taking
Citizenship Rights Seriously’, in J. Souza and V. Sinder (eds), Imagining
Brazil. Lanham, Md: Lexington Books, pp. 61–90.
(2007). ‘The symbolic force of human rights’, Philosophy & Social Criticism
33(4), pp. 411–444.
(2013). Transconstitutionalism. Oxford: Hart.
308 marcelo neves
Ochoa, Christiana and Greene, Shane (2001). ‘Introduction: Human Rights and
Legal Systems Across the Global South’, Indiana Journal of Global Legal
Studies 18, pp. 1–6.
Paine, Thomas (1992). Rights of Man [1791–1792], G. Claeys (ed.). Indianapolis/
Cambridge: Hackett.
Peters, Anne (2006). ‘Compensatory Constitutionalism: The Function and
Potential of Fundamental International Norms and Structures’, Leiden
Journal of International Law 19, pp. 579–510.
Pires, Francisco Lucas (1997). Introdução ao direito constitucional europeu (seu
sentido, problemas e limites). Coimbra: Almedina.
Prandini, Riccardo (2013). ‘The Future of Societal Constitutionalism in the Age of
Acceleration’, Indiana Journal of Global Legal Studies 20, pp. 731–776.
Preuss, Ulrich (1990). Revolution, Fortschrift und Verfassung: Zu einem neuen
Verfassungsverständnis. Berlin: Wagenbach.
(2007). ‘The Exercise of Constituent Power in Central and Eastern Europe’, in
M. Loughlin and N. Walker (eds), The Paradox of Constitutionalism:
Constituent Power and Constitutional Form. Oxford: Oxford University
Press, 211–228.
Rajagopal, Balakrishnan (2012). ‘International Law and Its Discontents:
Rethinking the Global South’, American Society of International Law
Proceedings 106, pp. 176–181.
Renner, Moritz (2013). ‘Occupy the System! Societal Constitutionalism and
Transnational Corporate Accounting’, Indiana Journal of Global Legal
Studies 20, pp. 941–964.
Renwick, Alan (2014). After the Referendum: Options for a Constitutional
Convention. London: The Constitution Society.
Richard, Jérémy (2010). ‘Du Code Noir de 1685 au Projet de 1829: de la semi-
réification à l’humanisation de l’esclave noir’, in T. le Marc’Hadour and
M. Carius (eds), Esclavage et droit: du Code noir à nos jours. Arras: Artois
Presses Université, pp. 53–90.
Roach, Kent (2006). ‘The Post-9/11 Migration of Britain’s Terrorism Act 2000’, in
S. Choudhry (ed.), The Migration of Constitutional Ideas. Cambridge:
Cambridge University Press, pp. 374–402.
Roberts, John (ed.) (2007). Oxford Dictionary of the Classical World. Oxford:
Oxford University Press (online).
Rödl, Florian (2013). ‘Fundamental Rights, Private Law, and Societal Constitution:
On the Logic of the So-Called Horizontal Effect’, Indiana Journal of Global
Legal Studies 20, pp. 1015–1034.
Ross, Alf (1950). Constitution of United Nations: Analysis of Structure and
Function. Copenhagen: Ejnar Munksgaard.
Sala-Molins, Louis (1987). Le Code noir ou le calvaire de Canaan. Paris: Presses
Universitaires de France.
fr om co ns tit uti onalism t o t ra ns cons tit utio na l ism 309
(2006) Dark Side of the Light: Slavery and the French Enlightenment, Engl. trans.
by J. Conteh-Morgan. Minneapolis: Minnesota University Press.
Scheppele, Kim Lane (2006). ‘The Migration of Anti-constitutional Ideas: the Post-
9/11 Globalization of Public Law and the International State of Emergency’, in
S. Choudhry (ed.), The Migration of Constitutional Ideas. Cambridge:
Schmale, Wolfgang (1988). Entchristianisierung, Revolution und Verfassung: Zur
Mentalitätsgeschichte der Verfassung in Frankreich, 1715–1794. Berlin:
Duncker und Humblot.
Schmitt, Carl (1993). Verfassungslehre, 8th edn. Berlin: Duncker und Humblot
[1st edn. 1928] [Engl. trans. Constitutional Theory. Durham/London: Duke
University Press, 2008].
Sciulli, David (1992). Theory of Societal Constitutionalism: Foundations of a Non-
Marxist Critical Theory. Cambridge: Cambridge University Press.
Segato, Rita Laura (2011). ‘Que cada pueblo teja los hilos de su historia. El
pluralismo jurídico en diálogo didáctico con legisladores’, in V. Chenaut,
M. Gómez, H. Ortiz, and M. T. Sierra (eds), Justicia y diversidad en América
Latina. Pueblos indígenas ante la globalización. Mexico, DF: CIESAS/Quito:
FLACSO, pp. 357–381.
Seitzer, Jeffrey and Thornhill, Christopher (2008). ‘Introduction to Carl Schmitt’s
Constitutional Theory: Issues and Context’, in C. Schmitt, Constitutional
Theory. Durham/London: Duke University Press, pp. 1–50.
Siehr, A (2004). ‘Derogation Measures under Article 4 ICCPR with Special
Consideration of the “war Against International Terrorism”’, German
Yearbook of International Law 47, pp. 545–593.
