WG Sociology of Constitutions
Nowadays even advanced constitutions appear affected by a general democratic crisis and show from a theoretical perspective their own paradoxical nature. Consequently, the real impact of the norm of the norms on the life of people is increasingly perceived as a variable with a high level of volatility. Is this the general result of the slow decline of politics and/or of the increasing role of new collective actors in an uncontrollable transnational horizon? (Session organized by Alberto Febbrajo).
Chair: Alberto Febbrajo | University of Macerata, CSISC
Alberto Febbrajo | University of Macerata, CSISC
The constitution and its paradoxes
The paper concentrates attention on the crisis of traditional theories of the state, never fully translated into reality, and on the emerging need for a new, more adequate, constitutional semantics. After having considered, on the basis of a general systems theory approach, the legal system as the most abstract instrument that, thanks to its pluralistic elements, “constitutes” and “regulates” social games able to combine stabilisation, selection and variation of legal norms, the paper draws critical attention to the new dimensions acquired by the concepts of territory, sovereignty and people, traditionally regarded as the main components of the state. Finally the paper examines the present situation of the trans-constitutional orders, which offer significant examples of the difficulties met by nation states whenever they try to fulfil some of their traditional functions within the framework of a supra-national entity.
Lasha Bregvadze | Ilia State University
Transnational and Local Constitutions in Collision: Lex Constructionis against Spontaneous Constituencies of Locality and the Center/Periphery Dilemma of Modernity
Constitutionalisation of transnational spaces and emergence of auto-constitutional regimes is already an established field of research using the mechanisms of systems theory. Transnational constellation does change the privileged forms of political institutions and conventional modes of thinking, however also provokes new forms of collisions not only within the transnational space, but also between transnational and local constituencies. It will be argued in the paper that an emerging model of “collision rules” between transnational regimes has a “blind spot”, it cannot see one important aspect brought by global constitutionalism: collisions can be detected not only within the global space, not only between different transnational regimes, but also and in more reactionary way between transnational and local constituencies of world society, between global and local constitutions.
The idea of societal constitutionalism as developed by Sciulli encourages rethinking alternatives also on the local level: it involves not only the construction of constitutional forms and processes on the global, but also at the same time on the local levels. Historically, the forgotten idea of Gesellschaftsverfassung has been developed as the description of intra-state and sub-state constituencies. It has also to be noted that non-political constitutionalism does not exclusively mean the processes of constitutionalism only in the transnational space, beyond the national configuration.
The paper will try to describe the operation of transnational auto-constitutional regime – Lex Constructionis dealing with engineering and construction projects and bringing its own “global law” to local spaces, where the projects have been developing with no regard to local life-worlds and spontaneous forms of interactional constitutions, with no respect to integration of nature and community. As an empirical case study the project conducted by British Petroleum will be used – construction of the oil pipe-line, transporting oil of the Caspian Sea through Georgia and delivering it to the West-Europe from the Black Sea. It will be argued that during the construction of the pipeline quite a dramatic collision between regime-specific constitutional norms of Lex Constructionis on the one hand and traditional customary rules, norms of interactional constitution on the other have been provoked.
Ferdinando Spina | University of Salento
Political activities of judges and the symbolic dimensions of Constitutions
Judicial activism in civil law countries has been considered as an evolution of the twentieth-century constitutional model, due to the greater role of the judiciary in the implementation of constitutional principles. Not surprisingly, in contemporary liberal democracy constitutional debates concern the boundaries between politics and jurisdiction.
Focusing principally on the Italian experience, the paper will assess the constitutional norms that allow the political activities of judges. It will explore how the interpretation of Constitution prescriptions and limits on this subject changed over the years. Finally, considerations will be made concerning how the political activities of judges can challenge those principles that guarantee the legitimacy of the judicial function, mainly the principles of impartiality and independence of the judiciary.
Francesco Bilancia | University “G. d’Annunzio” of Chieti-Pescara
The constitutional dimension of democracy within a democratic society
The paper is about the relationship among democracy, state constitution (and/or regional legal framework) and society, dealing with foundations of democracy both on the will of the people and constitutional limits. What could be thought of democracy without a constitution (law rules and procedures) in a historical and political perspective? How can we think about populism and democratic consent beyond the dimension of state constitutions? Does the present political and institutional crisis of State’s and European systems have something to do with the exercise of democratic “power” somehow outside the constitutional framework and the legal procedures driving people consent within the formal system of legal acts and decisions? Do democracy have to be ruled by a conscious society and, in this case, what kind of mediation has to be build up within social systems by political organizations, education, intellectual elites, merits, culture, scientific knowledge, among other credits, values and institutions?
Marta Maroni | University of Helsinki
The right to access the Internet: political encounters between law and Internet communication technologies
Today much debate has been devoted to the right to access the Internet both in domestic jurisdictions and in international fora. The configuration of this right is intertwined with the commitment to building “a people-centred inclusive and development-oriented Information Society, where everyone can create, access, utilize and share information and knowledge” (World Summit on the Information Society 2003). Yet the right to access the Internet bears some paradoxical features: what is accessed depends upon a myriad of gatekeepers located in the Internet multi-layered infrastructure which can have global and local features at the same time. How Internet is experienced depends not only on the way hardware, software and networks are built and function, but also on how some global regulatory bodies coordinate the delivery of contents.
This scenario raises the question of what the function of the right to access the Internet would be. More precisely, the issue of “access” turns into the question of which kind of spaces the legal system contributes to designing in the overall governance of the Internet.
Building up on systems theory, this paper provides new insights of the right to access the Internet whose normativity is not only tied up to the human right language and allows exploring law in its material dimension.