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. |
Search result: 2 articles
Year 2011 xDiscussion |
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Journal | Netherlands Journal of Legal Philosophy, Issue 3 2011 |
Keywords | societal constitutionalism, Gunther Teubner, system theory, fundamental rights |
Authors | Gert Verschraegen |
AbstractAuthor's information |
Article |
Competing Constitutional Ideals in the United States’ Force Majeure-Federalism CasesCalling the Shots in Disaster Management |
Journal | European Journal of Law Reform, Issue 1 2011 |
Keywords | federalism, force majeure, disaster, commerce clause, necessary and proper clause |
Authors | Riddhi Dasgupta |
AbstractAuthor's information |
Structure is no less important than substance in the long run. When dealing with disaster management, what is truly national and what is truly local? Disasters are the “perfect” time, if only because of the confusion they sow and/or witness, for the central government to usurp some sovereign powers of its constituent states (and sometimes vice versa). This article examines where, in the American model with its strong federalism tradition, the constitutional tipping point lies. The article conveys the practical imperatives of federalism and why ordinary citizens should care: a federalist structure to promote democratic participation and the carrying out of democratic will by splitting up authority and stopping any one layer of government from becoming too powerful or making it a dysfunctional appendage. That has special significance in the disaster context, of course, and there is no better kaleidoscope than the recent Gulf of Mexico oil spill. |