Skinner, Quentin (1989). ‘Language and political change’, in T. Ball, J. Farr, and
R. L. Hanson (eds), Political Innovation and conceptual Change. Cambridge:
Slaughter, Anne-Marie (2000). ‘Judicial Globalization’, Virginia Journal of
International Law 40, pp. 1103–1024.
Soto Barrientos, Francisco (2014). ‘Asamblea Constituyente: La Experiencia
Latinoamericana y el Actual Debate en Chile’, Estudios Constitucionales 12,
pp. 397–428.
Stourzh, Gerald (1989). ‘Vom aristotelischen zum liberalen Verfassungsbegriff.
Staatsformenlehre und Fundamentalgesetze in England und Nordamerika im
17. und 18. Jahrhundert’, in G. Stourzh, Wege zur Grundrechtsdemokratie:
Studien zur Begriffs und Institutionengeschichte des liberalen Verfassungssta-
ates. Vienna/Cologne: Böhlau, pp. 1–35.
Sweet Stone, Alec (2009). ‘Constitutionalism, Legal Pluralism, and International
Relations’, Indiana Journal of Global Legal Studies 16, pp. 621–645.
Teitel, Ruti (1994). ‘Post-Communist Constitutionalism: A Transitional
Perspective’, Columbia Human Rights Law Review 26, pp. 167–90.
310 marcelo neves
Teubner, Gunther (1996a). ‘Globale Bukowina: Zur Emergenz eines transnationa-
len Rechtspluralismus’, Rechtshistorisches Journal 15, pp. 255–290 [Engl.
trans. (1997): ‘Global Bukowina: Legal Pluralism in the World Society’, in
G. Teubner (ed.), Global Law without a State. Aldershot: Dartmouth,
pp. 3–28].
(1996b). ‘Des Königs viele Leiber: Die Selbstdekonstruktion der Hierarchie des
Rechts’, Soziale Systeme: Zeitschrift für soziologische Theorie 2, pp. 229–55.
(2000). ‘Privatregimes: Neo-Spontanes Recht und duale Sozialverfassungen in
der Weltgesellschaft’, in D. Simon and M. Weiss (eds), Zur Autonomie des
Individuums. Liber Amicorum Spiro Simitis. Baden-Baden: Nomos, 2000,
pp. 437–53 [Engl. trans. (2004a): ‘Global private regimes: Neo-spontaneous
Law and Dual Constitution of Autonomous Sectors in World Society?’, in K.-
H. Ladeur (ed.), Public Governance in the Age of Globalization. Aldershot:
Ashgate, pp. 71–87].
(2003). ‘Globale Zivilverfassungen: Alternativen zur staatszentrierten
Verfassungstheorie’, Zeitschrift für ausländisches öffentliches Recht und
Völkerrecht 63, pp. 1–28 [Engl. trans. (2004b): ‘Societal Constitutionalism:
Alternatives to State-centred Constitutional theory?’, in C. Joerges, I.-J. Sand,
and G. Teubner (eds), Transnational Governance and Constititionalism.
Oxford: Hart, pp. 3–28].
(2006). ‘Die Anonyme Matrix: Zu Menschenrechtsverletzungen durch “private”
transnationale Akteure’, Der Staat 45, pp. 161–187 [Engl. trans. (2006):
‘The Anonymous Matrix: Human Rights Violations by “Private”
Transnational Actors’, Modern Law Review 69, pp. 327–346].
(2008). ‘Selbstsubversive Gerechtigkeit: Kontingenz- oder Transzendenzformel
des Rechts’, Zeitschrift für Rechtssoziologie 29, pp. 9–36 [Engl. trans. (2009):
‘Self-Subversive Justice: Contingency or Transcendence Formula of Law?’,
Modern Law Review 72, pp. 1–23].
(2012). Verfassungsfragmente: gesellschaftlicher Konstitutionalismus in der
Globalisierung. Berlin: Suhrkamp [Engl. trans. (2012): Constitutional Fragm-
ents: Societal Constitutionalism and Globalization. Oxford: Oxford University
Press].
(2015). Exogenous Self-Binding: How Social Systems Externalise their
Foundational Paradoxes in the Process of Constitutionalization’, in G. Corsi
and A. Febbrajo (eds), Sociology of Constitutions. A Paradoxical Perspective.
Oxford/New York: Routledge, pp. 229–256.
and Beckers, Anna (2013). ‘Expanding Constitutionalism’, Indiana Journal of
Global Legal Studies 20, pp. 523–550.
and Fishcher-Lescano, Andreas (2008). ‘Cannibalizing Epistemes: Will Modern
Law Protect Traditional Cultural Expressions?’, in C. B. Graber and M. Burri-
Nenova (eds), Traditional Cultural Expressions in a Digital Environment.
Cheltenham: Edward Elgar, pp. 17–45.
f r o m c o n s t i t u tio na l i s m t o t r a n s c o n s t i t u tio n a l i s m 311
Thornhill, Chris (2008). ‘Towards a Historical Sociology of Constitutional
Legitimacy’, Theory and Society 37, pp. 161–197.
(2011). A Sociology of Constitutions. Constitutions and State Legitimacy in
Historical-Sociological Perspective. Cambridge: Cambridge University Press.
(2012). ‘Contemporary Constitutionalism and the Dialectic of Constituent
Power’, Global Constitutionalism 1(3), pp. 369–404.
(2013). ‘A Sociology of Constituent Power: The Political Code of Transnational
Societal Constitution’, Indiana Journal of Global Legal Studies 20, pp. 551–603.
