Introduction: The global context of comparative constitutionalism
From its first iterations, comparative law was destined to be a two-way street. To the degree that the comparatist would ‘discover’ and ‘learn’ about the rules, institutions and legal routines in ‘foreign’ lands, she would most importantly find herself thrown back unto herself, confronted with her own idiosyncrasies, her background and ‘culture’, now less starry-eyed as concerns her own legal system.Footnote 1 Despite the persistence with which protagonists of comparativeFootnote 2 or ‘world’ lawFootnote 3 made claims of law’s universal progress, doubt inevitably began to creep into an ever more elaborate edifice of comparative law, and it was not long that the well-meaning, yet ideologically naïve impetus of comparative law was aptly exposed and laid out for all to see.Footnote 4 Meanwhile, now at just over 110 years old, comparative law has not died or withered entirely.Footnote 5 As an element of crucial importance in a system of decreasingly parochially national legal education,Footnote 6 the value of comparative law is highlighted with view to the graduating students’ need to ‘know more about the world’Footnote 7 and to be better equipped to aptly move from one ‘secondment’ to the next.Footnote 8 And yet, comparative law in its own right is not on the rise in law school faculties around the world, surely not as a mandatory or, as such, as a subject in high demand from students. The question whether that can be solely accredited to the field’s never-ending methodological self-doubtsFootnote 9 or to the overwhelming influence of practitioner lobbying onto law school curricula with view to include more practical training opportunities in the students’ legal educationFootnote 10 does not necessitate a satisfying or clear-cut answer. Meanwhile, what appears to be a more significant development is the gradual approximation of formerly distinct perspectives on the evolution of the legal system in a process which gives way to the emergence of a multi-layered, pluralist regulatory architecture. In manifold fields of legal regulation, including contract,Footnote 11 tort,Footnote 12 environmentalFootnote 13 or corporate law,Footnote 14 we have been able to witness a remarkable expansion of the outside boundaries of the respective fields to elements of comparison, integration, assimilation. This development goes far beyond the traditional zeal of comparative law, in that experts in a particular field now find themselves inevitably and unavoidably confronted with a fast-changing regulatory and institutional landscape. Confronted with the intricacies of a further evolving transnational regulatory architecture consisting of both public and private, hybrid norm creation systems, no longer exclusively located on either on a domestic or international level, we are prompted – in theory and practice – to engage in methodological introspection. In other words, it becomes a natural part of legal research, case preparation and problem solving to integrate legal solutions, principles and rules from a variety of legal levels and cultures.Footnote 15 As a result, the boundaries between distinctly perceived legal and political, jurisdictionally and systemically perceived systems begin to fade, while the contours of specialized, sectorial and functional regulatory regimes become more accentuated.Footnote 16 It is this – transnational and pluralist – landscape that this article focuses on in order to identify and then to problematize some of the defining characteristics, which mark one of the most significantly ‘globalizing’ legal fields – namely: constitutional law. In light of the immensely rich work done in comparative and global constitutional law and, with great promise, constitutionalism, up to the present day, the following article posits constitutionalism as a conceptual framework constituted by an intersection and interplay of both institutional and normative conceptions of political, legal, cultural and economic order. ‘Constitutionalism […] is associated with the study of the constitutive elements of legal and political practice that are central for the assessment of its legality or legitimacy.’Footnote 17 And, precisely because of its encompassing and absorbing nature, it is necessary to unfold and unpack the concept of constitutionalism to render visible the various disciplinary perspectives and approaches as well as the different normative conceptualizations and background assumptions that have been feeding, on the one hand, into the current and not always neatly distinguishable, legal-political deliberations around ‘international’,Footnote 18 ‘global’Footnote 19 and ‘transnational’Footnote 20 constitutionalism, ‘cosmopolitanism’,Footnote 21 ‘pluralism’Footnote 22 in a considerably wide theoretical ambit, and into a slightly more confined, legally argumentative battleground around the promises and challenges of ‘global administrative law’,Footnote 23 on the other.
The purpose of this article is first to outline and to assess the yardsticks and measurements relied upon in comparative constitutional thought before opening the spectrum to a much wider and encompassing view on the emergence of a transnational and pluralist constitutional order. Such an inquiry not only unfolds in but also overlaps and shares concerns with an already extremely rich context of investigations into the prospects of the rule of law ‘beyond the state’,Footnote 24 the institutional architectureFootnote 25 as well as the normative underpinnings of ‘global governance’.Footnote 26 The theoretical and conceptual density of the pertinent debates today around global governance and global constitutionalism is illustrative of the importance of interdisciplinary – and critical – dialogue and engagement.Footnote 27 Precisely because of the plurality of voices and disciplinary approaches in this debate, it becomes even more relevant to carve out the various perspectives and frameworks, from which scholars have been conceptualizing problems of political, legal and economic order on the global scale. This will provide the basis on which we can see the emergence of a concept of transnational constitutionalism. In the first section, a closer look at the transformation of comparative constitutionalism, predominantly in legal and political sciences, will offer valuable insights in the layered and complex nature of constitutionalism. The third section will be to contextualize this concept in association with the sociological theory of a functionally differentiated world society, before the penultimate section offers an analysis of the tensions between form and substance concerns within the concept of constitutionalism. The concluding section places the concept of constitutionalism in the wider context of a theory of law and society.
The conundrical nature of comparison: Politics, law, culture
At the outset it is necessary to clarify whether we are to be concerned with a substantive comparison of constitutions as exercised – for example – by Aristotle in Politics, or with a formal one, which focuses on distinctions between written and unwritten, traditional or revolutionary constitutions and their complementing institutional orders, as has become routine in modern day political and constitutional thought. Comparisons in both directions are availableFootnote 28 and it is against this background, that we can here attempt to engage in a series of conceptual and theoretical reflections on the exercise and practice of comparative constitutional law.
