Law As Passion: Systems Theory And Constitutional Theory In Peripheral Modernity [1st Edition] 3030635007, 9783030635008, 9783030635015

Table of contents :
Foreword: Marcelo Neves Between Hydra and Hercules......Page 5
Preface......Page 13
Contents......Page 15
Part I: Law, State and Global Crisis......Page 17
The Capitalist State in the Crisis of Global Capitalism......Page 18
1 Crisis of Normative Orders......Page 19
2 Capitalist State......Page 26
3 Capitalism with Socialist Characteristics......Page 29
4 Two Problems: ``Horizontal´´ Inequalities and Secular Stagnation......Page 30
5 Political Victory of the Right and Future Perspectives......Page 32
References......Page 36
Towards a Global Rule of Law: Global Law in the Context of Law and Development Studies......Page 40
1 Setting the Scene......Page 41
2 Theorizing Justice or Rather: Addressing Injustice in Practice?......Page 45
3 The Perspective of Law and Development......Page 46
4 Rule of Law in a Global Context......Page 50
5 The Venice Commission Setting the New European Standard......Page 54
6 Towards Rule of Law and Development in a Global Setting......Page 56
References......Page 60
Part II: Symbolic Constitutionalization......Page 63
Symbolic Constitutionalization and Constitutional Debate in Chile......Page 64
1 Politics and Law: The Constitution as Structural Coupling......Page 65
2 Demands for Constitutional Changes in Chile......Page 68
3 Symbolic Legislation......Page 71
4.1 Functional Differentiation of Society and Fundamental Rights......Page 76
4.2 Division of Powers and Difference Between Policy and Administration......Page 77
4.3 Difficulties in the Process of Preparing the Constitution......Page 78
5 Conclusions......Page 81
References......Page 83
A (More) Cosmopolitan Sociology of Constitutions: Marcelo Neves´ Theory of Symbolic Constitutionalization......Page 85
1 Introduction......Page 86
2 ``Brazil Does Not Exist!´´: Modern Society as World Society......Page 88
3 Inclusion/Exclusion or Center/Periphery: Avoiding Misconceptions......Page 92
4 Symbolic Constitutionalization: The Institutional Stabilization of Under- and Over-Citizenship......Page 97
5 Conclusions......Page 100
References......Page 101
Constitutionalism Seen from the Periphery: A Perspective About the Contribution of Marcelo Neves......Page 104
1 Introduction......Page 105
2 Law Positivity and the Concept of Constitution......Page 106
3 Law and Politics Among the Over-Integrated and Under-Integrated......Page 108
4 Reflecting on Law and the Constitution from the Periphery of World Society......Page 111
5 Brazilian Peripheral Constitutionalism in Perspective......Page 114
References......Page 119
Democratic Legitimation Without Inclusion: An Evolutionary Approach to Brazilian Societal Crisis......Page 121
1 Introduction......Page 122
2 Outlines of an Evolutionary Theory of Sociological Legitimation......Page 123
2.1 Gene-Culture Coevolution: Social Legitimation as a By-Product of Cultural Evolution......Page 124
2.2 Multilevel Selection and the Evolution of Complex Societies......Page 128
3 Constitutional Legitimacy as a Multilevel Systemic Adaptation......Page 132
4 An Evolutionary Analysis of Symbolic Constitutionalization: The Brazilian Deconstruction of Liberal Democracy......Page 135
5 Concluding Remarks......Page 139
References......Page 140
Part III: Transconstitutionalism......Page 145
Trans-anticonstitutionalism......Page 146
1 Introduction......Page 147
2 Social Environment and Displacement of Norms......Page 149
3 Asymmetries of World Society and Communication Flows......Page 152
4 The Formation of Autocracies in the Beginning of the 21st Century: An Anticonstitutionalist Global Movement......Page 154
5 Flows of Trans-anticonstitucionalism......Page 159
6 Conclusion......Page 165
United States......Page 166
Bibliography......Page 167
Between Transconstitutionalism and Technical Practices: Normative Challenges for Brazilian Legal Order......Page 171
1 Introduction......Page 172
2 Horizontality of Statehood: Privatization and Architecture of the Network as Conditioning Factors......Page 173
3 For a Narrative of Mutual Learning......Page 175
3.1 The Incorporation of Technical Values by the Legal System......Page 177
3.2 The Incorporation of Legal Values Through Technical Practices......Page 178
4 For Openness of Transconstitutionalism......Page 180
5 The Destructive Potential of Technical and Legal Normativity......Page 184
6 The Problematic Relationship Between Technical Practices and Legal Norms: The Brazilian Case......Page 186
References......Page 189
Legal Decisions......Page 191
1 Introduction: Max Weber´s Solution to an Intractable Problem......Page 192
2 The Tension Between the Normative and the Sociological Points of View......Page 194
3 Luhmann´s Breakthrough: The Point of View of Society´s Communications, Not of the Individual Subject´s Reason......Page 196
4 The Content of a Systemic Normativity: Two Examples......Page 198
4.1 Luhmann´s View on the Welfare State......Page 199
4.2 Marcelo Neves´s Concept of Transconstitutionalism......Page 200
5 Beyond Functional Differentiation: Back to the Agency Normative Point of View?......Page 205
References......Page 206
Part IV: Systems Theory and Public Law......Page 209
A Few Notes on the Uses of Historiography in Sociology: The Case of World Society and the Necessity of Historical Reconstructi.........Page 210
1 Introduction......Page 211
2 World Society as a Historiographical Problem......Page 212
3 The First Sociological Approaches to World Society and Their Obstacles......Page 214
4 Luhmann´s Concept of World Society and the Necessity of Historical Reconstruction......Page 217
5 Taking History Seriously in Systems Theory......Page 219
6 Final Considerations......Page 222
References......Page 223
The Intersystemic Rationality of Administrative Law: Reflexiveness, Structural Couplings and Environmental Observation......Page 226
1 Introduction: Social Systems Theory and Administrative Legal Science......Page 227
2 The Intersystemic Rationality of Administrative Law......Page 231
3.1 Reflexiveness......Page 236
3.2 Structural Couplings......Page 241
3.3 Environmental Observation......Page 244
4 Concluding Remarks......Page 247
References......Page 248

Citation preview

Miguel Nogueira de Brito Carina Calabria Fábio Portela L. Almeida  Editors

Law as Passion

Systems Theory and Constitutional Theory in Peripheral Modernity

Law as Passion

Miguel Nogueira de Brito • Carina Calabria • Fábio Portela L. Almeida Editors

Law as Passion Systems Theory and Constitutional Theory in Peripheral Modernity

Editors Miguel Nogueira de Brito Faculty of Law Lisbon University Lisbon, Portugal

Carina Calabria Faculty of Law Federal University of Pernambuco Recife, Brazil

Fábio Portela L. Almeida Brazilian Superior Labor Court Brasília (DF), Brazil

ISBN 978-3-030-63500-8 ISBN 978-3-030-63501-5 https://doi.org/10.1007/978-3-030-63501-5

(eBook)

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Foreword: Marcelo Neves Between Hydra and Hercules

Marcelo Neves gave an impressive analysis of the development of “constitution and positivity of law in peripheral modernity”1 in his dissertation more than 30 years ago. I had the honour and the pleasure to be his supervisor at the University of Bremen at that time. The final step in a wonderful and productive process of cooperation was the thesis defence which turned into a very lively discussion with the late Niklas Luhmann, who appreciated Marcelo’s work very much. One may assume with good reasons that Marcelo has provoked more attention to the now named “global south” in Luhmann’s work. On several occasions, Luhmann referred to the book that was based on Marcelo’s dissertation. There are no less than five quotations in Luhmann’s opus maximum on the “Law as a Social System”.2 The defence—which was not really a defence against criticism because the jury was full of sympathy with Marcelo’s work—brought to light a hitherto hidden trait: Marcelo’s conviviality! I think the whole of the Brazilian community of Bremen and its surroundings showed up at this event! I think there were more than 50 Brazilians in the room which was too small and therefore the location had to be changed. They were apparently not all academics but all of them had the feeling that Marcelo was a hero and that he fought for a common cause. In the end, there was a warm applause for Marcelo. This was a unique intellectual event—very serious and very academic, very concentrated, very well-argued—and at the same time full of passion that touched also the non-academic audience: There was something in the air! In this respect, it is perhaps a pity that Marcelo’s political career, his run-off for the position of the Brazilian Senate, has come to an early end—though his academic friends have taken this political defeat with a smile in one eye. (Having seen his video that presented him as “Senador dos seus direitos” I would have voted for Marcelo!)

1 Neves M (1992) Verfassung und Positivität des Rechts in der peripheren Moderne, Duncker & Humblot, Berlin. 2 Luhmann N (2008) Law as a Social System, Oxford University Press, Oxford.

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This brings us back to Marcelo Neves’s ideas about a specific version of systems theory for the global south, the incomplete autonomization of the legal system as opposed to the political system, and the code of power on the one hand and the autonomization of the economic system vis-à-vis both the political and the legal system on the other. This leads to different direct or indirect effects of corruption and as a consequence a sort of unstable and incalculable “oscillation” between legal and economic or political “supplements” of legal decision-making. In his work on “symbolic constitutionalization”, Marcelo has developed the idea that against the background of missing differentiation of the legal and the political system, the process of constitutionalization might end up in a shift of responsibility for social reforms to the judiciary instead of parliament.3 Why is this interesting at all? Because the constitution has also been in the past of symbolic value only. The Constitution of Brazil which is the second longest in the world (behind the constitution of Alabama) contains an impressive number of civil rights. However, the emergence of conflicts between these civil rights is obvious. It has led to the implementation of “balancing” as the favourite method into the jurisprudence of the Supremo Tribunal Federal that acts also as constitutional court. At first sight, this new approach has apparently increasingly shifted to the background traditional textbased approaches to constitutional interpretation. A certain enthusiasm about the possibility of a more active concretization of the constitution came to the fore.4 Conflicting civil rights in particular were regarded as demanding a process of balancing between different open “principles”5 which at the same time promised to be more open towards the observation and reconstruction of the real core of social conflicts. However, one of the (many) drawbacks of “balancing” is the idea that constitutional law in fact is a judge-made practice of reflection of “reality” and the future-oriented design of just solutions for social problems.6 The traditional approach of legal interpretation of the law as text is said to be more focused on the reconstruction of the meaning of law as a set of “rules” that have been formulated in the past and are intended to build a stable bridge between the past and the present. (This is why constitutions have not been regarded as being applicable law in the stricter sense in the past). Legal conceptuality seems to be regarded as oriented towards the preservation of the social order of the past or at least to slow down the dynamic process of the reproduction of legal practice. Traditional interpretation does not only draw on the assumption of a stable normativity but it includes a legal and social epistemology: Experience as the knowledge basis of the “society of individuals” is regarded as the cognitive paradigm that helps understand the legal concepts 3

Neves M (1998) Symbolische Konstitutionalisierung, Duncker & Humblot, Berlin, p. 90f.; Herzog, 433. 4 Barroso LR (2017) A Judicialização da vida e o papel do Supremo Tribunal Federal, Fórum, Belo Horizonte. 5 Alexy R (2008) A Theory of Constitutional Rights, Oxford University Press, Oxford, pp. 44 et sq. 6 Barroso LR, Barcellos AP (2006) O começo da história: A nova interpretação e o papel dos princípios de direito brasileiro. In: Barroso LR (ed) A nova interpretação constitucional, Renovar, Rio de Janeiro, 3rd ed, p. 327.

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and serves as the repertory of practical patterns of behaviour as they can be observed in the practice and the life-worlds of individuals. Because of this close link between legal norms as set by the parliament as the political representative of the people (the individuals) and the people as the society of the individuals as being by themselves the source of a complex social infrastructure of legal norms, from the end of the nineteenth century until the 50s of the twentieth century, the constitution did not have much practical impact on the legal order of society. The American “Originalism” as the privileged method of interpretation of conservative judges tries to preserve this close link between the society of individuals and political society by projecting the spontaneous harmony of the past into a completely changed society. It is only from the 50s of the last century onwards that an increasing number of cases raise problems of civil rights in the American Supreme Court. Most cases in which freedom of the press had been at stake in the past have been decided on the basis of common law. And the claims concerning severe measures against freedom of opinion of anarchists or aliens in times of war and political tension have all been rejected by the Supreme Court. In Germany, there has been no reference to civil rights in the court practice of the Prussian High Court of Administration (Preußisches Oberverwaltungsgericht) at all. In the jurisprudence of the Reichsgericht (civil law cases), there were only a few, however, important references to the constitutional protection of property and protection of traditional vested rights, whereas social rights were taken to be a mere political programme. However, this is an interesting phenomenon because it demonstrates the emerging possibility of a rupture between the conservative and the more liberal or social democratic groups both of which formed the elite of the Weimar Republic. “Rights” were claimed by those parts of the elite whose position had been undermined by the new political order. Marcelo Neves also gets involved in a more concrete and practical construction of the constitution. This development has also shed some light on the idea of “symbolic constitutionalization”: Its being opposed to the traditional more static version of the symbolic value of the constitution of the past “symbolic constitutionalization” indicates a reaction to a social dynamic that might bring forward political claims based on civil rights. In a way, this phenomenon is acknowledged by the constitution though it is not actively fueled by a concretization of civil rights as Marcelo Neves mentions. The “symbolic constitutionalization” therefore is an ambivalent phenomenon, and at the very least it differs from the more static ideas about the symbolic value of the constitution of the past. Marcelo’s rather pessimistic outlook in both “Symbolische Konstitutionalisierung” and “Verfassung und Positivität” is later, in his book on “Transconstitutionalism”, superseded by a less gloomy perspective on a constitutional dynamic that tends to a higher degree of constitutional commitment and thus to overcome the missing practice of concretization of civil rights. Why should this be possible? The answer lies in a reinterpretation of constitutionalism as a dynamic legal practice that transcends the arena of the state and the elites that are aggregated in a closed realm of groups and organizations that form the infrastructure of the State. This evolution expands over different layers and networks of

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interrelationships that make up the new fractured order. It finds its repercussion both within the society of the nation state and beyond. Increasingly, the rise of practical norms the transnational cooperation among different types of private actors such as the new stateless global lex mercatoria, laws of sports, the self-regulation of the internet, and international standard setting by private actors (such as accounting rules) whose needs cannot be satisfied by international private law alone, has provoked the creation of new forms of arbitration beyond state-based courts. This includes a challenge to the territoriality of law and finally of constitutions generally. How about constitutional law in the domain of transnational legal cooperation? The increasing dynamic in both the “global north” and the “global south” shatters both the institutional arrangements of constitutional non-action as in the regimes of “symbolic constitutionalism” and the institutions of the traditional group-based pluralism of the social state that had been established after the Second World War in the global north and which had been preceded by the “New Deal” in the USA. The state has taken a more active role in regulating the economy and in social democratic policies of redistribution. The latter development obviously had an impact on the interpretation of civil rights: In my view, “balancing”7 is the approach to civil rights under the paradigm of the “society of organizations”. A structured conceptual interrelationship between rights and the emerging knowledge bases has to be constructed. “Balancing” cannot just be reduced to a method or argument that is more fine-tuned to “reality”, but “reality” strikes back in a hybrid form and imposes constraints on the normative methods of “argumentation”: Reality has become a moving target, i.e. the constitution empowers individuals and organization to change reality and develop social norms and patterns of behaviour that take on a legal value of their own because society is transformed by legal operations, and this evolution has a legal impact on the law and also on constitutions. This means that the approach that is presented here is not just due to a sociological observation of law from the outside but wants the judge to make use of the normative value of practical experience that has been generated from the “enactment” of civil rights—through the action of the subjects of these rights. Facticity and Normativity are entangled.8 Gunther Teubner has developed a somewhat different conception of “societal constitutional constitutionalism and globalization”9 that intends to overcome the hitherto existing “state-and-politics-centricity” of traditional constitutionalism.10 His approach attributes a “pouvoir constituant” also to societal “regimes” that are able to generate a reflective potential to observe and self-regulate their internal order as an autonomous legal constitution, a “constitutional fragment”. I cannot dwell on the intricacies of this approach in detail. However, the idea of attributing constitutional

7

Cf. for a critique see the contributions in: Campos R (2016) Crítica da ponderação: Método constitucional entre a dogmática jurídica e a teoria social, Saraiva, São Paulo. 8 Augsberg I (2020) Die Normalität der Normativität. Juristenzeitung 75:425–431. 9 This is the subtitle of his book: Teubner G (2013) Constitutional Fragments: Societal Constitutionalism and Globalization. Oxford University Press, Oxford. 10 Teubner, ibid., p. 3.

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value to autonomous societal norms is fascinating. I would not go so far as putting societal rules on a par with state-based positive constitutional law. Instead, I think one should in fact regard the collective trans-subjective effects emerging from interactions of legal subjects—organized and individual—as being persistent effects of the use of civil rights, e.g. freedom of opinion. The relationship between public and private, the practice of political comedy, literary controversies, docu-dramas, etc., create a sense of what is regarded as “normal”: The “normal” is not separated from the normative by a Chinese wall. The subjects participate in what Vincent Descombes has named the “pouvoir instituant” (from below as opposed to the “pouvoir constituant” from above), the “social fabric” for example of public opinion which is based on anonymous transsubjective processes. From those collective practices of interaction “on behalf” of a civil right emerge patterns of action or social norms11 that have a normative quality of their own, and as such have to be protected as part of the right to make use of the freedom of opinion. Reality is not an unstructured accumulation of “facts”. When deciding on a case that raises the question of the limits of freedom of opinion, the judge takes over the role of a moderator who tries to set up an experimental approach that leads to a hybrid decision: it is more a conflict of norms that is reconstructed and “reframed” within a perspective on the development of a “common policy” that does justice to private and public normativity.12 Could not the challenge of cooperation and coordination between spontaneous practice and organized social norms generated from the collective use of civil rights also be a case for “transconstitutionalism”? Here too, a normativity beyond the state comes into view. . . In “Entre Hidra e Hércules”, Marcelo has taken the view that principles cannot just be “optimized” instead of allowing for an “application” of norms to facts, but in principle he has accepted the difference between “rules” and “principles”. The far spread method of “balancing” rights as a balancing of interests just adapts the form of “right” to sets of situations instead of traditional types of actions taken by individuals that was the privileged mode of construction of the “realm of rights”. Under these preconditions, “balancing” itself is doomed to end up in arbitrary singular judgments13, even in spite of the claim to rationality of the protagonists of this method.

11

Descombes V (2004) Le Complément de sujet, Gallimard, NRF Essays, Paris, pp. 429ff.; cf. also Vesting T (2018) Staatstheorie: Ein Studienbuch, Beck C.H., Munich. 12 Cf. for the role of a “common patent policy” of international organizations in international private law concerning the protection of intellectual property see Calconnect, a community of developers, etc. of collaborative tools for communication: https://www.calconnect.org/search/node/common% 20patent%20policy. 13 Marcelo Neves, Entre Hidra e Hércules: Princípios e regras constitucionais, São Paulo, p. 194; Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale LJ (1987); Moshe Cohen-Eliya/Iddo Porat, American Balancing and German Proportionality I- CON 8 (2010), 263; cf. Karl-Heinz Ladeur, A Critique of Balancing and the Principle of Proportionality in Constitutional Law – A Case for Impersonal Rights?, 7 Transnational Legal Theory 7 (2016), 228.

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Balancing to a large extent broadens the perspective on individual rights by including established institutions of the “group state” into the cooperative process of interpreting and shaping civil rights, which is the core of “balancing”. For example, the press and its professional rules and practices of producing media are taken into consideration when it comes to define the freedom of the press or of broadcasting. Group rights of employers’ associations, trade unions, and churches are included into the range of subjects of rights. The reach of individual rights in the “global north” is expanded beyond the hitherto limited understanding as the guarantee of action potentials such as to include preconditions of action into the reach of rights. The reverse side of this evolution consists again in reinforcing the role of balancing, because if so many rights are expanded and new rights created there will also be more conflicts of rights which need “balancing”—that is: they strengthen the role of the state as the moderator. “Balancing” undertakes the “grouping” of situations in which a clash of interests emerges. In my view, “transconstitutionalism”14 is the outcome of a reaction to the limits of this type of balancing within the nation state, which of course was different in the states of the “global south”. “Balancing” is so popular because it is extremely flexible: it includes an epistemology that shapes the “Sachverhalt” (the structuring of the conflicting interests) in a perspective that “smoothens” interests in order to “prepare” them for balancing and coordination. What does not fit into this mode of “constructing” interests is set aside. The complexity of interests that can be subject to balancing is rather low: if the conflict is too complex, it no longer fits into the machinery of balancing. However, both within the nation state and beyond, a new complexity comes to the fore that does not lend itself to “balancing” in the established way which presupposes the state as the moderator. The interests of poor people, for example, do not fit well into the scheme of balancing. “Social rights” do not lend themselves easily to balancing because they tend to require a much more complex restructuring of public policies and of course the state budget. “Transconstitutionalism” is a product of the idea that new lines of hybrid, asymmetric constellations of rights and interests come to the fore that need a new construction of more complex “regimes” that open themselves towards processes of a “diagonal” interoperation between heterogeneous rules (e.g. a weak law on environmental protection in a country of the “global south” and the constitutional requirements of environmental protection in a state of the “global north”). In this example, why not expand the latter to the transnational relationship of a big firm from the “global north” to a firm or the state in the “global south” and question the limits of the territoriality of law if the environmental law is too weak or only badly implemented?15

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Oxford 2013. Ladeur KH, Viellechner L (2008) Die transnationale Expansion staatlicher Grundrechte. Zur Konstitutionalisierung globaler Privatrechtsregimes. Archiv des Völkerrechts 46 (1):42–73, at p. 46. 15

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The cooperation among constitutional courts is perhaps not so important because in spite of the praise it has met within the international discussion it seems to be more focused on basic new problems of public morality (abortion, rights of homosexuals, death penalty, etc.) but it does not really touch upon the vital problems of societies in the ongoing transformation process. With reference to both Brazil and South Africa, for example, one can observe that for different reasons a major part of the population is not included in the modern legal and economic societal systems and their formal operations. Populations live in informal family systems living on subsistence farming or halfway between those systems and the life of uneducated workers for big mainly agricultural companies. In South Africa, the creation of social rights has been appropriately identified as containing an element of “transformative constitutionalism” by Sandra Liebenberg.16 A traditional liberal constitution is most focused on the procedural guarantee of societal self-organization and the democratic structure of the state. Substance is political. “Transformative constitutionalism”, as opposed to the traditional liberal constitutionalism, means that the legislator is obliged in a way to steer the legal system and the other social systems—and above all, populations themselves—towards more inclusion in the basic achievements of the economic system. It is presupposed that this is a complex task; otherwise, there would be no need to impose a constitutional duty. At the same time, it is also meant to be an approach towards the inclusion of poor people into the legal system by giving them individual rights of access to basic goods such as food, water, and housing. Both visions of constitutionalization of the social order, the liberal and the social reformist one, have strong arguments in their favour: the first because it is selfexecuting through the internalization of the idea of a societal order that is based on the individual, the second because it promises more justice, an argument that is questioned however by the fact that courts that have to implement such rights are in a difficult position.17 The courts’ obligation to apply the constitution does include an element of creating new law, but mainly amounts to arguing on the basis of established opinions or at least calculable alternatives. The problem with judicial implementation of social rights consists in the fact that a meaningful implementation of social rights without or even against a pre-structured legislative order is extremely complex and expensive. Even if judges took bold action and if the legislator were to 16

Liebenberg S (2010) Socio-economic Rights: Adjudication Under a Transformative Constitution, Juta & Co, Cape Town; cf. the overview in Govindjee A (2013) Adjudication of Socio-Economic Rights by the Constitutional Court of South Africa: Walking the Tightrope between Activism and Deference? National Law School of India Review 25(1):62–80; cf. also Baxi U (2013) Preliminary Notes on Transformative Constitutionalism. In: Vilhena O et al. (eds.), Transformative Constitutionalism: Comparing the Apex Courts of Brazil, India and South Africa, Pulp, Pretoria, pp. 19–47 at p. 19; for a critique see Roux T (2013) A Brief Response to Professor Baxi, ibid., at p. 48; cf. also González-Jacóme J (2017) From Abusive Constitutionalism to a Multilayered Understanding of Constitutions: Lessons from Latin-America, I-Con 15(2):447–468. 17 Cf. the analysis in Ray B (2016) Engaging with Social Rights: Procedure, Participation, and Democracy in South Africa’s Second Wave, Cambridge University Press, Cambridge, at p. 103 et seq.

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cooperate, this can turn out to be a “pyrrhic” victory because it may lead to budgetary cuts to the detriment of other groups who are less active in the fight for their rights. An alternative has been proposed by Sandra Liebenberg18 that would consist of a conception of social rights as the procedural rights that accompany participation in the deliberation of what one might call a working plan. Such a plan could be of help for judicial control because it would provide the inevitable framework for the evaluation of highly complex economic questions. I would add a further argument. A critical reading of systems theory might include the idea that social rights could be paradoxical rights in their demand for self-limitation of the expansion of liberal experimentalism. Destruction of traditional, informally merged social relationships may turn out to be nothing but destruction and not the starting point for creative self-organization of a new order. Marcelo Neves’ new ideas about “transconstitutionalism” as a form of cooperation between legal orders beyond hierarchy are perhaps not so far away from the “transformative constitutionalism” that is meant to bring about a process of transformation of society.19 Constitutions can be read as including warning posts that indicate where the law ends and where we have to accept the necessity of coming back to traditional international private law analogies, such as the “conflict of norms” which cannot be solved by hierarchy. “Law as passion” is a good title for a book that is in a way a “Festschrift” for Marcelo Neves. We as lawyers all live in a time of a deep transformation of the legal system. We are travelling with Marcelo “between Hydra and Hercules”. A cool preservation of the law as it stands is impossible because it does not stand any longer. We hope that Marcelo will be with us, with his passion and—not to forget— his impressive tenacity when we write and rewrite our maps for a better understanding of the dynamic transformation of world society—in real time—which is a real challenge! Hamburg, Germany

18 19

Ray, ibidem, p. 248. Neves, loc. cit.

Karl-Heinz Ladeur

Preface

Inspired by the studies of Professor Marcelo Neves in the fields of sociology of law and constitutional theory, colleagues and young scholars come together in this collective edition to demonstrate how their research has been influenced by non-European and postcolonial approaches. The essays assembled in the following pages cover fields as diverse as constitutional theory, international law, systems theory, and sociology of constitutions. They speak to the wide scope of the important contributions made by Professor Marcelo Neves, who has recently been awarded the prestigious Humboldt Research Prize (2019). Offering a multidisciplinary approach, the chapters consolidate discussions set off during the 2018 international seminar “Between Theory and Society: Law as Passion” organized by Alexandre Douglas Zaidan de Carvalho (Catholic University of Salvador, University of Barcelona), Maurício Palma (University of Brasilia), and Nathally Mancilla Órdenes (University of Brasilia, University of Vienna). The 3-day seminar was hosted by the Faculty of Law of the University of Brasilia and benefited from the financial support of Bento Muniz Advogados, MBSC Advogados, V-lex, and alumni of UnB. This edition is organized into four parts: The first part, “Law, State, and Global Crisis”, covers topics related to the modern constitutional state, the crisis of global capitalism, and the global rule of law. The second, “Symbolic Constitutionalization”, analyses challenges to constitutionalism in the “Peripheral Modernity”. The authors in the third part examine how the concept of “Transconstitutionalism” sheds light on contemporary debates concerning global public law. Finally, the last part of the book, “Systems Theory and Public Law”, deals with issues of systems theory in the fields of legal history and administrative law.

