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7/25/2019 Constitarena Inger Sand http://slidepdf.com/reader/full/constitarena-inger-sand 1/23 Inger-Johanne Sand, Univ. of Oslo [email protected] Preliminary, very early draft - not for citation Incomplete references Previously presented at workshop on Transnational Governance and Constitutionalism, at EUI Poly-contextuality as an alternative to constitutionalism I. Background: The role of constitutions Constitutionalism has been an inherent and interwoven part of modern legal systems as well as of the concept, the traditions and the definitions of the modern nation-state. Constitutionalism implies a boundedness, in space and normatively. The setting of boundaries, in different ways, is often a prerequisite for the creation of institutions. Territorial boundaries also means the setting of cultural, social and/or linguistic boundaries which then also becomes part of the territorial and institutional boundaries. Normatively constitutionalism first implies a general adherence to boundedness to the constitution, and thus to law, and then secondly to specific constitutional principles and norms. Constitutions, law and institution-building have thus been vital instruments in the enabling of the evolution of nation-states. They have also been vital parts of the evolution of modernity, however in more complex ways, cfr. below. Constitutionalism understood as such a many-faceted form of boundedness can both emphasize different aspects and be taken to various degrees. It may thus in practice come to mean many different things. In this context two aspects are vital. The first is the role of constitutions in stabilizing (culturally and

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Page 1: Constitarena Inger Sand

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Inger-Johanne Sand, Univ. of Oslo

[email protected]

Preliminary, very early draft - not for citation

Incomplete references

Previously presented at workshop on Transnational Governance

and Constitutionalism, at EUI

Poly-contextuality as an alternative to constitutionalism

I. Background:

The role of constitutionsConstitutionalism has been an inherent and interwoven part of modern legal systems

as well as of the concept, the traditions and the definitions of the modern nation-state.

Constitutionalism implies a boundedness, in space and normatively. The setting of

boundaries, in different ways, is often a prerequisite for the creation of institutions.

Territorial boundaries also means the setting of cultural, social and/or linguistic

boundaries which then also becomes part of the territorial and institutional

boundaries. Normatively constitutionalism first implies a general adherence to

boundedness to the constitution, and thus to law, and then secondly to specific

constitutional principles and norms. Constitutions, law and institution-building have

thus been vital instruments in the enabling of the evolution of nation-states. They

have also been vital parts of the evolution of modernity, however in more complex

ways, cfr. below. Constitutionalism understood as such a many-faceted form of

boundedness can both emphasize different aspects and be taken to various degrees. It

may thus in practice come to mean many different things. In this context two aspects

are vital. The first is the role of constitutions in stabilizing (culturally and

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institutionally) the boundaries of the nation-states and thus of establishing the nation-

states as entities or actors vis-à-vis other nation-states and in global society.

Constitutions have enabled strong and stable institutions. The question which may be

raised today, is if this has stabilized the nation-states also beyond their functionality.

The other aspect is the role of constitutions in carrying specific normative principles,

some of which are connected to the boundedness, others which are more general. Also

here the coupling between the nation-states, constitutionalism and certain principles

may have contributed to a relative stability, but also with the possibility of

transcending the functions or the reasons for each one of these.

Sovereignty, delimitation of power and the guarantee of democracy and basic

human rights have together been the carrying ideas of modern nation-states, their

institutions and their constitutions. Sovereignty and constitutions have implied on the

one hand an identification and a delimitation of a demos and a territory and on the

other hand a comprehensiveness of the legislative power within that territory. It is the

coupling of the delimitation of the nation-state, the comprehensiveness of its internal

statal powers and constitutionality as the basis which have given the nation-states

their specific character and power. The delimitation has been expressed and embodied

institutionally by the nation-state, and principally and normatively through the

constitution.

Nation-states are often founded on historical, cultural and/or linguistic

boundaries and traditions, but boundaries have also been contingent, and they have

further stabilized whatever boundaries were previously there. The simultaneous

existence of cultural, social, linguistic, political and legal traditions and structures

have mutually enforced and stabilized each other to the extent that it has become

difficult to distinguish what are the primary social and legitimating forces.

Nation-states and constitutions have been part of both a pre-modern period and

of modernity. As institutional forces they have probably contributed to and enabled

the changes from absolutist and pre-modern regimes to the opening up of modern,

differentiated and democratic regimes. Constitutions do this by putting certain

procedures and certain norms above specific persons or families and thus enabling a

de-personification of power and continuity over time.

The nation-states and their constitutions have thus been vital parts of the

evolution of modernity. Departing from monarchs, the power of the church and

feudalism first cities and then nation-states and their institutions became new

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structures for the coordination of society. They were secular, but normatively based

on democratic procedures and ideas of freedom and integrity of individuals. This

enabled a freedom in relation to both religion and other metaphysically based

traditions of government. It enabled a freedom for the evolution of new knowledges

and their application. The delimitation of the nation-states did however offer some

kind of structure and framework for the evolution of new institutions and thus for

some kind of relative stability for the first part of modernity.

What should be noticed here, is how several institutions, concepts and

principles have evolved in parallell and have become entangled and interdependent

over time. They do not constitute one institution today, but they have become

interdependent to the degree that at some points they may seem inseparable or

difficult to distinguish. Boundaries, comprehensive legislative power and

comprehensive constitutions have been vital and entangled elements of the nation-

states. Parts of these elements are changing, but because they also are so entangled,

some of their functions and symbolic value will stay on. This may make it very

difficult to understand the changes of the nation-states. Some of the qualities of the

institutions of the nation-state may be kept primarily because they have become parts

of the others. The interdependence among several elements contribute to stabilisation

and to a many-faceted functionality, but it may also contribute to making change, and

the understanding of it, more complex.