While such efforts are in order for a number of reasons that will be spelled out momentarily, at the same time it puts into question the conceptual framework that we are meant to apply and presuppose. A focus on ‘different systems’ or, constitutional ‘orders’ suggests that we can (still) readily draw such distinctions and that it would be a promising endeavour to reach deep within them in order to assess and interpret recognizable differences in the design, practice and culture of constitutional design. In fact, much suggests that the foundations on which we can base the identification and demarcation of distinct constitutional systems pertains more to historic than systematic evidence. In other words, we need to ask whether or not the increasing ‘migration of constitutional ideas’Footnote 29, the phenomenon of ‘judicial globalization’Footnote 30 and the impregnation of constitutional cultures through ‘foreign’ norms and principles,Footnote 31 while reflecting on a considerable degree of transformation, opening and ‘internationalization’, still leaves the systematic structure intact.Footnote 32 Not unknown from the field of comparative law in general,Footnote 33 also constitutional comparisons are still plagued by a great degree of methodological uncertainty and theoretical indeterminacy. But, while ‘[c]onstitutionalism is sweeping the world’,Footnote 34 evidenced for example by ‘at least 110 countries around the world’ engaged in constitution writing or reform since 1990,Footnote 35 this evidence is itself extremely varied. Both causes and forms of constitutional change are anything but uniform and thus belie all claims regarding a worldwide and universal trend to a specific set of constitutional values or rights. Rather, the intensity of constitutional creation, reform and discourse around the world is illustrative of the complexity of this process. The search, thus, for an analytical architecture of typologies across these myriad and continuously evolving constitutionalist cultures must reach deep into the constitutive elements of legal and political cultures, where the places, forms and scopes of democracy continue to be ‘unsolved riddles’.Footnote 36
Methodological orientation
In the present article I want to suggest that the just described influences illustrate the emergence of a transnational culture of constitutionalism. The importance here lies in the combination of transnational and constitutionalism on the basis of a methodological critique and inquiry,Footnote 37 with each term taken to be hiding more than it is revealing or, even less, self-explanatory. Importantly, the term transnational does not merely signify the extension of – however institutionalized or formalized – normativity across borders, say, of nation states or other jurisdictional confines. Instead, the term transnational identifies an intricate connection of spatial and conceptual dimensions: in addressing, on the one hand, the demarcation of emerging and evolving spaces and, on the other, the construction of these spaces as artifacts for human activity, communication and rationality, the term transnational is conceptual. To declare an activity as being transnational is not just the result of an empirical observation, say, of a border crossing commercial transaction.Footnote 38 Instead, the term transnational prompts a closer scrutiny of the definitional work that has gone into the description of the space before transnationalization. This line of questioning is of crucial importance as it reveals that the drawing of boundaries and the demarcation of ‘spaces’ is a conceptual undertaking.Footnote 39 Seen in this light, the imagery of ‘constitutionalism beyond the state’ is open for a conceptual inquiry as to the irreplaceable or alternative-less inscription of constitutionalism within the state.Footnote 40 To investigate the transnational nature of institutions or processes, in other words, is a methodological inquiry into the very structure of the language with which spaces of activity, regulation and governance are constructed.
Thus, when speaking of transnational constitutionalism, we should not think of a normative order that emerges autonomously outside of the confines of the nation state and, as such encompasses a distinct space of global governance with no relation to the world of states and the correlating measurements of law, namely national and international. Instead, transnational constitutionalism expresses the continuing evolution of constitutional principles, instruments and doctrines as a particular form of legal evolution today. Transnational constitutionalism radically challenges but does not negate the distinction between the domestic and the international legal order. As suggested already in the 1950s by scholars in public and private law, the idea of ‘transnational law’ could aptly capture the emergence of norm creation and enforcement outside of the confines of both private and public international law.Footnote 41 These propositions, which have over time resonated in different areas of law, predominantly in commercial law and other subject areas of ‘private’ law,Footnote 42 have furthermore inspired a host of theoretical and conceptual work around legal pluralism,Footnote 43 human rights lawFootnote 44 and transnational legal theory.Footnote 45 Central to these approaches are two insights, one relating to the overwhelming evidence of norm creation which occurs outside of the state’s law-making apparatus,Footnote 46 the other one connected to a particular understanding of law’s relation to society. From this point of view, law is a particular form of societal communication, as such contributing to the overall totality of society, but not occupying a privileged or hierarchically superior vantage point. This approach which is most closely associated with the systems theory account of society developed by the late German sociologist, Niklas Luhmann, posits society as one ‘without centre or apex’.Footnote 47 In such a society, the state represents a particularly emblematic form of political organization the emergence (and fate) of which is historically embedded and thus contingent. That the centre (or, the pinnacle) of societies should be occupied by the state is – thus – both historically and geographically variable.
This has considerable consequences for an understanding of law. While Western legal thought has over a considerable time span learned to associate law with the state,Footnote 48 it is by omission and a narrowing of one’s gaze, that this nexus came to be universalized.Footnote 49 Today’s interest in ‘law and globalization’Footnote 50 should thus be seen as a welcome and most timely return to insights into the legal pluralist nature of law, which legal sociologists and anthropologists purported already a long time ago.Footnote 51 Aiming for an understanding of society today through legal lenses, then, might prove a productive approach, as law can be seen as reflecting the changing structure of society.Footnote 52 The crucial step, which can be made at this point, is to perceive of society as one in which many communicative forms and rationalities come together, and thus as a society in which states are but historically and geographically identifiable emanations of political organization. This opens an important vista on the ‘history’, the ‘histories’ and the ‘non-history’ of the state,Footnote 53 while it allows us to conceive of society as ‘world society’.Footnote 54 Understood in this vein, society becomes the backdrop and context for our iterations of law and, by consequence, for all ensuing attempts to engage in any form of comparative law. While it is true that ‘[C]onstitutions are made and then interpreted in complex and distinctive historical contexts’,Footnote 55 comparative law in a pluralistic world societyFootnote 56 forms the larger context for any attempt to identify and isolate constitutional typologies.
But, here is the moment where we need to pause. This is required if only to take appropriate notice of the considerable anxieties that accompany today’s assertions of a world society, of global governance or global constitutionalism.Footnote 57 How have we arrived at this point? Much suggests, that – at least in the West – a pertinent obsession with the state lies at the root of the alluded-to globalization anxiety, an anxiety that might at least be partially abated through the insistence on constitutional comparisons. For, the very possibility of such comparison would allow a return, as it were, to known demarcations and confined realms of societal, political and legal order.