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Updated by recent developments within law and global society, the book offers a relevant discussion of constitutionalism as it stands in the here and now, addressing legal questions in a timely and original way. Lisbon, Portugal Pernambuco, Brazil Brasília (DF), Brazil

Miguel Nogueira de Brito Carina Calabria Fábio Portela L. Almeida

Contents

Part I

Law, State and Global Crisis

The Capitalist State in the Crisis of Global Capitalism . . . . . . . . . . . . . . Hauke Brunkhorst Towards a Global Rule of Law: Global Law in the Context of Law and Development Studies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Kimmo Nuotio Part II

3

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Symbolic Constitutionalization

Symbolic Constitutionalization and Constitutional Debate in Chile . . . . Darío Rodríguez

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A (More) Cosmopolitan Sociology of Constitutions: Marcelo Neves’ Theory of Symbolic Constitutionalization . . . . . . . . . . . . . . . . . . . . . . . . . Pablo Holmes and Maria Eduarda Dantas

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Constitutionalism Seen from the Periphery: A Perspective About the Contribution of Marcelo Neves . . . . . . . . . . . . . . . . . . . . . . . Alexandre Douglas Zaidan de Carvalho

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Democratic Legitimation Without Inclusion: An Evolutionary Approach to Brazilian Societal Crisis . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Fábio Portela L. Almeida Part III

Transconstitutionalism

Trans-anticonstitutionalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Maurício Palma Between Transconstitutionalism and Technical Practices: Normative Challenges for Brazilian Legal Order . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 Ramon Negócio xv

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Contents

Between Systemic and Agency Normativity: The Constitutionalism of Marcelo Neves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 Miguel Nogueira de Brito Part IV

Systems Theory and Public Law

A Few Notes on the Uses of Historiography in Sociology: The Case of World Society and the Necessity of Historical Reconstruction . . . . . . 205 Nathaly Mancilla Órdenes and Gustavo Zatelli The Intersystemic Rationality of Administrative Law: Reflexiveness, Structural Couplings and Environmental Observation . . . 221 Luís Heleno Terrinha

Part I

Law, State and Global Crisis

The Capitalist State in the Crisis of Global Capitalism Hauke Brunkhorst

Contents 1 Crisis of Normative Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Capitalist State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Capitalism with Socialist Characteristics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Two Problems: “Horizontal” Inequalities and Secular Stagnation . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Political Victory of the Right and Future Perspectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4 11 14 15 17 21

Abstract It is a truism that modern capitalism at once is the most productive and the most destructive economic system ever. To stay alive, capitalism needs as much state-intervention as socialism. The capitalist state can fulfil this function only as a self-interested agency that has constitutive and corrective functions also for non-capitalist spheres of life. Moreover, in a long course of social struggles, revolutions and civil wars, the capitalist state was forced to become democratic and to integrate two incompatible principles: capitalism and democracy. The incompatibility was moderated after World War II by democracy with socialist characteristics. However, the democratic and social state has suffered from two problems: secular stagnation and horizontal inequality. Democracy with socialist characteristics was white, male, and heterosexual. Fighting horizontal inequality, the New Left triggered one of the most consequential cultural revolutions of world history. However, at the same time aggressive neoliberalism, politically and theoretically well prepared, took its chance and changed the direction of the evolution against democracy and socialism. The last 40 years witnessed a dramatic increase of social class differences and a transnationally enhanced threefold U-turn of constitutionalism from public power to private property, from public law to private law, and from legal formalism to legal dynamism. The outcome was a vicious circle of injustice: the permanent devaluation of political and personal rights through social injustice that blocks all possibilities of democratic change of social and political injustice. The world

H. Brunkhorst (*) Europa-Universität Flensburg, Flensburg, Germany e-mail: brunkhorst@uni-flensburg.de © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Nogueira de Brito et al. (eds.), Law as Passion, https://doi.org/10.1007/978-3-030-63501-5_1

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economic crisis of 2008 reinforced the circular downfall, consumed the scare resources of solidarity, and caused a legitimation crisis of normative orders. Technocratic incrementalism apparently comes to an end, but what comes then? In the first part on crisis of normative orders (Sect. 1) and the capitalist state (Sect. 2), I try to outline a kind of theoretical framework. In the following part it is applied to the two historical attempts of coping with modern capitalism: the social welfare state (Sect. 3) and its crisis (Sect. 4), and the neoliberal state (Sect. 5).

1 Crisis of Normative Orders Adam Smith, Hegel and many of their contemporaries have already anticipated what Herbert Marcuse later called the “fatal union of productivity and destruction, liberty and repression” (Marcuse 1966, p. xii) that is due to the functional differentiation of a self-referentially closed social system of needs.1 But Marx was the first, who did not only invent a simple formalization for the self-referential closure of the capitalist system (M-C-M’; M-M’ ¼ “money which begets money”) but has constructed a theory that explains the causal connection between unprecedented prosperity and self-generated crisis and catastrophe (Marx 1965, p. 105 ff.). His thesis in one sentence is: The “violent destruction of capital” is “not by relations external to it, but rather (. . .) a condition of its self-preservation”, and he called it an “advice”, a

1 Modern capitalism has been described as a functional system from Smith to Hayek, who combines liberal economic theory with advanced system theory (von Hayek 2003, pp. 37ff.) Already in the Deutsche Ideologie the authors use the term social systems, but usually with respect to theories or theoretical models (Marx and Engels 1971, p. 364). However, Marx’ critique of political economy presupposes consistently that modern capitalism emerges as an autopoietic system, to which he also refers as “totality”, “structure” or “basis” (Marx 1953, p. 8f). These terms all refer to a circular process (totality) of reciprocal relations between its moments, especially basis and superstructure. The system produces or—as Marx often says in the language of German Idealism—“posits” by “positing” its own “presuppositions” through the subordination of “all elements of society to itself, or in creating out of it the organs which it still lacks” (Marx 1953, p. 189; English translation quoted from: https://www.marxists.org/archive/marx/works/download/Marx_Grundrisse.pdf). As in the works of Smith, Hayek and Luhmann capitalism is a “system of production which has grown up spontaneously and continues to grow behind the backs of the producers” (Marx 1965, pp. 507ff.; the internet access is: https://www.marxists.org/archive/marx/works/download/pdf/Capital-Volume-I. pdf). The “capitalist system” (Marx 1965, pp. 320, 360, 451, 507) is steered by the self-referential medium of “money” (money buys money) that closes the “system of exchange” which therefore “necessarily” “appears” “as an “independent system”. From the point of view of Marx this is a “necessary illusion”, and necessary is an illusion (Schein) which is a constitutive part of the social reality (Marx, Grundrisse, 409). Necessary illusions exist on the semantic level as systemic closure through binary codes, but these systems are open to the environment on the pragmatic level. Systems autonomy is non-relativizable independence based on non-relativizable dependence (Jessop 1990, p. 102).

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kind of negative Kantian Geschichtszeichen (sign of history) that the system can and should be changed.2 The advice is a rational conclusion from the diagnosis of a structural crisis that cannot be solved without changing the basic structure of the system.3 Different from contemporary systems theory that explains everything with the politically and normatively neutralized differentiation of system and environment, the critique of political economy reconstructs the specific societal and historical conditions of that distinction, to which Marx refers as the “universal” “metabolism between man and Nature”.4 From this critical point of view the universal difference of system and environment appears as a naturalization of historical and societal relations of domination. These relations of domination are established in three steps of evolutionary differentiation: (1) Marx explains this differentiation of the capitalist system in Aristotelian categories, which fit neatly to Habermas’ distinction between system and life-world.5 In a long historical process from ancient slave-holder societies to modern bourgeois society of the nineteenth century, the exchange-value oriented capitalist system (M-C-M’; M-M’) is detached from the “simple circulation” (C-MC), which is oriented to use-value. Marx calls the use-value with Aristotle the “true wealth” of an economy (Oeconomic, or oikos-economy). The simple circulation of money-mediated use-values (stage II) that followed the direct exchange of use-values (stage I: C-C) in acephalous societies, still is completely embedded in a “totality of (. . .) social relations” of “life” and “good life” that is the life-world of an urban community of citizens.6 Simple circulation strictly “limits” the “possession of money”.7 However, in the old Athenian Empire, the 2 The entire quote reads: “The violent destruction of capital not by relations external to it, but rather as a condition of its self- preservation, is the most striking form in which advice is given it to be gone and to give room to a higher state of social production.” (Marx 1953, p. 676). However, Marx does not solve the problem how to integrate historical necessity (laws of nature), advice and practical change (realm of freedom). McCarthy is right: “Marx combined the theoretically grasped necessity of developmental processes, which he naturalistically appropriated from Hegel’s contemplative view of history, with a practical orientation toward history more reminiscent of Kant. But he failed coherently to integrate the two perspectives – that is, the ‘iron laws’ of his developmental perspective with the political agency of his practical perspective.” (McCarthy 2015: quoted from the manuscript of the English original). Therefore, Western Marxism since Georg Lukacs History and Class Consciousness turned to praxis and emphasized the entanglement of contingency, action and rational freedom in the history and evolution of societal formations. 3 For the meaning of “rational argument” see Toulmin (1975). 4 Marx (1965), pp. 31, 330; Marx (1968), p. 588, translation modified. Online Version: Marxists.org 1999, https://www.marxists.org/archive/marx/works/1894-c3/. 5 Habermas (1981). 6 With references to Aristotle’s Republic: Marx (1965), pp. 44, 104ff, quotes on 105, 107, 109, translation modified according to Marx (1969), pp. 81, 94ff, 97f note 6. On the differentiation of system and life-world in Marx Capital see: Brunkhorst (1983), pp. 22–57. 7 Marx (1965), pp. 107, 109, translation modified according to Marx (1969), pp. 97ff.

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Oeconomic was already mediated and jeopardized by exchange-value oriented circulation (M-C-M) that was due to the long-distance trade of the imperial city (stage III). Aristotle calls it “Chrematistic” or “chrematistic circulation” and warns against it because it makes the unlimited possession of money possible.8 To keep this dangerous potential under control, it needed strong normative constraints on the commodification of money, labor and land (Polany’s three markets) legitimated by hegemonic and legally stabilized cosmic and religions worldviews all over Eurasia. To get rid of such strong constraints, it needed, inter alia, the accumulation of commercial capital and technological innovations (steam-engine), a disciplinary revolution9 and revolutionary legal inventions such as private property, subjective rights, the doctrine of absolute contractual liability,10 a new class-justice in private and penalty law such as the 1671 Game Act and the 1723 Black Act,11 and especially the accumulation and organization of political power and the violent “expropriation” of the “agricultural producers” and “artisans” from the “dead substance” that was their “individual private property” in means of production.12 All that culminated in the transformation of bounded and property-owning labor into the “free laboring poor”—a category from English legislation about 1800.13 The formation of the capitalist system would never have been possible without strong and comprehensive political organization and agency (see next chapter ‘Towards a Global Rule of Law: Global Law in the Context of Law and Development Studies’), and the

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Marx (1965), pp. 104ff, 109. See Gorski (2003). 10 The crucial precedent in England was Paradine v. Jane (King’s Bench 1647), see Berman (2006), p. 281. Marx always considered the deep changes in public and private law by the English and French Revolutions of 1688 and 1789 as necessary enabling conditions of modern capitalism, impressively represented in the following passage from an article in the Neue Rheinische Zeitung from Dec. 15, 1848. Every difference mentioned in the following quote is a legal and constitutional difference: “The revolutions of 1648 and 1789 were not English and French revolutions, they were revolutions in the European fashion. They did not represent the victory of a particular social class over the old political system; they proclaimed the political system of the new European society. The bourgeoisie was victorious in these revolutions, but the victory of the bourgeoisie was at that time the victory of a new social order, the victory of bourgeois ownership over feudal ownership, of nationality over provincialism, of competition over the guild, of partitioning [of the land] over primogeniture, of the rule of the landowner over the domination of the owner by the land, of enlightenment over superstition, of the family over the family name, of industry over heroic idleness, of bourgeois law over medieval privileges.” (Marx 1982, pp. 107f, quoted from: https:// www.marxists.org/archive/marx/works/1848/12/15.htm). 11 The Game Act reserved the right to hunt exclusively to the owners of large freeholds, and the Black Act enforced it by imposing a death sentence for the game of poaching and for a host of other offences, which formerly had been the customary rights of peasants and poor people, see Berman (2006), pp. 315ff; Brunkhorst (2014), pp. 188ff. On the blood and property legislation see Marx (1965), pp. 534ff; and the famous early news-paper piece: Marx (1956), pp. 109ff. 12 Marx (1965), pp. 136, 508, 536, 542. Marx distinguishes capitalist private property (sans phrase) from pre-capitalist individual private property and post-capitalist (socialist) individual property. 13 Marx (1965), p. 538; on the legal origin of the category, p. 538 note 13. 9

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Table 1 Formations of capitalist domination Differentiation System/lifeworld System/horizontal periphery System/ environment

Domination Unpolitical domination Political domination Domination of nature

Crisis Legitimization crisis

Destruction Social basis of free labor

Crisis of moving bodies (migration) Ecological crisis

Pre-capitalist basis of forced (illegal) labor Natural basis (soil)

concerted raids of holders of state-power and property-owning classes during the seventeenth and eighteenth centuries.14 Once system and life-world were separated, the colonization of the laborers life world begins. It is performed as unpolitical domination of the working class during the process of production, which “sucked out” living labor and “incorporated” it into “dead labor” that has become capital (exploitation).15 The colonization is stabilized through systemic imperatives of the job market and the (sometimes moderated, sometimes aggravated) legal and disciplinary measures just mentioned. However, the capitalist form of self-preservation of the economic system causes the violent destruction of its own social basis by “subverting” the one of the “original sources of all wealth”, the living labor-force. Capital is “crushing out the workman’s individual vitality, freedom and independence.”16 This means in the terminology of Durkheim and Habermas that the limited resources of solidarity are eroding, finally causing a crisis of legitimization at the border that separates system and life-world, and a real crisis (and not just problems) of legitimization is a potentially revolutionary crisis—for the better or for the worth (see below Table 1).17 (2) The second distinction that is prior to that of system and environment is that between system and periphery (such as enterprise/household, city/slum, city/ area, homeland/colony). “Colonization” of the life-world is not just a metaphor, but closely related to the colonization of the horizontal periphery by the global centers of modern capitalism, which is performed through political

14

Marx (1965), p. 534. Marx (1965), pp. 130ff, 217, 425f. 16 Marx (1965), p. 330. 17 See Habermas (1971). The periodical crisis of the economy Marx critique of political economy is (in the typology of crises of Habermas book on late capitalism) a structural crisis of rationality of the capitalist system, and Keynes economic theory was designed to compensate the technical or functional rationality deficit of the capitalist system. For Marx as for Keynes the rationality crisis of modern capitalism, was due to the real-abstraction of the system from all its social (and sociological) conditions. Habermas uses the concept of rationality crisis only for the administrative state but because it is caused by self-referential-closure of a functional system it is applicable to all the other functional systems such as the economy, the systems of traffic, Sport, military power, positive law etc. 15

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domination.18 It is not mediated through the contract between free labor and capital but consists in the “brute force” of “the colonial system.”19 Therefore, modern capitalism “comes into the world (. . .) dripping from head to foot, from every pore with blood and dirt.”20 In his 18th Brumaire he describes it as “a shamelessly simple rule by the sword and the monk’s cowl.”21 The paradigmatic crisis of colonial/post-colonial domination is the global crisis of migration at the border that separates center and periphery, which is a crisis of moving bodies.22 Political domination of the global periphery violently destroys its own precapitalist basis of forced living labor that is available by bypassing the (usually defective) legal system of labor-contracts (e.g. African land-grabbing, Brazilian farmhands, Indian sweat-shirt production, but also in the “special relationships of domination” [besondere Gewaltverhältnisse] of unpaid reproduction work.23 In a similar way as Kant, Marx is far away from justifying the colonial crimes against humanity, but considers them as an unavoidable evolutionary fact of the bloody, violent and criminal “infancy of modern industry.”24 Writing in the 1860s, Marx also did not realize that the atrocities of primitive accumulation were not only the “midwife” but the constant companions of modern capitalism, and that the violent destruction of capital’s own colonial and post-colonial periphery has become a permanent condition its self-preservation.25 Therefore, both forms of domination, unpolitical class-rule in the sphere of production, and direct political domination in the colonial and post-colonial world are equally constitutive for modern capitalism (see below Table 1).26

For the notion of “modern capitalism” see Weber (1920), p. 4ff. Marx (1965), p. 534. 20 Marx (1965), p. 534ff. 21 Marx (1985), p. 101; English quoted from: https://www.marxists.org/archive/marx/works/ download/pdf/18th-Brumaire.pdf. 22 In Luhmann’s theory of power “moving bodies” is the “symbiotic mechanism” of use of violence. 23 Strictly restricted and bound to the law by the German Constitutional Court in 1972 (BVerfG 33/1). 24 Marx (1965), pp. 534, 537. Marx never bridged the gap between condemnation and celebration of that kind of progress, see the in many aspects pathbreaking McCarthy (2015). 25 For an impressive rehabilitation of the dependency theory see Lessenich (2016). The first Marxist who recognized that clearly at the high tide of colonial imperialism was Luxemburg, who corrected Marx’ theory of accumulation accordingly: Luxemburg (1913), pp. 279ff (available online on: http://www.mlwerke.de/lu/lu05/lu05_005.htm). Luxemburg’s criticism was confirmed by many further studies such as those of Lenin, Hilferding, Arendt, Baran, Sweezy, Hobsbawm, Mommsen etc. On Kant, Marx and the contamination of the entire idea of developmental progress with racist implications see McCarthy (2015). 26 Marx ignored the co-evolution and kept focused on the vertical, social inequalities between capital and labor, which are potentially revolutionary, and neglected the horizontal inequalities not only between homelands and colonies, “Christian races” and people of color but also between different genders, nations, regions, religions etc., which overlap with vertical social differences, and thus, at the same time are motivating and blocking social movements of emancipation, making 18 19

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(3) Not only the differentiations of the capitalist system from the life-world and the horizontal periphery are inseparable from modern formations of domination and agencies of class struggle, conflicts and fights over domination and emancipation. Domination and class-struggle also shape and constitute the differentiation of system and environment which is not just—as in the theories of Luhmann and Hayek—the result of a cosmic evolution of spontaneous order but due to the specific historical conditions of capital that can preserve itself only through the violent destruction of its own natural basis—in particular of the “moving”, “living, individualizing forces of nature” by “subverting” the other of the “original sources of all wealth: the soil”27 Capital, Marx writes, “creates conditions, which cause an irreparable break” in the “metabolic interaction between man and the earth.”28 The critical situations at the border that separates system and environment culminate in the ecological crisis that became global latest in the second half of the twentieth century, and covers not only, as Luhmann and Neves rightly emphasized, the “destruction” of society’s external nature but also the “neglect” of the internal nature of psychic systems,29 and the “exclusion” of “superfluous” human bodies from access to all social systems: “Don’t touch them they could be infected!”30 The homo sacer (see Table 1). However, the three environmental miseries of destruction, neglect and exclusion are part and parcel of a continuum of domination that includes relations of domination and emancipation not only between social groups and regional populations but (arguably) also “between human beings and the non-human world”, as recently Sharon Krause has argued in a brilliant paper on Environmental Domination and the Ecology of Emancipation.31 Not only political domination but also domination of

revolutions and successful reforms less likely (see Nachtwey 2016; Stewart and Langer 2006, https://www.ifw-kiel.de/konfer/2006/preg/stewart_langer.pdf. An early forerunner is: Offe 1969). 27 Marx and Engels (1990), p. 135; Marx (1965), p. 330. 28 Marx (1968), p. 588, translation modified. Online Version: Marxists.org 1999, https://www. marxists.org/archive/marx/works/1894-c3/. 29 In the typology of Habermas book on legitimation problems critical situations caused by neglect are related to the motivation crisis. 30 Luhmann (1997b), p. 75; idem (1997a), pp. 630f; Luhmann (1974), pp. 107–131; similar but over-generalized: Agamben (1998). Luhmann’s theory of exclusion goes back to personal experience. On a visit to Recife, Marcelo Neves showed him the Favelas. The superfluous populations, drifting to the colonies, were already observed by Marx (1965), p. 405, later generalized by Hannah Arendt’s theory of imperialism. In his seminal work on peripheral modernity Neves has shown that exclusion destroys the constitutional system (and the “structural coupling” of politics and law) of modern societies: Neves (1992); Neves (1999), pp. 557–577. 31 Krause (2017), p. 2 (on file with the author). Krause’s paper is also interesting because it backs Horkheimer and Adornos speculative thesis that Naturbeherrschung (domination of nature) is the origin of all domination with the post-speculative conceptual means of political science and analytical political philosophy.

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nature (Naturbeherrschung) is equally constitutive for modern capitalism as unpolitical domination in the sphere of production.32 Now it becomes evident, that all border-regions or boundaries between the capitalist system and (1) the social life-world, (2) the horizontal periphery and (3) the environment are normative orders. The boundaries are legally institutionalized, morally contested, and mediated through the social group and class interests of the agencies of the three divided social spheres.33 Marx understood the critical situations caused by the destruction of capital’s own social, peripheral and natural basis as a constantly critical situation of the entire normative infrastructure of modern society. The fatal destruction of capital by its self-preservation undermines the fundamental normative advances of liberalism, which Durkheim has designated as the egalitarian “cult of the individual” that is beyond instrumentalism and private property.34 If we give Capital a new reading, a new “lire le capital” supported by search engines, we immediately can observe that Adorno, not Althusser was right.35 Throughout the book, including the equally important footnotes, on nearly every page the cult of the individual is celebrated negatively: In the capitalist system individualism is an “error”,36 and, complementary, capitalism is a “form of society” (Gesellschaftsformation) where the “behaviour of men in the social process of production is purely atomic.”37 The capitalist mode of production is a realabstraction from living labor’s “special qualities”, “differences” and “inequalities”.38 Therefore, egalitarian individualism (or socialism) is the “negation of negation”39 of individual vitality, freedom, and independence, of individual private property,40 of the living, individualizing forces of nature,41—caused by the reductive,42 equalizing43 and de-differentiating44 power of the “principle of exchange” (Adorno).

32

However, different from the Dialectic of Enlightenment I do not consider Naturbeherrschung as Urgeschichte des Subkjects but as co-original and co-evolutionary with political and unpolitical domination. 33 The natural environment is moment of social interaction e.g. between fishermen, fish swarms and trawls, see Bruno Latour; in the same direction already Horkheimer and Adorno. 34 Durkheim (1988), p. 227. 35 A similar project but inquiring more the aesthetic than—as in my case—the normative side of Marx, has been presented by Balke (2017). 36 Marx (1965), p. 227. 37 Marx (1965), p. 64. 38 Marx (1965), pp. 32, 45, 48. 39 Marx (1965), p. 542. 40 Marx (1965), pp. 330, 542. 41 Marx and Engels (1990), p. 135. 42 Marx (1965), pp. 32, 45, 57, 138, 147f, 284 etc. 43 Marx (1965), pp. 40, 48, 284, 379 etc. 44 Marx (1965), pp. 32, 40, 42f, 45, 62 etc.

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The result of equalization and de-differentiation is always the same: Not at all an egalitarian society but the opposite, a “deeply unjust and clearly unsustainable” mode of production where the welfare of the few depends on the bad-fare of the many, and the welfare of everybody in the Global Northwest depends on the bad-fare of everybody in the Global South (with exception of the 1%).45 Again an overlap of contradicting interests. As Lenin already has observed, there are first-class losers (in the centers of capitalism) who are second class winners (in relation to the colonial periphery).46

2 Capitalist State Marx still was a liberal who believed that the capitalist system is internally bound to crisis but can get out of it ever again through productive new inventions, concentration of capital etc., until it comes to a final and revolutionary crisis.47 Not so much different from Friedrich Hayek, Marx believed in the historical driving force of the spontaneous order of the economy.48 Not so different from Rawls, Marx envisioned socialism as a liberal utopia of a self-organized combine of workers associations (“Verein freier Menschen”).49 Planned economy was an idea of the bolshevists, who had hijacked it from the czars, and from German war-time economy.50 In Capital Marx wrote: “In ancient civilized countries [altzivilisierten Ländern] the laborer, though free, is by a law of Nature [naturgesetzlich] dependent on capitalists; in colonies this dependence must be created by artificial means.”51 But the first part of this sentence is dead wrong. Also in the ancient civilized country of

45

McCarthy (2015), p. 373; Lessenich (2016), pp. 43, 192. Lenin (1962). 47 Schumpeter later followed this track. Marx lived in a time of revolutions, he had experienced at first hand three of them, and a revolutionary civil war. From his historical point of view reform and revolution were a continuum, and revolutions were on the political agenda (Brunkhorst 2007; Brunkhorst 2017, pp. 21–34). 48 As Hayek, Marx speaks of the “spontaneously developed differences” that lead to the evolution of economic circulation (Marx 1965, p. 244), but different from Hayek he considers the modern system of capitalist market not as the final realization of evolutionary spontaneity in the realization of freedom but as its total blockade, and the realistic threat of its final destruction. 49 Rightly criticized as liberal idealism by Habermas (1996), pp. 372, 552 note 56. 50 Marx had nothing in favor of a politically planned economy, an idea introduced to Marxism by the, see Berman (1963). 51 Marx (1965), p. 545. Nevertheless, also with respect to socialism and the workers movement, Marx preferred the trade unions and considered the political party secondary. For socialism he preferred cooperative worker associations and (after 1871) council democracy. Marx had some hope in the democratization of the parliamentary system and celebrated and admired Lincoln as the post-idealistic “revolutionary of the ordinary game of universal suffrage”, who’s “most redoubtable decrees – which will always remain remarkable historical documents – (. . .) all look like (. . .) routine subpoenas sent by a lawyer to the lawyer of the opposing party, legal chicaneries, involved, 46

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modern England about 1865 the laborer, the capitalist, and the entire system of markets must be created by artificial means.52 So called free market societies depend as much (if not much more) on planned deployment of political intervention as bureaucratic socialist economies or Keynesian welfare states. Nevertheless, Marx (as Hayek) has recognized that the state and its artificial actions have an important role for the creation and stabilization of modern capitalism, but both have underestimated it totally. The dependence of the free laborer on capitalists (job-markets) does only explain how the semantic closure of the capitalist system by the code of money (to have it or not have it) generates the “necessary” (therefore socially real) “illusion” of economically embedded (see below) political agency but the pragmatic existence of the economic system still depends on “artificial means” of disembedded political agency. The most actual evidence that the capitalist system cannot survive a day without an actively intervening and controlling state is the tragic failure of the transformation from socialism to capitalism in the early Jelzin era. In a couple of months, the monopolized state-economy was privatized by a sinister coalition of the old nomenclature and the new entrepreneur mafia. After that, there were no modern institutions left to enable collective action beyond the level of family and kinship. The selfconfident intelligenzia, the huge class of highly professionalized jurists, the privileged classes of industrial workers and engineers of the former Soviet Union, they all lost either job or income over night, and any perspective to act collectively.53 All that was left from the state, was the secret police. But secret police without a state is nothing else than a further powerful branch of the mafia. Consequently, one of their bosses became the next president of the republic.54 Systematically, the capitalist state, (1) must not only provide all special achievements, which the market cannot provide appropriately (infrastructure).55 The state also must provide constitutive achievements, which are essential presuppositions for the maintenance of integration of the entire societal system of modern capitalism (law, police, taxes). So far Marx, Engels and Hayek agree. Whereas in German language Hayek is referring to the state as marktwirtschaftliche Gesamtordnung (state guarantee for the order of the market system), Engels refers to it as ideeller Gesamtkapitalist (“ideal personification of the total national capital”).56 On this level state activities reasonably can be described as

hidebound actiones juris.” And Marx adds, that his “triumph” is completely due to the representative “political” and post-aristocratic “social organization” that enables “ordinary people of good will” to “accomplish feats which only heroes could accomplish in the old world!” (Marx 1966, p. 186f, English translation quoted from: Marx 1984, p. 249f). 52 Offe (2015), available at https://www.opendemocracy.net/can-europe-make-it/europe-entrappedinterview-with-claus-offe; Offe (2016). 53 On the class of academically trained jurists see Berman (1963). 54 See Derluguian (2013), pp. 99–129, 120fd. 55 “Wegebau” in Marx Grundrisse. 56 von Hayek (2003), p. 50; Engels (2003).

