Legitimization in World Society by Aldo Mascareño Kathya Araujo

Author:Aldo Mascareño, Kathya Araujo [Aldo Mascareño, Kathya Araujo]
Language: eng
Format: epub
Tags: Social Science, Sociology, General
ISBN: 9781317105787
Google: yyoHDAAAQBAJ
Publisher: Routledge
Published: 2016-04-22T05:08:53+00:00

Two Discourses on Transnational Constitutionalism

The increased recognition of the autonomy of transnational structures has triggered a corresponding debate on the merits and possibility of transnational constitutionalism as a suitable framework for establishing legitimacy.8 This debate is, however, unfolding within two separate discourses. One the one hand, the vast majority of scholars who depart from public law and political science tend to orient their attention towards public international organisations and issues such as the emergence of a global administrative law complex,9 or the question of how norms of interaction emerge between states. Essentially, this strain of research merely deals with the displacement of public decision-making away from the spheres of the nation-states and towards the transnational realm. As such, this strand of research, in essence, remains devoted to an ambition of transferring the nation-state concepts of law and the political to the transnational realm. In most cases, the basic assumptions concerning the form and function of law and political power therefore remain unchanged. On the other hand, a minority group of scholars, who mainly depart from the international private law tradition, seeks to develop novel concepts concerning how social order is produced in the transnational realm through a deliberate attempt to establish a break with the reliance on classical international law and international relation concepts (Amstutz 2005; Amstutz and Karavas 2006, 2009; Teubner and Fischer-Lescano 2004; Fischer-Lescano and Teubner 2006). The real-world processes which the two groups focus upon differ accordingly. As already mentioned, public lawyers and political scientists mainly analyse the dislocation of public power from the nation-state realm to the transnational sphere. In contrast, scholars who depart from private law tend to emphasise phenomena such as lex mercatoria (Liekweg 2003) and lex digitalis (Karavas 2007) within the framework of a research programme aimed at conceptualising global forms of social ordering which operate beyond the public realm.

This division of labour is, however, problematical: as noted, what can be observed is the emergence of a whole range of functionally delineated configurations within the transnational space in terms of regulatory conglomerates within areas such as the economy, science, the mass media, sports, the environment and so forth. These conglomerates are characterised by a highly complex interaction between public and private elements, in terms of public and private international organisations, public and private international courts and court-like tribunals, private companies (Dilling et al. 2008), think-tanks, non-governmental organisations (Walk 2004) and so forth. Such conglomerates of social ordering cannot therefore be adequately grasped through a one-dimensional emphasis on either the public or the private dimension at the cost of the other.

The principle of mutual disregard which seems to guide the relation between the two discourses is all the more puzzling insofar as references to constitutional language can be detected within both discourses. In addition, their research interest essentially remains identical since the central objective within both discourses is to identify and normatively to evaluate the constitutive and limitative structures of transnational processes. However, in doing so, they act as ships that pass in the night since the constitutional concepts to which they refer are markedly different.

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