(2014). ‘Rights and Constituent Power in the Global Constitution’, International
Journal of Law in Context 10, pp. 357–96.
Tomkins, Adam and Scott, Paul (eds) (2015). Entick v Carrington: 250 Years of the
Rule of Law. Oxford: Hart.
Tomuschat, Christian (1995). ‘Die internationale Gemeinschaft’, Archiv des
Völkerrechts 33, pp. 1–20.
(1997). ‘International Law as the Constitution of Mankind’, in United Nations
(ed.), International Law on the Eve of the Twenty-first Century: Views from the
International Law Commission. New York: United Nations, pp. 37–50.
Tully, James (2007). ‘The Imperialism of Modern Constitutional Democracy’, in
M. Loughlin and N. Walker (eds), The Paradox of Constitutionalism:
Press, pp. 315–338.
Tushnet, Mark (2008). “The Inevitable Globalization of Constitutional Law”, paper
presented at the seminar “The Changing Role of Highest Courts in an
Internationalizing World”, sponsored by The Hague Institute for the
Internationalisation of Law, on 23–24 October 2008, 22 pages (available at:
SSRN: http://ssrn.com/abstract=1317766).
Uerpmann, R (2001). ‘Internationales Verfassungsrecht’, Juristenzeitung – JZ
56(11), pp. 565–573.
Verdross, Alfred (1926). Die Verfassung der Völkerrechtsgemeinschaft. Vienna/
Berlin: Springer.
and Simma, Bruno (1984). Universelles Völkerrecht: Theorie und Praxis, 3rd edn.
Berlin: Duncker und Humblot.
Von Bogdandy, Armin (2004). ‘Constitution in International Law: Comment on
a Proposal from Germany’, Harvard International Law Journal 47,
pp. 223–242.
Von Foerster, Heinz (1981). ‘On Constructing Reality’, in H. von Foerster.
Observing Systems. Seaside: Intersystems Publications, pp. 288–309.
Vorländer, Hans (1999). Die Verfassung: Idee und Geschichte. Munich: Beck.
Wahl, Rainer (2002). ‘Konstitutionalisierung – Leitbegriff oder Allerweltsbegriff?’,
in C. E. Eberle, M. Ibler and D. Lorenz (eds), Der Wandel des Staates vor den
Herausforderungen der Gegenwart: Festschrift für Winfried Brohm zum 70.
Geburtstag. Munich: Beck, pp. 191–207.
312 marcelo neves
Walker, Neil (2002). ‘The Idea of Constitutional Pluralism’, Modern Law Review
65, pp. 317–359.
(2007). ‘Post-Constituent Constitutionalism: The Case of the European Union’,
in M. Loughlin and N. Walker (eds), The Paradox of Constitutionalism:
Press, pp. 247–267.
Wallerstein, Immanuel (1979). ‘Aufstieg und künftiger Niedergang des kapitalis-
tischen Weltsystems’, in D. Senghaas (ed.), Kapitalistische Weltökonomie:
Kontroverse über ihren Ursprung und ihre Entwicklungsdynamik. Frankfurt
am Main: Suhrkamp, pp. 31–67.
(2004). World-Systems Analysis: An Introduction. Durham/London: Duke
University Press.
Weber (1968). ‘Idealtypus, Handlungsstruktur und Verhaltensinterpretation
(Auszüge)’, in M. Weber, Methodologische Schriften, J. Winckelmann (ed.).
Frankfurt am Main: Fischer, pp. 65–167.
(1973). ‘Die ‘Objektivität’ sozialwissenschaftlicher und sozialpolitischer
Erkenntnis’, in M. Weber, Gesammelte Aufsätze zur Wissenschaftslehre,
J. Winckelmann (ed.), 4th edn. Tübingen: Mohr, pp. 146–214 [first published
in Archiv für Sozialwissenschaft und Sozialpolitik 19, 1904] [Engl. trans.
(1949): ‘“Objectivity” in Social Science and Social Policy’, in M. Weber,
The Methodology of the Social Sciences. New York: The Free Press,
pp. 50–112].
Welsch, Wolfgang (1996). Vernunft: Die zeitgenössische Vernunftkritik und das
Konzept der transversalen Vernunft, 2nd edn. Frankfurt am Main: Suhrkamp.
(2002). Unsere postmoderne Moderne, 6th edn. Berlin: Akademie Verlag.
Wielsch, Dan (2013). ‘Private Governance of Knowledge: Societally-Crafted
Intellectual Properties Regimes’, Indiana Journal of Global Legal Studies 20,
pp. 907–940.
Willke, Helmut (1992). Ironie des Staates: Grundlinien einer Staatstheorie polyzen-
trischer Gesellschaft, Frankfurt am Main: Suhrkamp.
Wolfrum, Rüdiger (2003). ‘The Attack of September 11, 2001, the Wars Against
Taliban and Iraq: Is There a Need to Reconsider International Law on the
Recourse to Force and the Rules of Armed Conflict’, Max Planck Yearbook of
United Nations Law 7, pp. 1–78.
Zolo, Danilo (1993). ‘Democratic Citizenship in a Post-communist Era’, in D. Held
(ed.), Prospect for Democracy: North, South, East, West. Cambridge: Polity
Press, pp. 254–268.
Zúñiga Urbina, Francisco (2013). ‘Nueva Constitución y Operación Constituyente:
Algunas notas acerca de la Reforma Constitucional y de la Asamblea
Constituyente’, Estudios Constitucionales 11, pp. 511–540.