The differentiation of power: Law and politics

Absolutism and metaphysical sources of power gave way to proceduralisation and

constitutionalism. This enabled another institutionalisation of power: the

differentiation of power and of politics in particular. With the secularisation and the

differentiation of society politics and law became the communicative systems through

which power could be communicated, and where decisions could be relatively

stabilized. The relative autonomy of such communicative systems and the

institutionalisation of specific procedures have meant that power on a societal level

could be dealt with irrespective of specific persons or specific political values. Law

and politics became communicative expressions concerning power in an increasingly

pluralistic and democratic society. Law and politics became the communications, the

procedures and the institutions by which modern societies were coordinated and

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governed. Politics has been the open and dynamic communication. Political decision-

making at times takes place as legislation. Law then serves as the relative stabilisation

of political decisions. Legal decision-making on the basis of legislation then takes

place in public administration and in courts. The “meanings” from the various social

sub-systems have been brought to the more comprehensive systems of politics and

law and have there been filtered and transformed into political and legal expressions.

The institutions, the procedures and the forms of argumentation of politics and law

have over time formed patterns and become entangled and interdependent – at the

same time as they also have become specialized and extremely different. Law and

politics have been extremely vital parts of the institutionalisation of modernity. They

have been part of the functional differentiation and specialisation of modernity, and

they have at the same time enabled communication across social and communicative

boundaries. They have been able to carry the risk of communicative differentiation,

and they have also been perceived as legitimate due to the procedures used.1 

The qualities of law and politics have also been their openness and flexibility.

They have, particularly in the welfare states, taken on almost any regulatory challenge

because this has been the ethos of the welfare state. At the same time there has been

some sort of blindness to the complexity of the challenges which step-by-step have

been taken on. The hierarchical state and its legal, administrative and economic

instruments (and the equivalent types of control) is still the apparatus available for

implementing political and legal decisions. Such instruments also have their

limitations. What is less dealt with in the literature, are the consequences of the

qualitative changes and challenges when knowledgebased expertise and practices

become the vital tools for the implementation of new policies. The application of such

tools also challenge the whole top-down approach of public bureaucracies. That this

also has its dark side is remarked by Niklas Luhmann: “The impossibility for the

political system effectively to control other systems with an adequate grasp of

consequences and limited risk, is inversely proportional to the facility with which

such decisions can be put into force…”.2 Politics has taken the responsibility for so

many tasks that it risks bending over far too often. The impotence of politics becomes

visible increasingly often. This is particularly true in global affairs. One of the

1 Niklas Luhmann, ”Das Recht der Gesellschaft”, ch.1, 1993, and „Risk: A Sociological Theory“, ch.8

„Demands on Politics“, 1993 A; Inger-Johanne Sand, „Changing Forms of Governance and the Role ofLaw“, ARENA wp. 14/2000.2 Niklas Luhmann, ibid., 1993 A, s.145.

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challenges today is to assess in what cases politics and law seem incapable of

performing their functions, why this is so, and how this should be approached.

The presupposition that politics can handle any theme and any policy

orientation, may also presuppose that all such themes and policies are communicable

or translateable to a common political language of social interests, in the more classic

sociological meaning of the term. This has implied, in a way, that all such interests are

comparable and then possible to balance vis-à-vis each other, within a political

scheme. The existing institution of politics implies a comprehensiveness in the

qualities of politics as communication. This presupposes that any social problem can

be identified and presumably solved within a context of political communication. One

of the theses in this article is that this no longer the case, and also less so then in some

previous periods. It is however probably more correct to say that this has never been

the case, but for part of the last fifty years, and also earlier, politics has to large extent

been presumed to be relatively comprehensive and at least symbolically omnipotent

on a communicative level. The other part of such a theses would be that some of the

other communicative systems of modern societies, such as economics and science,

have become increasingly dynamic and dominant at the cost of politics and law.

Below some examples of the latter will be discussed in more detail. Here I will

shortly mention a couple of examples. First: The problems of defining free trade

legally on global and regional levels have indirectly lead to equivalent problems of

defining when it would legitimate to protect human health and the environment vis-à-

vis free trade. Defining legally when precaution or ethical reasons should be applied

on a cross-cultural basis seem quite difficult, so far. Secondly: One of the most

serious problems in the world today is the unfair distribution of resources between

different parts of the world. The debt crisis is one element of this. This also seems to

be a problem which it so far has not been possible to thematize within the legal

discourse, even within the political discourse there are problems here.

When considering the abilities and the qualities of law and politics, the

following should be emphasized: Besides the institutional and normative qualities law

and politics have in their functions to a large extent relied on the existence of some

kind of common cultural, linguistic and socio-economic frame of reference. There

have been some common reality perceptions and values against which to interpret and

understand the condensed language of law and politics which may be both generalised

and specialised in some fields. The interpretation and understanding of law and

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politics in much more cross-cultural and heterogeneous environments are in many

ways a quite different and more complex endeavour and challenge.

