Autonomy as sovereignty: On Teubner's constitutionalization of transnational function regimes

Abstract

For a while now, one has been wondering if in a world of more and more fragmented communities the idea of constitution as intrinsically tied to the notion of the state is still adequate, or if it must be readjusted to entities of a non-state nature. Globalization, the Great Deconstructor, revealed (once again) that it has become rather illusory to believe in a single, all-embracing social rationality.1 Traditional statist doctrines that still see states as the ultimate site for the creation and the legitimacy of law have come under increasing reflexive pressure. A new constitutionalism, however, offensively describes law-making processes within functional, transnational systems of society as a pluralistic-fragmented morphogenesis of “constitutions without state”. The constitution is dead—long live the constitution! The trend towards recognition of stateless sovereignty has, of course, difficulties in conceptualizing processes of autonomous constitutionalization as detached from common representations of hierarchy and in converting the two most important constitutional issues—conditions for validity and justified violence—into the grammar of fragmented social realities. It is not surprising that uncertainty arises in particular with regard to individual rights:2 because they sharply reveal the recursive relation between self-validating autonomy and constituted subjectivity, which tends to give legal statements on the relation between autonomy and sovereignty the form of a “chicken-or-egg” riddle. Gunther Teubner observes that, in the course of society’s functional differentiation, transnational “regimes” emerge and emancipate themselves from state order. The regimes are thereby confronted with the—according to Teubner genuinely constitutional—issue how to define themselves in distinction from and in relation to their environments. Such a redescription of constitutionalization is supported by much empirical evidence. Various sectors of global and local civil society (trade associations, multinational enterprises, sport associations, social networks) tend to equip themselves with their own programs of law that not only regulate organizational matters but also reflect relations with other functional systems. Statist conceptions of constitution claim to comprise and to control the functional entities of society—but, according to Teubner, they lack the means to fulfill these expectations. They not only encounter territorial limits but are also often unable to provide adequate solutions to conflicts between transnational functional rationalities. There is no global constitution that might overcome these deficiencies in sight. And traditional mechanisms of public international law that could extend national principles by agreement, suffer from paralyzing consensus requirements or from ineffective enforcement—or from both. Hence, it seems plausible to follow the traces of constitutionalization from a transnational perspective. It is then necessary to shift the focus from “state” as a hierarchically structured unit of societal conflict management to autonomous, heterarchical regimes developing on their own and responding to each other—if at all—on a horizontal or diagonal level.3 Common patterns of justification, according to the new theory, have to be fundamentally adapted in light of the increasing impossibility to derive rules of conflict “from above.” Given such a fundamental turnover it does not surprise that dogmatic resistance is imminent.4 If one looks at transnational societal functional systems as potential creators of their own constitutions one has to radically modify the nineteenth-century conception of “citizens’ liberty,” on the one hand, and the twentieth-century conception of competition-based “private legal society,” on the other: It is necessary to detach processes of self-regulation from the “state” or from culturally defined entities and to reimagine them in the context of complex processes and couplings within and between functional systems. The constitutional question is shifted to the inside and implanted into the “capillary” arteries of every autonomous system’s “self-consciousness.” Presumably such systems, only through their full emancipation, become aware of their universal competence for specific functions5 and at the same time a specific competence for the universal. An avant-gardist approach of transnational constitutionalism has to develop a new concept of constitution, although Teubner himself merely acknowledges (after all: considerable) modifications of traditional constitutional concepts. “Self-constitution” is only the starting point for the auto-productive genesis of “regimes”; what matters is the moment of constitutionalization (which for Teubner is decoupled from power6). It then becomes possible to specify the functions of such regime constitutions in order to establish political institutions and to institutionalize politics. If, on the one hand, one wants to rely—like Teubner—on an evolutionary understanding of constitution and, on the other, to go beyond it and normatively reconstruct the concept of constitution for a global context, things become a little complicated. The theoretical starting point is the observation that a constitution links the—separated—systems of politics and of law as a “structural coupling.” This “super-concept” enabled Niklas Luhmann’s systems theory to describe all kinds of interrelations between functional systems such as politics, law, economy, science, art etc. Indeed, this proved to be helpful in describing the conception of constitution functionally: as a coupling law and politics, the concept of constitution makes possible a legal solution to the problem of self-reference within the political system and at the same time a political solution to the problem of self-reference of the legal system.7 The concept of constitution makes it possible to handle the undeniable paradox that self-bound sovereignty remains unbound. Within the legal system, one can externalize the paradox of foundation to a political consensus; in the political system it can be externalized to a constitutional core8—with the consequence that neither system has to struggle with the (missing) last grounds any longer.9 As it were, this makes any ontotheological metaphysics unnecessary—and makes it possible to carry on. According to the engineers of systems theory, recursivity and self-referentiality