Such realms, however, are always in motion. A categorization of constitutional qualities and characteristics and the complementing mapping of their distribution across time and space must therefore take into account, that historical and present-day depictions of this or that constitutional order are placed in a discursive field. In other words, rather than ‘going out to see’, comparative constitutionalism is confronted with and engaged in a discursive struggle of contentious statements about the political order at a given time. This has long preoccupied scholars of comparative political thought, an area which underlies and informs much of comparative constitutionalism today. At the centre of such work we find efforts to adequately identify, to interpret and label instantiations of ‘change’. Bearing the problem of bias and viewpoint in mind, that we are likely only seeing what we set out to see,Footnote 58 any act of comparison continues to be haunted by grave doubts as to perception and method.Footnote 59 At the same time, the very dynamic of societal change itself seems to resist any comparative assessment, if not undertaken ‘from within’, that is on the grounds of a solid understanding of ‘the times’ and informed by an adequately sophisticated theory of society. Hence, the proximity of constitutional studies and historical political analysis, as illustrated by early ‘comparativists’ such as Montesquieu, Burke or Tocqueville.Footnote 60
While the attempt to discern architectural determinants, frameworks and patterns of politico-constitutional organization is central to the comparative study of constitutional laws, the underlying motivations differ significantly. While for some the ‘functional’ comparison of working legal institutions and structures is at the forefront of the comparative enterprise, others pursue a discernibly more normative agenda.Footnote 61 And yet, the overlapping of political and constitutional analytical lenses can easily blur the lines between universalist and functionalist analysis,Footnote 62 and it is under our very eyes that the studied legal culture dissolves into a dizzying map of ambiguous assertions and directions. Yet, as we have learned, historical change does not reveal itself ‘as such’, offering itself for straightforward analysis and ‘lesson-drawing’: rather, the experience of ‘progress’ is one of a future coming upon ‘us’ with accelerated velocity and unknown quality.Footnote 63
Constitutions, we learn, fall with and rise from events of political tumult and overturn. ‘Revolutions’, then, can be read either to confirm the longest-established, but not materialized freedoms or to bring about the death of those wrong forms of liberty existing at the time. ‘The very idea of the fabrication of a new government’, noted Edmund Burke in his Reflections on the French Revolution, ‘is enough to fill us with disgust and horror. We wished at the period of the Revolution, and do now wish, to derive all we possess as an inheritance from our forefathers.’Footnote 64 In this context, Burke famously posits that ‘[t]he institutions of policy, the goods of fortune, the gifts of Providence, are handed down, to us and from us, in the same course and order. Our political system is placed in just correspondence and symmetry with the order of the world, and with the mode of existence decreed to a permanent body composed of transitory parts; wherein, by the disposition of a stupendous wisdom, moulding together the great mysterious incorporation of the human race, the whole, at one time, is never old, or middle-aged, or young, but in a condition of unchangeable constancy, moves on through the varied tenour of perpetual decay, fall, renovation and progression.’Footnote 65 As noted by Pocock in his discussion of Burke, ‘The history of ideas may legitimately, though not exclusively, be viewed as the history of the modes of explaining the world and its behaviour which have from time to time existed.’Footnote 66 In this context Reinhart Koselleck remarked that the notion of revolution, which was first ‘derived from the natural movement of the stars and thus introduced into the natural rhythm of history as a cyclical metaphor, henceforth attained an irreversible direction. It appears to unchain a yearned-for future while the nature of this future robs the present of materiality and actuality… .’Footnote 67 ‘To the extent that the past can be experienced only insofar as it contains an element of what is to come (and vice versa), the political existence of the state remains trapped within a temporal structure that can be understood as static mobility.’Footnote 68
This is an observation of crucial importance for the purpose of the task here at hand. As aptly presented by the historians of political ideas and semantics, the discursive context in which the depiction of the meaning of revolution occurs is but all decisive. It is the eternal, immovable, inscrutable nature of the state as an all-encompassing entity and sphere, which appears to underlie and to inform the understanding of the revolution and of the political order which it brings into view. As the anchoring point for the liberties of those living within its confines, the state is indeed placed above the political order to which – in modern political parlance – it adheres. Whether or not the state can in fact predate and precede the very idea of a certain political order, becomes irrelevant in the moment in which the state is seen to become the personification of a long-standing, historically evolved political order. The state now becomes – because it arguably has been – the guardian of liberties, and as such the representation of the constitutional order.Footnote 69
The state/constitutional order nexus would later become deeply steeped in a positivist depiction of the nature of the legal order itself.Footnote 70 Associated with the state, the constitutional order becomes a product emitted from and depending on the state.Footnote 71 From this perspective, comparative constitutionalism would thus be an exercise in comparing state legal orders with a particular focus on the regulation of fundamental liberties. A quest for typologies and ‘differences across systems’ seems to suggest the continuation of this precise inquiry. But, is it still adequate?
The influence of transnational law on comparative constitutional law
There is today prolific evidence of comparative constitutional studies ‘in action’, as courts around the world – with differing degrees of deferenceFootnote 72 – consider drawing on alternative, ‘foreign’ viewpoints in preparing and rendering their decisions.Footnote 73 This view of ‘foreign’ constitutional law as both a guidance to local decision-making and as a ‘work of art’Footnote 74 has been subject of significant development and change. The causes of such change, in turn, may be identified as mainly originating out of two core developments: one is the fundamental transformation of what we might want to call the reference space for comparative constitutional law. The renewed advent of globalization in the 20th centuryFootnote 75 is marked by a far-reaching change in the position and status of states and sovereign political actors. The rise in importance of regional associations such as the European Union from its beginnings in the post-WWII era to its present form (and woes) at the beginning of the 21st century echoes the complexity of transformation that – in admittedly decentralizing direction – the former Soviet Union has undergone over the last 30 years or so.Footnote 76 The changes brought about for statehood since the Second World War, through decolonization and regionalization, reunification and emancipationFootnote 77 have drastically changed the anchoring and reference points for comparative constitutional studies: ‘The transformation of statehood shatters the former unity of territory, power, and people, and challenges the constitution’s ability comprehensively to encompass the political entity of the state.’Footnote 78 From the perspective, then, of the constitution’s close association of the constitution and constitutionalism with the state, the prospects of comparative constitutional law seem to be tightly connected to the fate of comparative law in a globalized world, where the contours of statehood have become porous.Footnote 79 Arguably, the relevance of the concept of ‘constitutionalism’ – as opposed to ‘constitution’ lies in its potential to build bridges between the constitutional law discourses within the nation state and the investigations into legitimacy of global governance in the ‘post-national constellation’.Footnote 80
At the same time, the diminishing effect of constitutions on the global plane and the rise in importance of a rights- and entitlements-based concept of constitutionalism and constitutionalization for transnational human conduct give considerable cause of concern. The ‘emergence of private authority in global governance’Footnote 81 – as expressed in areas such as trade agreements,Footnote 82 rating agencies,Footnote 83 product safety,Footnote 84 standardizationFootnote 85 or the lex mercatoria Footnote 86 – constitutes a significant challenge for constitutional thought. These regulatory regimes in the transnational arena reflect, on the one hand, on a fundamentally changed role of the state in the exercise of ‘public’ governance,Footnote 87 the origins of which have to be seen, firstly, in a transformation of the international contextFootnote 88 and in the inner-state shift ‘from government to governance’.Footnote 89 Secondly, these changes are associated with the emergence of norm-making processes, institutions of rule creation, as well as implementation and adjudication which scholars are struggling to re-categorize. Negotiating their allegedly ‘autonomous’ natureFootnote 90 ‘without’Footnote 91 or ‘beyond’Footnote 92 the state, lawyers, political philosophers and sociologists are equally faced with the following question: ‘Is constitutional theory able to generalize the ideas it developed for the nation state and to re-specify them for today’s problems? In other words, can we make the tradition of nation-state constitutionalism fruitful and redesign it in order to cope with phenomena of privatization and globalization?’Footnote 93
The present inquiry unfolds against the background of the two contexts of transformation – the international and the national one. That the field of comparative (constitutional) law, despite pertinent enterprises to scrutinize its methodological foundations,Footnote 94 still lacks satisfactory theoretization has been remarked by scholars all around.Footnote 95 More importantly and substantively more fruitfully, scholars have highlighted the importance of a forceful engagement with the methodological challenges arising from any comparative legal project today.Footnote 96 The present article embraces these insights and highlights, in particular, the importance of treating both terms – transnational and constitutionalism – as unknowns, as terms that need to be unfolded in order to gain a better understanding of their traction today.
