Which human material forms the real basis of a democratic polity, i.e. of the preconditions of a ‘we’ that inhabits a ‘world’? How is a political ‘we’ related to the ‘we’ that is created by systemic processes of subjectivization? These questions presents themselves with new relevance in a ‘globalized’ world, in which democratic spurts and waves spread from other parts of the world to the West, and in which the liberal-democratic rule of law state appears to be undermining its own moral preconditions. The real task ahead is to find out what ‘we’ denotes politically.

Steven Winter’s argument is premised on a sharp contrast of individualist and social revolutions. I elaborate my doubts about his argument on three accounts, involving feminist perspectives at various points. First, I take issue with Winter’s portrayal of liberal theory, redirecting the focus of his concern to economic libertarianism rather than liberalism, and arguing a more hospitable attitude to the Kantian pith in the theory of democracy. Secondly, I discuss his conceptualization of democracy, adding the conceptual distinction of civil society and public sphere. Thirdly, I question his normative notion of socially situated selves as having an intrinsic relation to social freedom. I moreover consult cultural history on the gendered symbolics of market and democracy to further problematize Winter’s take on either’s meaning for social freedom.

Winter’s criticism of the conventional account of freedom and democracy is best understood against the background of the history of Enlightenment critique. Winter claims that our current misunderstanding of freedom and self-governance is the result of the strict dichotomy between subject and object. This paper critically reconstructs Winter’s notion of freedom and self-governance which does not adequately address (a) the details of his anti-collectivist claim, and (b) the necessary conditions for the possibility of a moral point of view. This makes it difficult to determine how Winter can distinguish between freedom and lack of freedom, and to assess the limited or radical nature of his critique of Enlightenment universalism.

In this reply, Steven L. Winter adresses his critics.

In this concluding article, Gunther Teubner addresses his critics.

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.

This contribution raises two questions with regard to Teubner’s view on human rights. First and foremost, it asks how one might conceive of modern society as a threat to human beings. Attention is brought to bear on Teubner’s attempt to describe society as a matter of communication, and more specifically as a set of one-sided communication systems. In this regard, I scrutinise the attempt to describe the threat of society in terms of inclusion/exclusion and criticise the vacuity of the concept of inclusion. Secondly, it questions Teubner’s description of human beings that demand justice and protection by human rights. Are their demands about the bare existence of body and mind? Moreover, are these concerns identical to worries about the destruction of human presuppositions for the self-reproduction of functional social systems, as Teubner suggests? Against Teubner, I contend that human rights are actually about social human beings that ask for justice as acting beings, which claim does not coincide with presuppositions of societal subsystems.

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’.

This article presents some critical comments concerning the conceptual, normative and institutional foundations of Teubner’s plea for a ‘common law constitution’. My comments question the desirability of the means chosen for attaining this objective as well as their efficacy. In particular, I have difficulties with the ambivalent role that is assigned to man, either as a person or as a human being; with the reduction of social problems to problems of communication; and, finally and most importantly, with the attempt to conceive of law and politics beyond established legal and political institutions, which in my view is doomed to fail. The conclusion offers some tentative suggestions for an alternative approach.

This paper approaches Walker’s work from the perspective of the ubiquity of human rights language within the rhetoric of global constitutionalism. Building on Walker’s description of the relationship between constitutionalism and democracy, what I wish to suggest is that the spread of human rights discourse is intimately connected with attempts to apply constitutional discourse beyond the state. By highlighting the way in which human rights have become place-takers for political legitimacy in discussions of international constitutionalism, the paper is intended to challenge Walker to state his own position more forcefully and to develop further his insight concerning the irresolvable tension in the iterative relationship between constitutionalism and democracy.

This paper argues that Neil Walker’s analysis of the complementary relationship between democracy and constitutionalism remains one-sided. It focuses only on the incompleteness of democracy and the democracy-realizing function of constitutionalism rather than also taking into account the reverse complementary and constitution-realizing function of democracy. In this paper, I defend a fuller account that takes into account this mutual complementarity between democracy and constitutionalism. Such an alternative approach is consequential for Walker’s argument in two respects. In terms of the general analysis of the relationship between democracy and constitutionalism, my adjusted approach leads to a defence of the Habermasian thesis of the co-originality of constitutionalism and democracy which is too quickly dismissed by Walker himself. A fuller appreciation of this co-originality suggests that the relationship between constitutionalism and democracy is perhaps, after all, more singularly complementary (as opposed to being both complementary and oppositional) than Walker recognizes. In terms of the more specific analysis of the impact of globalization, this adjusted approach tilts the argument in favour of the critics of current practices of postnational constitutionalism. Without complementary postnational democratic structures, this constitutionalism remains problematic and potentially oppressive.

This essay complements Walker’s essay with some historical and constitutional observations. It submits that Walker’s analysis is based to a large extent on reasoning derived from a particular continental European constitutional tradition. This creates certain problems of its own, that do not arise in a different constitutional tradition. This is not to say, however, that this invalidates his conclusions, but rather underpins them in an alternative manner.

This reply to critics reinforces and further develops a number of conclusions of the original paper. First, it answers the charge that it is biased in its discussion of the relative standing of constitutionalism and democracy today, tending to take the authority of the former for granted and concentrating its critical attention unduly on the incompleteness of democracy, by arguing that contemporary constitutionalism is deeply dependent upon democracy. Secondly, it reiterates and extends the claim of the original paper that the idea and practice of democracy is unable to supply its own resources in the development of just forms of political organization. Thirdly, it defends its key understanding of the overall relationship between democracy and constitutionalism as a ‘double relationship’, involving both mutual support and mutual tension. A fourth and last point is concerned to demonstrate how the deeper philosophical concerns raised by the author about the shifting relationship between democracy and constitutionalism and the conceptual reframing they prompt are important not just as an explanatory and evaluative window on an evolving configuration of political relations but also as an expression of that evolution, and to indicate how this new conceptual frame might condition how we approach the question of a democracy-sensitive institutional architecture for the global age.

This paper agrees with Walker on the existence of a tension between democracy and constitutionalism, but questions whether democracy and (international) constitutionalism necessarily depend on each other. While democracy needs constitutionalism on normative grounds, as an empirical matter it may also rest on alternative political structures. Moreover, it is questionable whether democracy is indeed the solution to the incompleteness of international constitutionalism. Traditional forms of democracy do not lend themselves well to transplantation to the international level and could even intensify some problems of international governance. Attempts to democratize international relations should be carried out prudentially, with due regard for possible counterproductive effects.