are in principle no obstacles but, quite the contrary, the starting point for further opera tions. The same holds true for autonomy and sovereignty which presuppose each other without logically being able to do so. Teubner deals with the paradox of (non-)foundation with the “artifice” of pasting the traditional concept of sovereignty into autonomous regimes. The necessity of unfolding or disguising the paradox—through hierarchies, self-exemption from the binary legal code, solemn declarations, and so on—then poses itself as a problem which each functional system/regime must and can cope with on its own, through building its own creation myths and narratives. At the crucial point where mere juridification turns into substantive constitutionalization, it is precisely law that provides the necessary help: as a structural coupling between “societal law” und “societal politics,” constitution itself is characterized by a “double reflexivity.” Within societal systems, function-related operations produce further operations through which a contingent form of reflexivity procedurally builds itself; and these processes of autonomization via reflexive social processes need stabil ization that only law can provide.10 The circularity of self-constitutionalization can then be reformulated—and here is the essential “jump”—with respect to each functional system: “The Self must first be defined heteronomously through legal norms in order to be able to define itself.”11 There are two hearts beating in Teubner’s transnational regime constitution: one that is supplying the structure of the specific societal order and another supplying secondary rules on rules. The “hybrid meta-encryption” prevails over the difference lawful vs. unlawful as well as over the idiosyncratic systemic logic (x vs. non-x) in a self-reflexive form. The encryption serves as a mode of the different intra-systemic (intra-law, intra-politics, intra-economy, etc.) operations of sense that keep haunting each other in their respective languages, into the arteries of functional differentiation.12 Constitution as a “binding institution” mutates into a form of legal, political, social, and economic communication, thus passing from the unity of law to a multitude of discursive fragments. The description of society, according to the systems theoretical approach, can be reformulated as a conglomerate of socially and legally constitutionalized multiple identities. To put it a little more simply: every constitution is a vital process of social and legal self-ascertainment within a functional system.13 The conditions of intra-systemic programming,14 however, remain in the “shadows of politics” which must be separated from the social system. The separation of politics from the respective social system is, however, not possible, which is why politics, for Teubner, takes an ambivalent form that can be expressed—or “invisibilized”—by the distinction between la politique and le politique.15 The political system (la politique) does not determine the fundamental principles of subsystems which, because of their societal significance, are highly political and thus subject to their internal politicization. The charm of such a procedural generalogy that abstains from the “big moment” of a Rütli oath is that the global functional systems, via an autological but invisible accolade, are able to impose on themselves responsibilities that could not be established with similar consequences within the hierarchical order of a traditional state constitution. Only autonomous constitutions enable functional regimes to create normative conditions for their internal politicization. In course of the re-entry of politics into the—at the outset non-political—functional systems, their constitutions work as catalyzers, as conditions for a reflexive internal and external reference. Now, where is the link to the modern challenges of global society, scandals, human rights violations, scarcity of resources, financial crises, etc.? Luhmann has described as the “fall” of functional differentiation the question how to deal with self-referential systemic autonomy.16 Systems theory, however, primarily looks at reproduction, not so much at self-destruction or autopoietic “approaches to impossibility.”17 The latter is somewhat of a blind spot if one focuses on reproduction of reproduction, a blind spot that threatens second-order observers with unemployment.18 Worried about the abysmal problems that we are undeniably facing, Teubner holds catastrophe to be contingent, which means: not compelling but selectable. Adequate societal conditions of self-constitutionalization can only be formulated through reflexive self-limitation—and hence not only as a determination of “rules” but as a genuinely constitutional question. To put it in more technical terms: the issue is how it is possible to limit the destructive effects of fragmented energies in a fragmented world, and how each functional system can handle self-expansion and self-restraint at the same time.19 The proposed solution is called exogenous self-binding. One cannot violently impose on social universes an institutional policy of morals as a consequence of which—like in Macchiavelli’s Ideal Republic—the commitment to the common good coincides with the actors’ interests. It is instead necessary for functional systems to become sensitive to their environments, to develop an “ecology” in a broader sense, so that self-restraint—and potentially the sustainment of the system’s environment—becomes part of the intra-systemic functional rationality.20 Constitutions are to limit expansive rationalities by the means of law.21 Thus, fundamental rights as elements of different subsystems do not primarily solve conflicts between individuals but avert dangers arising from non-individual “anonymous matrices” and “institutions, discourses, systems.”22 To address the problem of justiciability one has to shift from individual conflicts to conflicts between systems and environments.23 The program is demanding: Teubner asks us to recognize that the autological, autonomous, self-destructive, and damaging unfolding of functional strength can be transformed into a new constitutional, functional, decentralized doctrine. The self-reflection of functional rationality is sparked by pressure from outside24—but not in the sense of direct, heterogenous causality, but rather as a provocation to self-reflexivity within the system through irritation. 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