European Law and Politics as Transnational Constitutional Politics

The Programme

The central focus of the work carried out at ZERP revolves round the future of social justice and democracy in times of globalization and Europeanization (see the conference held recently to celebrate the 25th anniversary of ZERP, documented in the edited volume Andreas Fischer-Lescano, Florian Rödl & Christoph Schmid, Europäische Gesellschaftsverfassung. Zur Konstitutionalisierung sozialer Ordnung in Europa, Baden- Baden 2009). The social consequences of the European process had already constituted a focal theme in the foundational concept although discussions on social Europe had then, only just begun. Accordingly, ZERP has developed on this theme since its establishment in 1982 by consolidating this leitmotif which was introduced by the then acting mayor of Bremen, Hans Koschnick, at the Gustav-Radbruch-Forum for Law and Politics, Social Sciences and Legal practice on the 6th April 1979.

In his conference address, which ultimately lead to the establishment of ZERP, he stated that the social question had to become a central focus, from the view of European Law and Politics, if the demand for a “Europe For the People” is not to become a catchword. Whoever wanted to promulgate the goal of European Law and Politics would “have to cast aside many burdens of conservative, juristic esoterics which would not be able to settle for attempts to harmonise different legal orders at a European level. The smallest common juristic denominator would only be able to serve in some rare cases as a response to the social challenges of this Europe” (Koschnick, Recht und Politik 1979, 70/73).

In view of growing social disparities, this leitmotif has not lost its relevance. Today, in view of new global challenges, e.g. in the area of ecology, global economy or migration, the need has arisen for a revitalisation of these perspectives under the conditions of “postnational constellation” (Habermas): The Europeanisation of Law and Poltics and the emergence of new orders in the European context, are elements of all embracing transnationalisation processes which are defined through growing interdependencies and through the transformation of orders in different areas such as business, politics and so on. This gives rise to social relations, political institutions and legal relationships beyond national boundaries. The Europeanisation process constitutes a central part of such transnationalisation.

In the new orders, social justice issues are increasingly being formulated as a “global social question”. European Law and Politics is embedded in the legal and political developments of the global economy. A close correlation exists between international and European Law and Politics. On the one hand, European Law and Politics is unable to gain sufficient access to European orders as long as these processes are not presented within the context of global orders. Without a consideration of international embeddedness, European regulation of financial markets, economic law, migration etc, are neither comprehensible nor adequate to arrange. On the other hand, without an awareness of European ideas of the rule of law and without a consideration of European interventions in the global rule, an appropriate understanding of international law and politics can not be developed. 

The concept of “order” denotes in this framework, social spheres, which are characterised through an individual peculiar normativity, in relation to their social function. Frequently, orders are functionally relegated to the legal framework. As classical examples: Today, state orders are established through laws (constitutions) and undergo a drafting process through which they become legislation, market regulations function through legal titles (property) and by means of legally articulated interactions (contract and business/company). As a result, the legal substrate of a rule does not always have to exist as a national legal norm, it could also have civil society origins (like the lex mercatoria for transnational trade) or is part of new hybrid regimes involving state law as well as societal norms (e.g. European norm-constitution within the “social dialogue” or labour law norms of the ILO). 

In these orders, social rights represent constitutional questions. In so doing, a dual function is attached to the constitutional concept: On the one hand, basic organisational and procedural rules can be identified which make it plausible to observe “constitutionalism” in descriptive regards. 

On the other hand, a normative claim is connected with the constitutional concept, which takes questions of democratic legitimation and social responsiveness into consideration. Whether the responsiveness of European and global orders is subject to democratic procedures, depends on the concrete form in which transnational constitutional politics shapes the legal foundations of world society. One can not conclude (with certainty) that constitutionalism will not be manifested as “a European anomaly whose effects could be mitigated during the emergence of world society”, according to the grave sociological warning of Niklas Luhmann. The work of ZERP on European Law and Politics as transnational constitutional politics is not only aimed at observing this development of world society, but is also targeted towards the search for strategies of implementing social and democratic rights. 

