Transnational movements and European democracy
Paul Blokker (Charles University, Prague)
The alleged constitutional qualities of post-national arrangements have sparked a debate in constitutional theory and comparative constitutionalism regarding transnational constitutionalism and constitutional pluralism, attesting to a dynamic transnational context. In relation to this, the modern concept of constitutionalism – that is, the idea of a system of legal norms intimately bound up with the nation-state, national sovereignty, and the idea of a people – is increasingly subject to critical reflection, in particular, but not exclusively, in discussions addressing the European context. Scholars have proposed a range of theoretical models to describe the intensely pluralistic nature of legal and constitutional arrangements in transnational and international settings. Apart from the juridical debate, focusing on jurisdiction, authority, and interaction between legal actors, a second important line of debate is expressed in theories of sociological pluralism. Research in this field of analysis is equally inspired by classical legal pluralism of sociological and anthropological origin. What is of particular significance in this analysis is the claim that the notion of constitutionality needs to be extended to non-public actors and arrangements, reflecting the wider view that in the global arena the ‘center of lawmaking has moved away from the state and into the periphery of transnational actors’, and that the ‘relative status and centrality of nation states within the broader framework of world society is changing’. The juridical, sociological, socio-functional, and historical-sociological forms of pluralism all emphasize distinctive dimensions of a plurality of constitutions. The civil society tend to prioritize legal and judicial governance, but generally fail to address the political-constituent and sociological dimensions of transnational constitutionalism. A sociological approach is of great significance for a number of reasons. First of all, it redefines our understanding of the nature of constitutionalism, as essentially contestable and as not reducible to the singular logic of legal constitutionalism, in an emphasis on the rule of law, legal certainty and hierarchy, and technocratic governance. Constitutionalism, in particular on the transnational level, is a phenomenon that transverses the legal, the political, and the social, and manifests and articulates itself through a plurality of constitutional rationalities, in this formatting and connecting these various spheres, but equally informing possible contestation, tensions, and conflicts. Second, the rather exclusive focus on judicial institutions in the debate on constitutional pluralism is insufficient in that it is generally inattentive to the societal consequences of transnational constitutionalism, the societal embeddedness of constitutional orders, as well as the social reactions, criticism, and forms of constitutional mobilization that have been emerging in recent times, and that articulate crucial dimensions of what can be labelled a ‘constitutional crisis’. Third, the sociology of transnational constitutionalism draws attention to the one-sided institutional embodiment of constitutionalism in the EU context, which institutionalizes a managerial or technocratic mindset, itself an expression of both legal and economic constitutionalism.