Constitutionalism in world society: post-national, post-territory, post-state?
Sociologists have long emphasized the need to conceive of society as a functionally differentiated, highly complex set of communications and processes.Footnote 97 In that context, states would count less as instantiations of a territorially bounded, specifically peopled and governed space and, in turn, as natural reference points for (comparative) constitutional thought. Instead, the sociologist would see states with all of their characteristics as historically developed and particular embodiments of political power that can be found in different forms and shapes and at different times around the world and through time. While such timekeeping has traditionally been seen to have begun in the seventeenth century with the creation of the ‘Westphalian’ order, it is the respective connotation of Westphalian statehood with ideas of law, rights, democracy on the one hand and with the concept of the constitution on the other, which has given rise to a number of contestations. First, the nexus between the state and a particular form of political and legal rule has been rejected as inadequately excluding alternative forms of political/legal organization from view.Footnote 98 Second, the focus on the state as the decisive organizing entity gives undue primacy to the political form of societal organization, thereby turning a blind eye to the manifold forms of societal order.Footnote 99 Mirroring the constantly increasing level of differentiation in society as perceived as against the contingent yet pertinent background of particular local contexts, there is a rapidly expanding space of functional differentiation beyond the confines of the nation state. Security, the environment, financial organization or work have attained the status of complex regulatory and organizational spaces, the institutional and normative scope of which it is no longer possible to grasp through concepts of the state or through the 19th century distinction of ‘state’ and ‘market’.Footnote 100 Third, the focus on the Westphalian state as the prime entity of political organization has been accompanied by a connotation of sovereignty, which over time has become both decontextualized and ahistoricized. As a result, the present era of globalization is presented as an aberration, erosion and transformation of state sovereignty due to the perceived increased interdependence among states. This depiction, however, rests on a very partial representation of the international history to this day, a history which has been marked by a distinctly uneven distribution of political and economic powers.Footnote 101 In turn, sovereignty, even when portrayed today as ‘challenged’ and ‘transformed’, for example by the rise in importance of non-state actors, claiming new subjectivity in international lawFootnote 102 or driving constitutional rights creation in parts of Asia,Footnote 103 still tends to hide the underlying dynamics of inclusion and exclusion, the stark divide between ‘core’ and ‘periphery’Footnote 104 and the persistent discrimination of the ‘other’.Footnote 105
Apart from a radically relativized status of the state from the point of view of a world society concept, human relations are being considered in an entirely new light as well. In the eyes of the legal and political philosopher, the ‘civil society subject’ [bürgerliches Subjekt] at the beginning of the modern constitutional era, which morphed into the subject of the 20th century ‘mass society’ has meanwhile been replaced by today’s ‘cosmopolitan subject’, which is ‘above all smart. It regards the world as resource for interesting projects.’Footnote 106 But, this leaves little room – or need – for the capacity to political judgment, if the ‘historical a priori is not a communal space encompassed by the state, but functionally differentiated, transnational problem solving processes.’Footnote 107
And the sociologists and philosophers of the risk society, which now spans the globe,Footnote 108 observe, that ‘[e]verybody, whether they want it or not, is shaped by the individualism and rationality of a single global culture which includes human rights culture as well as the culture of individualized suicide bombing. All cultural differences are now in the same society and of individualized persons who have to organize and reorganize, construct and reconstruct their ego and their personal and collective identity lifelong, and in order to do that they rely only on the (weak or strong) means of their own autonomy. […] Yet, as “free men” we are not looking with Sartre into the abyss of nothingness, but are acting against a dense and common background of relatively abstract, highly general and formal, thoroughly secular, nevertheless global knowledge that is implicit in the global social life-world. This is so simply because traditional identity formations no longer and nowhere are available without a permanently growing and changing variety of alternative offers, in Teheran as well as in New York, in the Alps of Switzerland as well as in the mountain regions of Afghanistan, Pakistan, or Tibet.’Footnote 109
Comparative constitutional law scholars, hence, face a conundrum. Where they turn towards states in the international arena in order to depict particular types and forms of constitutional order, they find themselves in a ‘new world’. Searching for institutional familiarity or, at least, complementarity, they are increasingly faced with the fluidity of the institutional and procedural frameworks that so far marked the anchor points for comparison, something which has been guiding the Canadian comparativist Patrick Glenn in his refutation of comparative studies that aim at circumscribing ‘systems’ through the association with static and fixed boundaries.Footnote 110 It also inspires the ambitious project of a transnational group of constitutional scholars in their effort to explore the openness of ‘global legal traditions’.Footnote 111 The changed transnational landscape, then, reflects a distinct transnationalization in the form of an emerging multilevel constitutional universeFootnote 112 pushing for an open-ended reconfiguration of constitutional and interpretative competences. An American court wishing to engage with the constitutional law of, say, France or Germany, will – despite a good understanding of the particular nature of constitutional review in both countriesFootnote 113 – find itself confronted with the European Court of Human Rights’ effect on what has long become a complex interplay of different levels of norm-creation and compliance.Footnote 114
Substantively, this altered landscape appears to elude claims of deliberation, reciprocity and ‘engagement’ as risk management, ‘hedging’ and knowledge-driven assessments assume the dominant places in societal providence. Faced with this ‘mismatch between societal complexities and the means and modes of governance’Footnote 115 the constitutionalist is prompted to reconsider her perspectives and options.Footnote 116 It is thus not surprising, that comparative law scholars, in the light of the porous confines of national constitutional orders, have been directing their view towards differently construed architectures of constitutional ordering. This is aptly reflected in the emergence of comparative constitutionalism,Footnote 117 reflected today, for instance, in vibrant discourses around the ‘migration’ of constitutional ideasFootnote 118 and ‘transnational constitutionalism’.Footnote 119 Yet – despite the intensity of such endeavours – it still appears as if ‘[c]onstitutionalism is one of those concepts, evocative and persuasive in its connotations yet cloudy in its analytic and descriptive content, which at once enrich and confuse political discourse’.Footnote 120
Accordingly, an inquiry into the methodological foundations of comparative constitutional law cannot avoid a serious engagement with the conceptual aspirations of constitutionalism. As will become evident in the remainder of this article, such an engagement first requires a series of clarifications and demarcations, precisely because on both sides, with comparative constitutional law on the one end and constitutionalism on the other, in view of the elements of a theoretical groundwork and of a conceptual architecture that require being unpacked in their own right. In other words, the seemingly more clearly circumscribed walls of comparative constitutional law when contrasted with the more ambiguous sounding term of ‘constitutionalism’ emerge as much less sharply accentuated in light of the fundamental methodological qualms that comparative law as such has forever been burdened with. Added to these aches, comparative constitutional law faces deep-reaching questions regarding the employed concepts, histories and assumptions surrounding its proper subject – the constitution. It is here, where constitutionalism can be seen as opening up perspectives for comparative constitutional law as an area of legal scholarship towards alternative and complementing forms of structuring societal orders with collectively binding effects. But, defining constitutionalism in distinction from comparative constitutional law hardly exhausts the conceptual potential of the term. Instead, what becomes apparent when tracking the various contexts in which scholars have been studying constitutionalism, is that the term has a life beyond being a term that transcends the confines of comparative constitutional law.
