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Discussion

Access_open Hybrid Constitutionalism, Fundamental Rights and the State

A Response to Gunther Teubner

Journal Netherlands Journal of Legal Philosophy, Issue 3 2011
Keywords societal constitutionalism, Gunther Teubner, system theory, fundamental rights
Authors Gert Verschraegen
AbstractAuthor's information

    This contribution explores how much state is necessary to make societal constitutionalism work. I first ask why the idea of a global societal constitutionalism ‘beyond the state-and-politics’ might be viewed as a significant and controversial, but nonetheless justified innovation. In the second part I discuss what Teubner calls ‘the inclusionary effects of fundamental rights’. I argue that Teubner underplays the mediating role of the state in guaranteeing inclusion or access, and in a way presupposes well-functioning states in the background. In areas of limited statehood there is a problem of enforcing fundamental rights law. It is an open question whether, and under which conditions, constitutional norms within particular global social spheres can provide enough counter-weight when state constitutional norms are lacking.


Gert Verschraegen
Gert Verschraegen is Assistant Professor of Theoretical Sociology at the University of Antwerp, Belgium.
Discussion

Access_open Against the ‘Pestilential Gods’

Teubner on Human Rights

Journal Netherlands Journal of Legal Philosophy, Issue 3 2011
Keywords semiosphera, paranomia, Drittwirkung, matrix argument
Authors Pasquale Femia
AbstractAuthor's information

    Examining the function of human rights in the semiosphere requires a strategy of differentiation: the dissolution of politics into political moments (politics, it is argued, is not a system, but a form of discourse); the distinction between discourse and communication; the concept of systemic paranomic functionings. Paranomia is a situation generated by the pathological closure of discourses, in which knowledge of valid and observed norms obscures power. Fundamental rights are the movement of communication, claims about redistributing powers, directed against paranomic functionings. Rethinking the debate about the third party effect implies that validity and coherence must be differentiated for the development of the ‘matrix argument’.


Pasquale Femia
Pasquale Femia is Professor of Private Law at the Faculty of Political Studies of the University of Naples II, Italy.
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