The functions of law and politics to coordinate and integrate modern society

and the nation-states throughout the last two hundred years can probably not be

underestimated. This is not to say that there may be a variety of arguable opinions as

to how “successful” this has been, or how it actually has functioned. The main part of

the practices of law and politics have also taken place within the framework of the

nation-state. Three main changes in this pattern are now occurring or becoming more

visible. First law and politics are increasingly taking place on several institutional

levels, nationally, regionally and internationally. This may in itself lead to vital

changes in the functions of law and politics. Secondly as some of the other general

communicative systems are becoming increasingly autonomous and dynamic the

abilities of law and politics to be the “immune” systems of society are endangered.

This may again lead to some vital reconsiderations of the relations between the most

general systems and of their specific qualities. Thirdly private actors are now also

entering the fields of law and politics. This may also seriously change legal and

political practices.

II. Challenges:

A. Global and regional problems

The institutional emphasis on the nation-state has also implied the possibility of

solving vital and current problems within that entity. Many social and communicative

dynamics have however become increasingly global or regional. This may be most

dramatically true for environmental and climate changes. The industrial and the risk

society have exploited the natural resources intensively and applied new chemicals

with uncertain effects extensively. With the increasing global trade and production the

effects of such environmental exploitation and production have both increased and

become more global, factually as well as regarding responsibility. Vital environmental

and climate changes will now have to be dealt with on global and regional levels.

The decisions to emphasize and give priority to free trade have also meant an

increasing realization of a global distribution of production. Environmental effects

can thus also be exported. This underlines the global responsibility for environmental

damages and their repair. “Free trade” implies already a legal institutionalisation, but

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within a risk society its side effects may also require regulation on the same levels

that of the free trade, cfr. the gradual increase of the scope of regulation both in the

EC and in WTO.

New information and telecommunications technologies are also to a large

extent global in their functioning and effects. The technology is irrespective of

national boundaries. Many aspects of their functioning will thus have to be regulated

globally, or at least in similar ways in order to be effective.

The evolution of complex technologies and other types of knowledge, and

their application, are increasingly occurring as parts of international processes. The

possibilities for the spreading of both technologies and production may also lead to

incentives for similar or parallell types of their regulation. The interdependence

between new technologies, production and free trade is also becoming more vital to

understand, partly because the principle of free trade is extended to an increasing

number of areas and thus also including the trade of services and intellectual property

rights, and partly because some aspects of the new bio- and genetic technologies and

their application also are controversial and connected with uncertain and unintended

side-effects. When intellectual property rights concerning biological material is given

to transnational corporations and applied on the production of goods which are traded

globally, there may be a need of global coordination of how this is regulated.

Comprehensive and intensive environmental change, the new

telecommunications, the increasing scopes of free trade and the coupling of the latter

with new and controversial technologies are all vital reasons for the inevitability of

legal and political regulation on global and regional levels. What is illustrated here is

the increasingly global dynamics of the generalised communicative systems of

modern societies.3 The opening up of free trade and the evolution of new knowledge

and technologies seem to have functioned as dynamic factors of globalisation

effecting other surrounding areas. The increasingly global factual dynamics of many

areas have become so intensive that also problemsolving and regulation may have to

be done on such levels.

3 Gunther Teubner, ”The King´s Many Bodies”, Law and Society Review, vol.31, no.4, 1997.

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Challenges:

B. Risk society

One could also say that “risk society” in the meaning of an extremely knowledge and

technology based society effectively functions relatively irrespective of national

boundaries and geographical distances. Knowledge and technology based discourses

will travel and be both developped and applied cross-culturally. Modernity defined as

moving from monoistic to pluralistic and functionally differentiatied communicative

societies has also meant an increasing and at times dominating emphasis on

knowledgebased discourses and forms of communication. Society moves from a

domination of traditions to a domination of forms of knowledge, which again implies

a further diffusion and differentiation of knowledges.4 Traditions are slow to change

and very culturally embedded. Knowledgebased practices are much easier to change,

can evolve quite autonomously and are in many cases quite socially and culturally

disembedded. Some of the new information and bio technologies are examples of this.

However, also social areas which still are partly embedded in traditions, such as the

family, are being heavily influenced by knowledgebased discourses. In general it is

probably fair to say that modern societies are quite dominated by different types of

knowledgebased discourses – in contrast to both feudal and early modernity societies

which were more based on traditions. Certain new technologies, such as information

and telecommunication technology, are also having relatively comprehensive and

significant impacts on our social and communicative infrastructure. Bio- and genetic

technology has comprehensive impacts on how vital foodstuffs and medicine are

produced. New technologies may then have enormous social impacts established over

short spans of time and without being embedded in existing cultural and valuebased

structures.

One of the most vital consequences of this may be that social change is

occurring faster and more often than previously, and also often caused by factors

external to the specific community, such as global economic changes or the

application of new technologies.

Another implication of the more intensive use of specialised knowledge and

new technologies in risk society is an increasing amount of unintended and

4 Anthony Giddens, ”Consequences of Modernity”, 1990.

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unpredictable consequences.5 Technologies and knowledge which at first sight may

seem to be advantageous, may turn out to have problematic side-effects which were

not calculated.

A part of the evolution of modernity has also been a change from the more

class-based industrial society to the domination of a large middle class, with

information and knowledgebased service workers, and with relatively sufficient levels

of social welfare, in risk society. This has made it much more intransparent and open

to question what the appropriate politics may be for different groups.