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8

8.1 Constitutional Ubiquity?

error of nominalism to which Ackerman refers in his analysis of com-

domains in which there is ‘repeatability by virtue of legal rules’. But

expressed, for example, in the title of the book by Charles Howard

polity as just/right forms of government, ‘which aim at the common

meaning corresponded to structural transformations in society

French and American experiences. The rising importance of the con-

8.2 The Constitution of Constitutionalism

In the legal framework of the European metropolis, reﬂected also in

165, n. 19). These two processes are intertwined as a conception of

8.2.2 The Solution: The Constitution between Constitutional Rights

response to the challenges of structural change, seen primarily from the

makes it functionally more eﬃcient under complex social conditions,

under conditions of legitimacy, just like economics with regard to the

circulation of power, it is necessary for the constitution to establish

was presented as something internal to politics and external to the

connection between positivity as functional autonomy of law and democ-

8.2.3 The Paradox: Externalising Exclusions and Arbitrariness

immediately and completely, but in gradual and generalised fashion.

the constitution (Müller 1997: 50–51). In the peripheries, the ‘primary

It remained in force until 1843, without been questioned during the

Commission established by the Brazilian government (Brasil 2014:

should neither be overvalued in cosmopolitan terms, because of its

8.3 Constitutionalism without the Constitution beyond the State

provincialism’, and stressing that ‘we should resist the temptations of

suggesting a normative claim to a global constitution. This version has

deﬁned as reﬂective instances of both coupled systems,36 play a key role

weak reflexivity strong coding

lex mercatoria world economy

‘system disintegration’ (less dependence on functional systems), so that

expresses another form of transconstitutionalism. At the level of the

these forms are related to a process of permanent learning in conditions of

the blocking and destructive relations between them.47 In particular, the

private self-regulation on the transnational plane, beneﬁting large, multi-

entanglements among legal orders have so far occurred only in very

8.4 Final Comment: From Transconstitutionalism

inclusion becomes a symbolic facade or at least an expression of ‘good

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