It is at this point that we begin to recognize most clearly how the emerging, productive tension between the two poles in fact illustrates in exemplary fashion the conundrical relation between law and society. Against the background of the sociological description of a highly differentiated world risk society alluded to above, the tension between comparative constitutional law and constitutionalism gives expression to law’s struggle to respond to this growing complexity. Law’s ‘lagging behind’ society’s evolution is a long-standing observation made by legal sociologists,Footnote 121 but it receives a particular twist in the subject area we are here concerned with. The recognition of a ‘world risk society’Footnote 122 points to far-reaching consequences for legal theory, which has to assert itself in this changed reference context.Footnote 123 For comparative constitutional law, productively challenged by constitutionalism, the sociological account of a world risk society prompts a fundamental critique of this area of law’s starting assumptions as to its institutional and normative basis. And it is from this perspective, that we see comparative constitutional law/constitutionalism as a sharp lens to track law’s role in giving a legal voice to myriad expressions of societal differentiation. To the degree that comparative constitutional law would focus on more or less easily recognizable structures and processes of ‘constitutional’ acts, norm creation and adjudication, constitutionalism – by contrast – would reach deep into the less obvious places where collectively binding order emerges. From this angle, constitutionalism allows us to draw on the legal pluralist insights, which emerged in the 1960s and 1970sFootnote 124 and which today immensely enrich our inquiry into the evolving regulatory, hybrid, public-private and national/international landscape.Footnote 125 This enrichment occurs in several dimensions that are relevant for an adequate appreciation of constitutionalism in the here argued sense. One such dimension concerns the emphasis on the intricacies and pluralities of social ordering mechanisms, the legal nature of which legal pluralists, greatly aided by anthropology, have been directing our attention to – not least in the area of human rights law.Footnote 126 Another dimension embraces ´the critical/emancipatory aspects of investigating into the ambiguous nature of norms and their protective scope. Again, human rights are of central relevance, but now seen from a political economy perspective, from which we learn to carve out human rights dimensions in social and economic rights that are otherwise only associated with market functions.Footnote 127 This approach has been central to the rich body of work around the law of the welfare state and its evolution.Footnote 128 In short, I am conceiving of constitutionalism as being, on the one hand, an emblematic expression of the need to reconsider one’s methodological starting point with regard to the structure and nature of the evolving regulatory landscape, which is importantly characterized by an intertwining and overlapping of norms of both public and private, national and international origin. On the other hand, constitutionalism captures the attempt to engage in a critical reading of law and governance that tries to look beyond traditional concepts of legal authority and public versus private spaces of norm creation.
The transnational transformation of international political sovereignty is characterised by the overlap and the intersection of historical associations of 19th century governmental design and liberal political theory on the one hand and the insight into the tedious tension between legislative prerogatives and fundamental rights on the other.Footnote 129 Constitutionalism unties the nexus between ‘state’ and ‘constitution’ by positing an inner connection between the form and substance of government.Footnote 130 In breaking down the complementary association between the state and the constitution, the concept of constitutionalism recreates opportunities to conceive of different foundations and ties of constitutional norms. Herein lies its great promise – and also its risk. Taking an optimistic view, constitutionalism can be seen as law’s unveiling of its emancipatory potential: constitutionalism frees constitutional norm thinking from any given institutional framework and instead provides a space in which such a framework can or rather, must first be designed. From a more skeptical vista, however, the accompanying notions of ‘limiting’ government tend to propel a normative assessment of the state’s ‘proper business’ rather than merely demarcating the extent of its regulatory arm.Footnote 131 This focus on limiting, or placing constraints on government powers, has arguably been part of what scholars have referred to as ‘traditional constitutionalism’.Footnote 132
Space
This limiting function of constitutional frameworks has, as we saw, been a crucial element in the evolution of politico-constitutional theorizing. It comes as little surprise, then, that a certain ‘gist’ is attributed to this history. Harking back to canonical texts of comparative legal theory, the underlying assumption of progress, often coupled with a strong plea for progress,Footnote 133 continues to have a strong impulse for the recognition and elaboration of border-crossing normativity. But, in the transnational context, this implication of normative progress – allegedly expressed, for example, by (in the Western understanding) the ‘progress’ in human rights law,Footnote 134 has tremendous consequences for a critique of emerging legal structures. In the heated discussion around an emerging ‘global’ legal order, two features in this context are particularly worthy of being highlighted. The first concerns the question of the connection between a global legal order and the domestic legal system. This question, then, turns on the degree of autonomy of one from the other. Arguably, claims of an emerging global legal order have been put forward precisely not only to illustrate the autonomy of global law from the (nation) state, but in addition to underscore the distinct nature of the emerging body and system of norms.Footnote 135 The second strand in the cluster of arguments in favour of an emerging globality of law concerns the question of legitimacy. Here, again, the discussion has become considerably differentiated: while scholars in the context of assessing the prospects of public international law in the face of global terrorism, climate change and unilateralism, argue for the increasing materiality of constitutionalist thinking outside of the nation-state,Footnote 136 others have taken a closer look at the intersection between international law and political philosophy, scrutinizing the chances for a cosmopolitan legal order.Footnote 137 It is within the larger debate about cosmopolitanism, that some of the long-standing challenges of constituting a pluralistic, democratic political order become visible and open to scrutiny – from the perspectives of law, philosophy and political science. What, on the one hand, differentiates but, on the other, also reconnects this strand of debate with the one focusing on global constitutionalism, is the distinct widening of the perspective from a predominantly legal inquiry towards one which places the constitution of a legal order within a comprehensive discussion of the legitimacy concerns of such an order.Footnote 138 Finally, a third strand in the context of assessing the challenges of a global legal order, approaches the problem from a distinctly procedural angle. Arguing for the relevance of administrative law rules to further the legitimacy of global governance institutions, scholars in this field have been mobilizing the idea of a ‘global administrative law’.Footnote 139 Over the span of a few years, this research has met with far-reaching attention, pressing for a further clarification and elaboration of central premises such as the comparative status of constitutional law concerns within the administrative governance orientation of the GAL projectFootnote 140 or the prospects of the concept of the Rule of Law within the continuing debate around the institutional and normative pillars of global governance.Footnote 141