This has meant a change of the preconditions of how politics is thematized and

differentiated. Themes or preferences which previously could be more easily

identified as connected to specific class or social interests, are today more attached to

and dependent on different knowledge or discursively based views, often with more

vague relations to specific social classes or groups. Politics is thus becoming more

contingent and volatile partly because social change is occurring faster and more

unpredictable, and partly because such change is often disembedded from existing

social structures. Knowledgebased social discourses may be more unclearly linked to

specific social interests.

Challenges:

C. Functional and communicative differentiation

The challenges discussed above illustrate the influence of economic and scientifically

or knowledge based dynamics in modern societies, and how this occurs possibly at the

cost of the more traditionally governing communicative systems of politics and law.

The processes of specialisation and differentiation within scientifically (or

knowledge) based communicative systems have made them more complex internally

and thus also more complex to govern by external systems such as politics and law.

This would also be true for the economic system. The increasing globalisation of the

latter has also contributed to making it more difficult for nationally based politico-

legal institutions to interfere with them in sufficiently efficient ways. The

communicative power of economic and scientifically based systems should mean that

our thinking, our understanding and our concepts of governing should be extended

from law and politics and also include these systems, in one way or another.

5 Ulrich Beck, ”Risk Society”, 1992.

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The point to be made here is that changes within and in the relations between

the general communicative systems of society have resulted in changing preconditions

for politics and law and for their functional abilities to govern and to communicate

across boundaries of social differentiation. The traditional institutions of politics and

law have been strongly attached to the concepts of the nation-state and

constitutionalism and thus also to particular types of boundaries which have been

territorial, cultural and social at the same time. The challenges which have been

pointed to above, imply that such boundaries cannot function any longer in the ways

which they have done for the last two hundred years or so. Vital dynamics within

economic and scentifically based systems have both become more complex and more

global thus making them more complex for external institutions to interfere with. The

further argument is that such changes in the preconditions of politics and law are so

vital that the further discussion and understanding of the evolution of politico-legal

institutions and of governing should be taken with a more comprehensive perspective

than the normative and constitutional and thus also include a socio-legal

understanding of the changes within and in the relations between the general

communicative systems.

Modern societies are characterised by not being run from one centre or by one

type of government, but rather by the existence of several parallel increasingly

autonomous and complex communicative systems such as law, politics, economy,

religion, science etc. These systems are general and comprehensive, and they

communicate normatively different about the same themes. In the course of modernity

these systems have become increasingly autonomous and complex. The parallel

existence of several comprehensive social systems will mean that they also observe

and communicate about each other and thus create different reality constructions. The

different constructions will influence each other, but they are not placed hierarchically

in relation to each other. The functionally differentiated society does not have one

centre. The different communicative systems interact and are dependent on each other

in continuous processes. Each system is however complex and comprehensive. The

interaction will create unintended consequences and misunderstandings. This situation

creates what is called hypercomplexity. The systems are internally specialised and

complex. When they communicate and coordinate with each other hypercomplexity is

created. There is not one truth. Decisions are only “final” within the meaning of each

specific system. A legal decision may be considered unfair within the political system.

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A scientifically based decision may also be difficult to communicate within the

political system, and vice versa.

Law and politics have for some time and to some extent been able to

communicate meanings which have been accepted throughout society. They are

however increasingly challenged by the degrees of specialisation and autonomy of the

other systems and of the complexity in the communication between them. This is

particularly the case with the economic and scientific systems. It seems that the latter

functions more dynamically on the global level. Law and politics are becoming

overburdened both on the national and on the regional and international levels.6 Their

instruments and institutions are not able to grasp and deal with vital parts of the

dynamics of the systems of economy and science, at the same time as these systems

are becoming increasingly vital within society. This may lead to vital social problems

not being dealt with by law and politics – or any other external regulatory system.

The systems and institutions of “government” are then being challenged in their

functions.

The increasing functional differentiation of society has then led to serious

challenges for the existing systems of law and politics. Partly it leads to an increasing

autonomy and complexity of other communicative systems making them difficult to

deal with for law and politics. Partly it leads to a hypercomplexity in the relations

between the systems and thus to serious problems for governing in general. Partly it

leads to increasingly regional or global dynamics in many fields and thus to

challenges for the nationally based political and legal governing institutions and also

for the nationally based constitutions and their functions.

The result may be that the existing political and legal institutions and their

constitutions have problems evolving further in their existing patterns. I would

suggest that in this situation socio-legal and politico-legal theories are needed to

understand these changes, their basis and their implications. They may be necessary

for the rethinking of how political and legal institutions may function, or may be

supplemented by other institutions.

6 Niklas Luhmann, ibid. 1993 A.

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II. Linking constitutionalism and its challenges:

Constitutionalism, democratic institutions and global communications

Democratic and judicial institutions have so far primarily been developped within and

with direct relation to nation-states and their boundaries. This has meant that such

institutions have coincided with specific cultural and social values and traditions, and

one, or more, common language(s). The present democratic institutional traditions

have been attached to the existence of free and open elections, freedom of speech, the

existence of public spheres, transparency and accountability and control. These

institutional characteristics have evolved into their more specific formations within

each nation-state on the background of the specific cultural values and social history

of that state. Politics and law as communicative systems have then evolved within this

combination of institutional qualities and common cultural and social values. One

may argue that the boundedness of these variables have enabled political and legal

communication to be carried that far. The legitimacy and the functions of these

institutions have clearly been vital variables for the evolution of modern societies.