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a superstructure, because they remain, as Hayek says, “embedded in the spontaneous order of markets.”57 However, (2) the state agencies can only do their job as a Hayekian “Gesamtordnung” or an Engelsian “Gesamtkapitalist” because they already act in the states own interest of maintaining and accumulating bureaucratic power for powers sake, which is not always in the short- or long-term interest of the capitalist class.58 This is the first internal contradiction or tension between the self-interest of the capitalist state and the system of capitalist markets. It led 1851 to the dictatorship of Louis Bonaparte. Marx brilliantly has shown in his 18s Brumaire that this was neither determined by history nor in the class-interest of the bourgeoisie.59 But he developed his observation of the systemic autonomy of the state never further.60 (3) To cope with a constantly growing number of serious problems, selfsubverting negative externalities and the follow-up problems of economic, national, international and ecological crises, the capitalist state needs the services and achievements of other social systems and non-capitalist social agencies. Therefore, it must institutionalize and finance ever more highly specialized systems for science, education, traffic, international relations, health etc. and provide deficiency guarantees for all of them. But again, these systems are never completely in conformity with markets and private property, often the opposite is true.61 This implies a second category of contradictions and conflicts within the statist organizations and between state and capital. Moreover, (4) the evolution of state-power is due to a co-evolution of national and international, transnational and global structures of statehood (Staatlichkeit) that goes far back in history.62 Modern capitalism and modern states both are depending on statist compounds of transnational law and power, which are corrective and constitutive for their maintenance. However, international law and politics also have developed reflexive interests of their own, which are a further source of tensions and conflicts between international organizations, national state and transnational capital.63 Finally, (5) after nearly two hundred years of struggle for democratic inclusion, the capitalist state became democratic.64 The result of democratic progress was that the authority of the state as well as the relations of production and ownership came under growing pressure of democratic legitimization. The state now must cope with

57

von Hayek (2003), p. 49. Hayek hijacked the embedment-thesis from Karl Polany (without quoting him) and turned it the other way around. 58 Offe (1975), p. 13. 59 Marx (1985 [1852]), pp. 178f, 196f. 60 The planned volume IV of Capital on state and export trade remained unwritten. 61 Luhmann (1992). 62 On the co-evolution thesis see: Albert et al. (2012); Albert (2016); Thornhill (2011, 2016); Brunkhorst (2014), pp. 130ff, 210ff, 279ff, 415ff; Brunkhorst (2011), pp. 36–40. 63 With many examples: Brunkhorst (2014), pp. 390ff, 396ff 64 Thornhill (2011, 2016); see Brunkhorst (2014), pp. 294ff; 320ff, 415ff, 431ff.

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the “existing contradiction” (Hegel) of capitalism and democracy within its own constitutional framework.65 This is the most important contradiction that normatively (as constitutional norm) prescribes and enables an egalitarian, deliberative and dialogical solution of this and all the other contradictions and structural conflicts of state and society (Allzuständigkeit or comprehensive competence of the democratic legislator). The first working solution of the existing contradiction between capitalism and democracy was the “democratic and social” state, as it is called in German Basic Law Art. 20 (I).

3 Capitalism with Socialist Characteristics In the aftermath of the global economic crisis of 1929 and World War II the national state became a democratic social welfare state. It was the first successful realization of a politically and socially inclusive democratic regime with a mixed economy that was a hybrid. I call it capitalism with socialist characteristics. Art. 14 of German Basic Law codified private property, but Art. 15 allowed explicitly the “socialization” of “land, natural resources and the means of production”, whereas Arts. 20 (I) and 28 (I) made the “democratic and social (. . .) republic” a binding goal of the state (Staatsziel), and the (liberal or socialist) way of its realization due to democratic will formation alone.66 The re-interpretation of the US-Constitution since mid of the 1930th had the same revolutionary result.67 The meanings of the due process clause and the commerce clause of the constitution were reversed completely. They turned from legal means to stabilize capitalist freedom into an instrument to save the peoples freedom from capitalism, and so did the settled case-law of the Supreme Court (beginning with West Coast Hotel v. Parrish 1937). The relations of production were partly socialized and regulated in accordance with democratically determined public interests. Public law enabled democratic class-struggle.68 The centerpiece of Marxist political economy, the Law of value (“Wertgesetz”) was suspended by an enormous increase of public investments in shaping, disciplining, surveilling and repairing manpower, especially through the more or less socialist systems of care, education and medicine. The one and only form of private property that was established by the French Code civil in 1804 (already mentioned two time in the Declaration of Civic and

65

See Hegel (1975), pp. 59, 424. See Abendroth (1968 [1954]), pp. 114–144. Abendroth’s at that time (1954) counterhegemonial understanding of the German Grundgesetz later become the hegemonial interpretation (Möllers 2000, p. 141). 67 Ackerman (1998); Sunstein (2004); Brunkhorst (2014), pp. 403ff. 68 Hoss (1972) and Korpi (1983). 66

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Human Rights from 1789, and even sacrificed in the last Art. 17) became a borderline case (as § 903 BGB).69 It was broken up into hundreds, if not thousands of forms between the extremes of public and private property.70 The rich could no longer pay for their cottages in Newport, which now were used as schools and universities. The still huge class differences were compensated by mass-consumption and a quickly expanding educational system that allowed for much more social mobility because (and only because) it was embedded in the relatively egalitarian lifeworld of the welfare state.71 The son of the worker and the son of his boss were sitting at the same school desk. The worker drove a small car, his boss a big car, both sticking in the same jam traffic, due to the double lack of helicopter landing decks for the rich, and skyscrapers without fire protection for the poor.72

4 Two Problems: “Horizontal” Inequalities and Secular Stagnation However, there is no reason for nostalgia. National welfarism was white, male and heterosexual. Egalitarian democracy ended everywhere at the color line and the gender line, and oppressed and exploited white, male and heterosexual people participated in the oppression of all other colors, genders and sexual orientations.73 The revolutionary victory of democratic egalitarianism was largely at the expense of most of the world population. Only now it became evident that the advantages of welfare capitalism in the Global Northwest were enabled by the disadvantages of misery capitalism in the Global South.74 Lenin’s nightmare that the working class of the North-West participates in the exploitation of the colonial world, became true on many levels. Lower-class men participate in the local and global exploitation of 69 The § 903 reads: “Der Eigentümer einer Sache kann, soweit nicht das Gesetz oder Rechte Dritter entgegenstehen, mit der Sache nach Belieben verfahren und andere von jeder Einwirkung ausschließen.” The law (“Gesetz”) and the basic rights of third parties (“Rechte Dritter”) then became the mean to leverage the ratchet of private property through legislation and constitutional jurisdiction (the famous “Drittwirkungslehre” of the German Constitutional Court). 70 Bellomo (1995), pp. 25–31; Denninger (1984), pp. 814–844. 71 Schäfers (2015) and Nachtwey (2016). On the high correlation of social equality with nearly everything important for human life (besides educationally caused social mobility it is good health, happiness, low rates of criminality and violence, low mental illness, high life expectancy etc.) see Wilkinson and Pickett (2009). 72 Offe (1969). 73 Charles W. Mills rightly argues that white men of all classes benefit from the subordination of women and of people of color: “White Workers have generally been part of the problem, either active participants in or at least complicit with imperialism, colonial conquest, white settlement (sometimes genocidal), slavery, apartheid, segregation, and so forth.” (Mills 2015, p. 10). 74 Lessenich (2016), pp. 42, 63; See also the case study: von Bernstorff (2012), available at http:// www.humanrights-business.org/files/landgrabbing_final_1.pdf.

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female reproduction work. Heterosexual lower-class women participate in the oppression of homosexuals, people who write critical papers on capitalism participate in the exploitation of outsourced proof-reading in Calcutta. Capitalism with socialist characteristics has solved the critical situation at the border that separates the capitalist system from the social life-world of living labor, but increased the crises at the borders that separate state and economy from their horizontal periphery and their natural environment. Since mid of the 1960s global movements for civil-rights, women’s liberation, and against the Vietnam War made obvious that modern society, orthodox Marxists and social-democrats were challenged not only by claims of emancipation from vertical inequalities between workers and capitalists who were located within the national state. The capitalist world system of the 1960s also was challenged by transnational claims of emancipation of majorities (people of color, women) and minorities (non-heterosexuals) from horizontal inequalities between men and women, white people and people of color, homosexuals and heterosexuals.75 Moreover, the challenge of “horizontal” inequalities included global inequalities between the nations of the North and the nations of the South, and between the global urban centers and peripheries.76 When the French society in May 1968 was threatened by the specter of a unification of students and workers, and America was shattered by ever new protest movements, De Gaulle called for the tanks, and Nixon appealed to the silent majority. But the left finally won the cultural world revolution. For a while it looked as if the wildest dreams of the Left came true, to unite the “social critique” of vertical inequalities with the “artist’s critique” of horizontal inequalities77 in a realistic project of “revolutionary” or “radical reformism”.78 It became realistic to ask for the impossible.79 But then came the crisis. The crisis was not, as neoliberal propaganda successfully insinuated, caused by Keynesian socialism but by secular stagnation that was due to the finalization of the five great industrial inventions of the industrial age: electric light, electronic media,

75

On the distinction between horizontal and vertical inequality see Stewart and Langer (2006), https://www.ifw-kiel.de/konfer/2006/preg/stewart_langer.pdf; Nachtwey (2016). “Horizontal” inequalities is not a good phrase. Therefore, I put it in quotation marks. The inequalities between men and women traditionally and actually are also vertical inequalities of social difference, economic position, legal status and cultural discrimination. The older term “disparities” (Offe 1969) might be better but does neglect the social differenced between disparate spheres of life such as family and market. I have no better suggestion; therefore, I take the terminology from the research literature. 76 Lessenich (2016). 77 On the distinction of social and artist critique see Boltanski and Chiapello (2007), pp. 419ff; Nachtwey (2016). 78 Brunkhorst (2018). 79 “Soyez réalistes demandez l’impossible”—was one of the many surrealist slogans of the May-days in Paris (1968).

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running water, internal combustion engine and manipulating molecules.80 As Paul Sweezy has recognized already in the 60s, growth came under threat of permanent under-consumption.81

5 Political Victory of the Right and Future Perspectives In the 1970s there were two options for a solution of the crisis. The leftist option consisted essentially in a combination of the social critique of vertical inequalities through further massive redistribution, and the artist critique of horizontal inequalities through a rights revolution. One could call this option democratic socialism. The option of the political Right consisted in the financialization of the economy, the complementary deconstruction of the welfare state plus a neoconservative cultural roll back. The conservative solution of the existing contradiction between capitalism and democracy was authoritarian Liberalism.82 It came to power in bloody military coups (Chile, Argentina), electoral campaigns (Thatcher, Reagan), and heavy class-struggles from above (Wales). Authoritarian liberalism was much better prepared for the globalization of state power than the democratic and social state that sticked to national territory. Ever denser networks of neoliberal global statehood on national, inter- and transnational levels enabled the take-off of globalization, and the democratic constitutional standard of the project of global constitutionalism that was based on the UN-Charter from 1945 was falsified by the constitutional reality of the neoliberal global state that was authoritarian liberalism.83 Neoliberal global constitutionalism and statehood emerged since the late 1970s in a couple deep changes of the interpenetrating global, regional and national constitutional reality. These are: (1) After 40 years in power the result was a disastrous increase of social inequalities that demolished the historical and actual justice of the global cultural and civil rights revolution. For the unemployed, previously convicted, lesbian African American, who lives in the racist, homophobe and misogynist periphery of Baltimore, the progressive new rights and freedoms have no fair value (Rawls) any longer, if they ever had. Therefore, the great progressive advances of the right’s revolution have become privileges, and the same is true with

80

Gordon (2016); idem (2012); idem (2014); Crafts (2015). Baran and Sweezy (1966), pp. 76ff. Marx already has written in Capital: “The ultimate reason for all real crises always remains the poverty and restricted consumption of the masses as opposed to the drive of capitalist production to develop the productive forces as though only the absolute consuming power of society constituted their limit.” (Marx 1968, p. 501; English translation quoted from https://www.marxists.org/archive/marx/works/1894-c3/ch30.htm). 82 Somek (2008); White (2015), pp. 300–318; see: Wilkinson (2015). The debate goes back to: Heller (2015), pp. 295–301; see Wallerstein (2013), pp. 9–36; Marcuse (1965), pp. 17–55. 83 On the difference of constitutional standard and constitutional reality see Habermas (2012). 81

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respect of the quickly growing banlieue of Europe, not to talk about Europe’s southern borders, where human rights protection no longer exists and the crimes against humanity are invisiblised. (2) The neoliberal economic globalization destroyed (or at least demolished) welfarism by the globalization of neoliberal statehood together with an ever-denser network of transnational private-law regimes. Private law—since its old Roman days a law of coordination of the interests of the ruling classes—finally marginalized international public law, and stabilized the unequal relations between the global haves and the global have-nots.84 Regressive reformism determined the agenda of legislators and judges. Since the 1980s US-Congress-legislation has watered down many New-Deal advances, and Supreme-Court judgments such as Citizens United (2010) became settled case-law. It made private corporations civil rights bearers, extended the freedom of speech to the use of money (as a political right), constitutionalized the power of big money over the American party system, adapted the jurisdiction on corruption in legalizing it, and opened all doors for a further colonization of the life-world by capital. (3) The welfare state was subverted by private-public partnerships, and—together with the turn from the debating and disputing temple of the General Assembly to the executive police of the Security Council—ever more power was transferred from the legislators to transnationally united executive bodies.85 Legal formalism was replaced by legal dynamism, and legally bound formal rule by legally unbound informal rule.86 The invention of the Eurogroup at the end of this period is paradigmatic. At the height of the Greek crisis the Group decided to expel the Greek minister of finance from an ongoing session. The minister asked for legal legitimation, the chief of the Group called for his lawyers, they told him that the Group did not exist legally; hence everything they did was legal. (4) Instead of the dialectical tension between liberalism and socialism that was originally constitutionalized by the German Basic Law, the EU-Treaties and the settled case-law of the European Court of Justice have constitutionalized competition law (Art. 2 EC). Competitiveness is the “hidden curriculum” of the constitutional law of Europe.87 This hidden curriculum has transformed democratic class struggle into a struggle of nations over the generosity of investors, depoliticized the common currency, and decoupled it in particular from all European and national legislative and executive state power. Factually the Treaties and decades of constitutional praxis have transferred considerable constituent power to the Court and the European Central Bank. The nomos of the market has become the “substance of the constitution” of the Eurozone and

84

See George (2016). Koskenniemi (1995), pp. 325–348. 86 Koskenniemi (2001), pp. 500ff. 87 Offe (2003), p. 463. 85

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its member states.88 Macroeconomic decisions are determined in advance by the treaties. Prize stability trumps full employment, labor market access trumps democratic class struggle, financial conditionality trumps solidarity, austerity trumps Keynesian solutions, market imperatives trump democratic decisions, and competitiveness trumps everything.89 (5) Therefore, if there is a future of global capitalism with market-embedded states,90 the likelihood is extremely high that it will be a new formation of authoritarian liberalism. We are already approaching a hypermodern dual state with a social separation of labour between authoritarian prerogatives and rule of law.91 Ernst Fraenkel’s and Franz Neumann’s Studies from the late 1930th are of gloomy actuality again. The new dual state consists in a strong tendency towards legal over-integration of the ruling classes and underintegration of lower classes and excluded populations.92 Whereas the former appear only as plaintiffs in court, the latter appear only as accused. Prerogative law and the declared or undeclared state of siege are normalized.93 Paradigmatic is the emergence of smart and flexible border regimes, which are repealing not only so-called illegal migrants but also legal citizens, living in the border region, from substantial constitutional rights. In the US these are already two third of the entire population (Coast Region and Great Lakes).94 The distinctions between center and periphery, system and life-world, and system and environment are closed for the poor and powerless (including poor nature), and opened for the rich and powerful. AfD, Front National, Victor Orban and the American and British Donald Trumps, Boris Johnsons and Steven Bennons, the German and Austrian Björn Höckes and Sebastian Kurz’ (“All Europe contributed in the making of Kurz”) are the logical consequence of market fundamentalism in permanent crisis. “In case of doubt send the marines” (Tom Lerner)—or the bankers, as in case of Troika-rule over the Greek colony of the Eurozone. Today “one can have perfectly peaceful relations with a particular country and still literally own it”95 This was the foreseeable result of at least 30 or 40 years of large-scale violations of the second principle of Rawls theory of justice, that is the basic norm of social

88

On the substance of the constitution see: Schmitt (1989), pp. 24ff, 171f, 177. The constitutional theory that fits best to the present constitutional law of Europe is that of Hayek; see von Hayek (1976) and von Hayek (2003). 89 Dawson and de Witte (2015). 90 von Hayek (2003), p. 49. 91 The dual state is a mix of (inclusive) norm-state (or Rechtsstaat) and (exclusive) prerogative state (or police-state), and there are more formations of the double state than pre-war fascist regimes, on the paradigm case of the latter see Fraenkel (1969). 92 Neves (1999). 93 White (2015), pp. 300–318. 94 See Shachar (2015), pp. 12, 32–35 (on file with the author). 95 Offe (2003).

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(distributive) justice. Even if the first principle of equal freedom is presupposed for any sufficient procedural justification of social justice, once the second basic norm of social justice is destroyed, the first basic norm of political and personal freedom must fall, just because political and personal freedom in this case have no longer any “fair value” for the have-nots, and that is the clear global and local majority of lower classes and the entire Global South.96 They have no longer any political chance, to change outrageous social injustice through electoral campaigns, parliamentary legislation, deliberatively organized referenda, and effective public protest and debate on national or transnational levels. Once we are in such a vicious Rawlsian circle of a reciprocally reinforced destruction of social and political justice, it becomes increasingly difficult to generalize any political action that does not change the entire basic structure of the capitalist world system. Whatever we do, the global system of capitalism “directs our actions in a way that is no longer generalizable from a moral point of view.”97 This (objectively) is a revolutionary situation. Even if there seems to be no realistic (not to talk about justifiable) perspective at all for violent revolutions any longer, there is no change beyond changing the basic structure of the still wellestablished neoliberal world system. Therefore, the only alternative to authoritarian liberalism is democratic socialism, or at least capitalism with socialist characteristics, if and only if it combines the struggle against the injustices of vertical inequality with the struggle against the injustice of horizontal inequality and the struggle against the destruction of the environment and the domination of nature.98 But that needs already the impossible: (1) massive redistribution from the upper to the lower strata of society, which—if it works—would reduce injustice substantially and bring growth back. At the same time, it needs (2) a combination of a decent basic income with massive public investment and massive investment in education.99 Moreover, (3) because we all share the negative premise of a good life in modern societies, that nobody really wants to live without the five great inventions of electricity, running water, pharmaceuticals, mass-communication and masstransportation, and without expanding science, education, medicine etc. John Dewey was right, there is no democratic solidarity (and no hope for the global South) without growth. Therefore, (4) the only hope for growth (that is less disastrous than capitalist and socialist growth as we know it) is green growth. The chance to realize these four points quickly and at once, is already very low. However, because of the enormous blackmailing power of global capitalism, a democratic solution of these problems is impossible from the outset without (5) a transnational reconstruction of democracy that moves real power to transnational levels in Europe and beyond, together with (6) deliberative egalitarianism. There

96

Rawls (1975), pp. 81ff, 251ff. Lessenich (2016), p. 79, my translation. 98 See Krause (2017). 99 It could be alternatively a starting capital, high enough to pay tuition at American Ivy-League University. A well calculated model is: Ackerman and Alstott (2001). Grözinger et al. (2006). 97

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exists a huge number of proposals for local, national and transnational deliberative democracy in social science, which are all well thought through. One can even organize deliberative referenda, as Claus Offe has shown in a recent paper.100 But there is no way to realize them (7) without a considerable socialization of the now totally privatized global media industry. All that is extremely unlikely, but it is not impossible, and it is much less impossible, to win majorities for political programs that come close to many of these 7 crucial points. Once political parties or movements pose substantial alternatives to the now globalized regime of declared and undeclared great coalitions of authoritarian liberalism, political programs far left from the middle, and/or transnationally oriented programs have a considerable good chance to win in societies, where the majority belongs to the precariat but is well educated and more than less liberal and anti- or post-authoritarian, as not only social research but also recent elections in Britain, France, southern Europe and the United States clearly show.

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Lenin VI (1962) Der Imperialismus als höchstes Stadium des Kapitalismus. Dietz, Berlin Lessenich S (2016) Neben und die Sintflut – Die Externalisierungsgesellschaft und ihr Preis. Hanser, München Luhmann N (1974) Symbiotische Mechanismen. In: Horn K et al (eds) Gewaltverhältnisse und die Ohnmacht der Kritik. Suhrkamp, Frankfurt, pp 107–131 Luhmann N (1992) Politische Theorie im Wohlfahrtsstaat, München Luhmann N (1997a) Die Gesellschaft der Gesellschaft. Suhrkamp, Frankfurt Luhmann N (1997b) Globalization or world society: how to conceive of modern society? Int Rev Sociol 7(1):67–79 Luxemburg R (1913) Die Akkumulation des Kapitals – Ein Beitrag zur ökonomischen Erklärung des Imperialismus. Singer, Berlin Marcuse H (1965) Der Kampf gegen den Liberalismus in der totalitären Staatsauffassung. In: Kultur und Gesellschaft I. Suhrkamp, Frankfurt Marcuse H (1966) Political preface. In: Eros and civilization: philosophical inquiry into Freud, Eros and civilization. Beacon Press, Boston Marx K (1953) Grundrisse der Kritik der politischen Ökonomie. Dietz, Berlin Marx K (1956) Debatten über das Holzdiebstahlsgesetz. In: Marx K, Engels F (eds) Werkeausgabe Band 1. Dietz, Berlin Marx K (1965) Capital I – a critique of political economy. Progress Publishers, Moscow Marx K (1966 [1862]) Zu den Ereignissen in Nordamerika. In: Marx, Engels (eds) Studienausgabe, Band IV. Fischer, Frankfurt Marx K (1968) Das Kapital, III. Dietz, Berlin Marx K (1969) Das Kapital, I. Dietz, Berlin Marx K (1982) Die Bourgeoisie und die Konterrevolution. In: Marx K, Engels F (eds) Werkeausgabe, Band 6. Dietz, Berlin Marx K (1984) Comments on the North American events. In: Marx K, Engels F (eds) Marx & Engels collected works, vol 19. Lawrence & Wishart, London Marx K (1985 [1852]) Der 18. Brumaire des Louis Bonaparte. In: Marx K, Engels F (eds) Marx & Engels Gesamtausgabe, Band I/11. Dietz, Berlin Marx K, Engels F (1971) Die deutsche Ideologie. In: Marx K, Engels F (eds) Werkeausgabe, Band 3. Dietz, Berlin Marx K, Engels F (1990 [1845]) Die heilige Familie. In: Marx K, Engels F (eds) Marx & Engels Werkeausgabe, Band 2. Dietz, Berlin McCarthy T (2015) Rassismus, Imperialismus und die Idee menschlicher Entwicklung. Suhrkamp, Frankfurt Mills CW (2015) Some comments on Hauke Brunkhorst’s critical theory of legal revolutions. Unpublished manuscript Möllers C (2000) Staat als Argument. Beck, München Nachtwey O (2016) Die Abstiegsgesellschaft: Über das Aufbegehren in der regressiven Moderne. Suhrkamp Verlag, Berlin Neves M (1992) Verfassung und positives Recht in der peripheren Moderne. Duncker & Humblot, Berlin Neves M (1999) Zwischen Subintegration und Überintegration: Bürgerrechte nicht ernstgenommen. Kritische Justiz 32(4):557–577 Offe C (1969) Politische Herrschaft und Klassenstrukturen. In: Kress G, Senghaas D (eds) Politikwissenschaft. EVA, Frankfurt Offe C (1975) Berufsbildungsreform: Eine Fallstudie über Reformpolitik. Suhrkamp, Frankfurt Offe C (2003) The European model of “social” capitalism: can it survive European Integration? J Polit Philos 11(4):437–469 Offe C (2015) Europe entrapped? Interview with Daniel Whittall, 19. Mai 2015. Available at https://www.opendemocracy.net/can-europe-make-it/europe-entrapped-interview-with-clausoffe Offe C (2016) Europa in der Falle. Suhrkamp, Berlin

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Offe C (2017) Referendum vs. institutionalized deliberation: what democratic theorists can learn from the 2016 Brexit Decision. Dædalus, J Am Acad Arts Sci 146(3):14–27 Rawls J (1975) Eine Theorie der Gerechtigkeit. Suhrkamp, Frankfurt am Main Schäfers A (2015) Der Verlust politischer Gleichheit. Warum die sinkende Wahlbeteiligung der Demokratie schadet. Campus, Frankfurt Schmitt C (1989) Verfassungslehre. Duncker & Humblot, Berlin Shachar A (2015) New border and citizenship constellations: implications for law and justice. Paper presented at the WZB Workshop ‘Critical Theory and Constitutionalism’, Berlin 11 December 2015 (on file with the author) Somek A (2008) Individualism: an essay on the authority of the European Union. Oxford University Press, Oxford Stewart F, Langer A (2006) Horizontal inequalities: explaining persistence and social change. Conference-paper, Institut für Weltwirtschaft, Kiel. Available at https://www.ifw-kiel.de/ konfer/2006/preg/stewart_langer.pdf Sunstein C (2004) The second bill of rights. Basic Books, New York Thornhill C (2011) A sociology of constitutions. Cambridge University Press, Cambridge Thornhill C (2016) A sociology of transnational constitutions. Cambridge University Press, Cambridge Toulmin S (1975) Der Gebrauch von Argumenten. Scriptor, Kronberg von Hayek FA (1976) Entnationalisierung des Geldes. Mohr, Tübingen von Hayek FA (2003) Recht, Gesetz und Freiheit. Mohr, Tübingen Wallerstein I (2013) Structural crisis, or why capitalists no longer find capitalism rewarding? In: Wallerstein I et al (eds) Does capitalism have a future? Oxford University Press, Oxford, pp 9–36 Weber M (1920) Gesammelte Aufsätze zur Religionssoziologie, Band I. Mohr Siebeck, Tübingen White J (2015) Emergency Europe. Polit Stud 63(2):300–318 Wilkinson M (2015) Authoritarian liberalism in the European constitutional imagination: second time as farce? Eur Law J 21(3):313–339 Wilkinson R, Pickett K (2009) The spirit level: why greater equality makes societies stronger. Bloomsbury, New York

Hauke Brunkhorst is Senior Professor of Sociology at the European University of Flensburg, Germany.

Towards a Global Rule of Law: Global Law in the Context of Law and Development Studies Kimmo Nuotio

Contents 1 Setting the Scene . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Theorizing Justice or Rather: Addressing Injustice in Practice? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Perspective of Law and Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Rule of Law in a Global Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Venice Commission Setting the New European Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Towards Rule of Law and Development in a Global Setting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract Recent developments in legal and social theory have rendered it necessary to define what we mean by justice and rule of law. Marcelo Neves has contributed to the theory of a rule of law state, for instance, by assessing the merits of Habermasian thought using, a. o., tools of the social systems theory. In this article I will discuss the problem, identified by Neves, that a rule of law state does not always emerge naturally. He talks about the deficiences known in ‘peripheric modernity’. As regards development studies, legal issues have made their way onto the agendas since rule of law, democracy and human rights are relevant for realizing almost any social development goal. I will discuss the recent developments on a global level by using materials also from law and development studies. Even more than the Rawlsian or Habermasian concept of justice, the work of Amartya Sen has been influential in these debates. Sen has presented his pragmatic and comparative view about justice as an alternative to the comprehensive theoretical models which cannot be met in the context of the developing countries. The role of rule of law and justice in the development of the societies is further underlined when taken into account of the grand challenges of today. In this article we discuss the role of rule of law as part of UN Sustainable Development Goals (Agenda 2030) and also present the work done by the so-called Venice Commission in this area. One important observation is that the rule of law needs to be embedded in the culture of the society. We face a

K. Nuotio (*) Faculty of Law, University of Helsinki, Helsinki, Finland e-mail: kimmo.nuotio@helsinki.fi © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Nogueira de Brito et al. (eds.), Law as Passion, https://doi.org/10.1007/978-3-030-63501-5_2

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paradox: in order for the law to work properly, we need to develop a non-instrumental approach towards it.