This differentiation of the debate around an emerging global legal order is, as we have seen, intimately tied into questions of boundaries and legal or, regulatory ‘spaces’ (national/domestic vs. global) on the one hand, and questions of legitimacy, accountability, representation, on the other. This overlapping of inquiries into the status and nature of the evolving legal order has been contributing to a further approximation of legal theoretical discourse and parallel scholarly pursuits in disciplines such as geography, sociology, anthropology. These disciplines have been of crucial importance in illuminating and emphasizing the methodological complexity of global governance discourses and are central to a redefinition of constitutionalism, as we will develop in greater detail in the concluding section. Meanwhile, they offer important echoes and re-instantiations of the type of questions raised by legal pluralists over the course of the 20th century. Legal pluralism, arguably, has been concerned with critiquing the demarcation lines between ‘official’ and ‘inofficial’ rule systems, in other words with the identification and scrutinizing of the justifications offered to distinguish between law and ‘non-law’.Footnote 142 In the context of analyzing the nature of ‘global law rules’, the legal pluralists’ interest in laying bare the political and ideological choices involved in differentiating spheres of rule-making proves to contribute a crucial perspective on the applied analytical lenses and methodological approaches.Footnote 143
Against this background, it becomes questionable whether one may aptly characterize the just-mentioned approaches in studying global law as spatial.Footnote 144 This adjective would be justified to the degree that the metaphor of space continues to function as a helpful tool for the identification of constituted spheres of rule creation, enforcement and political order. At the same time, it becomes less pervasive when applied in the context of an inquiry into the nature of evolving legal norms that grow out of border-crossing, ‘privatised’ and transnational norm-making processes.Footnote 145 Space, then, ceases to demarcate an identifiable, confined realm, rather than pointing to the ambiguity and relative openness of reasons given for the constitution of space this way or that.
Despite a well-reasoned scepticism towards the metaphor of space in understanding the ‘location’ of global law, legal scholars have been insisting on the continued importance of making spatial metaphors part of the legal methodological calculus in order to further scrutinize the challenges – and shortcomings – of spatial representations of legal normativity.Footnote 146 From this perspective, references to space as well as to ‘levels’ of regulatory authority continue to be of central importance in the context of global governance analysis, even where they are explicitly contested.Footnote 147 What should be retained, then, from this consideration of the significance of spatial metaphors in legal reasoning in the context of global governance, is the ‘framing’ nature of these metaphors in legal discourse. As impressively illustrated by the untiring inquiry into the promises and fall-backs of federalism, legal theory today can no longer confine itself to a juxtaposition of either-or choices, as between federalism or unity, regulatory competition or harmonization. The crux of these order paradigms lies in their inconclusiveness: just as a system arguably resting either on principles of horizontal unity and equity or of hierarchical supremacy, a federalist system does not offer – on its own – answers to questions touching on the substance of the regulatory issue to be decided. Hence, whether or not a regulatory challenge is a matter of federalism, does not carry any weight for the resolution of the underlying substantive issue.Footnote 148 And yet, the existence or non-existence of a federal system (or, of a non-federalist one) has distinct consequences for the evolution and application of constitutional rules in a particular system,Footnote 149 which in turn is of relevance for the identification of comparative typologies.
Time
The spatial dimension of law, elaborated upon in the previous section, arguably is complemented by a temporal one. This dimension begins to unfold when one takes into consideration the transformation of the legal systems under comparison. Stark expressions of such transformations become visible, of course, in cases of dramatic regime and system change, for example at times of ‘transitional justice’ or post-conflict regime building.Footnote 150 The transformation of a legal system, in such instances, is embedded in and inseparable from a much more comprehensive change of the political, socio-economic and even day-to-day system.Footnote 151 As such, a legal system’s history is always part of and tied into a significantly more complex history of change. ‘The most salient feature of the post-colonial model is that both […] the constitutional order and identity of the newly independent former-colony are elaborated in a dialectical process involving an ongoing struggle between absorption and rejection of the former colonizer’s most salient relevant identities.’Footnote 152
The consideration of change over time, however, still needs to take into view the contested nature of what comes into view, what lies at the surface and what is lurking in the background and underwood. As famously elaborated by Yerushalmi in his study of Jewish remembrance, a chronology of events is likely to be remembered as a chronology of experiences, the latter being both ‘out of time’ and yet embedded in a comprehensive narrative of collective identity.Footnote 153 The post-conflict context evokes, to be sure, a set of comprehensive and intricate demarcations concerning the nature and quality of ‘things changed’. While post-conflict, retroactive or transitional justice identify perspectives on legal and political regime change following a fundamental breakdown, rupture or decay of an existing order,Footnote 154 a wider perspective still would take into view the historical period in which the studied transformations occur. This certainly makes for an overwhelming panorama. Hence, the need to draw out the connections between the spatial and the temporal axis between which the present observations are being made. This ‘reminder’ of sorts, however, points to the considerable dilemma, which is underlying the task at hand. This dilemma results from the attempt to provide for a reasonable account of the evolution of political-constitutional structures, but there are non-negligible problems associated with such an undertaking.