There is general agreement that so far the same type of democratic institutions

have not been developped on regional and global levels. The decisionmaking takes

place via international negotiations and the secretariats of the organisations. The

procedures take their democratic legitimacy from the participation of democratic

nation-states. At the same time increasingly comprehensive areas which also involve

internal affairs, such as trade, environmental, health and social protection and human

rights, are being regulated by such regional and international treaties and by

decisionmaking according to such treaties. Significant areas which previously were

regulated upon nationally, are then now regulated internationally within institutional

frameworks which have much more indirect democratic procedures and legitimacy.

This has provoked criticisms of democratic deficits. On the other hand there has also

been wide-ranging agreement on the fact that at least in some of these areas,

particularly concerning environmental regulation, international and regional

regulations have been necessary and urgent in order to be able to at all solve the

problems. Another factor is the wide-spread existence of extraterritorial effects of

national decisions or events. The implication of this is that even well-functioning

national democracies may be partially undemocratic. Globally or regionally

functioning societies may also have to extend their political and legal institutions to

such levels if these institutions are to keep their legitimacy.

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Another comment concerning the limitations of nationally functioning

democracies has to do with the challenges of risk society or knowledge society

mentioned above. In some areas we use new and extremely specialised technologies

which we also know there may be some uncertainty as to the consequences of. We

may also know that in some cases these consequences may be far into the future and

quite unpredictable. In such cases the participation of experts in some way or another

is vital. Purely democratic and representative decisionmaking may be insufficient. In

some cases the technologies are so specialised that discussing the issues within

national fora of experts may seem inadequate. Procedures involving comparative

efforts may secure qualities which national procedures cannot. In other cases the

problems may be that there are too close connections between industrial interests and

the relevant expert environments. In such cases regional or international procedures

may be preferable because they may break up too close corporative ties, as the

research on comitology has shown. In other cases again the complexities of the

regulatory problems may concern the application of new technologies or other types

of knowledge in society and the weighing of technological, economic, environmental,

social or ethical aspects within one situation of application.

With the view to these problems of existing democratic institutions various

directions have emerged within theory.

IV. Theoretical approaches to the present situation

A. Democracy and normative constitutionalism

So far it is within the context of EU law that the problems of democracy and

constitutions beyond the nation-state primarily have been discussed, theoretically as

well as politically. Within EU constitutional law Joseph Weiler´s works are

predominant. For Weiler nationhood and constitutionalism is about more than the

existence of a constitution which can be interpreted and applied within a positivist-

legal tradition. Nationhood seems to come before constitutions and is attached to such

primordial ideas as “belonging and originality”.7 The belonging of the nationhood

transcends those of the family and the tribe. Belonging is then defined as the existence

of a common social place or framework to which we belong independently of

7 J.H.H.Weiler, ”To be a European Citizen: Eros and Civilization” in ”The Constitution of Europe”,

1999, p.338.

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achievements. “To be accepted” however also implies the obligation “to accept” the

others which also belong. Nationhood is not identical with a common ethnicity, but in

Weiler´s conception there is a recognition of the values of a common space and the

potentials of that for creating identity. Nationhood is also accepted as the expression

of a cultural specificity or uniqueness underscoring a commonality.8 The spatial and

the existence of the nation-state as boundary-drawing are also recognised as

significant for the possibilities of organising a society and thus for realizing human

potentials or “originality”. The nation is more about something primordial, the state is

an instrument to realize something. The nation-state is the combination of the two.

Others would go further than Weiler in emphasizing nationhood as historically

based and as an expression of common values, and thus as enabling community in a

totally different way than regional or international organisations. On this view

redistribution and sharing on a more stable basis require also shared values.

The project of European integration is then seen as two-fold, partly an attempt

to control the excesses of the nation-state, and partly to offer an alternative to the

liberal only vision of international law and society. It is about “belonging”, but on

another level than the national. It is also seen as community and not only as a liberal,

rule-of-law and neutral balancing of various national interests. It is seen more as an

extension of the idea of community and belonging than as another type of

international organisation in the purely liberal tradition. Weiler insists on a substantial

definition of the membership in the European Union. It is then defined as a

committment to the shared values of the constituent documents to the union.9 This is

seen as commitments to a civic society which is wider than on the national level, and

which transcends the cultural commonalities which are nationally defined. It is then a

civil society which is more liberally defined, but which still sees itself as a community

and with the shared values of keeping that civil society together. The Europeans are

not seen as a new demos, rather as co-existing multiple demoi, but still a European

specificity is defined to include the mutual social responsibility and the ethos of the

welfare state as well as the human rights embodied in th European Convention on

Human Rights. There is thus also a commonality of values defining the European

Union.

8 J.H.H.Weiler, ibid., p.342.9 J.H.H.Weiler, ibid., p344.

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Weiler is open in his criticism of the democratic deficits of the EU and its

institutions. He thus sees the EU as a new kind of polity. Part of this is seeing also the

regulatory issues and conflicts which arise as political. Weiler is sceptical towards

some of the analysis and evaluations made of Comitology as being too positive or too

inclusive of the work of expert committees also within a constitutional framework. He

upholds in principle a separation between the scientific and the political discourses of

some of the regulatory arenas, and maintains that in the end any social problem or

conflict must be solved on a political basis and by politically accountable

institutions.10

 It is implied in this that expert participation and the use of scientifically

based argumentation should not be seen as part of the constitutional framework. He is

sceptical towards both the committees and the Court in their acceptance of scientific

evaluations as the ultimate answers to complex and social questions. Implied in his

discussions of this is that all issues brought before political institutions can be defined

and decided upon politically.

