3241 Sociologie du droit et constitutionnalisme sociétal


Room: C4.01



Chair: Pierre Guibentif

Jean De Munck | Université catholique de Louvain

International Trade Agreements in the Light of Societal Constitutionalism




The exponential use of international trade and investment agreements after the1990’s has opened up opportunities to politicize trade and investment exchanges at the global level. The negociation of such agreements has been increasingly under fire for procedural and substantive reasons. As a result, we can observe an inclusion of atypical provisions in these international conventions : binding labour-related provisions (ILO standards or fundamental labour rights), climate and environment provisions. The legal construction of settlement procedures (arbitration) has been discussed, and the secrecy of negociation procedures of the Treaties has been challenged by civil society actors in Europe, Canada, United States, Latin America. In this paper, we are going to try to assess the new contribution of law in such debates. This field can be studied as a laboratory of societal constitutionalism. We are going to discuss some important issues. What is the balance between soft and hard law in the framing of such agreements ? What is the new function of the national State and international institutions in the fabrique and monitoring of these conventions ? Are the trade agreements negociations an opportunity to open a democratic “globalized” public space ? Is the State law losing weight in ongoing “privatization processes” or can we observe new relationships instead of loss of power? How can understand the institutionalization of the involvement of transnational civil actors ?  These questions can lead us to revise our understanding of societal constitutionalism in sociology of law, as framed in the contemporary debate by neo-functionalism and post-modernism. 

Lukas K. Sosoe | University of Luxembourg

Citizenship beyond the States : A Reality or a Purpose of the History of Mankind




There are a lot of contributions from a sociological point of view about citizenship beyond  States. At the first sight ,   these contributions  appear to be interesting because of the many aspects of citizenship they disclose. But on a closer examination, they seem to be different perspectives on a citizenship within  and not beyond the State. Even the European citizenship cannot be said to be beyond the State. Under the title : Citizenship beyond the State: Reality or a Propose of Mankind  I would like  1) to challenge the different restrictive sociological approaches which cannot be considered as instances of Citizenship beyond the State. In a word, sociologically,  it is unclear, even misleading and very far from the political reality of our democracies to contend that there is something like a citizenship beyond State. There is no empirical evidence that there are citizens beyond States. Secondly I will show that the only intellectual tradition where one could talk about a kind of citizenship  beyond the State is the Kantian one. But is not an empirical assumption, but a philosophical idea based on the interpretation of history as a development of human rights conceived as the purpose of the history of Mankind. Finally, I will try to show that Luhmann’s idea of the differenciation of law, is close to the Kantian tradition. But it cannot be seen as  an empirical account of citizenship beyond the State.

Elisabeth Lefort | Université du Luxembourg

Esteban Kaipl | Universidad Nacional del Litoral / Universidad Nacional de Rosario

Contingency and Emptiness: The Populist Drifts of Contemporary Democracies.




Based on a twofold approach – the systemic one elaborated by Niklas Luhmann, on the one hand, and the symbolic approach developed by Claude Lefort, on the other hand – this paper would like to deepen our understanding of contemporary democracies as well as their potential drifts. More precisely, the phenomenon that will be questioned is the contemporary rise of populisms, e.g. in Europe and in America. Interestingly, both Luhmann and Lefort seem to perceive populism as a risk necessarily faced by modern democracies.
In a Luhmannian systemic perspective, justice can be understood as the contingency formula of law. In a similar way, legitimacy can be described as the contingency formula of politics. In both cases, it is contingency that is highlighted in order to express the specific risk that appears with late Modernity. In representative democracies, justice and democracy itself are not to be understood as values or qualities that can be reached once and for all. Instead, they are complex ephemeral results of systemic self-differentiations. To put it more sharply, they cannot be defined content-wise for their content is precisely elusive and unpredictable.
In a same spirit, Lefort sees modernity as an era where all the markers of certainty have been dissolved. Thus, from a symbolic perspective, modernity and democracy are even synonymous since democracy is the authentic endorsement of modern uncertainty. The famous definition of democracy as an empty place reflects this point of view: it entails an indefinite openness pertaining to the space occupied by power as well as a certain social “elusiveness”.
In light of these sociological and philosophical approaches, at a discursive level, populism reveals itself as a vain attempt to annihilate modern uncertainty, unpredictability and elusiveness; it therefore aims at negating the complexity of late modernity. It presents itself as a tempting path insofar as it seems easier to avoid both the contingency and “emptiness” involved by modernity than to uphold them. Nonetheless, populism cannot operate this impossible negation nor does it achieve an “authentic” democratic regime as it often pretends. On the contrary, it puts an ideology into power and therefore runs the risk of totalitarianism.
Such an understanding of populist phenomena is at the heart of this contribution. It enables to highlight the democratic need for collective actions. At the same time, it urges us to rethink the modalities of such actions.



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