1 Setting the Scene In the 1970s and 1980s new winds were blowing in legal theory in Europe. The theory of legal argumentation gained lots of attention as the patterns of legal reasoning were being researched. Neil MacCormick worked out his institutional theory of law, building on H.L.A. Hart’s work (MacCormick 1978). In Finland Aulis Aarnio coined the approach he called analytical hermeneutics, which tells that the ideas presented drew both on analytical philosophy as well as the new rhetoric, and a reading of the understanding of the so-called life world in Wittgenstein, as mediated by G.H. von Wright (Aarnio 1987). The point was not only to elaborate the conditions for well-reasoned legal decisions, but also to understand under what conditions the decisions deserved to be called rational. In a human setting, the light of reason could never fully expose all that we believe in and take for granted. The interest in legal reasoning grew out the understanding that legal decisions not only are technical items which need to be formally correct, but which also incorporate an understanding of justice. People expect the courts to apply legal norms in a decent manner, thus showing that they deserve the position of authority granted to them. Giving well-reasoned decisions addresses the community of the people in a particular way and enables a debate about justice and legitimacy of the legal system. In the Continental-European legal tradition the courts are not strictly bound by case law but seek to make the best out of the pieces of legislation and other legal sources, and further contribute to systematic nature of the law. Legal research, if it adopts the internal point of view as suggested by H.L.A. Hart and many others, shares this starting point and seeks to interpret the legal system as a whole. Legal research serves thus in its way the same goal of promoting justice. Towards the 1990s the ambit of the legal theory scholarship was further extended to be looked within the broader frames of a theory of a democratic state which would deserve the name Rechtsstaat. We could say that Robert Alexy’s, who first treated the theory of legal argumentation followed by a study on the application of constitutional rights provision, laid the ground for this work in Europe (Alexy 1989, 2002). Jürgen Habermas, who got interested in the role of law in the governance of society, presented a comprehensive synthesis of this view in his Between Facts and Norms (Habermas 1996). Discourse ethics gave the frame for discussion on rationality and legitimacy. John Rawls updated his view on the nature of political community in his Political Liberalism, introducing the term overlapping consensus (Rawls 1993). The topics of law, democracy and justice were very much at the heart of the debates. Law was understood to incorporate and express basic societal values at the same time as it also serves instrumental policy purposes. Law is both an institution and a medium.

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Theory of legal reasoning became more and more looked at in the larger setting of a state (MacCormick called it a law-state) which was in the need of legitimizing its exercise of authority over its citizens, and the theory of a constitutional rule of law state could explain how all this had become possible.1 Both democratic participation rights as well as the guaranteed basic rights were equally important as granting the legitimacy of state power. Niklas Luhmann, who regarded law as a system also presented his comprehensive view of the role of law in a society (Luhmann 2004). The move towards theorizing legal argumentation in the context of political philosophy forced the legal theorists to make explicit their underlying presumptions about how much we can build on shared values, and how deep the disagreements may reach. Marcelo Neves, to give an example, criticized Aulis Aarnio for reading too much out of the Wittgenstein’s concept of life world; a shared life world does not yet include that the values would be shared, only the rules of the game of how language is being used (Neves 2000, pp. 158–159). In the Nordic countries, including Finland, the theoretical discussions concerning the legal reasoning could in some sense be carried out without any bigger debates about what rule of law is. The Nordic countries had established themselves as democracies at an early stage and were building their legal systems following an evolutionary path (Husa et al. 2007; Letto-Vanamo et al. 2019). The link to any substantial concerns about whether or not the existing structures were good and suitable for building the context of good legal reasoning was, if I get it correctly, the so-called expectation of the citizens that the authorities would give them legal protection. This, in fact, included that the courts and administrative decision-makers would have to be able to communicate to the people the substantial reasons for applying the law in a certain way. As times had changed, we could no longer just presume that people would regard themselves as simply recipients of paternalistic legal protection. Instead, the legal authorities had to show that they deserved the confidence of the people. And in order to deserve the confidence, convincing legal reasoning was expected. I would say that in the Nordic countries it was regarded as a fact that the necessary principles of accountability, democratic legitimacy and the protection of the rights of the people already had been established. It was so natural that serious questions were not even raised. As for Finland, the joining of European Convention on Human Rights in 1990 brought to the surface, rather as a surprise, in quite a few areas of law needs for reform. In Germany the situation was different, probably also due to the history of the country, since the Nazi regime had shown how vulnerable a Rechtsstaat may be even despite of very strong legal-cultural traditions of legality. Marcelo Neves has studied the theory of Rechtsstaat from the points of view of both Habermasian discourse theory and Luhmannian system’s theory, giving the Habermasian theory a more Luhmannian reading (Nuotio 2010). Neves made the

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MacCormick revised his former theory slightly, as the good legal reasoning now was supposed to happen in the context of the fundamental values that we impose on the legal order. See MacCormick (2005), p. 1.

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observation that the Habermasian Rechtsstaat, with its regulated procedures for introducing legislation as well as for applying the legal system in particular cases, may stand for a model in the central modernity, but unfortunately in the so-called peripheric modernity (Brazil) we only find a much weaker version of the constitutional state. The loss of traditional moral views and the increase of complexity in the society has neither triggered a functional differentiation of law nor the emergence of a public sphere which would rest on institutionally generalized citizens’ rights. The state has become privatized and its law instrumentalized as various societal forces may have a say in the legal system which is lacking the necessary autonomy vis-á-vis the other social systems. As a result, the legal system does not follow the processes as they have been designed on the level of the Constitution (Neves 2000, pp. 183–186). In peripheric modernity forces such as corruption erode the systemic guarantees of enclosure of the legal system (and the political system) since sinister economic interests find their ways into the operations of the legal system. In peripheric modernity constitutionality only remains at a symbolic level serving as a façade legitimation. Such states share most of the legal and political structures with states of central modernity, but the lack of actual autopoiesis of the legal and political systems results in grave shortcomings as regards the access to citizens’ rights (Neves 2000). Therefore, features of states should not be taken at face value, but tests should be developed to see if they in fact work. In his later book Neves has offered another look at the issues of shortcomings of rule of law states: transconstitutionalism (Neves 2013). Transnational constitutional orders may create links between legal orders and directly or indirectly help address relevant issues and, at least to some extent, compensate for inadequacies in the domestic order. Constitutional law elements of international or transnational character may be helpful in this regard. For Neves, legal rationality refers to consistency, this is, rules which enable consistent decision-making. Justice, however, adds another layer to the legal rationality since law also will have to be socially adequate. These two features would have to be covered for. Constitution has a special function since it couples structurally politics with law. Neves interprets this structural coupling as a manifestation of transversal entanglement, which makes transversal rationality possible. The topic of peripheric modernity is today more important than ever. Countries are struggling with problems of rule of law, and not even in Europe, the region of central modernity, can we be sure that a high level of rule of law standards will be met.2 The issue of ensuring that the principles of rule of law are lived up to has grown to be a major concern for the European union, for instance. Neves has continuously discussed the merits and limitations of Western legaltheoretical ideals when analyzing law in a setting which is different. A third study, not yet published in English, discusses the role and the abuse of constitutional

2 As regards the concept of modernity in the European and global context, please refer to (Wittrock 2002, pp. 31–60).

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principles in constitutional law theory and practice in Brazil. A systems-theoretical reading points out that an effort to resort to Dworkinian principles entails risks under such conditions, since the judiciary may adopt a too prominent role, and such practice will not take into account the need for having a debate from a multitude of angles, a demand which is rather natural in a complex modern society (Neves 2019). Abandoning the Dworkinian solution along the lines of ‘law as integrity’,3 however, does not mean that Neves would be happier with what Alexy has developed, namely, the view that principles should be weighed and balanced, and when they collide, optimizing would be the answer. According to Neves, even this way of dealing with the principles does not solve the problems, since constitutional principles serve to influence rules. He even speaks of a ‘diabolical’ nature of constitutional principles. Constitutional principles may, for example, weaken constitutional rules. An optimizing and balancing model of competing constitutional principles gets underway “from a subjective or intersubjective superordinate instance, which is able to determine what definitely fits each sphere of life”. It thus reduces the perspectives from which constitutional questions are being looked at and simplifies the structure of normative expectations that lie behind them. Neves does not wish to exclude the use of constitutional principles but calls for a moderate use of them. In Neves’s approach, the systems-theory background is becoming rather dominant, since it is precisely this feature which enables him to construct the context in which legal reasoning takes place. A systems theory approach renders it possible to present the historical paths and procedures that have led to the current situation, in which the legal order needs to stand alone, without getting an immediate backup from other sources and systems, such as religion, which would grant the exercise of state power its authority. A “constitution in a modern sense cannot be present in any type of the premodern hierarchical social formation” (Neves 2013, p. 14). This is the so-called Ausdifferenzierung des Rechts. An overtly principle-oriented dealing with constitutional interpretation would risk a de-differentiation of the constitution. Constitutional judges need to face the paradox of the relationship between legal consistency—the argumentation based on rules—and social adequacy of law, based on principles. The discussion on peripheric modernity is helpful also in another sense. The legal and political traditions outside Europe may namely be in a variety of ways different from what has been the case in Europe. Legal theory and legal philosophy have a long time been rather Europe-centered and mainly only considered Western law. Rule of law, democracy and human rights are all Western ideas, and today we will find states which challenge view that legal and social development should serve a universal goal. An authoritarian model of democracy prevails in Russia, and China defends its legal and political system as having its own characteristics.4

3 4

See Dworkin (1986). See, e.g., Pursiainen and Pei (2012), pp. 114–180.

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2 Theorizing Justice or Rather: Addressing Injustice in Practice? Rule of law is, as a concept, not innocent. Critical legal studies have attacked rule of law since it cannot provide the justice it claims to be fostering. “While respect for the rule of law is of course not a guarantee of the good society, it is hard to have the good society without it”, writes Sionaigh Douglas-Scott (Douglas-Scott 2013, p. 274). After having contemplated the dilemma of rule of law and justice after modernity, she makes the move towards Amartya Sen and his idea of justice as a way to address issues of injustice in a non-perfect world. Surely, this approach is rather different from a systems-theory analysis (of law), since within the systems theory, the question of justice would have to be framed as being internal to the legal system (consistency), or if not internal, then it would deal with communication about law, observed as issues of social adequacy. At the end of the day, the two perspectives may not be completely mutually exclusive. Amartya Sen emphasizes that his views present an opposite approach to a Rawlsian theory of justice, and we could see that much of Western theorizing about justice has been following that originally Kantian path. Even Habermas’s theory of a democratic constitutional state has similar traits, and a Kantian ethos is present in Habermas: law is about self-government of a society. Sen sees his effort as pragmatic, since it’s not so much about theorizing about perfect institutions, but it is rather of comparatist nature. We can learn from others by means of comparison, and a comparative outlook may help us find solutions to our problems. But it is not completely pragmatic, since the people should always be granted not only food and shelter, but freedom. Maybe Sen is not requesting a completely general list of rights and duties for the people, but the ethos points out to that direction. Even though Sen emphasizes that he departs from the contraction tradition and also wishes to overcome the limitations of a mere institutional analysis, in fact the difference to what Neves is suggesting may not be that radical. Sen stresses that “Institutions and rules are, of course, very important in influencing what happens, and they are part and parcel of the actual world as well, but the realized actuality goes well beyond the organizational picture, and includes the lives that people manage – or do not manage – to live” (Sen 2009, p. 18). It seems that Sen indeed talks about justice more in terms of social justice, or, for that matter, social injustice, than about justice as predictability and consistency of legal rules. Be it what it may, in any case the question of social adequacy of legal rules (and principles) brings into the debates the voice of different groups and members of society—and their reflections on law. Accordingly, we do not even have to have a complete theory of justice, if we only can identify injustices. Such a more modest task sounds in fact reasonable, since rule of law, democracy and human rights all seem to be able to contribute to increased justice, albeit in a rather uncertain way. Douglas-Scott links rule of law to justice and sees its ultimate merit in the ability to set limits to abuse of state power. This is an

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important point and undeniably this is pretty much what rule of law should be able to deliver. Sen’s approach has met with fierce criticism, which deserves to be mentioned. John Gardner has pointed out that Sen’s position is in fact difficult to defend. The accusation that a Rawls-Dworkin type of transcendental institutionalism leads to theorizing about a fully just society but loses the sight of pragmatic and incremental addressing of injustices, may in fact be an overstatement. Not only is it wrong to claim that Rawls or Dworkin would only be perfectionists who cannot discuss incremental improvements. But equally the question could be raised: how do you identify injustices without a theory of justice.5 It has as well been pointed out that Sen’s work does not give room for understanding why justice is not developed, that is, what makes it so hard to be realized (Chimni 2008, pp. 3–22). We do not have to elaborate our stance here in detail. Against the background of Marcelo Neves’ theorizing we could point out that in terms of a modern secular society the expectations of justice are highly diverse and are difficult be met. As in the theory of Habermas, this is one of the reasons why procedural theories of justice are tempting. Be it how it may, a comparatist and a development-focused theory which looks incrementally at issues of justice has some obvious merits. If we think of major problems of today’s societies, such as corruption or other abuse of power, they are clearly diffuse and gradual problems that can hardly be made to disappear. A comprehensive theory of justice might be able to be helpful in identifying them, but probably in the most cases we are already aware of the ideals, but just do not how to get there.

3 The Perspective of Law and Development César Arjona et al make a valid point in claiming that the comparative approach is actually very helpful in avoiding the parochialism and opening our eyes towards the experiences of other societies. A realist comparatist approach enables learning, and it is very helpful in legal scholarship and legal education, since most often we narrow ourselves to the limited experiences concerning our own society. “Sen’s efforts to de-parochialise political theory – perhaps the most proximate discipline to legal theory – ought therefore to resonate with those in the legal academy who seek to reform legal education and shift legal scholarship away from its Eurocentric focus” (Arjona et al. 2012, p. 157). This observation could be linked with the idea that injustices may be experienced by anyone, but lawyers are the profession which has developed a sharp eye on injustice. Thus, even in addressing injustices, in a comparative setting, or even more broadly, lawyers cannot be avoided.6

5

See Gardner (2012). See Neil Walker’s remarks on the role of jurists and legal experts in the making of what we could call global law (Walker 2015). 6

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In this current article I wish to make the claim that certain efforts to support the development of the legal orders have triggered an increasing interest in Sen-type of thinking, in which the pragmatic interest to do better dominates. This approach clearly also builds on the comparatist view instead of imposing a straight-jacket, or one-size-fit-all, conception of justice. A pragmatic and development-oriented view also has the advantage that it is easier for us to loosen the ties of our findings and discussions with the Western legal and political history. It deserves also a notice that Sen’s understanding of economics is broad, not only covering the narrow field of microeconomics, informed by the theory of rational action. Also, in here we find a pragmatist and realistic approach, which does not exclude the real reasons for our actions, including the role of emotions. Injustice is itself not only a breach of the principle of justice, since it is also deeply felt. We talk about a sense of justice.7 One aspect of Sen’s thought is that it should make sense to raise the issue of global justice, even though such an idea remains vague, without having to enter into (unrealistic) discussions about a global state, or the like. Even here the approaching of justice through injustice makes sense: the people of the world simply expect that certain biggest issues of injustice should be dealt with, one way or another, and cannot be excluded from the discussions. A pragmatist approach has the advantage of leaving room for such discussions. A doctrine on the relationship of law and development is, in a modern context, still a rather recent topic. Trubek and Santos, whom we follow here, have drawn a picture of the main lines of how this has been worked out (Trubek and Santos 2006, pp. 1–18). A doctrine was born out of necessity: the experts involved in the international development agencies had to explain for themselves what they were actually doing. This has sometimes been called reverse engineering: legal theory has to be extracted from development projects and from the attitudes of the development experts in running these projects (Kennedy 2006a, p. 102). After the World War II, when such activities started in the new setting, the idea was to strengthen the state structures of developing countries. Thus, development of public law was the main target, since a state intervention was regarded as crucial for the general social and economic development. The aim was still to get the economic development underway. As the second stage, in the 1990s, when the volume of the efforts had raised and the ideological motives became clearer, the emphasis was rather set on supporting the market structures and limiting the state intervention. This phase can be called neo-liberal. Dirigiste economies were instructed to be transformed into market economies, and the emerging market economies would become part of global markets. As regards the need for legal development, the private law was now seen as the priority. Contracts would have to be enforced, IPR protected, etc. Since 2000, the neo-liberal model has been increasingly contested. The economic legal and reforms, such as the shock therapy in Russia, triggered criticism that neo-liberal reforms did not deliver what they promised. It became clear that “markets 7

Cf., for example, Dubber (2006).

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do not create the conditions for their success” (Trubek and Santos 2006, p. 6). But it remained still unclear, what the next model could and should be. It had, in any case, became obvious, that the development itself had to be understood in a broader manner. The third Moment of law and development doctrine seems also to have a link with developments in legal thinking, especially when read together with the famous analysis of the phases of development of law and legal thought since 1850s as this has been presented by Duncan Kennedy in his influential article (Kennedy 2006b, pp. 19–73). The idea is that the core legal ideas represent a mode of legal consciousness, and the development has followed in three partly overlapping phases. The first of them, termed classical legal thought, in the 1850s, was celebrating legal formalism and institutionalized both protection of the autonomy of people as well as the regulation of the market. In the second phase, a consciousness of the consequences of legal practice become more important, and the law was also regarded as a tool for steering society. Social law was introduced and developed. This was indeed a trend in the legal theory of early twentieth century. The critique of legal positivism and legal formalism had started, of course already earlier. The third mode, again, was a reaction to the too dominant instrumentalism, which led to a half step backwards. Thus, the third phase could be characterized as a mode of consciousness which recognizes the policy-relevance of law, but which combines law with non-instrumental concerns, mainly the protection of the human rights of the people as well as an interest in constitutionalism. Such an understanding fits rather well with the rethinking that is necessary in the field of law and development doctrine: instrumentalism had to be complemented with a perspective of rights. The theoretical approaches seem to indicate that law and development would need beginning to get involved in issues of distribution. The challenge is to elaborate alternative models of development and explore the role law could play in them (Trubek and Santos 2006, p. 18). We could here refer back to Sen’s ideas. A mere narrow perspective of economic growth clearly cannot measure the real social development which has to include qualities of life that go beyond the most basic needs of having food, shelter and some safety. Whereas Sen had built on his experiences of famine in Bengal in the 1940s, today we face global challenges that need collective action, such as the climate change, pollution, loss of biodiversity, diseases, poverty and many others. Also injustices are linked to the dealing with such global challenges. Some countries may face the consequences much harder than the others. And there may be serious challenges in defending the weakest in societies which have shortcomings in policies of inclusion and in granting of participation rights to the groups being mostly affected. Injustices may appear in smaller contexts as well. We could name domestic violence as an example. An understanding of the various harms that individual freedom could face becomes necessary. Sen is well aware that human rights if taken as binding legal rights may be problematic since what we actually need is a vocabulary to discuss certain ethical issues in a society. Human rights as legal, universal rights would presuppose global values, but we see that approaches to human rights may differ in various parts of the

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globe. According to Sen human rights are best to be seen as a set of ethical claims rather than legislated legal rights (Sen 1999, p. 229). Much of the law and development theory and practice follows still today pretty much the logic of operation of the Western approach. A market-orientation dominates. Besides the fact that the grand challenges have emerged, or have taken a new shape, we also have new actors who may have a very different agenda. We could name the new foreign policy of China as an interesting example, since also this setting entails a kind of law and development view, albeit somewhat less articulated. Here we mean especially the Belt and Road Initiative launched in 2013.8 The Chinese alternative seems not to be much less economically driven than the Western counterpart. The development of Chinese law would in itself be a highly interesting example to look at, since China did not much change its political system when it introduced a socialist market economy (Jiang Zemin). In terms of legal developments, the result is a rather complex and diverse legal system which fits only with difficulty any Western traditional model.9 Trubek points out that in some sense the law and development movement died out in the 1990s and was replaced by a rule of law movement and a democracy movement. It had become obvious that neither the democracy nor protection of human rights would appear automatically together with economic growth or cultural development, a thesis which comes close to the findings of Marcelo Neves cited above (Trubek 2006, p. 84). If at the first stage rule of law was a formalist patent solution which could be imposed top-down, over the years the development agencies started realizing that a more diverse approach be needed. Labor rights, women’s rights, environmental concerns would have to be added as well as an access to justice point of view. In general, and a more adaptive and flexible approach aiming at long-term development was to be preferred (Trubek 2006, pp. 91–92). Rule of law became itself an end of development, not just a means for development (Kennedy 2006a, p. 158). The rule of law emphasis in development may even have been an easy choice—even too easy. Clearly legal issues are more “objective” to handle than economic or political issues, but this is of course not the entire truth. Economics and politics come back if we start thinking about societal development in terms of alternatives, taking into account the distributive effects of various legal regulations. Since the so-called reverse engineering may be helpful in reconstructing the necessary legal theory behind what the development agencies are doing and believe they are doing in terms of law, and the rule of law, some observations made by Alvaro Santos on the different conceptions in use by the World Bank are illuminating. He divides the four options by using two criteria for differentiation. First, we have the institutional theory in two versions, one instrumental (exemplified by Weber), one intrinsic (exemplified by Dicey). And second we have the substantive theory in two versions, one instrumental (exemplified by Hayek), one intrinsic

8 9

See, e.g., Wolff and Xi (2016) and Shan et al. (2018). See, for example, the useful presentation of Castellucci (2012).

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(exemplified by Sen). Santos points out that traces of each and every of the views can be seen in the massive practice of the rule of law development projects run by the World Bank (Santos 2006, pp. 257–266). This analysis is very telling concerning the difficulties to find the right model within an institution which also has considerable economic power to exercise influence on the target countries that receive loans for their development. A formal-institutional approach prevailed in the earlier period, but since mid-1990s, more substantive concerns have been included. The starting of fighting corruption was the first sign of the new era. Corruption was regarded harmful in so many ways that fighting it simply had to be covered by the mandate of the World Bank. Strengthening rule of law was, so to say, a way of fighting corruption (Santos 2006, pp. 273–275). We do not have to take this brief look at law and development further. It seems that a flexible approach is being called for, if we think about law as a tool for development. The experience tells us that law is central for development, but together with law comes a lot more. For that reason, the local context is so important. Change comes, if it comes, from the inside. Development agencies which have economic power also have the ability to influence the legal developments, but, at the same time, having such influence would require that we really knew what legal development is and how it links with general social development. Many of the discussions circle around the varying definitions and understandings of the rule of law. Even though it does not seem realistic that a truly universal definition could be agreed upon, it seems to be increasingly important have some working definitions as well as some indicators that would tell about progress.

4 Rule of Law in a Global Context In a time when media wants to have it all, and have it fast, easily comprehensible information sells and distributes well. In 2006, World Justice Project was launched. The world Rule of Law Index has since then become at least one reference telling about where a country stands in terms of international comparison. If one’s country does very badly terms of this index, it gets increasingly difficult to claim that the index has it all wrong. Like similar indexes in other fields, the methodologies applied in gathering and measuring the data may be contested, but it seems that rule of law has been taken in a rather broad sense. We read in the most recent report that the rule of law has been understood as a framework of laws and institutions embodying four universal principles: accountability, just laws, open government, and accessible and impartial dispute resolution. It is also rather worrying that we have at the moment more countries with trend to decline than ones with a trend to improve.10

10 World Justice Project. Rule of Law Index 2020. https://worldjusticeproject.org/our-work/ research-and-data/wjp-rule-law-index-2020.

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Projects such as this one striving at support and acceptance all over the world risk being seen as Western initiatives. Such worries have some ground, since the key academic expertise on these issues has been found in the leading universities of the US and Europe (Rajah 2015, pp. 360–361). Rule of law as understood by World Justice Project is, however, a dynamic concept which will be developed during the course of the studies. This development has meant, for instance, that the texts are being directed increasingly to the media and to the rule of law promotion industry. Rule of law is being seen as a modifier (Rajah 2015, p. 365). We should also note that in fact Amartya Sen’s studies have played a role in the formulation of another global index which has its background in the development economics, namely the Human Development Index. Sen has tried to gear the approach to economic development away from the mere measuring of the GDP. The human development relates to a broader notion of human freedom and human capabilities.11 A comparatist and developmental approach to law and injustice quite has quite obviously a taste of modernism. At least a strand of discussions of modernity sees Europe as a point of reference for the rest of the world. What happened, when European thought was embedded in local and regional traditions outside Europe, was not a straight-forward reception, but something more complicated. Dipesh Chakrabarty has launched the term Provincializing Europe. For him, “[n]o country. . . is a model to another country, though the discussion of modernity that thinks in terms of “catching up” precisely posits such models” (Chakrabarty 2008, p. xii). It seems natural that the law and development, or, rule of law, agenda has also become part of the discussion on sustainable development (Soininen 2018). United Nation’s Global Sustainability Development Goals cover rule of law issues as part of the Goal 16: Promote Just and inclusive societies. The various sub-goals deal directly with issues related to rule of law. We find references to combating of organized crime as well as corruption. Effective, accountable and transparent institutions should be developed at all levels. Decision-making should be responsive, inclusive, participatory and representative, etc. Goal 16: Promote just, peaceful and inclusive societies ... 16.3 Promote the rule of law at the national and international levels and ensure equal access to justice for all 16.4 By 2030, significantly reduce illicit financial and arms flows, strengthen the recovery and return of stolen assets and combat all forms of organized crime 16.5 Substantially reduce corruption and bribery in all their forms 16.6 Develop effective, accountable and transparent institutions at all levels

11 See, e.g., Stanton (2007). On the various approaches to development, see, Trebilcock and Mota Prado (2014), pp. 3–16.

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16.7 Ensure responsive, inclusive, participatory and representative decision-making at all levels

The scope of rule of law seems very broad. The concepts have not been defined, which gives the opportunity to different readings. But what is maybe even more important, reaching almost any of the mentioned goals will require a legal response, one way or another. We should briefly mention the earlier development on the level of UN policies. Namely, the Millennium Development Goals from 2000 which originated from the UN Millennium Declaration asserted that every individual has dignity, the right to freedom, equality and a basic standard of living that includes freedom from hunger and violence. The targets were set for the year 2015. Reduction of poverty was a priority. The MDGs were of rather typical development policy type. The agenda had been prepared top-down, and law was not on the agenda (Wiik and Lachenmann 2014, pp. 286–288). In the preparations for the Global Sustainable Development Goals the developing countries had more say, and the drafting procedure was heavier and more carefully designed. Rule of law issues were much debated, and the outcome was more meagre than what many countries had expected. It had become obvious, anyway, that “any integrative and holistic approach to sustainable development required consideration of good governance and rule of law as part of human rights-based approach to sustainable development” (Wiik and Lachenmann 2014, p. 295). As everyone can imagine, this exercise was not an easy one since there were countries which saw a reference to rule of law as problematic in the sense that it would open up the internal structures for external criticism. Russia, for instance, brought up such concerns (Wiik and Lachenmann 2014, pp. 304 and 307). On the table were three options. The most far-reaching was that rule of law would have been defined as a goal in itself. The second option was to mainstream it as a target or general enabler within other goals or use it as an indicator or tool for implementation. The third option was to treat it as an overarching driver or enabler of development. As there was no general definition of what rule of law means, a mainstreaming of it became challenging. It seems to me that all such problems did not, in fact, prevent many states from insisting on the significance of rule of law, even taken into account that it was difficult to be measured. Indicators would and could be developed. In some sense the emergence of the rule of law, and the difficulty in establishing it firmly as a goal of itself, reflects the discussions within the law and development studies. Rule of law still is still being approached rather as a means to reach other goals than something worth pursuing by itself. Anyway, it is still an achievement that rule of law has made its way onto the agenda, and the awareness of its significance has grown. Even though this development has not been rapid, it has been substantial. And I regard it important that the pressure to keep it on the table has also come from the developing countries. The level of expectations has simply been raised.