The European process is itself the instigator of many new orders. The appropriate forms of their democratic and legal foundations however, remain controversial. This somewhat applies to new competition orders on the preparation of public goods such as those for institutions of risk regulation, for the coordination of national social orders as well as those of European and global induced transformation of private law and for the developments of penal laws and migration rights. Because the emergence of these and other orders are in first line result of disparate social developments and not somewhat products of uniform political arrangements, it eventually boils down, not only to a plurality of complementary, but also superimposing or conflicting orders in world society. 

The world society is shaped by such polycentric standard setting and has itself, become a venue of constant “battle for the international social order as legal constitution” (Rudolf Wiethölter). On the one hand, the question relating to how legal political structures become connected to social decision making processes arises. On the other hand, the constitutional question concerning the legal treatment of such plurality is also introduced. This refers to a constitutional conflict of laws approach. The basic approaches of conflicts of laws being “international von Gemüt” already appear to be suitable in order to elucidate global conflicts of norms, and in order to make visible their connection to the social substrate of world society. The conflict of laws approach could set in motion a relegation of norm conflicts in democratic negotiation processes instead of hiding the contradictions and paradoxies of world society.

Intra and Interdisciplinary Diversity

The programmatic focus of ZERP unites an empirical and a normative interest. The empirical aspect involves the emergence of new orders and their constitutionalisation, the involved actors and institutions, as well as their specific normativity. The normative aspect involves an evaluation of the targeted performance of social responsiveness in the constitutionalisation processes. It also involves an analysis of tensions and conflicts between different orders from a view point which considers the possibility that such conflicts will be overcome. In such a charged field, all questions relating to ZERP’s projects will be addressed.

They are structured, in an interdisciplinary manner with a focus being placed on legal and political approaches that are sensitive to democratic issues. In this sense, ZERP’s research work is also aimed at a contribution which addresses the scopes for democratic, ecological and social rights under European and global conditions. It relates these issues within comparative law, legal philosophy, legal theories and sociology, as well as within European and international constitutional, business and private law to the quaestio iuris. 

Different theoretical approaches as a result, contribute to a productive “charged” field aimed at reformulating the constitutional concept: Deliberative approaches attempt to reformulate the constitutional concept in terms of a deliberative supranationalism which aims to institutionalise not only the discussions and negotiation process between bearers of decisions, but also the compatibilisation of normative orders. System theories observe the emergence of civil constitutions, and how new forms of network and self-taxation orders become implemented. The fact that a “new constitutionalism” which embraces the structural framework of capitalistic socialisation legally and politically has been established in the globalisation process, serves to generate the principal source of momentum for more post materialistic approaches. The question relating to how orders of norms in the transnational benchmark also become constructed discursively, constitutes the object of poststructuralistic researches. 

Postcolonial studies in particular, bring to attention the way in which concerns of social movements and legal-political battles of the global south have impacted new Constitutionalism. Feminist legal theory thematises the construction of gender in these processes. It is often not only social factors which hinder progress aimed at advancing equal entitlement of the gender, but also the Law itself which contains conflicts and obstacles to gender equality - despite numerous amendments having been made. 

Legal presentations of norms appear in laws, guidelines, regulations, treaties, judgements and codes of conduct. They require interpretation and the accompanying legal dogmatic structuring. Such “Law and Politics” in the strict sense, must accompany the infiltration of national, supranational and European legal orders – as well as the distortions relating to overlaps between different regimes in an analytical and critical manner. 

Areas of the Programme

The research on European Law and Politics deals with transnational constitutionalism. It is committed to interdisciplinary links in order to gain a socio-theoretical informed perspective on the ideal of social justice (Programme Area 1). It is committed to human rights and the protection of the ecological foundations (Programme Area 2); and addressing fundamental questions of democratic and peaceful governance (Programme Area 3).

As a result, the programme areas cover three central dimensions of constitutional standard setting. Democratic constitutions provide defence and subjective rights which protect areas of autonomy and ecological foundations of existence (human rights and ecology). In addition, constitutions provide procedures for peaceful social venues of conflict and enable democratic disposition over social orders (democracy and peace). Ultimately, a redistribution of wealth and postulate of justice is contained within the European constitutional tradition. The social welfare state condition has the objective of mitigating social inequalities and facilitating social responsiveness in matters involving economic property relations (social justice). ZERP’s work touches on the question relating to how these core functions of the Constitution can be reformulated within the European and transnational framework. 