Governance in space and time
Placing cases of state transformation, regime change and transitional justice in a larger historical context, inevitably requires us first to clarify the location of a particular instance within the identified historical period (eg ‘decolonization’), but moreover to identify the boundaries and even justification of the ‘period’ itself. To stay with the example of decolonization, historians have regularly called into question a straightforward, historic demarcation of both beginnings and ends of this ‘period’.Footnote 155 This has to do, inter alia, with the immensely intricate and layered context in which such a demarcation would have to be made. Surely, the context of state formation and political emancipation in North Africa in the 1960s is a different one than that of the post-1989 political independence movements in Eastern Europe. In other words, such an exercise would have to first find convincing answers to questions such as ‘When did decolonization begin, when did it end – if it ever did?’ Advances in comparative constitutional law point, however, to growing anxieties among scholars to suggest such answers. For example, comparative scholarship focusing on south-east Asia highlights the great diversity in ‘post-colonial’ development.Footnote 156 Similar problems of classification arise through the lens of legal transplants, which might be applied in order to trace the respective normative and institutional ‘migrations’ of legal instruments through time and space. Here, again, we see that the story is anything but straightforward.Footnote 157
Yet another problem in the context of applying a ‘governance’ lens to the comparative study of constitutional cultures arises from the extreme volatility of normative regimes today. A governance view on these developments would at first glance reveal such volatility, in other words the fragile balance between ‘hard’ and ‘soft’ institutions in the (re-)formation of a legal-political system, in the context of developing nations.Footnote 158 It should not come as a surprise here, that scholars engaging in the study of so-called ‘new institutional economics’Footnote 159 would find this hybridity of the emerging ‘economics of governance’Footnote 160 less daunting, as it would only underline the ordinary tension between individual/collective societal activity on the one hand and state intervention/regulation on the other. New institutional economics (NIE) scholars have been focusing on this tension with greater emphasis in constellations of ‘lawlessness’, arising for example – but not only – in contexts of state transformation.Footnote 161 Rather than being attributions made in the context of post-conflict situations or fundamental regime change, NIE scholars’ observations of lawlessness are based as well on a normative assessment of ‘state failure’. The latter is affirmed where the state falls short of providing the appropriate regulatory framework for private activity. Hence, the NIE scholars’ insistence on the need of ‘private ordering’.Footnote 162 It is important to recognize that the analysis of lawlessness does not exhaust itself nor grow out of studies of development contexts. Instead, the analysis unfolds very powerfully in the midst of mature and as such highly regulated nation-state environments, where the target of NIE scrutiny is the state’s assertion of regulatory authority over what would allegedly better be left to the self-regulatory capabilities of private actors.Footnote 163 The assignment of law to set but the formal framework for societal self-regulation draws on legal sociological insights into the normative pluralism of complex societal settings,Footnote 164 but gives this analysis a conservative twist by drawing a line between the spheres of the ‘state’ and the ‘market’ and between the ‘public’ and the ‘private’, despite a long-standing refutation of such simplifying and thus misleading distinctions.Footnote 165
This brief allusion to the themes of ‘lawlessness’ and ‘private ordering’ suggests an altogether ambiguous concept of the constitution, which is at work both in the context of developing states but also mature welfare states. Whereas the term constitution could refer to a – written or unwritten – text or set containing the ground rules of state conduct and civil rights, the struggle over the place of law in the evolution of political orders, then and now, suggests a much more comprehensive concept of the constitution. Such a concept becomes discernible from a political economy perspective, which – since Adam Smith – has referred to the constitution as the framework of state-market relations.Footnote 166 From that perspective, constitution captures the organization and normative ordering of a particular society. Where from the vantage point of the earlier depiction rendered by the new institutional economics scholars, the constitution would refer to the rules and principles setting out the rights of both the state and the people living within it, a political economy perspective on the constitution would seek to capture all regulation to be part of the constitutional structure.
As a result, a historical periodization of constitutional phases in different parts of the world would face the choice of either having to assume at least a basic form of constitutional standards and ground rules, against which such changes could be measured, or giving up entirely on the idea of historical periodization for the purpose of comparative studies of constitutional developments in light of the complexity and particularity of each individual case.
The form and substance of constitutionalism
But how, we must then ask, can this complex background be encompassed and adopted by the notion of constitutionalism? This ambivalence is implied by constitutionalism’s fusion of form and substance of government. It is here where we can already recognize the vulnerability of constitutional design to an usurpation by normative motivations, which are themselves removed from scrutiny, because they hide a qualitative dimension (‘what should states do?’; ‘what do we mean by state?’) underneath an allegedly quantitative measurement in terms of ‘Where to draw the limits of state intervention?’ In turn, this association of constitutionalism with the notion of ‘limiting’ government remains politically innocent and vulnerable for just about any inscription of what governments should or should not do: by reorienting what is really a normative decision about the goals of politics to the quantifiable measurements of state action, the fact that at the outset we were concerned with a normative question is effectively invisibilised.
But herein rests its great vulnerability, as constitutionalism, stripped of its institutional embodiment on the one hand and being relatively defenceless in its reliance on a commitment to ‘limiting government’ on the other, is exposed to normative usurpation. Such usurpation can originate from just about any corner of society, perceived as functionally differentiated and structured by a – disharmonious – concert of different communicative rationalities. ‘The administrative individualism of optimizing a rational conduct of life and the global moral missionary consciousness are two sides of the same coin.’Footnote 167 But, then again, the usurpation will not come from just any force of societal rationality, or simply originate out of functional differentiation without particular pulls and dynamics. In a knowledge society, marked by the ubiquitous presence of ‘experts’, practical judgment can tend to become clouded.Footnote 168 Meanwhile, certain ‘rationalities’, foremost the economic one, have become particularly influential and ‘expansive’.Footnote 169 As has repeatedly been noted by sceptics of the ‘new constitutionalism’,Footnote 170 this has tremendous repercussions for the use of the concept to depict emerging forms of societal order on the transnational plane. In accordance with the ubiquitous triumph of economic rationality, myriad forms of private authority and empowerment, based on property rights and contractual freedom, have become the driving forces in a fast-expanding transnational space of market ‘self-regulation’. It is here, at least from a Western perspectiveFootnote 171 that the concept of constitutionalism merges with processes of ‘constitutionalization’. In the grey zone between constitutionalism and constitutionalization, the former is above all associated with the erosion of institutionalized, accountable exercises of political authority, while the latter appears to capture the formative but disembedded driving forces of constitution-making. In this juxtaposition, constitutionalism still rings of the, if embattled and contested, glory of a constitutional promise, a text and its adversaries, while constitutionalization no more than ironicizes particular places of constitutional culture. In an evolving, transnational space, constitutionalization is the driver, wake-up call and désenchanteur of a reliable constitutional culture.