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The underlying idea of development as expressed in the UN SDGs is still based on the capabilities approach as was suggested by Amartya Sen, among others. It seems that the capabilities approach, sustainability and rule of law represent a kind of super triangle. Sustainability serves as the main goal whereas rule of law serves as a means to an end. The capabilities approach, again, serves as the ground securing that development is being measured on the level of the wellbeing and quality of life of the individuals. Since combatting crime was also identified in the UN SGDs as issues to be addressed, it is interesting to see how criminologists see such goals and targets. We need to be mindful of the fact that crime is a political issue and fighting crime may also be abused. Fighting crime lends itself to political manipulation and moral entrepreneurship. For that reason, not everything that bears the name of fighting violence or corruption or terrorism works for the benefit of the people. Criminologists could be helpful in two ways: they could act in a supporting role, instructing the various stakeholders on how to deal with crime in a sustainable way. The other role would be a critical one: help development actors and local stakeholder and policymakers identify attempts to politicize crime issues for self-interested and strategic purposes.12 Even criminological insights support the idea that a capability approach would be helpful, if the criminologists wish to make the most impact (Blaustein et al. 2018, p. 774). Fighting crime requires understanding and trusted institutions: “While strengthening democratic institutions and accountability mechanisms may in theory help governments of less-developed countries increase state legitimacy and citizenship participation in co-productive activities to proactively reduce crime, the idea that strengthening the power of criminal justice systems will necessarily reduce crime or promote social cohesion is misplaced. Rather, increasing the state’s coercive control may undermine the rule of law. . .” (Blaustein et al. 2018, p. 776). Such observations are rather important. Fighting serious crime, such as terrorism or international organized crime calls for particular sensitiveness due to the risk of obvious abuses. It also stresses the need to build on a thick version of rule of law, one which includes effective protection of human rights. This could be understood as meaning that the tougher the agendas for development, the more we need the substantial rule of law commitments. It deserves to be mentioned that also the Venice Commission has seen thin versions of rule of law rather as distorted interpretations of rule of law. 13 Criminal justice institutions provide, indeed, a crucial testbed for the measuring of the rule of law. It is, in fact, not surprising to see that the first UN document on rule of law indicators focusses solely on issues concerning criminal justice institutions.14

12

Cf. Blaustein et al. (2018), pp. 767–786. See The Rule of Law Checklist, para. 15. 14 See The United Nations Rule of Law Indicators (n.d.). Implementation Guide and Project Tools. https://www.un.org/ruleoflaw/blog/document/the-united-nations-rule-of-law-indicators-implemen tation-guide-and-project-tools/. 13

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The approach of the United Nations builds on targets and indicators. On the UN webpages we find annual reports which give details about the development.15

5 The Venice Commission Setting the New European Standard Since 1990s, the Council of Europe body European Commission for Democracy through law, better known as the Venice Commission, has established itself as an influential high-level expert organization supporting the development of constitution law issues on a broad scale. The Commission has an increasing number of members and its services have been used by countries beyond the borders of Europe. We could mention the Central Asian states and some Northern African states as examples. The Venice Commission of the Council of Europe, which started as a consultative body supporting the necessary transformation of the constitutions of the East-European so-called new democracies, has grown almost to become a universal actor in the field, with having a reach beyond Europe.16 In 2011, the Venice Commission published its first Rule of Law Report. The aim of it was to be a pragmatic, practical guide which is not connected to any specific theoretical understanding of the State be it German, French, or British idea. “The rule of law is not a theory of the state but a simple, practical guide to the bare essentials power is to be exercised.” (Jowell 2012, p. 14). Remove the essentials, and you will see what follows. After continuous work, in 2016 the Venice Commission adopted a more extensive document which had the aim to present universal features of rule of law. It follows the line of the UN Global Sustainable Development Goals. The Venice Commission observes that the above-mentioned Target 16.3, committing States to Promote the rule of law at the national and international levels and ensure equal access to justice for all, offers a unique opportunity for revitalizing the relationship between citizens and the State. “This Checklist could be a very important tool to assist in the qualitative measurement of Rule of Law indicators in the context of the SDGs.”17 The “present checklist is intended to build on these developments and to provide a tool for assessing the Rule of Law in a given country from the viewpoint of its constitutional and legal structures, the legislation in force and the existing case-law. The Checklist aims at enabling an objective, thorough, transparent and equal assessment.” The Checklist is intended to provide a tool for assessing broadly the rule of

15

https://sustainabledevelopment.un.org/sdg16. Cf. Craig (2017), pp. 57–86; De Visser (2015), pp. 963–1008. 17 Rule of Law Checklist. Adopted by the Venice Commission at its 106th Plenary Session. (Venice, 11–12 March 2016), https://www.venice.coe.int/webforms/documents/?pdf¼CDL-AD(2016)007e, para 23. 16

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law developments of any country, with the aim of enabling an objective, thorough, transparent and equal assessment.18 Although the Rule of law Checklist is tailored for a European context, the ethos of the Venice Commission is also to serve a more universal interest. Therefore, the document refers to developments at global level as well as other regions of the world.19 A full achievement of the Rule of Law will require efforts even in the more developed democracies.20 It is rather interesting to see that the rule of law not only depends on formal legal structures, but also of the legal cultural embeddedness of the commitments that make rule of work real: 43. The Rule of Law can only flourish in a country whose inhabitants feel collectively responsible for the implementation of the concept, making it an integral part of their own legal, political and social culture.21

We will later come back to this observation that rule of law would have to be embedded in the culture. I would first raise especially another very interesting feature concerning the rule of law Checklist. There is namely a specific mention of that there should legal safeguards against arbitrariness and abuse of power.22 What are then the safeguards against arbitrariness and abuse of power? The Venice Commission refers to the duty of the public authorities to provide adequate reasons for their decisions, especially when these affect the rights of the individuals. This comes rather close to the expectation to grant legal protection and thus also to earn the respect of the people, that is, the legal community sensu largo. It should have become visible that the development towards defining rule of law in a pragmatic fashion seems, to my mid, interestingly serve the interest of what was earlier called law and development. There is even a Senian touch in it since the approach of the Venice Commission has been precisely tailored to assist in the qualitative measurement of rule of law. The law has different faces, and it is important in a variety of ways. Different understandings of rule of law are relevant and continue to be relevant. What is striking that merely instrumental views on law are getting weaker. Rule by law simply is not enough, it presents itself as a distorted version of Rule of Law.23 The Venice Commission catches something very important when it says that in fact the most important aspect of rule of law is that it prohibits abuse of power. It is much that just a matter of formal following of rules, or the like. The work of Venice Commission is comprehensive since it also includes considerations regarding how rule of law relates to protection of (human) rights as well as questions of democratic governance. The only aspect which one could regard missing in the Checklist is that

18

Ibid., para 24. Ibid., para 32. 20 Ibid., para 29. 21 Ibid., para 43. 22 Ibid., paras 17, 29. 23 Ibid., para 15. 19

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there is no discussion about how law relates to sustainability, and only very limited remarks concerning how law relates to development. Venice Commission raises, which is natural, the question of Rule of Law from the constitutive point of view. Venice Commission also indicates that it would be updating its Checklist, which means that new dimensions could appear in the future updates. This corresponds to what we saw in the UN context, with the development goals.

6 Towards Rule of Law and Development in a Global Setting As regards an understanding of justice I would again refer to Amartya Sen and his proposal of seeing the building up of justice as an incremental project, in which we improve our societies and regulation by reacting to observed injustices. He proposes that freedom and human development would be the ultimate goals and measures of true development. This comes close to what Martha Nussbaum has been talking about it in terms of a capabilities approach.24 Capabilities and freedoms point out beyond mere utilitarian concerns, and therefore also development of the society cannot be measured solely in economic terms, as GNP.25 I believe there is much in this. If we would relate these seemingly separate tendencies to each other, we would see emerging contours. This is in many ways important. It brings about a global justice approach which makes it easier to discuss issues such as climate crisis and how to face it. But I believe it gives a boost to views that human and societal development are indeed very much dependent on what kind of laws we have. And even more so, even dependent of what is our relationship to the laws. The expectation of justice runs through the idea of rule of law if we regard the abuse of power to be its true content. Rule of law could even be regarded as part of transnational legal order, or, rather, as an object regulated on transnational level. The UN Declaration of human rights could be seen as an expression of such a will. More recently, we could refer to the World Justice Project which has sought to formulate general criteria for rule of law. We should also remember that the UN SDGs even address rule of law at international levels. The authorities should see their role in a particular way. Jeremy Waldron took up this point in the context of US interrogating suspected terrorists in ways amounting or being close to amounting to torture. State authorities should not seek to maximize their use of powers, but rather be considerate in the ways they treat citizens and human beings more generally. It is about decency, about rule of law. State is different from an individual human being. We should request more from a state.26 24

See Nussbaum (2011). See Sen (2009). 26 Cf. Waldron (2005). 25

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Since the link between development and law has been highlighted, and the legal system has been seen as significant in development, the debates about rule of law have won a new attention. Marcelo Neves certainly has it right, when he claims that in central modernity the development towards a democratic Rechtsstaat has occurred rather naturally—which is not to claim that the development has been easy and predictable. Working out a globally valid definition of rule of law has proven a difficult exercise, like a search of the Holy Grail. But even though we may not share a detailed view of what rule of law consists of, we recognize certain features that matter. Independence of judiciary, for instance, is clearly not only a precondition and a constitutive element of rule of law, but also a structural condition for the judiciary to carry out its tasks according to the law. It, for instance, does not make sense to reconstruct law on the basis of the way the judges identify and recognize law, if, in fact, other factors are decisive in legal decisions-making. I interpret the situation so that a social-theoretical understanding of democracy and rule of law have highlighted the structural interdependencies of law as a democratically legitimate form of (self-)governing of the society. This understanding has been rather well compatible with the idea that the rights of the individual, as specified in the constitution and in other legislation, are a necessary element of the legitimate use of centralized of state powers, an element which also works as a feedback mechanism and a control of the exercise of state powers, including the exercise of legislative and judiciary powers. We should, however, also be mindful of an aspect which is much less obvious, and which is vaguer and more difficult to express. I mean the more humanist aspect of what it means to work as a judge, or as an administrator in a system which deserves the name of rule of law. In some sense, namely, rule of law is also a mindset. This is very much in line of what the Venice Commission was suggesting above when it referred to the necessity to make rule of law part of the culture of the society. Rule of law is, accordingly, at the bottom of it, a commitment to perform one’s decisions and actions according to the requirements of law. Jeremy Waldron has spoken about of the dignity of legislation in this same spirit: jurisprudence would need a normative theory of legislation (Waldron 1995, p. 644). The rule of law culture needs to be present on the level of the activities of the judges, prosecutors, as well as the administrators who decide on issues concerning the rights and duties of the individuals. This we could call the legal community in the narrow sense. But this is surely not enough, since the culture of respecting rule of law needs to penetrate the entire culture of the society. A rule of law culture actually becomes manifest only indirectly: it is a culture in which people respect the law and regard the decisions of the courts and others as systematically legitimate, even though they may disagree on the relevant issues in individual cases. The point is clear: it would namely be very difficult to guarantee a full legal protection without an established and shared culture which stresses the commitment of the actors of the legal system to the basic values of the system itself. This is in fact not to claim that everyone would just have to be moral, or the like. Rather, what I mean is that the final closure of the legal system vis-á-vis sinister interests can only

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with difficulty be achieved as a product of control or through external rules of conduct. A rule of law when the crucial actors do not share a real commitment to the law with its values and purposes will in any case remain rather vulnerable. I would thus emphasize the constitutive role of law and a non-instrumental approach to law since this will be needed to foster a culture of operation which again can be made to serve utilitarian goals. It may be the case that cultivating the cultural premises is in fact the difficult part of the exercise, if the legal system has deficiencies as concerns its closure due to lack of independence by reason of corruption or political interference, for example. Rule of law as a mindset may be important in terms of laws functionality. It is precisely the attitude that law can be used as an instrument for the promotion of private interests which threatens the closure of legal system. Law as an institution serves of course the purpose of letting the individuals exercise their guaranteed freedoms and has thus a great value for the individuals. It is, however, important that the public at large also recognizes the merits of legality and rule of law. We could relate this finding also to the way democracy works and becomes real: people need to respect the democratic political procedures as fair and just, since if they lose trust in them, the legitimacy of the entire political system may be questioned. Relating this discussion back to the issue of law and development gives food for a further thought, which tells something about why strengthening the rule of law frame is not that simple. It may namely be that the general public lacks confidence in the legal system and the judiciary rendering it operational for the right reasons: a lack of rule of law mindset on the side of key legal actors may lead to an even less legalistic culture amongst the citizenry. In a mature and developed rule of law culture the legal actors take the responsibility of cultivating a high and professional standard of legalism, and this enables the development of respect for legality amongst the broader public. In that sense the introduction of formal structures for the promotion of rule of law is only a first step towards developing a richer and full-blown rule of law, in which the way lawyers act and decide expresses a commitment to rule of law values. We face in fact a paradox: in order for the law to become functional end efficient as a regulator, we need to develop an attitude in which we see it in non-instrumental terms. We can now summarize our finding: it may be important, even when we operate on premises of a social theoretical analysis to be mindful of a certain humanistic core experience in the legality and rule of law. The internal perspective of a judge, and also of a legal scholar, contains more than just technical skills in mastering the legal system. This is precisely also the reason why rule by law is not enough. Rule by law lacks the grounding on human rights, democracy, and the culture of the people. Individual legal decision such as those made at the courts are expected not only to be predictable and consistent with the legal system, but also just in a more material sense. This is the tension every judge has to face. In the setting of a developed rule of law State the courts are able to handle these expectations. In the strong rule of law States, we usually find a long tradition of legalism to further build on. In the

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developing countries the situation may be different, and it would be unfair just to ask for the people to wait for 200 years to build a similar strong tradition. Thus, the question is, can such a development be accelerated? This is an empirical question that cannot be answered her. We might be able to monitor the development of certain countries now that international bodies are collecting a lot of data for to know the details of development. What I would suggest is that we should be mindful of the nature of the exercise. Developing a respect for legality is not a simple task, but one which requires time, education, and effort. The good news is, however, that development psychology tells us that we learn law as part of our human development. Learning law is this not something like learning a separate skill. We might thus say that living in a society which is committed to promoting justice and addressing injustices renders it possible for us to develop ourselves as full human beings (Engel 2004). The grand challenges such as climate change require collective action by many, if not all of the countries of the world. One of the obvious advantages of strong rule of law orientation is that it increases the effectivity of government interventions without hampering the legitimacy of the governance. We may rather say the opposite: governments which fail to address such issues risk the future of their people, and not only them, but also harms the conditions of life of future generations. In terms of Senian logic of development we could say that the grand challenges also point out new constellations in which injustices may occur. When working further to incorporate questions of sustainability into our basic legal categories and vocabularies we will also have to define more clearly how Rule of Law sits in the requirements of sustainability. One way of thinking of it would be to say that Rule of Law as an enabling concept enables States to address pressing issues. Rule of Law, democratic participation, and the protection of the rights of the individuals forms a triangle which needs to be promoted. And not only be promoted, it has to be backed up by a belief in justice and a better world. Probably it is not a coincidence that the two discussion, one on development, the other on justice and injustice, both point towards the relevance of rule of law. In order to conceptualize all this, we will have to use some tools of social theory, but we should not forget about the power of thought, and the necessary cultural underpinnings of rule of law. Our analysis points to the same direction as how the governance scholar Francis Fukuyama sees it. States are needed, and states need to have capacity to deliver. He stresses that institutional development has to grow rather from the inside. He advices: “Policymakers in the development field should at least swear the oath of doctors to “to do no harm” and not initiate programs that undermine or suck out institutional capacity in the name of building it” (Fukuyama 2004, p. 42). True development comes from the inside. But by learning from the own experiences as well as from others, steps can be taken. The sustainability challenges further underline the capacity requirement as the relevant regulations not only have to be

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introduced, but also have to be enforced. In terms of state functions, a minimum level is simply not enough, even for the developing countries.27

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27

See the helpful mapping of the state functions, in Fukuyama (2004), p. 9.

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MacCormick N (2005) Rhetoric and the rule of law: a theory of legal reasoning. Oxford University Press, Oxford Neves M (2000) Zwischen Themis und Leviathan: Eine schwierige Beziehung. Eine Rekonstruktion des demokratischen Rechtsstaates in Ausandersetzung mit Luhmann und Habermas. Nomos, Baden-Baden Neves M (2013) Transconstitutionalism. Hart, Oxford Neves M (2019) Between the Hydra and Hercules: constitutional principles and rules as a paradoxical difference of the legal system (manuscript, original in Portuguese) Nuotio N (2010) Systems theory with discourse ethics: squaring the circle? Comment on Marcelo Neves’s Zwischen Themis und Leviathan. No Foundations J Extreme Leg Positivism 7:59–85 Nussbaum M (2011) Creating capabilities: the human development approach. Harvard University Press, Cambridge Pursiainen C, Pei M (2012) Authoritarianism or democracy? In: Pursiainen C (ed) At the crossroads of post-Communist modernisation: Russia and China in comparative perspective. Palgrave Macmillan, London, pp 114–180 Rajah J (2015) “Rule of Law” as transnational legal order. In: Halliday T, Shaffer G (eds) Transnational legal orders. Cambridge University Press, Cambridge, pp 340–373 Rawls J (1993) Political liberalism. Columbia University Press, New York Santos A (2006) The World Bank’s uses of the rule of law promise. In: Trubek D, Santos A (eds) The new law and economic development – a critical appraisal. Cambridge University Press, Cambridge, pp 253–300 Sen A (1999) Development as freedom. Anchor Books, New York Sen A (2009) The idea of justice. Harvard University Press, Cambridge Shan W, Nuotio K, Zhang K (eds) (2018) Normative readings of the Belt and Road Initiative: road to new paradigms. Springer, Cham Soininen N (2018) Torn by (un)certainty: can there be peace between the rule of law and other SDGs? In: French D, Kotzé L (eds) Sustainable development goals: law, theory and implementation. Elgar, Cheltenham, pp 250–270 Stanton E (2007) The Human Development Index: a history. Political Economy Research Institute, University of Massachusetts at Amherst (Working paper). https://scholarworks.umass.edu/peri_ workingpapers/85/ The United Nations Rule of Law Indicators. Implementation guide and project tools. https://www. un.org/ruleoflaw/blog/document/the-united-nations-rule-of-law-indicators-implementationguide-and-project-tools/ Trebilcock MJ, Mota Prado M (2014) Advanced introduction to law and development. Elgar, Cheltenham Trubek D (2006) The “Rule of Law” in development assistance: past, present, and future. In: Trubek D, Santos A (eds) The new law and economic development – a critical appraisal. Cambridge University Press, Cambridge, pp 74–94 Trubek D, Santos A (2006) Introduction: the third moment in law and development theory and the emergence of a new critical practice. In: Trubek D, Santos A (eds) The new law and economic development – a critical appraisal. Cambridge University Press, Cambridge, pp 1–18 Waldron J (1995) The dignity of legislation. Maryland Law Rev 54(2):633–665 Waldron J (2005) Torture and positive law: jurisprudence for the White House. Columbia Law Rev 105(6):1681–1750 Walker N (2015) Intimations of global law. Cambridge University Press, Cambridge Wiik A, Lachenmann F (2014) Rule of law and the sustainable development. Max Planck Yearb United Nations Law Online 18(1):286–331 Wittrock B (2002) Modernity: one, none, or many? European origins and modernity as a global condition. In: Eisenstadt S (ed) Multiple modernities. Routledge, New York, pp 31–60 Wolff LC, Xi C (eds) (2016) Legal dimensions of China’s Belt and Road Initiative. Wolters Kluwer, Hong Kong

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World Justice Project. Rule of Law Index 2020. https://worldjusticeproject.org/our-work/researchand-data/wjp-rule-law-index-2020

Kimmo Nuotio is criminal law professor at the University of Helsinki. He is a former Jean Monnet Fellow of the European University Institute and he has been a visiting professor at the University of Toronto and at the University of Leuven. He is also a member of the Global Faculty of the Faculty of Law of the University of Peking.

Part II

Symbolic Constitutionalization

Symbolic Constitutionalization and Constitutional Debate in Chile Darío Rodríguez

Contents 1 2 3 4

Politics and Law: The Constitution as Structural Coupling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Demands for Constitutional Changes in Chile . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Symbolic Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Symbolic Constitutionalization in Chile? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 Functional Differentiation of Society and Fundamental Rights . . . . . . . . . . . . . . . . . . . . . . . 4.2 Division of Powers and Difference Between Policy and Administration . . . . . . . . . . . . . 4.3 Difficulties in the Process of Preparing the Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract For some years, Chile has been going through a special period. The need to change the current constitution of Chile is heard in different areas, understanding that, as a positive law, it must adapt to the social changes experienced by our country. The demand for constitutional change has gone beyond the traditional limits of the organizations dedicated to the political sphere and has also generated massive popular movements that, in different occasions and circumstances, have raised the need to have a new constitutional order where their claims may have a legitimate place.

The contribution of Professor Dr. Marcelo Neves to the sociology of law is so broad and relevant that we have chosen to refer to only one of the many areas to which he has devoted his attention. D. Rodríguez (*) Escuela de sociología, Universidad Diego Portales, Santiago de Chile, Chile e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Nogueira de Brito et al. (eds.), Law as Passion, https://doi.org/10.1007/978-3-030-63501-5_3

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1 Politics and Law: The Constitution as Structural Coupling The functional system of politics has a clear link with the functional system of law. The political system offers the system of law premises for its decision-making in the form of positively promulgated laws. The system of law, in turn, offers the political system the necessary legality for it to make use of power. Another level of exchanges between both systems is made when the system of law gives the political system premises for the use of physical violence. With this, the circle of will and strength is broken. You can not force everything you want or want everything that could be forced. In return, the political system gives the law system the necessary binding force. Legal decisions, especially judicial resolutions, must be obeyed and they are because they could be forced to obey them, and, in some cases, they are forced to abide by them. This possibility is considered in the taking of legal decisions and without it the society’s law system could not exist (Luhmann 1981). Power must not be used arbitrarily. The Constitution and the Rule of Law are required. This codification can ensure that any citizen does not need to go armed to enforce his rights, because he has at his disposal the organized coercive capacity of the State. Each individual member of society can feel secure that no one, not even the State, can act legitimately with violence against him. In this way, political power is subordinated to its own codification, so that to be able to mobilize the public force it is necessary to have the right to do so: they have robbed me and I demand that they arrest and judge the thieves; I have shown that my claim for libel is legitimate and I expect that my libeller will be compelled to give public explanations; I have been unjustly detained and an appeal for protection can be filled in my favor; the State wants to control an outbreak of violence, but it must do so in accordance with the law. The law operates with the lawful/unlawful code, in such a way that it defines as unlawful to obtain money through extortion; if someone does, their behavior defined as unlawful by the system of law can be sanctioned and, in addition, the extortionist can be forced to return the money thus collected (Atria et al. 2013, p. 126). Political power is subordinated to law, but it also has the right—given by law—to modify the law: The National Congress can, according to the Constitution, legislate and, also, study and approve constitutional changes. This evolutionary achievement is known as the Rule of Law (Luhmann 2007). It is celebrated, then, as conquest of the process of civilization a structural coupling between the political system and the law system that allows: “That two opposing perspectives be designated in a unit: the legally bound public force and the political instruments of the law” (Luhmann 2002a). In the relationship between the political system and the legal system, the Constitution fulfills a function of structural coupling. The functional differentiation has led to the subsystems of world society becoming autopoietic and, therefore, closed in their operation. The link between two systems—such as the political and the law— can only occur in a way that ensures the continuation of the autopoiesis of both, which implies their closed and self-referential operations. The Constitution can play this role because it “achieves political solutions to the problem of self-reference of

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law and legal solutions to the problem of political self-reference” (Luhmann 2002a, p. 548). The function of structural coupling that the Constitution fulfills in the Constitutional State implies that it can operate in both systems, assuming in each one a coherent meaning with the respective closed operational self-reference. It could not be otherwise, because an autopoietic system only admits as information what finds resonance in its own structure. This condition implies a strong selection: only what is political is interesting to politics; only the law concerns the law. Everything else remains invisible and each system is completely indifferent to it. The Constitution, then, for the legal system means something different than for the political system. For the system of law, the Constitution is the fundamental law, the supreme law. For the political system, on the other hand, the Constitution is a powerful political instrument. In the system of law, every law must be evaluated under the terms of its constitutionality: in this system the Constitution is the basic premise that must be considered in the autopoietic operation of generation of laws. In the political system, the Constitution operates instrumentally as a powerful tool to modify situations, but also has an important symbolic use that does not alter them (Luhmann 2002a, p. 548). A characteristic of participatory democracy is that each party in power knows-and also the opposition parties know-that their stay in power is limited and will be literally subject to scrutiny in a determined and known term. It is about satisfying the wishes of the elector, whatever they may be. But desires can be changeable, efforts are made to offer new solutions to the same old problems and attempts are being made to persuade the voters that these are their problems and those are the solutions that they would like to see implemented. Politics becomes dependent on the decisions of the voters (Torres Nafarrate 2004, pp. 398–399). This allows us to remember that, whatever the political system’s use of the Constitution, the real limitation of the political system is found in its own operation, that is, in the power game and the calculation that the political elites can make of their relative degrees of power (Luhmann 2002a, p. 549). The constitutions have been analyzed by Luhmann as legal arrangements formed at the intersection between the political and legal systems of society. They allow to consolidate and simplify the terms that articulate both systems, enabling them to provide each other with descriptions of their functions through which they can respond and positively organize their internal communications (Luhmann 1991). With constitutions, the law has acquired the ability to explain itself, along with its decisions, as legally determined (Luhmann 1991, p. 202). Luhmann adds that constitutions are documents that facilitate the legitimacy of power, because they allow to hide the contingency of the origin of power and its application by functional systems. Following the concept of contingency, we can understand the nation state based on a constitutional order, as a construction also contingent. For Luhmann, the idea of “the State” does not refer to an existing factual object. The state itself is nothing more than a formula for the self-description of the political system of society, which allows the political system to differentiate itself and unify its communications and, thus, concentrate and regulate the power that can

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be used by society (Luhmann 1984; Luhmann 2002). Conceiving a state under a constitution or, in other words, understanding it as a “constitutional state”, then stands out as a refined political self-description, which allows the political system, at the same time, to articulate its positively differentiated and plausible functions and intensify and perpetuate its autonomy and unity (Thornhill 2010, p. 326). The law also undergoes a process of functional differentiation, which is particularly noticeable in reference to the political system, given that the close relationship between the political system and the legal system is evident: law depends on politics for its application, because without the possibility of imposing a norm by force that comes from political power there can be no convincing normative stability; politics, on the other hand, requires the law to regulate access to political power. The difference between both refers to the symbolically generalized communication media that operate in each of them: Power with its code power/no power and Law with its lawful/unlawful code. The function of law consists in making possible the security of expectations in view of disappointments that can be foreseen (Luhmann 2002b, pp. 207–211), in other words, its function refers to allowing confidence in certain expectations as such and not as behavioral forecasts. This means that transgressions to the norms may occur—precisely because of that, such norms have been dictated—without this signifying a loss of confidence in the law: It is a fact that there are murders, but what is demanded is greater vigilance, better application of sentences, faster trials, etc. It is never asked to set aside the norm because it is not fully met. From this function, you can derive the performances of the system of law: channel behavior and solve conflicts. Life in society depends on human beings behaving according to the indications of law: stop at the red lights, pay their bills, respect private property, do not reign the law of the strongest, declare their income and pay taxes, etc. The provision of the law to other functional systems not only consists in the delimitation of freedoms, but also in the production of freedoms that can be limited according to the mode of other functional systems: the freedom to adhere to a certain organization or to disassociate from it; the freedom not to marry the couple chosen by the parents, to marry, instead, for love; the freedom to express inconvenient opinions; etc. (Luhmann 2002b, p. 216). Another important provision of law consists in the solution of conflicts; in practice, society requires that its different functional systems can appeal to the legal system in the case of a conflict. It is clear, however, that the condition for this to happen is that the conflict is defined in terms of the legal system themselves, i.e. with licit/illicit code (Fernandes Campilongo 2011, p. 126), which, sometimes causes that the real reasons for the conflict are not addressed. For this same reason, the law is only one of the possibilities of handling the conflict that are available and, in fact, people usually tend to resort to the legal solution only when the others do not seem convenient. If a reasonable agreement can not be reached regarding the payment of a debt, the custody of the children, the responsibility for the automobile accident, the return of the property by the lessee, the limits between two countries, etc., a lawsuit can be filed with the appropriate court.