Economy & Social Justice

Given the absence of a social dimension, European (and global social) standard setting processes generate grave socio political acceptance problems. The social systems of security are placed under adaptation pressures as a result of structural unemployment, the required budget discipline for the economic and monetary union, and the global financial markets. The new EU member states have been integrated into the single market – however they possess weak welfare state mechanisms of security. As a whole, the question arises in relation to how future social rights and an emerging social constitution with the European and transnational benchmark are to be conceptualised. 

Not only the earliest developments within the EU, but also the constitutionality of transnational institutions such as those of the WTO and the IWF (also in relation to institutions such as the ILO, the UNESCO or the WHO), point to the paradigms of a market liberal rule of law. It places the freedom (of business trade) to trade over the guarantee of social and human rights standards. The jurisdiction of the ECJ in cases such as Laval, Viking and Rüffert (ECJ, C-438/05, Judgement of 11.12.2007 (Viking); ECJ, C-341/05, Judgement of 18.12.2007 (Laval); ECJ, C-346/06, Judgement of 03.04.2008 (Rüffert); ECJ, C-319/06, Judgement of 19.06.2008 (Luxemburg)) has confirmed this once again: Instead of introducing a conflict of laws which articulates the tensions between the liberal market economic constitution and the European social constitution, the ECJ accords priority to the (liberal market) Economic Constitution. 

With the economic and financial crisis, the project of a dis-embedded global trade however, increasingly faces crisis in terms of its legitimacy. How a democratic social re embedding in the sense of a post neoliberal agenda for the transnational economic and social constitution and a transnational conflict of laws can be arranged, is now on the agenda. 

Human Rights & Ecology

Transnational constitutional politics as legal politics in the postnational constellation addresses the transnationalisation of human rights politics and human rights protection. The EU Charter of Fundamental Rights, the regional human rights agreements within the framework of the Council of Europe, the universal agreements – particularly those linked to both UN pacts - and a whole series of special agreements, constitute the written framework of heterarchical systems of human rights protection, which are being implemented by a growing number of transnational forums. At the same time, social initiatives increasingly attend to the proclaimed rights and utilize transnational jurisdictions as forums to advance their concerns in the field of Law and Politics.

However, the benchmarks to be set out for an effective protection of human rights are still controversial. Furthermore, it is highly disputed how this protection can be internationally guaranteed and how a direct responsiveness with regard to Human Rights can be ensured. Currently, especially ecological crises and migration law serve as important starting points for human rights policies: for example, the question arises what status should be accorded to so-called environmental refugees who migrate in consequence of environmental catastrophes, or whether undertakings posing dangerous threats to human rights and the environment, which are structurally analogue to the endangerments caused by political systems, are to be held accountable. 

Transnational Democracy and Peace

European Law and Politics conceived as transnational constitutional politics rests on the assumption that a constitutionalisation process is taking place which transforms the allocation of regulative functions and democratic participation that historically impacted the Western territorial state. International administrative networks, the privatisation of core state functions like security policies or the role of the advancement of law, which is given expression in the judgments of the ECJ for instance, literally provoke a democratic legal policy.

In this context, fundamental questions relating to the relationship between law, politics and democracy arise: How are the new legal and political patterns of order in the EU and on the transnational level to be evaluated from the perspective of global constitutionalism? Which social concerns and socially structural changes affect this evaluation? What are the contours of European and global constitutionalism? What characterises the coupling between Law and Politics and between communication and decision? Which opportunities exist to reconstruct these couplings under altered conditions?

Of particular importance for research in this framework is to reflect the connection between social theories, legal theories, theories of democracy and theories of the transformation of the social, political and legal balances of power. Such an interdisciplinary programme seeks to reflect the findings of state, law and democracy research and incorporates modern and postmodern works on the effects of politics in the global law as well as on the duplication of “Assemblages” in the field of Law and Politics (Saskia Sassen). The central project of the modern social theories, from Jürgen Habermas to Niklas Luhmann, was aimed at acquiring diagnoses on the scopes and boundaries of the legal and political systems. The scope of social democracy can only be appropriately determined if the consequences of the differentiation of spheres of values (Habermas), social systems (Luhmann) and of discourses (post structuralism) respectively are taken into consideration in the course of reflections on Law and Politics as well as on democratic theories.