I would be thoroughly sympathetic with essential parts of Weilers normative

constitutionalism including his solution of multiple levels of political institutions,

with a focus on the new supranational level, and multiple demoi. I also agree with his

insistence on the basic qualities of democratic institutions. The problem is rather that

in some cases democratic and classical legal procedures are not sufficient. The

complexity of the areas to be regulated demand more varied, deliberative and cross-

disciplinary procedures supplementing the existing democratic and politico-legal

procedures. In some cases this is because the issues involved are extremely

specialised, in other cases because they involve the balancing between several

complex and conflictual discourses or disciplines. More specifically: One problem I

see in the emphasis on normative constitutionalism is a lacking interest in the

problems created by the uses of new and complex technologies and knowledges, and

their unintended consequences. Another problem is in the particular types of legal

argumentation brought on to the court and other instances by the insistence on an

efficiently defined free trade regime. First I would argue that the regulation of new

and complex technologies with uncertain, but possibly significant and future

consequences, raises questions which transcend traditional politico-legal discourses.

Complex questions are involved which at least partially must include the use of

10 J.H.H.Weiler, ”Epilogue: ”Comitology” as Revolution” in ”EU Committees”, eds. Joerges, Vos,

1999, p.344-349..

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experts and scientifically based discourses in the descriptions of the risks involved,

and to some extent also as advice to the more discretionary decisions of what risks to

allow or disallow for. In such complex areas deliberative procedures involving either

specialised or cross-disciplinary boards or committees may part of the solution.

Secondly: If a fully consequential free trade regime is to be upheld, exceptions to it

must be definable in relatively objective ways. I have problems seeing how we can

avoid the use of scientifically based argumentation here. I do however agree that in

some cases the drive towards “scientific” evidence alone may seem too crude. There

is then a need to make this argumentation more nuanced. One alternative would be to

create a more nuanced argumentation still based on scientific knowledge, but

including elements of uncertainty and doubts. Another alternative could be to work on

ways to find indication on when to use the principle of precaution, still accepting its

contingency.11

 

B. The neo-liberal direction

The increasing emphasis on free trade regionally and globally has been a significant

part of the increasingly global dynamics. The arguments for free trade have come

from the economic system, but they have then been conveyed politically and also by

the legal system. Treaties favouring free trade have contributed to the creation of

more stabilising structures and institutions. It is probably the combination of the

economic, political and legal communicative systems which have given free trade

such a dominating place in our current regulatory systems. Free trade has been

strengthen by legal obligations and institutions. The increasing effects of free trade

have then been used as an argument for further globalisation of law and politics.

Within the international debate on how to describe the new forms of international and

regional governance some theorists insists that it is possibly to delimit the regultion

concerning free markets from other types of regulation, and thus to delimit also the

international and regional forms of governance to the implementation of a free

market. They also maintain that such forms of regulation are technocratic and value-

free. They do not in themselves contain or adhere to other substantial values. It is

however argued that free markets and a liberal economy are the most efficient forms

11 Inger-Johanne Sand, ”The legal regulation of the environment and new technologies – the changing

relations of law, politics and science”, to be published in Zeitschrift für Rechtssoziologie, 2001.

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of organising the economy, and that they maximise the output for consumers and for

welfare in general. It is also argued that such forms of regulation can function on their

own as forms of negative integration and do not implicitly lead to other more

substantial forms of regulation.

The first problem with this argumentation is the maintaining of free markets as

a value-free, politically neutral and technocratic arrangement. This view disregards

the various negative consequences of free competition regimes. They are considered

irrelevant because liberal markets are considered to produce welfare in the most

efficient way. They are thus deemed to be above politics in some kind of way. The

implication of this would be that they also do not create any constitutional or

democratic problem, and thus not any problem for legitimacy. Such economic

systems are considered legitimate because they produce results. The next problem

is the insistence that it is possible to have negative integration without positive

integration. The implementation of both the EC/EU and the WTO have illustrated the

complexities of this. The attempts to regulate free markets in efficient and

consequential ways have shown that this indirectly and de facto will lead to regulation

of environmental, consumer and social matters as a consequence of decisions

concerning how far the free competition principle can be drawn. When this is to be

done in an efficient and consequential way, it will also implicitly come through as a

regulation of the environmental or other social issues involved. Parts of the

regulations on health, the environment etc. are then established, but indirectly via

another field. Thirdly the argumentation above maintains the optimal efficiency of

free markets also on welfare. It seems to me that what optimal efficiency on welfare

is, is much more complicated and cannot be settled with such simplicity.

Parts of the intergovernmental side in this debate would also use some of the

arguments above. Primarily they maintain the possibilities of keeping separate

national, supranational and international authorities, procedures and regulations.

Implicitly however they also maintain the possibility of having only negative

integration without having to go into the more politically demanding positive

integration. Also on this view negative integration is not seen as a constitutional or

democratic problem because it is limited to spheres which are not particularly

political.