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2 Demands for Constitutional Changes in Chile The Constitution that governs the Chilean State was enacted in 1980, during the dictatorship, through a plebiscite recognized fraudulent (Fuentes 2013). This Constitution has been in force for almost four decades, although the scant legitimacy of its origin has made it subject to numerous reforms. Already in 1981, still under the dictatorship, prominent jurists of the sector opposed to the government form a group of Constitutional Studies that dictates that the Constitution is designed to maintain the institutionality established by the dictatorship, making it extremely difficult to change (Atria 2015, p. 49). In 1989, the Concertación de Partidos para la Democracia, which had won the 1988 referendum, agreed to some changes with those who had voted for the maintenance of the military regime. These changes were considered necessary to initiate the transition to democracy and, among other things, it became possible to reform the Constitution, allowing parties of Marxist inspiration to participate in democracy without being more constitutionally proscribed. These constitutional changes, after being seen by the Military Junta, were submitted to a plebiscite, as required by the 1980 Constitution (Correa Sutil 2015, pp. 120–121). In 1990, democracy returned and the need to reform the Constitution began to be discussed, but it was a “protected democracy” in which the possibilities of achieving reforms were meager, due to the distribution of power that maintained non-surmountable factual conditions called power enclaves(“enclaves de poder”) and the high quorum requirements defined in the constitution itself for its change. According to Fernando Atria, the 1980 Constitution sought to maintain the dictatorship and, when democracy arrived, to “neutralize” political action. Because of this, it contained provisions that hindered the full democratic exercise that could be eliminated when time made them ineffective. For example, there were appointed senators until the number appointed by the military regime became equivalent to that of those appointed in democracy (Atria 2015, p. 52). In 2005, President Lagos made an important constitutional reform, which led him to believe that a new constitution had finally been established capable of bridging the differences that divided the country and that would therefore have enough democratic legitimacy, that the 1980 Constitution lacked. A few years later, however, the debate on the need to reform the Constitution once and for all, resurfaced with the idea to promulgate a truly new Constitutional Charter. The year 2011 begins a broad civic mobilization, with massive student demonstrations that demand to improve education and make the University accessible to an increasingly broad middle class. There is also an intensification in the manifestations of indigenous peoples seeking constitutional recognition for their racial and cultural condition that had remained hidden in Constitutions that proclaimed the equality of “all Chileans” before the law and, in doing so, rendered invisible the original peoples that included, excluding them in practice.1 The social upheaval considers demands 1 What made native peoples practically non-existent for Chilean Constitutions. Millaleo (2015), pp. 293–307.

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that had not been able to be taken care of in the political decision-making, because those who raised them did not have access to that binding decision making that is the enactment of laws. Racial and sexual minorities, housing debtors, environmentalists, animal rights advocates, pro-choice advocates, etc. they stand out and have the international support of their peers in a globalized society that is known worldwide (Luhmann 2007). Public protests are often accompanied by violent expressions, something relatively new in Chile since the return of democracy. Trucks are burned, bus stops, traffic lights, signs, etc. are destroyed. There are looting of commercial premises and sacred images extracted from a church are destroyed in the street. In rural places, certain religious temples are attacked and destroyed. Groups excluded from society are not considered as negotiating actors, since they are not part of social communication (Stichweh 2009). These groups do not participate in social conversations, because of which their expectations are not incorporated in the discussion and, therefore, neither in the laws that regulate the social order. If we agree with Luhmann’s assertion that society is based on communications, then those excluded from society need to begin to fight for their insertion, not from the language (since they are not part of the communication nor do they have the codes), but from what is more basic in them as human beings—their own body—that is, physically, interacting from a factual level and not from a social level. From this perspective, the use of physical violence does not constitute a threat, as when its objective is to maintain the law. Violence then becomes an expression, which may be against the order or nature of things, as they are socially established. Although violence can constitute a communicative event (Luhmann 2007, p. 632), while communication does not take place, the origin of these demands will not be understood and is interpreted rather as noise. Society is made up of communications hand, in societies with social stratification, the binding communications, those that decided the main guidelines in economic, political, educational matters, etc., took place in the aristocratic stratum. Those who did not belong to the aristocracy could not participate in these binding communications and, for that reason, could not expect their interests to be considered in them either. To be noticed, to ensure that binding communications made amends for their problems, the lower classes had to make noise, so that the binding conversations could not continue in their usual calm, forcing the interlocutors to discuss the origin and reasons for the noise, as well as also to look for ways to appease it. Unfortunately, history shows that the most frequent way to appease the noise caused by the excluded—without any community that protects, defends and legitimizes them. Outside the institutional channels of the law . . . And what can be worse: without recognized domicile or legality—has consisted on repression (Salazar 2015, p. 105).

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From the origin of the National States and the extension of democracy, binding communications find their rules in the respective Constitutions, but globalization brings new conditions to binding decisions and recent protest movements generate enough noise to position their issues in them.2 Protest movements raise with increasing force and resolution their discontent with the behavior of the political actors. Transversal acts of corruption are discovered, such as the irregular financing of the political campaigns of candidates belonging to most political parties. Large companies have financially supported numerous candidates, from all sorts of tendencies and parties, which leads to the questioning of the political behavior of those favored by this illicit support in the enactment of laws that regulate the markets in which these companies operate. Long judicial and journalistic investigations keep the public alert with the facts that are coming to light. The reserved information of many of these investigations is “filtered” to the mass media, generating greater distrust and the sense of opacity of the decision making and the conduction of publicly relevant matters. One of the generalized demands is, then, for transparency. Binding decisions seem to be taken mistakenly by people who do not consider the interests of citizenship. There is a distrust of the political communication that leads to binding decisions and increases the number of those who consider themselves excluded. All this causes a growing disinterest, especially among youth, for actively participating in elections. Expressions of discontent increase at the same time. Niklas Luhmann makes an important distinction between risk and danger (Luhmann 1992) that can illuminate the just mentioned phenomenon of political disaffection and the perception of exclusion by those who do not belong to this category. Both the risk and the danger refer to a possible future damage, but there is talk of risk when that eventual damage is derived from a decision adopted by the person who assumes the risk (known or unknown) that this may involve; the danger, on the other hand, happens without the affected person having done anything to justify their harm. For example, who drives at high speed or under the influence of alcohol can suffer an accident, but he and others will know that he took a risk driving so unscrupulously. Nobody will attribute the negative consequences of their decision to “bad luck”, “the gods” or the bad conditions of traffic and roads. Following the example, if the accident caused by the imprudence of the drunk driver seriously affects another driver who drives responsibly or hits, killing a pedestrian waiting on the sidewalk to cross the street, these affected victims may make the irresponsible driver responsible for a damage they could not even imagine and could not have avoided. If they wish, they can also add bad luck or the gods to those responsible for the damages received, but they can not be held responsible themselves (if I had left earlier or used another path); for them, the damage was detached from the danger that can cross the path of anyone. There are many cases in contemporary society that can be observed with the risk/hazard distinction. The top executives of a nuclear power generation company may consider that the safeguards adopted to avoid a

2 In this regard, it is significant that the words “sound” and “noisy” are considered in the title of an article about problems of globalization Useem (2000).

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catastrophe are enough or that the probability of a catastrophic event is practically nil, also the State that authorizes the operation of that nuclear plant estimates that there will be no accidents or any damage; both the executives and the State assumed the risk of operating or letting that plant operate. However, as happened in Fukushima and in Chernobyl, disasters occurred that affected people who could not have done anything to prevent that regrettable decision and, therefore, lived and suffered the harm derived from the risk that others took so wrongly to decide. They lived in danger, probably without even knowing it and many died of pollution. Those who decided, for their part, had to take charge of their political responsibility and lose their high positions. With political decision-making, its opacity, its possible corruption, etc. It is possible that there are those who take fundamentally political or legal risks that could entail serious dangers for those who are not only innocent, but who also have no right to participate in that decision making nor can they expect their opinions to be considered. This imbalance between risk and danger has led to them feeling affected and behaving as such people who never experienced the danger or suffered their losses but solidarize with those affected because they know that the imbalance also exists in their surroundings and could hurt them. The Fukushima disaster, for example, caused a global malaise that could not have been framed within the boundaries of the directly damaged region. That there has been a movement like that of the “outraged” is a clear example of this and highlights the solidarity between those affected and not affected by various situations of danger. Also, the excluded who are not considered interlocutors of the communications of the society receive, suddenly, the solidarity of people very distant socially and spatially, but that demand solution for problems of those who can not demand it because they have no place in the communications of the society. Something similar has happened, for example, with the old demands of the native peoples that were not heard by successive governments of different political tendencies, until they achieved the enormous international support of many other original groups, from different and distant countries, that had had or not achievements in their own demands, but that globalized their interests.

3 Symbolic Legislation The primarily symbolic feature of this legislation could give the erroneous impression that it would have no social function and, therefore, be both legally and politically useless. Marcelo Neves, however, shows that, although it has no normative efficacy, that is, even if it does not serve to maintain counterfactual social expectations, its symbolic nature makes it highly appreciated and used in the political game. We will briefly refer to the symbolic legislation, mentioning some examples. Symbolic legislation lacks normative efficacy, although this does not mean that because of this, it is socially irrelevant. From a sociological point of view, effectiveness refers to the conformity of the behaviors of the recipients of the norm. It is,

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therefore, about whether the norm is actually observed, imposed and used (Neves 2007, pp. 42–45). Observance implies acting in accordance with the legal norm, without such behavior being due to fear of a sanction. The imposition, on the other hand, is the reaction to behaviors that contradict the legal precepts and seeks to restore respect for the norm. According to Neves, effectiveness can refer to the observance of the law or its imposition. From a strictly legal (non-moral) perspective, it would be possible to distinguish between autonomous efficacy (by enforcement) and heteronomous efficiency (by imposing third parties) of a normative precept. Neves does not accept that the concept of effectiveness is limited to the observance (autonomous), nor that the observance is overestimated, because it ignores that there can also be efficacy supported by the imposition. Only a norm that was not autonomous or heteronomically respected could be considered ineffective (Neves 2007, pp. 44–45). The previous distinction proposed by Marcelo Neves serves to understand cases like the one of the courts and condemned in Chile for violation of Human Rights during the Pinochet dictatorship, for whom both the trial and the penalty lack autonomous efficacy and add that the effectiveness which keeps them in prison is only heteronomous. Neither they nor the sector of the society that supports them accept the legality of their situation, but consider it a pure act of political force, given that they define the judged act as a necessary heroic act, aimed at defending the country. This would be a case in which there would be no ineffectiveness of the legal norm, because it is a fact that violators of human rights are kept in prison in a democratic state. There was ineffectiveness of the law during the dictatorship, which was forced to deny the killing of the oppositors and spoke of “disappeared”. In vain the relatives denounced the arrest of someone in court, indicating the circumstances in which he had been arrested and the witnesses of the fact; the usual response was that there was no evidence that this person was or had been in the detention centers, which leaves clearly, at that time, the law lacked autonomous effectiveness and there was no intention to impose it lawfully, which also made it ineffective heteronomically.3 At that time, then, it was a purely symbolic law. What would be the social reasons that would lead to promulgate symbolic laws? According to Marcelo Neves, there may be different motivations to demand and accept symbolic laws. One of them refers to important sectors of the population that seek legal support for values that are not universally accepted. “The groups involved in these debates or struggles, seek to make their values prevail and see in a ‘legislative victory’ the recognition of their ‘moral superiority’ and they find secondary the normative efficacy of the respective law. Their expectations, therefore, are satisfied with the achievement of the legislative act that establishes the formal

3

The habeas corpus was enshrined in Article 21 of the 1980 Constitution, but—according to a jurist—by not demanding it, the courts simply followed a practice prior to the 1973 coup d’état. Already at the time of the Constitution of 1925, “the Supreme Court completely abandons its protective role (sic) of personal liberty, being particularly serious the rejection of habeas corpus directed against orders of deprivation of liberty coming from the own ministerial authority. In this sense, the practice of the courts after the coup d’état of 1973 represents a continuity with the preceding evolution”. Aldunate Lizana (2007).

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requirement to behave in accordance with the postulated values or to prohibit acts contrary to those values” (Neves 2007, p. 33). In Chile, the abortion law that was widely discussed from a fundamentally valueperspective for several years can be shown as an example. In fact, in 1931 the Health Code was issued, which allows women to interrupt their pregnancy for therapeutic purposes. In 1989, article 119 of the Health Code was repealed and all types of abortion were prohibited. In 2015, President Bachelet enters the bill that decriminalizes the voluntary interruption of pregnancy under three grounds. Finally, in 2017 the law that decriminalizes abortion is enacted, allowing it under three causes: (1) danger to the life of the woman, (2) lethal fetal infeasibility, (3) pregnancy for rape. Before there was a law that allowed it, abortion was widely executed without major judicial consequences. The fierce discussion had a value motivation, rather than a practical one. One sector of society pointed out that what was under discussion was the right to life of the human being whom the State had to protect from its very conception; the opposite sector appealed to the woman’s right over her own body. The controversy implied, therefore, an ontogenetic definition about the rights of the embryo or, in other words, at what moment the existence of a human being with the right to life begins. To these moral foundations, both sides added practical arguments, such as that the law would increase the number of abortions or, on the contrary, it would allow saving the lives of women who illegally aborted, in unhygienic conditions. In both cases, in accordance with what Neves indicated, both groups intend to demonstrate and legitimize their “moral superiority”, rather than wait for the normative efficacy of the law under discussion. There are also situations in which legislators are pressured by citizens to dictate laws that meet their expectations, but what legislators do is effectively enact symbolic laws that seem to meet expectations, although without addressing the effectiveness of such laws. This is what Neves calls “legislation alibi” (Neves 2007, p. 37). This kind of legislative behavior has been notorious in the 2017 presidential election, in which both the opposition coalition and the government coalition have tried to demonstrate that in their respective regimes—Piñera government (2010–2014), the Bachelet government (2014–2018)—they made reforms of great relevance and social sense, trying, at the same time, to discredit what was affirmed by their respective contenders. It is less important in this debate if the announced reforms led to effective changes in the conduction of social affairs. Perhaps something similar happens when companies justify their polluting operations with their strict adherence to current legislation. In the case of the river Cruces of Valdivia, the black-necked swans, symbols of the area, began to die due to the contamination of the waters by the operations of the Arauco pulp company. In a clear example of the risk/hazard distinction, the executives of the company declared themselves innocent of the charges and proved to have municipal authorization, which ensured their strict compliance with current regulations. After a long time, during which the company contracted studies that demonstrated the lack of relationship between the death of the swans and their industrial waste, and environmental

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organizations contracted studies that linked the death of the birds with the operations of the company, the community of Valdivia was mobilized to prevent the company from continuing to work. In this case, it was clear that the current law was not very effective, either to prevent pollution or to legitimize the actions of the company vis-à-vis the citizens. This is not strange to happen because Neves points out that this kind of law is not always successful in its symbolic function and it can be made visible that legislation does not contribute to making legal norms positive; before this, the public feels cheated and the political actors become cynical (Neves 2007, p. 41). Symbolic legislation can also serve to postpone the resolution of social conflicts through commitments that indefinitely delay the final decision (Neves 2007, pp. 41–42). When considering this delaying function of symbolic legislation, the question arises about the situation of highly conflictive and long-delayed issues due, precisely, to its polarizing nature of opinions. For example, the acceptance with full equality of sexual minorities, about which there were no conversations for centuries and, at some point, a symbolic law that accepts the legitimacy of different sexual options without granting much more is reached. It is very likely that it would have been impossible to achieve the current state of legislation in this regard without this series of dilatory symbolic laws. Something similar has happened with the political and economic rights of women. And the same could be said about all the progressive advances in a society that evolves. It is evident, however, that the delay is not made with the intention of gathering more information to make a better decision, but simply seeks to prevent a certain group of legislators from being forced to decide on a conflictive issue. Perhaps it could be postulated that society invisibilizes its more complex problems (as it happens with exclusion), until little by little they are discovered and confronted in the political discussion and slowly become the subject of the legislation, by means of laws predominantly symbolic dilatory commitments that allow solutions to be expanded temporarily in the political game, with setbacks and advances derived from relative powers, as in Chile with the repeal of therapeutic abortion in 1989. Something similar happens with the Agrarian Reform. Until the end of the nineteenth century it was not a matter of social or political discussion. During the first half of the twentieth century, the haciendas were not intensively exploited and much of their extension was not cultivated. The lack of work in the field and the development of urban centers with incipient industrialization generated a wide fieldcity migration. Living conditions were difficult at both ends; work was precarious both in the countryside and in the city. Towards the middle of the twentieth century, the church made an agrarian reform in its agricultural properties that inspired a law of conservative agrarian reform dictated during the government of Jorge Alessandri. Although it could be said that this law had a symbolic character, it made it legitimate to discuss the issue, which allowed for much more advanced positions. The government of Eduardo Frei Montalva dictated a law of Agrarian Reform that motivated the polarization of the conservative and progressive positions. During the government of Salvador Allende, polarization made the enactment of laws difficult, but there were

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attempts to use symbolic laws without normative efficacy as a basis for actions that, based on the symbolic, sought normative legitimacy. There was talk of the “loophole of the law”, but basically it consisted in making effective norms that had been dictated in a symbolic way or that had been invalidated by time, without ever being abolished (Novoa Monreal 1977). However, this interpretation of the law was denounced by the conservatives as illegitimate.4 The law began to be insufficient to define consensus and the confrontation became harder to produce a break between government and legislative power. The Pinochet government marked a clear setback and even many expropriated lands were restored to their former owners. The symbolic legislation is not defined, in terms of the effects, only in a negative sense, due to its lack of normative effectiveness and social validity. There are legislative acts and normative texts that have these characteristics, without performing any symbolic function. Time makes some law stop being used, because the acts that normed no longer occur; for example, the laws referring to the use of horses in the city have lost validity and normative effectiveness, but they are not properly symbolic. Symbolic legislation is also defined in a positive sense: it produces relevant effects for the political system, such as giving apparent solutions to a situation in which consensus is difficult; in this way it unloads the political system from concrete social pressures, generates electoral support for the respective politicians-legislators, serves the symbolic exhibition of the state institutions as worthy of public confidence. It is not distinguished from instrumental legislation because it does not exert influence on human behavior, but because of the way in which it is exercised and the model of behavior it influences (Neves 2007, pp. 53–54). From the description of situations in which purely symbolic rules are produced and the political effects sought when legislating symbolically, Marcelo Neves proposes the concept of symbolic constitutionalization. This is rather a process in which the symbolic effects sought in the enactment of laws may become important when discussing and elaborating a constitutional change or a new constitution. The symbolic problems of constitutionalization have an enormous repercussion, given that, within the normative system, the Constitution is the model of all laws (Tonet 2016). In the next point, we will discuss the concept of symbolic constitutionalization and its usefulness to consider political acts that have accompanied the process of Chilean constitutional change.

4

Magasich (2013).

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4 Symbolic Constitutionalization in Chile? We have seen that the 2005 Constitution is considered an insufficient reform of the 1980 Constitution and, consequently, the idea of the need to elaborate a new and effectively democratic Constitution, whose legitimacy can not be questioned, is generalized. But, does a process of symbolic constitutionalization occur or is it simply a constitutional change, without vices or dangers of this symbolic process insinuating itself? Marcelo Neves indicates that the social function and the political provision of the Constitution refers, among others, to:

4.1

Functional Differentiation of Society and Fundamental Rights

Fundamental rights contribute to the development of communications at various differentiated levels. Its function is related to the “danger of dedifferentiation” (especially of politization) or, in positive terms, to the “maintenance of a differentiated order of communication”. Thus, in the hypothesis of a Constitution identified with totalitarian conceptions, since fundamental rights are excluded or adulterated, neither the plurality nor the contingency of expectations are considered, resulting, therefore, in an inappropriate dedifferentiation to the complexity of contemporary society (Neves 2007, p. 75). Luhmann considers the Welfare State based on the sociological principle of inclusion, referring to Thomas Marshall and his well-known concept of citizenship (Marshall 1977). All people would have access to the different functions of society, they would be included as “public”, that is, although not everyone can play the roles of doctor, professor or deputy, everyone can participate assuming the “complementary roles” or of “public”, given that everyone has the right to be patient, students and electors (Stichweh 2009). Based on this idea, Marcelo Neves indicates that, if the “Welfare State is defined as a political inclusion made and the Rule of Law as a legal inclusion, it is observed that the fundamental social rights instituted constitutionally by it are essential to the real institutionalization of fundamental rights referring to civil liberty and political participation . . . In this perspective, it can be affirmed that, in (modern) society, founded on very diverse and contradictory expectations and interests, law can only satisfactorily fulfill its function of congruent generalization of normative behavioral expectations as long as the principles of social inclusion and differentiation are constitutionally institutionalized and, consequently, fundamental social rights, as well as those concerning civil liberty and political participation” (Neves 2007, p. 78). From this it follows that the 1980 Chilean constitution, promulgated in a plebiscite without guarantees, by a dictatorial regime in which human rights were violated, in which civil liberty and political participation were practically

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non-existent, has been delegitimized since its very promulgation. Even before the end of the dictatorship, in 1989, there were modifications agreed between those who had achieved the triumph of the NO to the continuation of the authoritarian government and those who had voted for the option to such maintenance in power. Further constitutional changes were, as we have seen, settled in the year of 2005. Despite these changes, however, the debate regarding the need to elaborate a totally new constitutional text continued, to the point that, in 2009, three of the four candidates for the presidency of the republic considered making this change of Constitution in its government program (Atria et al. 2013, p. 109). Given that the right-wing candidate, who had not promised to conduct any constitutional change, won that election, it became the subject of mass mobilizations and, in practice, became “a genuinely transversal demand of Chilean society” (Couso 2015, p. 81).

4.2

Division of Powers and Difference Between Policy and Administration

Modern constitutions institutionalize the division of powers against the possibility of de-differentiation between law and politics. In this way, it fulfills the function of limiting political power through an autonomous legal sphere, differentiating, in addition, politics and administration. It is known that administrative officials, on certain occasions, are confronted, in compliance with their role, with members of society belonging to social higher categories and therefore require specially legitimated rights to decide bindingly. Consider, for example, the Comptroller’s official who must audit public officials of a higher hierarchical level or highly connected businessmen. In this perspective, the introduction of functionally differentiated procedures (legislative, judicial and political-administrative), through the division of powers, increases the capacity of the legal and political systems to respond to the demands of their respective environments, each with its own expectations (Neves 2007, pp. 80–82). There is talk of corruption when a functional system, supposedly autonomous, allows the code of another system to take direct part of its activities: whether it pays for political benefits, whether it is politically pressured against judges, bankers or individuals. For example, if love, supposed in intimate and family relationships, leads to protect relatives involved in judicial matters intervening on the officials in charge. Or if the funds allocated to an organization, such as the army or the police, are diverted administratively for the benefit of high-ranking officials or if a chain of administrative officials are involved. In recent years, we have witnessed in Chile numerous and serious cases of dedifferentiation as indicated; this has been another reason for various social sectors to demand transparency and to change the Constitution. These clear cases of systemic corruption, of intrusion within the system of the Law of other characteristic codes and valid for systems of society different from the

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Law, are not easily analyzed only as isolated and anomalous cases of corruption. Marcelo Neves points out that symbolic constitutionalization produces a structural blockade of the effectiveness of the lawful/illicit code, proper to the law, to which requirements of other systemic codes, such as power/no power, love/non-love, payment/non-payment, are superimposed, consideration/contempt, etc. (Neves 2007, p. 93). Marcelo Neves, therefore, does not stop his analysis in the symbolic legislation. The importance of the topics discussed in relation to this, led him to develop the concept of symbolic constitutionalization. This perspective allows us to understand broader cases of symbolization, which can even generate processes of constitutionalization—this is constitutional discussion—of a clearly symbolic nature. It seems to us that the Chilean constitutional demand and its political ups and downs, especially in recent years, are a clear example of the capacity of this concept of Marcelo Neves to analyze such a complex situation. In the next point we will try to present what seems to us the most distinctive moments of this process of symbolic constitutionalization in Chile.

4.3

Difficulties in the Process of Preparing the Constitution

In the case of symbolic constitutionalization, constituent activity and the issuance of the constitutional text do not follow a generalized legal norm, a broad normative concretization of the constitutional text. As in symbolic legislation, the element of distinction is also the hypertrophy of the symbolic dimension to the detriment of the juridical-instrumental realization of constitutional devices . . . on the one hand, its function is not to regulate behaviors or to guide expectations according to the legal determinations of the constitutional provisions, but, on the other hand, it corresponds to specific political demands and objectives (Neves 2007, pp. 96–97).

The presidential candidacy of Michelle Bachelet, at the end of 2013, considered making an important constitutional change. At the beginning of 2016, citizens, social organizations, movements and political parties, the academics, business and cultural world were invited to deliberate on constitutional matters. The deliberation took place between April 23 and August 6, 2016. It considered three levels of participation (local, provincial and regional), through the methodology called deliberative convergence, conceived as a space for dialogue where people arrive to conclusions in a collaborative way, generating agreements from their different views on the Constitution, and recording their partial agreements and disagreements.5 In January 2017, President Michelle Bachelet received the Citizen Bases of a Constitution for Chile, concluding the participatory phase of the constituent process. According to the information, widely reported through the mass media, the document was written based on the contribution of the 204,402 people who participated in the process. The 850-page text—including annexes—was delivered by the leader 5

Information available at https://www.unaconstitucionparachile.cl/.

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of the group of observers of the process, the constitutionalist lawyer Patricio Zapata. The president said that “if this day is auspicious, it is because today we can proudly say that this Magna Carta, fully democratic and modern to which we aspire, begins to take shape with force- As we have committed, here are the citizen bases. For the first time in our history, the free and equal voice of all, will be the starting point of our constitutional text (my emphasis)”. “Once again the auguries of the pessimists were denied. The best remedy for skepticism and pessimism is the evidence, and here it is: in the elaboration of the Constitution of 1833, 36 people participated, in the 1980 Constitution, there were 12 people, and in this constituent process, there are 204,402 people”, she emphasized.6 Finally, 5 days before the change of government, President Michelle Bachelet sent to Congress the bill to draft a new Constitution of the Republic. President Bachelet pointed out that the Magna Carta project “substantially modifies the current Constitution”, but does not ignore what already exists, stating that the initiative included, for the most part, the reforms promoted since 1989 and the precepts of the text of 1925 that governed until 1973.7 This last step has been criticized both by the opposition to Bachelet and by the parties that supported her government. Some government parties said they did not know the text, because it had been prepared in an environment of “secrecy.” The delay in sending the text, argue opposition parties, only indicates that a constitutional reform was never seriously attempted. The very well known political scientist Claudio Fuentes points out that the constitutional changes in Chile have always been driven by a highly educated elite in which there was no shortage of experts in constitutional matters. From the beginning of the Chilean republican history, to the present day, citizenship has been kept aside from the discussion. But the protests and social movements that have characterized the decade question this centralized and behind-closed-doors form to make those changes. According to Fuentes’s analysis, the student movement of 2011 and the regionalist protests of 2012 are evidence of citizen fatigue with this way of doing politics (Fuentes 2013). As we have seen, Michelle Bachelet notes the large number of people (204,402) who have participated with their ideas in the process of preparing the constitutional project. However, once the citizen bases of a Constitution for Chile were received at the beginning of 2017, the process continued in a more private manner. A commission elaborated the project to be presented to the National Congress and the generalized criticism was that this stage had been marked by secrecy, to the point that even the parties of the government coalition said they were unaware of the project when it was presented.

