The virtual state: national sovereignty and constitutions facing globalisation processes

AutorDomenico Giannino
CargoPh.D in Comparative Public Law. University of Calabria (Italy).
Páginas19-35

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Domenico Giannino

Ph.D in Comparative Public Law. University of Calabria (Italy).

Recebido em 13.3.2016

Aprovado em 25.4.2016

Abstract: This article aims to describe how and to what extent the processes of globalisation influence the ‘world of law’ and, in particular, state sovereignty and constitutions. The purpose of this article is to provide some interpretative tools that help to abandon the elements of constitutional analysis inseparable from the concept of state, offering a review of the literature, mainly Italian, on national sovereignty and constitutions facing globalisation processes. The overcoming of state-centered constitutional theory will be described through the interpretative hypothesis of Günther Teubner, whose societal constitutionalism approach is the ‘extreme’ alternative to the classical twentieth century constitutionalism. The interpretation of Teubner’s theory – strongly influenced by social systems theory – seems to be confirmed by a highly fragmented nature of the globalized social and legal landscape in which politics has lost his leadership.

Resumo: Este artigo se propõe descrever como e em qual a extensão os processos de globalização influenciam o “mundo jurídico” e, em particular, a soberania estatal e as constituições. O propósito desse artigo é fornecer algumas ferramentas interpretativas que ajudem a abandonar os elementos da análise constitucional inseparável do conceito de Estado, oferecendo uma revisão de literatura, principalmente italiana, sobre a soberania nacional e as constituições, enfrentando os processos de globalização. A superação da teoria constitucional centralizada no Estado é descrita a partir da hipótese interpretativa de Günther Teubner, cuja abordagem de constitucionalismo societal é a alternativa “extrema” ao constitucionalismo clássico do século XX. A interpretação da teoria de Teubner – fortemente influenciada pela teoria dos sistemas sociais – parece ser confirmada por uma natureza altamente fragmentada do panorama social e jurídico globalizado no qual a política perdeu sua liderança.

Keywords: Globalisation; State Sovereignty; Constitutionalism; Constitutional Pluralism; Civil Constitutions; Teubner.

Palavras-chave: Prisioneiros; direito de votar; Participaçãao; Reabilitação.

Introduction: the emperor's new clothes

Hans Christian Andersen, in his famous fairy tale “the emperor's new clothes”, tells us the story of a vain emperor. In the great city where he lived, one day came two swindlers:

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they let it be known they were weavers, and they said they could weave the most magnificent fabrics imaginable, with the characteristic of becoming invisible to anyone who was unfit for his office, or who was unusually stupid.

They sewed the new invisible clothes for the emperor and he went in procession undressed under his splendid canopy. Nobody would confess that they couldn't see anything, for that would prove them either unfit for his position or a fool. "But he hasn't got anything on," a little child said.

Nation-state – with the associated idea of sovereignty as handed down from European public power traditional theories – has for a long time been in the same situation as the vain emperor. While it was losing the attributes of its sovereignty, it always found both 'chamberlains' willing to sing the glory and naïve kids, certifying its death.

In this article I do not want to acknowledge the premature and, to some extent, undesirable death of the state, neither to theorize the birth of a ‘nebulous’ theory of post-sovereign order, but I aim to describe how and to what extent the processes of globalisation influence the ‘world of law’ and, in particular, state sovereignty and constitutions.

Legal globalisation processes and the change in the paradigm of state sovereignty have a major impact on national constitutions, whose premise is the idea of a sovereign state. It is easy to understand that if you change the premise of the concept of constitution – consisting in the existence of a sovereign state – the latter will not remain unaffected.

Nowadays a lot of political power centers are appearing beyond the state and, despite being created in most cases with the contribution of the states, they cannot simply be treated as their extensions. These centers develop a ‘constitutional speech’, limited to their own competences. It makes possible the identification of a series of 'constitutional fragments', that go beyond the state from two viewpoints: on the one hand there are several constitutional issues in a transnational dimension; on the other we are seeing a privatisation of politics.