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C. Deliberative supra-nationalism

Some authors have focussed on some of the more recent aspects of international or

transnational governance concerning preparation and implementation of legislation in

areas where experts or interest organisations are used. Some of the foremost

contributions in this vein have come from Christian Joerges and Jürgen Neyer on their

project on comitology.12

 This is a discussion which at first hand discusses the

evaluation of certain procedures within the EC/EU, but it also has consequences on a

more general level. Their research concerns more directly how negotiations

concerning regulation are done (a) in areas involving specialised and new knowledge,

uncertainty in the application of such knowledge and complex balancing of

substantially different factors, (b) in environments which include representation from

several constitutional levels, in some cases also private representatives or experts, and

(c) where problems typically on the borderlines between politics, administration and

expertise are dealt with. Their research concerns both how these processes actually

function, and how they should be evaluated within a public and constitutional legal

framework, including their degrees of legitimacy.

As I read their research and articles there is an emphasis in their descriptions

and evaluation on what we may call knowledge or risk society with their

comprehensive use of new technologies with at times uncertain and significant

consequences, and the challenges of regulating such uncertainty and complexity. The

regulation of new technologies mean that the regulators have to deal with

technologically complex questions, the possibilities of uncertain and significant risks

and thus also at times difficult ethical questions. The implication is that such complex

matters may require additional or more qualitative methods or procedures than those

which already exist within the more traditional governmental, constitutional and

international institutions. The questions inspiring such research have been whether the

more traditional bargaining methods of national interest representation in international

negotiations have been applied here. The answers have been that when confronted

with “new” and complex regulatory questions the negotiating parties have accepted

more open and deliberative methods in order to reach as good results as possible for

12 Jürgen Neyer, ”The Comitology Challenge to Analytical Integration Theory”, and Christian Joerges,

””Good Governance” Through Comitology”, in ”EU Committees. Social Regulation, Law andPolitics”, eds. Christian Joerges and Ellen Vos, 1999, cfr. also the many other contributions in the same

volume; Christian Joerges, ””Deliberative Supranationalism” – A Defence”, manuscript, 2001.

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the regulatory problems involved. There has not been a primary focus on the

protection of national interests.

The most plausible explanation of this seems to me to be that there has been

and is a recognition of at least some of these regulatory challenges as new and

complex and thus requiring an open attitude as to how they should be solved. There is

also the question of the participation of experts who can understand the technological

complexity of the questions, and the use of cross-disciplinary fora where many

perspectives can be combined in order to grasp the social and more comprehensive

consequences of the application of new technologies. There is further the question of

whether the negoytiative procedures are sufficiently comprehensive, critical and

thorough.

Through this research it has been shown that in the comitology committees of

the EC/EU system negotiations have not only or primarily been political or interest-

balancing in the more traditional political sense. They are also evaluated as being

deliberative. That is: The various national representatives or experts have not started

out with taking care of vested interests, but have rather explored the area from an

open and a knowledge or experience point of view. New information has been

regarded. Experiences have been compared.

My further reading of this research is that the negotiations concerning

implementation and delegated legislation have been deemed as vital parts of the

whole process of legislation. Primary legislation is often very general and

discretionary leaving very significant parts of the substantive legislation to the

secondary legislative processes and the implementation. In many technological and

knowledge-based fields the vital decisions or distinctions to be made do not surface

until the implementing processes. In areas with much uncertainty and risks concerning

such decisions it is even more vital how these decisions are taken. The final decisions

on the scope of the application of genetically modified organisms are, for example,

not taken before the decisions granting concessions have been given, or before a

pattern of argumentation concerning such cases have been worked out.

The significance of regulatory and implementing decisions taken in

interrnmnetal or transnatio nal committeesmay be such that it may seem strange to

exclude them from the territory of constitutionalism. They are de facto part of it. The

arguments concerning legitimacy for the placing of such procedures within a

constitutional framework, are first the aspects of “nation-state failure”, and then the

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need of new qualities of the politico-legal and administrative processes within such

areas as here pointed to. Regarding such issues as only solvable by traditional political

interest-weighing may be insufficient and reductionist.

The argumentation is then that within a public law and a constitutional

framework we need a more varied set of decision-making procedures in order to take

care of all the different challenges emanating from the complexity of regulating late

modern or risk societies. The problem-solving challenges are many-faceted.

Legitimacy may then also have to be achieve

d in more varied, combined and comprehensive way. It should however be openly

admitted that how such matters should be dealt with, and how legitimacy for the

various dimensions of the problems may be achieved, is still an open question. The

constitutional relevance of such procedures do not mean that they have reached a

constitutionally recognizable form, nor that we are certain as to where the boundary -

lines as to what is “constitutional”, are finally found.

D. Democratic experimentalism and deliberative polyarchy

The challenges discussed under the headline of deliberative supranationalism are

discussed on a more exploritative level by some writers under the labels of democratic

experimentalism and deliberative polyarchy.13

 In these contributions the universalist

presumptions of sovereignty and its unity are questioned as well as the universality of

language and meaning. In stead the “public” is put in the place of the universal notion

of sovereignty. The public is then presumed to be an open and varied group with

underlying notions of inherent pluralism. The areas/objects to be regulated are in

continuous change, complex and fragmented. There is thus a pervasiveness of

uncertainty in decision-making. The present complex and ever-changing societies can

thus not evolve consensual and universal processes of meaning, at least in many vital

areas. In stead of consensus continuous learning processes and an acceptance of

language as ambiguous are put. The implication of this is that questions are put to the

traditions of legislative and governmental processes where it is presumed that the

13

 Charles Sabel and Oliver Gerstenberg, ”Directly Deliberative Polyarchy. An Institutional Ideal forEurope?”, manuscript, 2000; Charles Sabel and Joshua Cohen, ”Democratic Experimentalism”,

Columbia Law Review”, vol.98, 1998, and ”Sovereigny amd Solidarity in the EU”, manuscript, 2001.