In a multi-vocal and fragmented and diversified universe of beliefs, traditions and knowledge bodies, the constitutionalism which grows out of the constitutionalization of societal practices, has little in common with the world of ‘comparative’ constitutional law. Constitutionalization, in the transnational space, depicts the dynamic forces of constantly newly emerging functional and specialized fora of rule-making.Footnote 172 In this new environment, constitutionalism’s central task to bring about a new fusion of form and substance of government, is always at risk of normative hijacking. In other words, by giving up the intricate tension within the constitution as both emancipating and limiting, the normative core of constitutionalism, so understood, can easily be oriented this way or that, through just about any dominant normative concept, the substance of which has never been subjected to a legitimizing process.Footnote 173
And thus, it comes as no surprise that the intricate nature of this inner connection between form and substance of government must remain ambivalent. One way of addressing this situation, has been to distinguish between constitutionalism and democracy.Footnote 174 The latter serves as both a yardstick for an assessment of the procedural and institutional safeguards of constitutionalism and a normative counter-position to the ambiguous openness of constitutionalism. But, how convincing is this move in light of the fact that the contours of democratic government have become elusive in a world society without world government?
Societal constitutionalism: Law’s troubled relation to society
Today, constitutional scholars must address questions of constitutional design, including the negotiation of political power and fundamental rightsFootnote 175 against this background of a changed and continuously changing regulatory environment. The general transformation of state sovereignty from ‘above’ must be seen in tandem with what the sociologist Saskia Sassen has coined the erosion of sovereignty from ‘below’, namely the alteration of formerly hierarchically conceived patterns of political and legal order through an increasing fusing of the state with market spheres of norm creation, implementation and enforcement.Footnote 176 This multi-polar transformation of state functionality poses significant challenges for constitutional theories, which – as we have observed in Western legal thought – were largely developed against the background of a state-based system of political organization. As these societies are continuing to experiment with responsive, participatory and substantively more open-ended forms of regulation,Footnote 177 constitutional law becomes a crucial intersection forum for highly differentiated interests and demands from various sectors of society.Footnote 178
But, the same dynamics which characterize and shape power relations, access and accountability on the global level under the guise of constitutionalizationFootnote 179 and ‘good governance’,Footnote 180 have their counterparts within domestic legal cultures – something that renders commitments to ‘mutual respect’ and ‘trust’ as core ingredients of an integrative constitutionalist cultureFootnote 181 considerably aspirational.Footnote 182 With a view to the transformation of the state, depicted through notions such as the ‘rule of law’,Footnote 183 the ‘social’,Footnote 184 ‘welfare’,Footnote 185 or ‘post-regulatory’ state,Footnote 186 the realm of constitutional law has long begun to become unbounded. Especially in fast-capitalizing, Western nation states, we can look back at a long history of crucial challenges to the regulatory nature of constitutional law. The history and experience of constitutional law in these societies is of greatest importance precisely because it provides for such a rich archive and mine of engagements with problems of inclusion and exclusion, access and redistribution, public and private power, which so markedly haunt global governance today.Footnote 187 Strikingly, however, little of this varied history, full of ambiguity, violence, frustration and compromise,Footnote 188 seems to shape the global constitutional imagination. The assertion of, say, Global Administrative Law’s ‘constitutional modesty’Footnote 189 in contrast to global constitutionalism’s alleged ‘immodesty’ is hardly convincing. After all we remain concerned with the transfer of administrative law principles and concepts, which historically have evolved in the context of constitutional contestation, into a sphere, that would allegedly allow a separation of the procedural rules of political administration of highly diversified interests and power relations from underlying constitutional conflicts.Footnote 190
The fluidity of institutional structures in the emerging ‘network society’ suggests that constitutional law, based either on a text or emerging from historical common law practice, is best seen as a forum through which an endless number of linkages are constantly created, processed, changed, rejected and affirmed, between law and politics. ‘Constitution’, then, becomes an anchoring point and reference perspective for the collision of existing and emerging legal semantics of society’s self-governance. But, as such, the constitution is no longer a ‘public law’ text, emanating from state authority and sitting at the pinnacle of a pyramid of legal normativity. Instead, constitutions – written or unwritten – and constitutional law must facilitate the intersection of law and politics in a radically heterarchic, modern society, thereby giving a fresh meaning to the sphere and institutional architecture of politics as such.Footnote 191 As a consequence, the strict confines of the traditionally conceived subject matter of constitutional law itself have long begun to elude us.Footnote 192
What does this mean, however, for the task pursued by comparative constitutionalists? Much suggests that comparative constitutional law has itself become fundamentally affected by a change in law’s self-perception of its foundations, instruments and institutions. Rather than with the ‘laws’ of, say, in jurisdiction A and jurisdiction B, comparative lawyers, and notably comparative constitutional law scholars, find themselves confronted with a complex, multi-layered and hybrid structure of norms. Taking their cue from Zweigert and Kötz’ instruction in functional comparisons,Footnote 193 such comparativists are today caught in a web of official and inofficial, ‘hard’ and ‘soft’ norms, that render a comparison of legal instruments and regulatory regimes much more challenging.Footnote 194 At the heart of comparing legal cultures now lies an unavoidably interdisciplinary study of legal and non-legal norms, routines and social practices.Footnote 195 It is here, where the comparativist cannot fruitfully proceed without drawing on the insights from ‘neighbouring’ as well as complementing disciplines – both from outside and inside law. Through the interaction and engagement with political scientists, anthropologists, administrative law and legal pluralism scholars, to mention only a few, comparative constitutionalists will be poised to draw a much more accentuated map of constitutional culture and change. It is here where we can catch a glimpse of what a turn towards an interdisciplinary understanding of functionalist comparisons might mean. Law’s exposure to the myriad, conflicting rationalities and tendencies in a differentiating society throws law back upon itself. It must thus reflect on its own constitution. As legal doctrines, principles and regulatory standards become criss-crossed, captured, alienated, and constantly turned on their head by economic, political or religious contentions of efficiency, legitimacy or truth, the very function of law becomes questionable – or, worthy of fundamental reconsideration. It becomes a constitutional question, but one that is no longer answerable with reference to established patterns of hierarchy or authority, but in a radically open, undetermined way. Law’s operation with the legal/illegal distinction is its existential self-assertion, its claim to take on board the pains of this world. It can only do so in its raw exposedness to competing regulatory rationalities, emerging from economics, politics, or religion. Meanwhile, the constitutional ‘subject’ itself is too often constituted from within a known, unscrutinized and closed context.Footnote 196 Breaking these frames, the subject emerges as a fragile and vulnerable space of attribution, domination, and suffocation, one that can only be adequately studied in reaching beyond confines and treacherous ‘inheritances’.Footnote 197 Comparative constitutional law, then, withers away as a field focusing on ‘comparison’, on ‘constitutions’ and on ‘law’, only to re-emerge as a critical enterprise in scrutinizing law’s relation to a complex world society.
Acknowledgements
I am grateful for very constructive feedback from Isabel Feichtner, Alexandra Kemmerer, Antje Wiener and two anonymous reviewers. Excellent editorial assistance was provided by David Vaughan.