Consequently, if we want to fully understand the level of current changes, we should abandon the “State lenses”1 (as Walker defines them), which are the elements of constitutional analysis that are inseparable from the concept of state. The purpose of this article is to provide some interpretative tools that help to abandon those lenses, offering a

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review of the literature, mainly Italian, on national sovereignty and constitutions facing globalisation processes.

The overcoming of state-centered constitutional theory will be described through the interpretative hypothesis of Günther Teubner, whose societal constitutionalism approach is the ‘extreme’ alternative to the classical twentieth century constitutionalism.

The environment of constitutional regulations is changing, mainly due to the globalisation process, and the ability to adapt to this change is essential. The contemporary constitutional interpretative tools must help to limit not just state power – as classical constitutions did successfully – but also new, aggressive economic and financial forces, that are threatening, more and more, the rights and freedoms of individuals.

Globalisation and law: some general reflections

The current financial-economic crisis highlighted, if there still was a need to, the deep connection between various economic systems, which created the scientific theory according to which “a flap of a butterfly in Brazil set off a tornado in Texas”.2

However, despite the idea of economic globalisation seeming to be unanimously accepted, and its financial drift seeming to be equally proved, the corresponding – and according to my opinion, necessary – globalisation of the law is not equally accepted. Consequently “the system of rules equally valid for everyone is unstable”3 also because, for a long time, “the passing of an era has been underestimated, especially within provincially-restricted cultures such as the Italian one, or tendentially self-referencing such as juridical disciplines in general”.4

Before introducing the main topic of this contribution, which will be about the impact of the processes of globalisation on constitutionalism and an alternative based on civic constitutions, I think it is more appropriate to lay down – if only in a generic way – what I consider to be the essential items of the globalisation/mondialization process. The latter two

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terms, “globalisation” and “mondialization”,5 are used by me with the same meaning, even though from a more rigorously semantic perspective the first one, apart from being influenced by the corresponding English term, includes the processes of economic liberalization related to mondialization. I describe the latter, using Allegretti’s definition, as: “a state of things according to which the whole world constitutes an economic, political, environmental, cultural and social complex – unitary or unified – on behalf of which the modalities and sense of localized and punctual facts are conditioned by the reference to a totality that can include the whole planet”.6 The previous use of the term ‘process’, as referred to by mondialization, is absolutely not casual because it wants to stress one of its main features: its own process like development, in fact mondialization, represents an ‘in fieri’ process7 more than a ‘status quo’. It also features a large multi-sector incidence because not only does it embrace various aspects – or even all of them – of our own life, but it also requires a wide convergence of scientific knowledge, to avoid having a partial – and incomplete – perspective of this phenomenon.8 This causes a natural difficulty to offer a shared definition of the phenomenon, because such a definition would be conditioned not only by the observer – it is easy to understand how a jurist will have a different approach and it will stress some aspects of the process instead of others, compared to a sociologist or a historian – but also by the fact that we are dealing with – as we have said before –an ‘in fieri’ process, plus it will be very difficult to find the arrival point and, considering the speed of change currently happening, the defining elements.

Despite such defining difficulties – before examining the aspect of globalisation to which this paragraph is dedicated – it is necessary to find the useful elements to have a minimum and widely shared representation of the phenomenon. In doing so it is essential to avoid controversy – which is very sterile in my opinion because we are talking about an

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irreversible process therefore it would be useless to have a discussion about the minor or major goodness of the process itself – between “integrated”, who “have emphasized the new capabilities of socialization and condivision, beyond and against the old national frontiers of the states, and the need of physical proximity”,9 and “apocalyptic”, that imagine “a capitalism […] now without any restraint or control”.10

The above-mentioned process is the result of a combination of various factors.11 First...

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