Constitutionalization

""This book develops a sociologically informed theory of constitutionalism in the global realm, addressing both national and transnational forms of constitutional ordering. The book begins with the argument that current approaches to constitutionalism remain tied to a state-based conception of constitutions, and overlooks underlying structural transformations that trigger the emergence of constitutional forms of ordering. Poul F. Kjaer aims to address this shortcoming by offering a sociological and historically informed analysis of the evolution of constitutionalism in the face of globalisation. The analysis contextualises on-going constitutional developments through the use of a long-term historical perspective, which is capable of highlighting the impact of deeper structural transformations unfolding within society.
The book looks at the ways in which national and transnational legal forms have evolved alongside one another. It demonstrates that the formation of global constitutions has not resulted in a corresponding decrease in the power of nation states, but instead, legal and political aspects of both the nation state and the transnational have been reconfigured and intensified in a mutually supportive manner.
In combining insights from a range of fields, this interdisciplinary book will be of great interest to students and scholars of constitutional law, sociology, global governance studies, and legal, social and political theory.

List of Content
Introduction: The Metamorphosis of Constitutionalism
Part 1: Structural Transformations
2. The Implosion of the Euro-Centric World
3. The Multiplicity of Normative Orders in World Society
Part 2: Re-configurations of Law and the Political
4. The Law within and in-between Normative Orders
5. The Political within and in-between Normative Orders
Part 3: Constitutional Stabilisation
6. The Breakdown of Constitutional Ordering through Globalisation-induced Crises
7.The Transmutation of Constitutional Ordering
8.Re-calibrating the Constitutional Concept
9. Conclusion

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"No weakening, but rather an expansion, of statehood can be observed in the contemporary world. This does not, on the other hand, imply that extensive forms of constitutional ordering do not exist outside the realm of states. Instead, the evolution of world society has been characterized by a protracted dual movement where the expansion and densification of statehood and autonomous forms of transnational ordering gradually emerged in a mutually constitutive fashion. One implication of this is that neither the concept of the state nor the concept of nonstate transnational entities is adequately capable of delineating the object of constitutional analysis. Instead, the concept of normative orders has been introduced as an overarching category capable of identifying the contexts within which constitutional ordering emerges.
Subsequently, a distinction between the internal and external dimensions of the law of normative orders has been introduced, specifying them as respectively oriented towards establishing internal condensation of a given normative order and external compatibility between different normative orders. With this background, a framework for the analysis of constitutional frameworks of normative orders is developed. The central element is a distinction among three dimensions: First, a constitution implies a coupling between a constitutional object, in the form of a hierarchical organization of a given normative order capable of reproducing an autonomous source of authority, and a concordant legal framework. Second, constitutionalization implies a coupling between an internal reconstruction of an external constitutional subject within the constitutional object, and the register of legal rights, establishing a framework for exchanges between the constitutional object and the wider world as represented by the constitutional subject. Third, constitutionalism denotes the institutionalization of a double function, in the form of a principle-based and legally fortified striving toward universal inclusion, providing a sense of direction in time through an articulated form of constitutional consciousness.
The insights developed are briefly illustrated by the case of the global Fairtrade Certification System.
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Considered out of context, the 1991 Colombian Constitution might be read as an extension of a trend in constitutional reform that has swept the world since the early 1970s, renewing state commitments to the Social Rule of Law model and human rights. Accordingly, the Colombian constitutional reform could be described as a copy-cat reform, whose failure resides in the internal ambivalences of the Social Rule of Law model and human rights discourse, and is starkly revealed in the social, political and economic reality of Colombian citizens. This paper problematizes this position: instead, the paper argues that the Colombian constitutional text should be read and evaluated on the basis of its particularities. The paper outlines reasons for studying the Colombian Constitution as a socio-juridical phenomenon, situating the constitutional text beyond its normative nature and the interpretative boundaries of the law. By adopting this approach, the paper concludes that the socialization of the nation-building project in Colombia has been an impressive achievement of the 1991 political and legal constitutional experiment, but that distinctive failures of Colombia’s constitutional reform can also be identified in this process.

""The question whether constitutions exists or can exist at all beyond the state has been a central theme of academic dispute in the last decades. This contribution departs from the historical insight that extensive forms of ordering possessing constitutional qualities always have existed beneath, beside and above the state. In the last decades the debate on constitutionalism beyond the state has however unfolded in two separate discourses: One which focuses on public international organizations and another which focuses on private structures. The former is mainly driven by political scientists and public lawyers and is characterized by an attempt to rework nation state concepts of the political in order to make them compatible with transnational developments. The latter is, on the other hand, systematically downplaying the political dimension of transnational structures. In order to bridge this gap a number of key dimensions of a specific transnational concept of the political is being fleshed out.
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The EU is a structure positioned “in-between” hierarchically organized nation-state governing structures and heterarchically structured global governance structures. Thus, the EU is a hybrid which relies partly on governing and partly on governance. This two-dimensionality is a central reason why the question of the constitutional character of the EU remains fundamentally unresolved. Thus, it is proposed that the EU should aim for developing a constitutional form aimed at alleviating the tensions inherent in the European construction through a conflict of laws approach. In order to respect the hybridity of the Union, such an approach, however, will have to be based on a three-dimensional conflict of laws concept. It would have to take account of horizontal conflicts between territorial units, vertical conflicts between the EU and its member states, and also horizontal conflicts between the functionally differentiated structures of the wider society.