6

Saez (2017). Information available at http://www.estrategia.cl/texto-diario/mostrar/1023139/presidentabachelet-envia-proyecto-nueva-constitucion-congreso-cinco-dias-cambio-gobierno.

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Among other criticisms, the deputy Gabriel Silber (DC), belonging to the government coalition, said that “more than fulfill a promise, it is an act of vanity” of the President. Meanwhile, Deputy Fuad Chahín (DC), also part of the government of Bachelet, said he would not attend the ceremony . . . in La Moneda, with the signing of the project. “For these deceptions, I do not lend myself, what are we going to be in for a ceremony, for something that does not have any kind of viability,” he said. On the part of the parties of the coalition of Government, only the communist party has valued the announcement without manifesting questions. Deputy Guillermo Teillier (communist) said that “although it is late, it is a text that will serve.” And about the “delay” of sending the initiative, he said that “the rightists are happy, because being in La Moneda, they can delay it even more.” In the opposition, the criticisms were harsher. The opposition deputy José Antonio Kast (Independent) said that “the first legislative measure of the new Government should be to withdraw this draft Constitution from Congress.”8 “With this desperate last-minute attempt, President Bachelet says goodbye as leader of a kind of Caribbean dictatorship”. Her counterpart in the Chamber, also an opposition member, Gonzalo Fuenzalida (RN), stated that the project’s shipment is “inopportune”, because the Executive will not defend the initiative, “give it speed” and “reach an agreement with the political sectors.” And the UDI senator, party of the opposition coalition, Juan Antonio Coloma, on the presidential announcement said, “or there is improvisation or it is a greeting to the flag”. Facing the criticisms, the president answered: “we are going to govern until the last day”.9 It is not convenient to forget that the legislative procedures and, a fortiori, those of a constitutional promulgation have, in addition to their normative or symbolic sociological relevance, importance for the individual careers of those who intervene in them. Marcelo Neves explicitly refers to the notoriety achieved by academics, bureaucrats or legislators in their respective careers as an additional motivation (Neves 2007, pp. 50–51) to participate. The discomfort, of almost the entire political spectrum, with the way in which the constitutional project was elaborated and the delay with which it was sent to Congress, allude to its symbolic character. Outside the government, the New Majority parties will have little opportunity to convert this project soon into a new Constitutional Charter for Chile. The new government, led by Sebastián Piñera, will not grant the necessary urgency to its processing in Congress and, according to some analysts, it is likely that the 4 years of Piñera’s term (2018–2022) will pass without further progress. It could well be, they argue, that this is just a political platform for Bachelet to be a candidate again. It is not convenient to forget that the political approval of the population by Michelle Bachelet increased considerably in the 8

Information available at http://www.emol.com/noticias/Nacional/2018/03/05/897512/NuevaConstitucion-Oficialismo-y-oposicion-critican-la-tardanza-del-anuncio-de-la-Presidenta-Bachelet. html. 9 Information available at http://www.elmostrador.cl/noticias/pais/2018/03/06/presidenta-bacheletfirma-proyecto-de-ley-para-la-nueva-constitucion-y-responde-a-criticar-vamos-a-gobernar-hastael-ultimo-dia/.

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previous period of Piñera, while she was outside the government and the country. For this reason, it is possible to think that the political calculations of her close collaborators and of herself point to a possible re-election, for which the fact of having presented late the constitutional project and hoping that this does not advance during the right-wing government could be an important support. In this way, we would be faced with an example of symbolic constitutionalization, with a character of process of giving prominence to the symbolic aspects, which can offer political dividends, over the normative aspects that give effectiveness to a Constitution. In this regard, Marcelo Neves adds: “Although from the legal point of view, symbolic constitutionalization is negatively characterized by the absence of normative concretization of the constitutional text, it also has a positive meaning, to the extent that the constituent activity and constitutional language play an important role” (Neves 2007, p. 95).

5 Conclusions The process of study, elaboration and promulgation of the new Chilean Constitution has not been concluded. It is likely to take a long time, but it is also likely that the demand for constitutional change will continue and be further generalized We have seen that there has been a process of “symbolic constitutionalization” that has permeated the discussion. To observe it, we have used the concept developed by Marcelo Neves, which offers a valuable distinction that makes it possible to see the mechanisms that operate by making the phenomenon possible. We know thanks to distinctions that differentiate, for example, a system and its environment, politics and law, lawful and illicit, etc. The world is as it is, without distinctions, but we can only see if we are able to distinguish something from everything that does not correspond to that something. The famous “theater of the shadows” of Prague is based on this principle; in it actors covered by a black cloth move on the stage that is, also, black. Spectators can not see the actors they have in front of them; they can only distinguish some objects that shine and that are mobilized by the actors; you can see, then, wonderful scenes in which butterflies fly and dance, surrounded by fabulous animals. Although the spectators know the trick, they are not able to see the movement of the actors because they can not distinguish them before the black backdrop. The distinctions used have no existence outside the operation that uses them, but they allow observation and Luhmann indicates that the progress of science occurs through increasingly sophisticated distinctions. He says that it is enough to think about the use of rigorously formal cognitive tools, logic or mathematics, to understand the centrality of distinctions in knowledge (Luhmann 2002, p. 151). Marcelo Neves has contributed to the sociology of law by bringing important distinctions, such as legislation and symbolic constitutionalization (Neves 1999), to which we have referred. These distinctions make it possible to observe the social reality more clearly and, with this, to distinguish and indicate new problems such as

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transconstitutionalism or to point out with new concepts endemic problems that had not been sufficiently clarified. Both the regimes that have a normative Constitution and those based on a symbolic Constitution highlight the “constitutional” quality of their decisions in their discourse. This leads to what Neves calls “pragmatic confusion of constitutional language” that for those who operate in a regime of symbolic constitutionalization serves to ensure ideologically that the situation is perfectly normal and thus to maintain practices that are at odds with what is proclaimed by its Constitution. However, this same invocation can lead to public distrust in the political system and state agents. This is precisely what has been happening in Chile during this long process of constitutionalization. Marcelo Neves also notes that, through the constitutionalist discourse, it is sought to build before the public the image of a State or a government identified with constitutional values, despite the absence of a minimum of concretization of the respective constitutional norms. This practice of rhetoric carried out in Chile, for a long time, led most citizens to think that “institutions worked”. Only the excesses of corruption have led them to doubt this alleged Chilean particularity. Not only the law is affected by the symbolic constitutionalization. Also, the political power, lacking the legality with which the law puts limits and makes it possible to exercise power, can be claimed by the most unusual requirements and become inefficient with respect to its function of deciding in a generalized binding way. The most obvious cases that have come to light indicate that important senators have received, from companies that finance them, guidelines for action to guide their legislative decisions on key issues for these companies. Symbolic constitutionalization seems to have taken root in the Chilean constitutional discussion. This process started a long time ago. We have been able to detect some of their practices in the “legal loopholes” with which the government of Salvador Allende sought to legitimize political decisions aimed at establishing socialism. With much greater clarity, the 1980 Constitution, dictated by the Pinochet government, tried to legitimize the government’s actions before the international community. The return to democracy was too impregnated by military power, which led political parties to talk of “protected democracy”, guided by the “tricky” Constitution that posed impossible obstacles for the institutionalization of democracy. The long debate between political parties and constitutional experts has not managed to reach an agreement, which leads to distrust of the population and multiple proposals with marked political interest. The most central question that arises from all this is whether it is possible, and under what conditions, to dismantle the symbolic constitutionalization process or, at least limit it, to be able to elaborate a fundamentally normative Constitution. As was supposed in the preceding text, the government of Sebastián Piñera let the draft constitution sent in the last days of the government of Michelle Bachelet sleep in Congress. We pointed out that: “It is likely that it will take a long time, but it is also likely that the demand for constitutional change will continue and become more widespread.” Time has proved us right. Although none of the political actors in Chilean society seemed to perceive it, the malaise of the population increased until,

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“surprisingly,” as of October 18, 2019, have begun a series of peaceful and violent movements that showed the enormous citizen dissatisfaction with the State institutions. Although their claims appear to be diverse, they all refer to the inequality of Chilean society and demand a constitutional change. That they do not admit the continuation of the symbolic constitutionalization game is evidenced in the fact that, in the mass demonstrations of protest (the largest had 1,200,000 adherents), no flags or slogans of political parties were exhibited and that no politician leader has been able to take on the spokesmanship of any of the many acts of protest (small or large). Acknowledgement Part of this article is based on information collected in the framework of the regular Fondecyt project No. 1120942, carried out with Dr. Carolina Busco: Las demandas de cambios constitucionales y la sociedad mundial. We thank Fondecyt again for financing this project.

References Aldunate Lizana E (2007) Panorama actual del amparo y hábeas corpus en Chile. Estudios Constitucionales, Universidad de Talca 5(1):19–29. http://132.248.9.34/hevila/ Estudiosconstitucionales/2007/vol5/no1/1.pdf Atria F (2015) Sobre el problema constitucional y el mecanismo idóneo y pertinente. In: Fuentes C, Joignant A (eds) La solución constitucional. Catalonia, Santiago, pp 41–70 Atria F et al (2013) El otro modelo. Del orden neoliberal al régimen de lo público. Random House Mondadori S.A., Santiago Correa Sutil S (2015) Cambio constitucional desde el Congreso Nacional. In: Fuentes C, Joignant A (eds) La solución constitucional. Catalonia, Santiago, pp 113–126 Couso J (2015) La “solución constitucional”: Una aproximación desde la sociología constitucional. In: Fuentes C, Joignant A (eds) La solución constitucional. Catalonia, Santiago, pp 71–81 Fernandes Campilongo C (2011) Direito e diferenciaçâo social. Editora Saraiva, São Paulo Fuentes C (2013) El fraude. Hueders ediciones, Santiago Luhmann N (1981) Ausdifferenzierung des Rechts. Beiträge zur Rechtssoziologie und Rechtstheorie. Suhrkamp, Frankfurt am Main Luhmann N (1984) Soziale Systeme. Suhrkamp, Frankfurt am Main Luhmann N (1991) Verfassung als evolutionäre Errungenschaft. Rechtshistorisches Journal 9:176–220 Luhmann N (1992) Sociología del riesgo. Universidad Iberoamericana/Universidad de Guadalajara, Guadalajara Luhmann N (2002a) Die Politik der Gesellschaft. Suhrkamp, Frankfurt am Main Luhmann N (2002b) El derecho de la sociedad. Universidad Iberoamericana/UNAM, México Luhmann N (2007) La sociedad de la sociedad. Herder, México Magasich J (2013) La utilización de la ley por el Gobierno de Salvador Allende, Le Monde Diplomatique. https://www.lemondediplomatique.cl/La-utilizacion-de-la-ley-por-el.html Marshall TH (1977) Class, citizenship, and social development. University of Chicago Press, Chicago Millaleo S (2015) Una Constitución de los Pueblos Indígenas en Chile: Para una legitimidad plurinacional de una Asamblea Constituyente. In: Fuentes C, Joignant A (eds) La solución constitucional. Catalonia. Santiago:293–307 Neves M (1999) Von der symbolischen Gesetzgebung zur symbolischen Konstitutionalisierung: Ein Überblick. IfS Nachrichten: Diskussionspapiere des Instituts für Staatswissenschaften, München 16:4–30 Neves M (2007) A constitucionalizaçâo simbólica. Martins Fontes, São Paulo

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Novoa Monreal E (1977) ¿Vía legal hacia el socialismo? El caso de Chile 1970–1973. https:// ideario25.files.wordpress.com/2020/05/eduardo-novoa-monreal.-via-legal-al-socialismo.-elcaso-de-chile-1970-1973.pdf Saez J (2017) Bachelet recibe bases ciudadanas y compromete reforma para 2017: documento contiene la sistematización de los encuentros locales y será el principal insumo para una propuesta de Carta Magna, T13. https://www.t13.cl/noticia/política/Bachelet-recibe-basesciudadanas-nueva-constituciónwww.t13.cl/noticia/politica/bachelet-recibe-bases-ciudadanasnueva-constitucion Salazar G (2015) La “solución constituyente” como proceso histórico-social. In: Fuentes C, Joignant A (eds) La solución constitucional. Catalonia, Santiago, pp 97–110 Stichweh R (2009) Leitgesichtpunkten einer Soziologie der Inklusion und Exklusion. In: Stichweh R, Windolf P (eds) Inklusion und Exclusion: Analysen zur Sozialstruktur und soziale Ungleichheit. VS Verlag für Sozialwissenschaften, Wiesbaden, pp 29–42 Thornhill C (2010) Niklas Luhmann and the sociology of constitution. J Class Sociol 10 (4):315–337 Tonet F (2016) Reconfiguraçoes do constitucionalismo. Lumen Juris, Rio de Janeiro Torres Nafarrate J (2004) Luhmann: La política como sistema. Fondo de Cultura Económica/ Universidad Iberoamericana/Universidad Nacional Autónoma de México, México Useem J (2000) There’s something happening here. What’s that sound? A noisy and growing challenge to the globalist consensus, Fortune, May 15. https://archive.fortune.com/magazines/ fortune/fortune_archive/2000/05/15/279791/index.htm

Darío Rodríguez is a Professor at Escuela de sociología, Universidad Diego Portales, Santiago de Chile.

A (More) Cosmopolitan Sociology of Constitutions: Marcelo Neves’ Theory of Symbolic Constitutionalization Pablo Holmes and Maria Eduarda Dantas

Contents 1 2 3 4

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . “Brazil Does Not Exist!”: Modern Society as World Society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inclusion/Exclusion or Center/Periphery: Avoiding Misconceptions . . . . . . . . . . . . . . . . . . . . . . . Symbolic Constitutionalization: The Institutional Stabilization of Underand Over-Citizenship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The paper introduces the work of Brazilian sociologist and constitutional theorist Marcelo Neves, presenting his contribution as a non-European, postcolonial approach to the process of constitutionalization. Firstly, it shows how Neves’ work relates to a long-standing tradition of Brazilian social thought, attempting to overcome its shortcomings. In so doing, Neves does not dismiss entirely however some of this tradition’s powerful insights. The paper then argues that Neves puts “social exclusion” at the center of efforts to grasp processes of constitutionalization in the peripheries of world society. For him, the world periphery would be characterized by precarious forms of citizenship that Neves refers to as forms of under-integration. Neves’ approach then proposes a sophisticated concept, that of “symbolic constitutionalization”, as a mechanism to institutionally stabilize forms of socialization that reproduce exclusion in the peripheries of world society.

P. Holmes (*) · M. E. Dantas University of Brasília, Political Science Institute, Brasília, Brazil e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Nogueira de Brito et al. (eds.), Law as Passion, https://doi.org/10.1007/978-3-030-63501-5_4

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1 Introduction Throughout the twentieth century, the observation of Brazil produced by joint efforts of the Brazilian social sciences was characterized by a common trait. They were all centered around a fundamental concern: the problem of the Brazilian “nationbuilding”. And this despite the fact that these efforts came from varied disciplines and theoretical traditions. According to this thread, Brazil should be understood as a nation “under construction”, being built progressively as it constituted itself as an “autonomous society” (Ricupero 2008). Depending on the sphere of social life being observed, this could be described either as an “ongoing” process of construction or, in some cases, as an already accomplished task. Moreover, if since the end of the nineteenth century there was an already consolidated national literature, the national economy or politics were described as spheres still on their way to being structured as autonomous, waiting for the emergence of an internal market and for a Nation State. Those interpretations were identified by Arantes (Arantes 1997), a literature scholar, as the “problem of the Brazilian nation-building” or, more recently as the “Brazilian nation-building paradigm” (Nobre 2012a, b). This paradigm would always make reference to a developmental model, taking on the normative example the experiences of rich nations that had already thoroughly accomplished the process. As an underdeveloped, postcolonial country, Brazil would be thus characterized by a “delay” in relation to “civilized nations” and by a lack of autonomous structures as observed in the centers of world society. In other words, Brazil would have a “modernization deficit” that should be overcome. The unhappy marriage between methodological nationalism and modernization theories has ever since been a cornerstone of Brazilian social science. And it has been central to scholarly and political debates from the end of the nineteenth century until the 1970s, when it came under strong critique. On the one hand, the premises of the “nation-building paradigm” were challenged by the consequences of globalization and its emerging consciousness. Dependence theory, for instance, was among the first to claim that modernization theories did not take into account the center/ periphery relations that shaped the national political and economic landscapes of Latin American Countries (Cardoso and Faletto 1979). On the other hand, the “Brazilian nation-building paradigm” came under attack accused of being a harmful kind of a “sociology of uneasiness” (Lynch 2011, pp. 36–37) or “sociology of singularity” (Tavolaro 2005, 2014). Accordingly, that tradition would be marked by an epistemological and evaluative negative bias towards everything that is “Brazilian”, cherishing anything that comes from rich countries in the global north. As post-colonial paradigms were gradually mainstreamed, this strand of critique pointed to a broader epistemological problem associated with the hegemonic Eurocentric ideology lying in the subtext of that tradition. Through the Brazilian constitutional history, Marcelo Neves became directly involved in this debate (Neves 1992, 1994a, b, 2013). Also departing from a critique

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of the so-called nation-building paradigm, Neves nevertheless engaged in its creative deconstruction, making use of different theoretical traditions, both national and transnational, to put forward an original sociological analysis of the Brazilian process of constitutional formation. His originality is partially a result of the critical use he does of a theory whose starting point is a radically cosmopolitan concept of society: Niklas Luhmann’s theory of world society. Furthermore, differently from what has been done by other critical approaches, that by now became hegemonic, Neves did not discard all of the insights produced by that tradition. Instead, he attempted to establish a dialogue between these different strands of thought, including the “Brazilian nation-building paradigm”, identifying its shortcomings and offering elements to overcome them, while taking advantage of some of its formulations. In the present chapter, we unfold the argument that Neves’ constitutionalization theory, resorting to concepts such as “peripheral modernity”, “underintegration”, “overintegration” and “symbolical constitutionalization”, offers a cosmopolitan perspective, which, at large, could also be described as having a post-colonial intent. Moreover, his perspective overcomes some of what he identifies as “provincial elements” of Luhmann’s social systems theory, which at the same time serves him as one of his theoretical foundations. We propose that Neves’ scholarship becomes possible and relevant precisely because he carries on, though critically, with the Brazilian nation-building paradigm. In other words, Neves proposes a rupture with this paradigm, nevertheless without despising some of its most relevant empirical insights—especially the one that pointed to structural differences between the Brazilian state and states at the centers of world society. In a way, Neves seems to join what Arantes put forward as “recommendations for a literary critic at the periphery of capitalism”. Referring to his discipline, Arantes proposed that any theoretical reflection about local and national social processes—in his case literature—could only be undertaken properly if they were the consequence of a cooperative history within the discipline that could reflect its own internal contradictions and history (1997, pp. 25–34). For him, the lack of autonomy within a national social sector would express itself as a tendency to follow hypes and trends coming from abroad and out of touch with local reality. Accordingly, national scientific progress could never be achieved by means of a careless accommodation of trendy international theories. Indeed, it could only be achieved through a cautious reflection on the plausibility of the theoretical descriptions available. For Arantes, theory must emerge from a dialogue with society; a dialogue in which the previous debates are taken seriously, through a careful mediation between empirical contributions, on the one hand, and past national and transnational theoretical contributions, on the other (1997, pp. 30–48). In what follows, we attempt to frame the way in which Neves profits from the “Brazilian nation-building paradigm” as he tries to overcome it. In order to do that, we initially address his use of the center/periphery difference. This distinction is especially important for directly reporting to the paradoxes that the tradition of Brazilian social sciences describes. In the next section, we present some of the fundamental premises of the old tradition of “Brazilian nation-building paradigm”,

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pointing to the ruptures triggered by Neves within its underlying methodological nationalism (Sect. 2). Afterwards, we introduce the concept of peripheral modernity, as used by Neves (Sect. 3). Finally, our article briefly presents his theory of symbolic constitutionalization. In the end, we close this chapter by making some remarks on why we think Marcelo Neves’ theory of constitutionalization offers a radical cosmopolitan turn to constitutional theory—and one which has a post-colonial character, even though Neves himself may not accept this label.

2 “Brazil Does Not Exist!”: Modern Society as World Society The “nation-building paradigm” has been always oriented by a strong “methodological nationalism”.1 Accordingly, “Brazilian society” would be something distinct from the US-American society, from the French society, the Portuguese or the German society. According to this view, social science’s task would be to interpret the particular traits of each society (Tavolaro 2014), as well as its developmental failures and accomplishments. For different scholars, there would be thus mounting evidence that Brazil had a particular, idiosyncratic—“singular”—character, which, according to the adopted perspective, could be attributed to an extravagant cultural trait. In short, what would make “Brazil” Brazilian was supposed to be an already-given feature inscribed on its historical foundation, a particular element that could be discovered and then described (Neves 2013). For some, the alleged national character would consist of a lack in rationality. Modern elements would coexist with irrational, pre-modern elements in Brazilian society (de Holanda 1995). For others, “Brazilian society” would suffer from a cultural difficulty in differentiating the public from the private realm (Faoro 1958; DaMatta 1997). This would lead to the existence of persisting obstacles to the full differentiation of legal institutions, evolving into crystallized forms of State patrimonialism (Faoro 1958). In the end, some level of personalism, averse to the rationality of formal, impersonal relations, would be the characteristic of the “national community” that was Brazil (de Holanda 1995, pp. 139–152). Typically, critics point to at least three problems in this tradition. These problems would be based in the following, very inaccurate, assumptions: 1. Some authors depart from methodological nationalism, conceiving of society as the result of an almost completely isolated development within a given territory. However, the idea of a national culture or spirit ignores that social processes rarely are comprised within the artificial borders imagined by the semantics of nationalism (Tavolaro 2014). Instead, nations are a very late political and cultural

1

For a brief explanation of the idea of “methodological nationalism”: (Beck 2006).

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artifact. As a result, they do not stand the idea of being constituted with reference to other political unities—even if immersed in a world society inhabited by other states. 2. This tradition is based on arguments that cannot be generalized. Since it understands social reality as the result of particular characteristics of social groups, it is less inclined to use the knowledge produced by social sciences to explain social processes in context. Indeed, instead of identifying relationships and theoretical concepts that could be applied in any contexts (Tavolaro 2014), it insists on a contextual observation of social phenomena that contradicts the very concept of modern science. But if everything is contextual, how could we compare “accomplished processes” of nation-building with processes still in course? 3. While undertaking this quest for what is singular and particular in Brazilian society, instead of asking what is generalizable, these theoretical descriptions tend to essentialize aspects of Brazilian social culture. In so doing, they inscribe as almost “natural facts”, what is actually the result of contingent structures built in the course of the social history of modernization (Tavolaro 2005; Dutra 2016). In 1991, Neves presented his PhD dissertation, published soon after. In this work, he directly addresses the debates surrounding the Brazilian process of constitutional building (Neves 1992, 2018) and establishes a straight dialogue with the tradition of Brazilian social thought. On the one hand, Neves employs the difference between central and peripheral capitalism, already well established since the 1970s within the CEPAL circles. But he does so in a distinctive fashion, adapting these concepts to his own theoretical perspective. He understands the distinction between central and peripheral modernity as pivotal for making visible the extremely asymmetrical structures of global society. By doing so, it becomes clear that no country can be described as an isolated or particular society, since every nation is already part of a broader social world where economic, political and epistemic relations are reproduced. Moreover, he went beyond the established concept of world system within the Marxist tradition and highlighted the reproduction of the world society as something that could not be explained only on the basis of its economic reproduction. Instead, in modern world society there is a plurality of radically diverse social structures shaping a broad range of complex relationships between center and periphery. On the other hand, Neves refused to discard altogether the lessons of the Brazilian nation-building paradigm tradition. For him, there was a clear theoretical and empirical function for a political sociology of the nation state and of national legal systems, in this sense concerned with the nation-building process. Nevertheless, Neves’ approach did not imply an option for any sort of methodological nationalism. On the contrary, observing peripheral modernity and States in the periphery of world society would be a task to be carried out from a radically cosmopolitan epistemological perspective. Neves advocates for a certain empirical sensitivity to the processes of convergence and divergence that marked the history of nation states and their respective legal systems within world society. Considering that the territorial nation state

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remains a fundamental element in the observation of world society, it would therefore be possible to speak of a Brazilian legal-political (constitutional) system. “Notwithstanding that the distinction between center and peripheries has economic grounds, it assumes a territorial segmentation of the political and the legal systems in the form of States” (Neves 2007, p. 200). Indeed, Neves has been deeply influenced by Niklas Luhmann’s social system theory. And Luhmann’s theory understands modern society as a single global society marked by the reproduction of functionally differentiated logics of communication, organized in binary codes that operate reflexively worldwide (Luhmann 1997a, pp. 145–171, b). Accordingly, “modernization” cannot be grasped in formulas such as tradition/rationality or religion/secularization, but as the result of the difference between stratification and functional differentiation (Luhmann 1997a, pp. 707–776). For Luhmann, the distinctive mark of modern society is the fact that social life reproduces primarily through different functional logics and specific codes such as that of law (legality), economy (money), politics (power), science (truth) and art (beauty) (Luhmann 1997a, p. 723). Instead of rigidly established social hierarchies determined entirely by birth, in modern society each individual’s social place would rely primarily on her relations to functional systems and their codes, each governed by a specific logic—though of course hierarchies do continue to exist in other forms (Luhmann 1989). Access to rights, for instance, would not result exclusively from the family (and the social class) people were born in, but from their inclusion as citizens of a certain state (although states greatly vary in how they define citizenship). The same would be true regarding access to money, which would depend on the inclusion or exclusion in the economic system (as buyers or sellers). In social systems theory, the anti-nationalist conception of society is associated with a radically anti-humanist understanding of socialization. For Luhmann, society does not reproduce through the actions of human beings, though social action, subjected to the observation of social sciences, is not neglected (Stichweh 2000; Luhmann 2005a). For systems theory, society would consist in the reproduction of communicative operations, i.e., meaningful events building communicative chains of recursive processes (Luhmann 2004a, pp. 221–247, b, 2005b). In this sense, human beings are “outside society”, relating to it only through language, being addressed as personas by different communicative systems. Interactions among individuals would be but one level of social reproduction, right along with broader social systems such as social strata (classes), organizations (structured around membership) and functional systems (reproducing along the lines of binary codes like money, truth, power, etc.) (Luhmann 1987, pp. 602–607; 1997a, pp. 80, 748–764). As a consequence of that sort of entrenched anti-nationalism and anti-humanism, social systems’ grasp of society averts all kinds of socialization concepts that emphasize culture as relevant (Luhmann 2004b). For Luhmann, although culture withholds some relevance in the observation of specific contexts—one could speak for instance of an “organizational culture”, or refer to a specific social group as having a culture (e.g. “queer culture”)—in modern society there would exist, strictly

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speaking, as many cultures as social systems (Luhmann 1997a, pp. 590–591). Considering that each system may produce ways of self-observation that settle in the form of semantic self-descriptions achieving relative independence, each system can produce specific cultural semantics in the form of an internal memory. Only systems that build a memory can produce self-identity as a description of itself by itself. Further, there would be a culture for every system able to build sedimented forms semantics as communicative memory, be it individuals, organizations or functional systems etc. Hence, from the perspective of systems theory, to insist on a particular or singular trait of a “Brazilian society” is clearly problematic. Suggesting links between a structural-functionalist concept of world society and some type of culturalism is even more unsuitable (Souza 2013). Within Neves’s framework, one could ironically state, as himself indeed does, that “Brazil does not exist” (Neves 2018, p. 380). At least not as a sociologically self-contained unity: as an omnibus society. Instead, one can allude to the existence of communicative processes, social structures, semantics and systems, such as the state organization (the State of the Federative Republic of Brazil), situated in a hyper-complex world society. Of course, one could also refer to the semantic artifact “Brazil” as a rhetoric recourse or in colloquial language (that is, not sociologically precise). Yet, as an ensemble of cultural meanings or as a unitary definition, the meaning of “Brazil” remains extremely difficult to be established. To this extent, the reference to the “Brazilian case”, which Neves invokes and dedicates his work to, becomes possible thanks to the fact that in modern society both the legal and political systems are shaped up, at the global level, in the form of territorially segmented states. In fact, the entire globe is divided in States legally defined, at least since the nineteenth century. Yet, there are acute differences between these States. Some dispose of organizational resources and strong social structures for interacting with different functional systems, while others exist almost exclusively as a normative statement in face of functional claims of world society, with little to no actual consequences. Notwithstanding that, all world states must maintain some level of legal and political recognition as units within world society, even those which may have little organizational existence—and so they can count at least as “failed states” before the international community of states and as deserving international aid. To this extent, although we take world society as a methodological premise, any reflection on modern constitutionalism means looking also at national experiences. Accordingly, albeit Neves reproaches the possibility of a “Brazilian society”, he does not simply embraces the description offered by social systems theory either. Instead, he proposes a critical approach to Luhmann’s concept of world society, pointing out theoretical inconsistencies and shortcomings that arise from what he understands to be a certain methodological (European) provincialism. According to him, world society’s functional differentiation would not reproduce the same way everywhere. Specially the colonization process would be responsible for producing asymmetries between nation States, impacting in a myriad of aspects of the reproduction of other functional systems, thus making these asymmetries extremely strong and stable, even beyond the end of the colonial period itself.

