This book provides a new legal-sociological account of contemporary democracy. It is based on a revision of standard positions in democratic theory, reflecting the impact of global legal norms on the institutions of national states. Chris Thornhill argues that the establishment of fully democratic, fully inclusive governance systems in national societies was generally impeded by inner-societal structural factors, and that inclusive patterns of democratic citizenship only evolved on the foundation of global legal norms that were consolidated after 1945. He claims that this process can be best understood through a transposition of key insights of classical legal sociology onto the form of global society. Extensive analysis of select case studies in different regions illustrate these claims. Thornhill offers a sociological theory of global law to explain contemporary processes of democratic integration and institutional formation, and contemporary constructions of citizenship and political rights. This title is also available as Open Access.

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The Sociology of Law and the Global Transformation of Democracy

This article examines the changing status of constituent power in contemporary constitutionalism. It considers how, at face value, contemporary constitutional law reflects a post-constituent constitutional order, which is defined by a rupture with classical constitutional principles, such that the extra-legal source of constitutional order is diminished. However, it argues that the common perception of a decline in constituent power in constitutional norm construction is marked by an excessively literalistic understanding of the origins of constitutional norms and practices. As an alternative, drawing on systems-theoretical methodologies, the article proposes a functionalist, sociologically attuned reconstruction of the historical content of constitutional concepts, including the concept of constituent power. Through this perspective, it explains that constituent power, in conjunction with constitutional rights, always acted, not as an externally founding source of political agency, but as an inner projection of the political system, which served the internal organization of the political system as a distinct societal domain. The article concludes that the transnational constitutional models which are widespread in contemporary society, far from negating constituent power, re-articulate its primary functions, and they realize potentials for preserving the autonomy of the political system which constituent power always contained.

Contemporary constitutionalism and the dialectic of constituent power

The European Union's legal order is traditionally seen as largely autonomous within the global legal system. At the same time, the EU is an important player in the global governance network and has revealed its dependence on international law and international normative processes. The strong and explicit link between the EU and a large number of other international organisations raises questions concerning the impact of decisions taken by those organisations and of international agreements concluded with those organisations on the autonomy of the EU legal order. While the relationship between international and EU law as such is a popular academic theme, the increasing influence of norms enacted by international organisations and more loosely structured bodies on the shaping of the EU and its legal order has never before been studied in a similar comprehensive fashion.In this book, prominent academics and leading practitioners explore a wide variety of legal issues pertaining to the influence of the most prominent universal and regional international organisations and bodies on the EU's legal order, its institutional design and operational experiences. As such, this book will be of much value to academics, policy makers, civil servants, lawyers and judges with an interest in the interaction of international law and EU law, as well as the relations between the European Union and other international organisations.

Between autonomy and dependence: The EU legal order under the influence of international organisations

Sixty years after its launch by the European Court of Justice in the case of Costa v ENEL, the notion that EU law derives from an autonomous source still leads to divergent interpretations. In this chapter, it is submitted that the concept of EU autonomy in effect comes down to a disguised claim to sovereignty. Contrary to what is often believed, such a reading, which is premised on the Court’s insistence on the self-referential nature of the Union legal order, provides a promising point of departure for assessing the manner in which the EU deals and, in the future, should deal with norms that originate in international law. In particular, perceiving the claim to authority in Costa v ENEL and more recent cases such as Kadi as a claim to sovereignty could pave the way for a jurisprudential approach in which deference towards international law is the norm and in which resistance towards external norms is only acceptable if such norms put the constitutional identity of the EU at risk. More autonomy vis-a-vis international law might actually mean less autonomy.

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The Autonomy of EU Law: More is Less?

This article proceeds from a critical sociological revision of classical constitutional theory. In particular, it argues for a sociological reconstruction of the central concepts of constitutional theory: constituent power and rights. These concepts, it is proposed, first evolved as an internal reflexive dimension of the modern political system, which acted originally to stabilize the political system as a relatively autonomous aggregate of actors, adapted to the differentiated interfaces of a modern society. This revision of classical constitutional theory provides a basis for a distinctive account of transnational constitutional pluralism or societal constitutionalism. The article argues that the construction of transnational normative orders needs to be placed, in a sociological dimension, on a clearer continuum with classical constitutional models. Although contemporary society is marked by multiple, nationally overarching, and often functionally specific constitutions, such normative structures extend the original functions of constituent power and rights. The article sets out the concluding hypothesis that rights form a running constitution in contemporary society, facilitating highly improbable acts of transnational structural construction and systemic inclusion. It is around the code rights-relevant/rights-irrelevant that transnational society constructs its processes of politicization and political inclusion. This code, however, brings to light a subsidiary or skeletal coding, which was latently co-implied in the political exchanges of modern society, and which was already expressed in early constitutionalism.

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A sociology of constituent power: The political code of transnational societal constitutions

Broad concept of constitutional jurisdiction – Triangle between Karlsruhe, Strasbourg and Luxembourg – European vocation of the German Constitutional Court and Basic Law – European Convention on Human Rights – Karlsruhe decisions can be reviewed in Strasbourg – Human rights-related constitutional court – European Court of Justice developed into constitutional court of the Union – Verbund between three courts – No simplistic hierarchy – Verbund techniques – Dialogue in Human Rights; Interplay in Integration – Federal Constitutional Court and European Court of Human Rights functionally comparable – Both Courts seek substantive coherence as Verbund technique – Federal Constitutional Court commits all German authorities to the Convention – Federal Constitutional Court and ECJ – Principle of openness to European Law – Sharing and assigning responsibilities in complex system – Solange, ultra vires and identity review – Responsibility for integration, due by Court and other German bodies – Federal Court contributes to common European Constitutional order – Europe-wide discursive struggle and ‘Lernverbund’

Andreas Voβkuhle

Papers

Multilevel cooperation of the European Constitutional Courts: Der Europäische Verfassungsgerichtsverbund