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decisions of “the sovereign” or the sovereign institutions are presumed to be

comprehensive and “final”, even if the majority may be slight.

It is further presumed that the predominance of “change, complexity and

uncertainty” must imply vital changes in the decisionmaking processes also on

governmental or constitutional levels both factually and legitimatewise. Complexity

and uncertainty necessitates also more qualitative and comprehensive research and

labour processes in order to investigate the problems and look into alternative

regulatory solutions. In the place of universalist presumptions and procedures aiming

at consensus are put learning processes, collaboration, comparisons and an acceptance

of disagreements and ambiguity in the language when “meaning” is attempted in

complex areas. Acceptance of disagreements and conflicts and a willingness to

continuously reexamine assumptions once made or decisions taken, seems vital. To

avoid fragmentation it seems vital to focus on procedural qualities such as

transparency, publicity, objectivity and availability of information to the public.

In a knowledge- and technologybased society, in contrast to a tradition-based,

identity and values will be more changeable and manyfaceted. Solidarity will then

also be formed on the basis of a more changeable and unstable society. The

accumulation of new knowledges contribute as much to new uncertainties as to

certainty. Stability in values is exchanged for an acceptance of continuous learning

processes.14

 

The institutional implication of this would be to accept a more manyfaceted

and qualitative institutional framework of decision-making both on the national and

international levels.

E. Transnational governance and risk-society

Recent years have brought significant changes as far as an increasing emphasis on and

scope of the inter-, trans- and supra-national levels of governance go. Part of this has

been an increase of legal norms on these levels concerning free trade, human rights

and environmental protection. The line of argumentation drawn above, as a kind of

contextual explanation of these trends, could be pursued further: Human beings now

possess complex and specialised knowledge and technologies which may have

14 Sabel and Cohen, ibid., 2001, p.23 flw.

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significant and uncertain consequences, which on several dimensions may exceed the

scope and qualities of nation-state decision-making.

First: When applied such technologies may have very far-reaching and

intransparent effects, both in space and in time. The use of bio and genetic

technologies will have consequences, possibly positive and negative, and uncertain,

far into the future and thus for future generation. The use of these and other

technologies may also have extraterritorial effects. Traditional democratic decisions

within the nation-state on the scope of application of such technologies are thus

problematic as far as democratic standards go because their effects will extend the

demos of the nation-state both in space and in time. The scope and the intransparency

of the effects may be arguments for international or regional regulations.

Consequences on the environment and the climate are illustrative examples of

extraterritorial and future effects.

Secondly: In a globalized society such knowledge and technologies will travel

without regard to state boundaries. There may be a need to coordinate effects or

exchange experience on their application. The various groups of scientific specialists

will often communicate internationally as much as nationally or locally.

Third: Some of these technologies are extremely complex and may also have

very complex, far-reaching and uncertain consequences, factually and ethically, when

applied. There may thus be a need both to cooperate, compare and exchange

experiences concerning both their application and regulation.

The application of complex and far-reaching knowledge and technologies, and

their relative significance and scope, have thus contributed drastically to changing the

preconditions and the significance of nation-states as closed entities of decision-

making and governing. Many of the most vital aspects of modern societies are in

effect coordinated across boundaries via common knowledge and technologies.

Political and legal regulation will to some extent have to replicate that.

The scope and the efficiency of free trade treaties inter- and supranationally

have also broken the spell of nation-state comprehensive sovereignty in legislation.

Efficient and comprehensive forms of free trade regulations have indirectly resulted in

environmental and social regulation as effects of how “free competition” and its

exemptions have been defined in practice. The production of commodities is so

enmeshed in the application of technologies, the use of chemicals etc. that the

definitions of “same” goods and parity, preconditions for definitions of free

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competition, often will either rely on or have implications for environmental or health

regulation. Negative integration cannot be done without some effects for more

substantial social regulations. Global free trade legally regulated contributes

substantially to fragmenting and reducing the sovereignty of the nation-states.

The same factors have contributed to emphasising the power of other than

politico-legal or constitutionally based actors such as multinational corporations,

NGOs, scientific experts etc. Their de facto power has contributed to the emphasis

now given to the transnational level and the more comprehensive term of

governance……..

One point put forward here is that societies which are dominated by complex

technologies and other forms of specialised knowledge, which have far-reaching and

uncertain consequences, will require additional qualities and forms of decision-

making and institutions. That could be deliberation, transparency, reflexive

reexaminations, interdisciplinary confrontations etc. Another point is that

communication producing such knowledge and technologies is to a large extent global

or regional, not enclosed by national boundaries, and that communication concerning

the possibly far-reaching, complex and uncertain consequences of the application of

such knowledges will have to be territorially unbounded in order to be problem-

understand and –solving. Extra-territorial effects, future effects, complex interaction

between different technologies, ethical problems etc. abound. Continuous learning

processes, comparisons, exchange of experiences and coordination of regulation

require territorial unboundedness. Constitutionally based entities are challenged and

changing, even if they are still used. “Constitutionality” as a concept is vitally

changing in so far as it has to accept the combinations and the simultaneity of several

institutions sharing or in conflict about competence. Fragmentation, incoherence,

pluralism and not always fully coordinated combinations of power are probably

unavoidable, and not necessarily undesirable, even on the levels which often function

as constitutional.