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As a result, it becomes clear that Neves does not embrace the legacies of the Brazilian “nation-building paradigm”. But he surely did benefit from some of its insights, precisely to point out that some of these extremely hierarchical, asymmetrical structures are not a national singularity. They are, rather, the consequences of the way world society reproduces itself in specific regions of the globe, such as the one where the Brazilian state is situated.

3 Inclusion/Exclusion or Center/Periphery: Avoiding Misconceptions In his early work, Neves took up on a version of the center/periphery concept first proposed by the dependency theory (Cardoso and Faletto 1979; Neves 1994a). But he clearly refused dependency theory’s methodological premises, based on historical materialism and class struggle, as well as action theory. Going against the theory’s basic argument, Neves refuses to understand the center/periphery distinction as the result of a process of economic imperialism or “exploitation”. For Neves, center/periphery should be understood as the result of the evolution of world society, founded on the emergence of functional differentiation alongside the European colonial expansion in different domains of social life. “The advent of modern society is intimately linked with profound economic inequality in the development of different global regions, what leads to significant consequences to the reproduction of all social systems, especially the legal and the political systems, which are organized within the structures of the Nation State” (Neves 2007, p. 171). As such, the center/periphery distinction came about as the result of the segmentation of the legal and the political systems in world society, as well as the very way that world society structured itself, thus crystallizing deep and steady asymmetrical global relations (Neves 2007, pp. 171–173). The center/periphery distinction becomes a cornerstone of Neves’ scholarship, for it provides him with a tool to describe how persisting inequalities, contradictions and asymmetries exist in a single, synchronic world society, and how they continuously reproduce. The concept of “peripheral modernity” does not imply, therefore, the idea of a sequence of stages according to which “peripheral states” would appear as deficient or underdeveloped in the face of more developed states. For Neves, as for Luhmann, there is no point in using the center/periphery distinction in the sense of an opposition of “traditional societies” versus “modern societies” or, even, in the sense of a before/after (developed/underdeveloped) difference. That is why it is unfounded to insist in the opposition “pre-modern/modern” as a form of social differentiation in today’s world society, as some apparently do (Souza 2013, p. 167). For Neves, the relationship between the center/periphery distinction and problems faced by peripheral States is not a causal one. The widespread exclusion found in these States is not an explanatory variable; rather, extensive relations of exclusion are the starting point of his understanding of these society. Relations of inclusion and

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exclusion are the very point of observation chosen by Neves as the background against which he unfolds his argument. Accordingly, it is groundless to argue that the center/periphery distinction performs a normative role in Neves’ work, the purpose of which would be to “institutionalize the citizenship standard of central or ‘positive’ modernity” (Gonçalves 2010, p. 28, 2013, p. 266); nor that the concept implies any sort of deference to central modernity’s categories and functioning patterns, therefore reinforcing colonized perspectives. To be clear, Neves does not argue that the internal self-description of central modernity is useless to an observation whose starting point are the margins of modernity. The periphery itself is intrinsically connected to the existence of a center, conditioned by it and vice-versa. Therefore, he takes the empirical fact of social exclusion and overarching inequalities in peripheral States and the differences on how social exclusion manifests in the center and in the periphery to underline the empirical limitations of a sociology of modernity that has been observed and described exclusively from Europe. For him, systems theory also suffers from a blatant blindness regarding the asymmetries and hierarchies of an extremely unequal world society. Paradoxically, it is the very thesis that modern society constitutes itself as a world society that confers social systems theory enough plasticity to account for the idea that world society peripheries are strictly as modern as its centers. For that reason, there is no reason for granting central States any sort of precedence or primacy as the site or the protagonists of modernity. That is what opens up Neves’ work to one of the central claims of post-colonial thought (Dantas 2016): the argument that coloniality is intrinsic and internal to modernity (Stäheli 2003; Quijano 2005; Mignolo 2012). As we understand it, for Neves the colonization process would have enabled the exteriorization of social exclusion to the outsides and the entrenchment of social inclusion to the insides of the territorially differentiated political systems of that what he describes as central states. Accordingly, in world society centers, inclusion has become the main form of how relationships are established between people (as addresses of communication) and between functionally differentiated systems, while exclusion (in an empirical sense) is not but a secondary, temporary form of sociality. The same colonization process generated a corresponding “bifurcation” in the evolution of world society, according to which States have been unable to reproduce the conditions for the generalization of social inclusion in vast portions of the globe (Neves 2007, p. 172). This reference to an “evolutive bifurcation” between central and peripheral modernity has been criticized for apparently appealing to a moralization of the distinction and of the very concept of “evolution” (Dutra 2016). This idea, however, seems to understand that the difference between center and periphery is the cause of relations of inclusion and exclusion. And it should be exactly the other way around. The “center/periphery” distinction is not but a contingent way to describe structural social processes based in another difference: that between social inclusion and social exclusion. At this point, the concepts of social inclusion and social exclusion deserve some clarification.

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In societies primarily organized by stratification, individuals belong to a determinate class and hereby they become included in it. As such, everyone is always somehow included in society (total exclusion is rare and, overall, residual). In that sense, each individual’s persona and personality is informed by the social group they belong, often by birth, and access to goods and services is the result of the social position of their class. Total exclusion is left to individuals from other societies, or to Europe’s “idiots”2 (Stichweh 2005, pp. 18, 70). A third, more controversial example, is that of societies where an entire social group is seen as “not belonging”, therefore forming a class at the bottom of the social class pyramid. According to Luhmann, modern society innovates in handling social exclusion from functional systems. In modernity, social exclusion increasingly becomes a real and pressing possibility, since there is no longer a way for a person to be born automatically included in a social system. Even families become more and more contingent. However, exclusion from functional systems, a situation created by the very existence of modern society, is at the same time possible and unjustifiable. Social inclusion turns out to be almost a requirement for the reproduction of modern society. After all, there would be no economy without consumers, no legal system without legal suits or science without scientists. Consequently, social inclusion becomes something close to a normative command in the form of fundamental rights. Radical forms of social exclusion must be described as temporary, that is, as an inclusion yet to be accomplished—or potentially accomplishable depending on one’s own effort, or luck to be included. It is in this sense that Luhmann refers to a “totalitarian semantics of inclusion” in modern society (Luhmann 1997a, pp. 625–627). The totalitarian semantics of inclusion becomes thus attached to the modern concept of citizenship (Neves 1994b, 2006, pp. 175–185). And the concept of citizenship unfolds in the form of a continuous politicization of forms of social exclusion, a process which expands both the form and the function of fundamental rights towards the structuring of the modern welfare state (Luhmann 2000, p. 423; Neves 2006). For Luhmann, the welfare state is the result of the fact that there is no functional differentiation without social inclusion. “The accomplishment of the principle of inclusion within the functional field of politics leads to the development of the welfare state” (Luhmann 1981, p. 27). Yet, radical forms of exclusion of significant portions of society remain. The structures developed by central welfare states to compensate for exclusion have not found conditions to flourish but in limited territorial extensions of modern society (Luhmann 2000, p. 428). For the Rest of world society, the functional requirement of inclusion has been incorporated in constitutional texts, but has not acquired the same meanings as in the welfare states of central modernity (Neves 1994b, pp. 260–262). In these contexts, social exclusion widely affects society’s reproduction, bringing about relevant consequences to the reproduction of different functional systems,

2 This word originated in ancient Greek διω  της (idhiótis), used to refer to a private citizen, someone who has withdrawn from public life.

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which, though operating worldwide, also rely on social conditions that vary regionally. In some situations, social exclusion from a social system, which is also gradual and contextual (Bora, 2002), may add up with other forms of exclusion from other functional systems. Someone who has no access to an ID will not have access to school (Luhmann 1995, pp. 250–258). Without access to school, one shall hardly have access to the economic system through a formal job. Without access to money, it is impossible to have access to scientific knowledge, art or the news. At last, without access to political information and to resources needed to hire a lawyer, it becomes difficult to access justice, take part in elections or enjoy one’s fundamental rights (Luhmann 1995). Neves draws a radical conclusion from this theoretical description. For him, cumulative processes of social exclusion give place to forms of socialization that are strikingly different from the modern form suggested by Luhmann’s theoretical model of functional differentiation (Neves 1994b, 2006, pp. 248–249) (Neves 1994a, 2006, 2017). In modern peripheral states, a highly diffuse form of social exclusion exists, without being counteracted by traditional (pre-modern) forms of social inclusion. Individuals depend entirely on the resources of modern functional social systems, but they have no access to its benefits and social products. They live in a highly complex modern society, but lack anything close to a relative generalization of citizenship. From these highly precarious ways of inclusion and positions of social exclusion emerge forms of social under-integration as a social form of under-citizenship. Under-citizenship is characterized by an individual’s dependence and a structural denial of access to the resources of modern functional systems (Neves 1994b, pp. 260–263, 2006, p. 248). Individuals in position of social exclusion have very little relevance to the reproduction of functional system’s codes, appearing mostly as bodies subject to being treated as “objects” in the constant reproduction and maintenance of radical asymmetrical relations. While Rudolf Stichweh argues that high levels of exclusion would have little impact on functional systems’ operations, rather composing what he refers to as the “black holes of exclusion” (Stichweh 2005, pp. 58–60), for Neves, pervasive social exclusion have deep consequences to the structures of functional differentiation. A society where social exclusion is massively present produces not only under-integration and under-citizenship, but also the other side of that difference, which is marked by privileged access to the resources of functional systems’ reproduction. On this other side, forms of over-integration emerge, which in their turn are socially organized in the form of over-citizenship (Neves 1994b, 2006, pp. 248–251, 2007, pp. 124–125). Over-citizenship would be characterized by the prerogative to make use of processes, structures and codes to reproduce the very conditions of overintegration (a kind of super-inclusion). As I conceive it, under-integration and over-integration imply insufficient inclusion, be it due to a shortage of access (that is, the lack of positive integration) or due to a shortage of dependence (that is, the lack of negative integration). Respectively constituting hierarchical positions that are factually conditioned (that is, classifications not based on normative

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Under-integration and over-integration are thus the opposite sides of the same reality: “both under-citizens and over-citizens lack citizenship” (Neves 2006, pp. 253–254). Relations of under-integration and over-integration block the reproduction of functional system’s reflexive structures, especially those of the legal system, which is the basic immunization-mechanism of modern society against the risks of de-differentiation (Luhmann 1993, p. 90; Neves 2018). In this context, “the constitution does not function satisfactorily as the ‘structural coupling’ between law and politics, that is, as a mechanism of reciprocal interpenetration and interference between two autonomous systems”; rather, it functions as a “reciprocal barrier, especially in the sense of a de-differentiating effect of politicization over the legal system” (Neves 2007, pp. 173–174). Over-citizens may use resources such as money, knowledge and power to block the functional reproduction of the legal system, for instance by producing networks that concur with its reflexive structures. As a consequence, the reproduction of different systems and codes—such as the economy, education, science—is blocked, being rather oriented by the reproductive logics of the difference between social inclusion and exclusion. Similarly, under-citizenship becomes overspread, producing masses of individuals whose rights are systematically denied, and whom seem to appear before the law only as duty-bearers. Such an asymmetry is vastly reproduced, and this is the characteristic feature of “peripheral modernity”.3 “Modern periphery” is not a self-contained concept. What characterizes it is neither a regional specificity nor some sort of “singularity”. There is not such a thing as an “essence” of the periphery. Neither there is some sort of time-bound underdevelopment of the periphery in comparison to central States—by the way, a perspective that is still prevalent in areas like economy or political science and that implies a pre-established, stage-like sequence of “development”. Much on the contrary, “modern periphery” in Neves’ work is the result of a functional comparison that intends to reconstruct the social conditions of peripheral States. The concept is not intended to answer “what makes” modern periphery, but to address the question of “how” society reproduces itself in the context of modern periphery. And the

Similarities between Neves’ description of the “peripheric condition” and Partha Chattarjee’s description (Chatterjee 2004) of Indian political structures are surprising. For Chatterjee, modern politics as developed in European centers function primarily based on a fundamental distinction, that between State and Civil Society. In the post-colonial Indian context, however, he identifies the existence of a political compound according to which local colonial elites self-identify and describe themselves as civil society and appropriate the State, while the vast majority of the population becomes almost thoroughly excluded from the political system (State and civil society), assuming only the role of human bodies to-be-governed (Chatterjee 2004, pp. 27–52). In this sense, in spite of the significant differences between the regional contexts of Latin America and Asia, one could suggest that, indeed, there are structural similarities to be grasped.

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processes that define this context are marked by the reproduction of the difference between social inclusion and exclusion. The use of the center/periphery distinction in this specific sense is an innovation introduced by Neves in social systems theory. It is also an element that unfolds a post-colonial dimension within his work, precisely because it opens up the possibility to describe the political and the legal systems from a fundamentally distinct perspective than that adopted by Luhmann. Neves’ argument may be interpreted as a strategy of provincialization of social systems theory, in Chakrabarty’s (2000) sense: a way to contest and de-center modernity’s narratives from their usual stage, Europe—and to do so from a specific, distinct perspective, which is that of the experience of modernity in a non-European, non-central, peripheral context. Because he reclaims and occupies this theoretical place, Neves de-centers social systems theory and it is in this sense that we suggest his work has a post-colonial dimension. From Neves’ standpoint, it becomes possible to re-insert the peripheries of world society into the very center of social systems theory. Upon that, there emerges also the possibility to derive a reexamination of modernity that radically shifts Luhmann’s narrative, precisely for having as empirical ground the experience of modernity outside the center. In our perspective, this is the role that the—often misunderstood—concept of negative modernity performs in Neves’ work: operating a displacement in the discursive space of modernity (Spivak 1988, p. 5), an act of centralization of the peripheral condition.

4 Symbolic Constitutionalization: The Institutional Stabilization of Under- and Over-Citizenship The differentiation of the political system depended on a corresponding movement in the legal system in the form of a highly improbable structure: the political constitution (Luhmann 1990). As a social artifact, the modern constitution is described by Neves, along Luhmann’s lines, as a structural coupling between law and politics (Luhmann 1993, pp. 468–481, 2000, pp. 388–393; Neves 2006). As such, the modern constitution is at one and the same time a structure of both the legal and the political systems, thus enabling the two of them to regulate their reciprocal interferences (“irritations”). Law allows for the processing of politics through impersonal, previously regulated processes, in such a way that power no longer relies on rigid hierarchical differences to be reproduced, but rather on legally settled processes. Similarly, it is the political constitution that allows for the emergence of a functionally differentiated legal system through democratic processes responsible for neutralizing the use of power by particular individuals, that which makes possible the reproduction of autonomous law (Holmes 2013, pp. 96–107). In other words, as the political system neutralizes the exercise of private—and particularistic—power, it makes possible for the legal system to reproduce itself according

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to its own specificities (codes, programmes and processes: legality, in a word), instead of bowing to desires of the powerful. Besides serving as a support for the differentiation of law and politics, the constitution (be it written or not) also establishes a catalogue of fundamental rights, which makes the functional requirement of one’s inclusion in functional systems normatively explicit. In fact, without the differentiation of law and politics, systems such as economy, science or art would rely only on its own structures to maintain their autonomy. As a consequence, such systems would have no defense whatsoever against de-differentiating tendencies from, for instance, actors capable of using money or violence to impose their own criteria to these systems in order to install favorable hierarchies and asymmetries (Luhmann 1993, p. 162). Therefore, constitutionalization is a structural process that simultaneously becomes a normative requirement on the horizon of the self-descriptive semantics of the legal and the political systems. Indeed, Neves insists that the “constitution” is not only a social structure, but also a semantic artifact that may be used as a legitimation mechanism for exercising power. Therefore, once established as a semantic artifact, the “idea” of a constitution flows within an extremely diverse and asymmetric world society. Moreover, such world society is composed of states whose basic social structures have obstacles to accomplish the differentiation of the legal and the political systems through a structural constitutionalization (Neves 1994a). That is true even though, in these contexts, there are no traditional morals (structured in the form of the totalitarian semantics of stratification) that can fulfill the function of legitimizing political power. As a reaction to that perception Neves introduces the concept of symbolic constitutionalization. What the concept tries to grasp is the fact that in contexts of peripheral modernity, political constitutionalization is materialized as a selfdescriptive semantic of the political and the legal systems without much impact on the structures, programs and codes operating in these functional systems. “In some specific, state-limited regions (peripheral countries), there has not been an adequate attainment of the systemic autonomy in line with the functional differentiation principle, nor the constitution of a public sphere founded upon the generalized institutionalization of citizenship” (Neves 2007, p. 171). Looking at the Brazilian context, Neves thus describes an instrumentalization of the constitutional semantics from the part of the so-called over-included portions of society, in line with the reproduction structures of inclusion and exclusion, joined by the respective dynamics of over- and under-citizenship. To deepen his argument, Neves re-interpreters the constitutional classification first put forward by Löwenstein (1968). For Löwenstein, besides normative constitutions, able indeed to control the exercise of power, there would exist nominal constitutions, mere textual artifacts with little or no adherence to the legal structures of society that aim to control and regulate the exercise of power (Löwenstein 1968, pp. 148–160). For him, this would be recurrent, for instance, in authoritarian contexts, where constitutions reflect the reality of power and operate more as a façade of legality to autocratic politics. For Neves, in not so explicit authoritarian

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contexts, or in situations where even electoral procedures may be in place, it would also be possible that constitutional charters do exist, but its text have very little impact on the reproduction of law and power. In this sense, the constitution is unable to legally regulate power and its reproduction (Neves 2007, pp. 90–95). Symbolic constitutionalization consists thus of a mechanism according to which the constitutional text emerges a as mere legitimation symbol of an empirical order in fact incompatible with it. In these contexts “there is not a satisfactory functioning of the constitution as the ‘structural coupling’ between law and politics, that is, as a mechanism of interpenetration and interference between two autonomous system”, there is rather “a reciprocal blockage, especially in the sense of a political de-differentiation of the legal system”, enabling the external hampering of law and politics through direct influences of the economic power (Neves 2007, p. 171). In other words, the control and the limitation that should be expected from the implementation of the legal code as the second code of the political system is not sufficiently or adequately verified. On top of that, the constitution takes on the role of an alibi, legitimizing a social order that goes on as if the constitution had no actual meaning. The constitution would thus coat with a varnish of legitimation a political order based on the disregard of the constitutional text and on social relations structured by radical forms of social exclusion, along the lines of over-integration and under-integration. Certainly, the symbolic and contra-factual aspects of modern constitutions are a powerful resource on the hands of the critics of existing power relations. Yet, on the level of the political discourse, the reference to constitutional principles can be hijacked by “permanent, repetitive proposals of overarching constitutional reforms” and by a rhetorical inflation of the language of rights, what may have only a reinforcing effect on its symbolic meaning (Neves 2007, pp. 186–187). The constitution assumes therefore the function of a symbolic support to power, favoring the blockage of the reflexive reproduction of the legal code by private interventions arising from the de facto power relations dominated by over-included ruling elites. Symbolic constitutionalization does not limit itself to its legitimating and/or merely semantic function of disguising the real constitutional structures. It has additional structural effects. It enables and favors the exercise of de facto power and the reproduction of relationships based on inclusion and exclusion by powerful groups. The structure of symbolic constitutionalization enables the over-citizens (over-integrated) to use institutionalized procedures such as elections, judicial procedures or administrative measures to favor the reproduction of their own social position. This process takes place through the corruption of electoral procedures or through the abuse of economic power within state organizations, or the appropriation of parties and parliamentary structures. Moreover, the “privatization” of state regulatory and legislative procedures allows the economic elite to favor their own social positions, in a positive feedback that only reinforces the reproduction of inequalities. Along those lines, in the context of peripheral States, constitutionalism operates differently when compared to the constitutionalism of central modernity. And that is so even though such structures—both central and peripheral—are not the result of strictly national conditions. Symbolic constitutionalization “goes way beyond legal-

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political variables; it lies in the most far-flung social assumptions and, at last, relies on conditions determined by world society” (Neves 2006, p. 258). In other words, it is not an exclusively legal or political problem. Rather, it is tied to modern society’s reproduction in diverse dimensions. Under such conditions, constitutions would only acquire normative meaning if there would be “a social transformation at the structural level” (Neves 2006, p. 258), or, as he refers to somewhere else, “a radical revolution in power relations” (Neves 2007, p. 176). Certainly, there are different levels of social exclusion in central countries. The very concept of inclusion implies gradations and levels that vary according to the conditions of each functional system and social organization (Bora 2002). Yet, one needs to be careful not to mistake economic inequalities for social exclusion tout court. Empirical differences that enable the observation of relevant comparative differences between center and periphery are both possible and necessary. And, as we understand it, it would be possible to establish more or less objective criteria for an empirically-oriented research of relationships based on inclusion and exclusion, as well as its influence on the reproduction of law and politics in a given context. As such, diffuse forms of exclusion from access to functional resources may be considered an empirical indicator of systemic blockages to the reproduction of the constitutional rule of law, with consequences for the functional reproduction of the economy, of politics, science, etc. This insight might even converge with empirical findings made in the context of other theoretical traditions, such as the neo-institutionalism (Acemoglu and Robinson 2012; Alston et al. 2016). Finally, it is important to insist that the peripheral condition has no essence whatsoever. Rather, it consists in the fortuitous accumulation of evolutive improbabilities as the consequence of a highly contingent history of social differentiation, in which hierarchies and asymmetrical relations emerged and became stable. Acknowledging the evolution of world society as the result of improbabilities does not imply ignoring relations of power and exploitation. It means only that we make a theoretical option for more complex explanations for these processes. Symbolic constitutionalization makes the reproduction of excluding social structures and networks highly probable. Nevertheless, for a theory of complexity, probability does not mean necessity. As relations of inclusion and exclusion reproduce in complex social contexts, it becomes highly improbable that social change comes about simply through the will of modernizing elites or exclusively through political decisions.

5 Conclusions Neves’ theoretical contributions offer an original interpretation of social systems theory by making a more cosmopolitan turn. Such a shift is based on a careful description of the institutionalization processes of law and politics in the peripheral social context. He points to the structural causes of the challenges to the institutionalization of the modern State, nevertheless without connecting these obstacles with

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any sort of cultural particularity, essence or singularity. Moreover, beyond his originality, Neves offers four additional contributions, which we have attempted to present along this chapter. First, he does not dismiss the empirical contributions of a longstanding tradition reflecting upon the formation and the evolution of social structures in Brazil as “irrelevant”. Indeed, he creatively uses the Brazilian sociologic tradition and its most important insights. He does it however without incurring in methodological errors and underlying assumptions shared by most contributors to that paradigm. According to Neves, the process of institutional stabilization in Brazil relates to the reproduction of excluding social relations that are territorially circumscribed, in a highly interdependent world society. Second, Neves is not absorbed by a simplistic over-politicization of social reality, which tends to simplify problems that are, by definition, structurally complex. In other words, he does not deny the reality so that it conforms with an anti- or decolonial political programme. Rather, he proposes a theory that takes into account the post-colonial character of the Brazilian state, while simultaneously seeking to remain sensitive to its complexity. There is no space in Neves’ work for theories of modernization or developmental theories. He does not ignore, however, the structural asymmetries that result in hierarchical interdependence between states, their economies and the way several social systems reproduce in a global world society. Third, Neves argues for the implausibility of fundamental elements of social system theory such as described by Luhmann. To start with, he argues that the primacy of functional differentiation as the form of reproduction of modern society does not hold as described by Luhmann with reference to the European social context. Neves provides thus a (even more) cosmopolitan constitutional sociology than that made possible by orthodox systems theory. For him, the European model is only one among many others describing how modernity was structured—which reveals the utter provincialism and limitations of the European case. Last but not least, Neves’ heterodox approach to social systems theory serves as a methodological warning to a longstanding tradition of naïve “national-development” solutions, that tend to attribute to the political system and to the activism of selective, modernizing social groups, the task of “developing” Brazil. According to Neves, Brazilian social problems are not limited to the state. The problem, if we could even put it in this way, would rather relate to the structural social exclusion that continues to reproduce through various social dynamics and becomes stable through institutional mechanisms that are equally complex—such as the symbolic constitutionalization. If the first measure to overcome a “problem” is to get to know it, then the awareness of its complexity is a necessary first step in a good direction.

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Pablo Holmes is associate professor of political and constitutional theory at the University of Brasilia. His work appeared in European, Latin American and North American journals. He is the author of “Verfassungsevolution in der Weltgesellschaft” (2014), Nomos Publishing, BadenBaden. Maria Eduarda Dantas is a human rights professional and PhD candidate at the Political Science Institute of the University of Brasília, developing a project that aims to insert center/periphery distinctions within the global constitutionalism debate.

Constitutionalism Seen from the Periphery: A Perspective About the Contribution of Marcelo Neves Alexandre Douglas Zaidan de Carvalho

Contents 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 2 Law Positivity and the Concept of Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 3 Law and Politics Among the Over-Integrated and Under-Integrated . . . . . . . . . . . . . . . . . . . . . . 97 4 Reflecting on Law and the Constitution from the Periphery of World Society . . . . . . . . . . . . 100 5 Brazilian Peripheral Constitutionalism in Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

Abstract By questioning the limits of the notions of constitution and positivity of law in Luhmann’s systems theory, from a perspective empirically founded on the observation of the constitutional development in so-called peripheral modernity, Marcelo Neves’s thesis made an important contribution in repositioning systems theory and constitutional theory itself. The timely publication of his thesis in Portuguese, at a particularly troubled time in the Brazilian legal-political context, when the consistency of the 1988 constitutional model has been tested, opens opportunities for deepening reflections on constitutionalism, citizen’s rights, inclusion, inequality and democracy in the periphery of capitalism, without letting the analysis of these complex notions overlook their effects, also in the center of world society. Therefore, the present review takes on a double effort: to map the main points of Neves’s thesis and evaluate them as a current contribution to the constitutional debate.

A Portuguese version of this paper was published by Tempo Social (USP) 32: 355–365 and is available at https://doi.org/10.11606/0103-2070.ts.2020.161970. A. D. Zaidan de Carvalho (*) Catholic University of Salvador, Salvador, Brazil e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Nogueira de Brito et al. (eds.), Law as Passion, https://doi.org/10.1007/978-3-030-63501-5_5

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1 Introduction Twenty-six years following the original in German was first published, Marcelo Neves’s PhD thesis has been translated and published in Portuguese. The author has chosen to keep the original text and the preface of the German edition written by Niklas Luhmann. Amidst so many changes in the field of constitutionalism in Brazil and around the world, this work is now accompanied by an afterword where Neves reexamines the very argument of his thesis. He takes into consideration critical reviews previously received, and the changes in the theoretical and practical framework of constitutionalism alongside the current constitutional crisis in the country. The timely publication of his work in Portuguese happens at a particularly interesting moment of the legal and political system in Brazil, which poses a test to the consistency of the constitutional model of 1988. He puts together fundamental concepts for a broader understanding of the cycles of deconstitutionalization that characterize Brazilian constitutional history. The classical distinction between normative, nominal and semantic constitutions given by Karl Loewenstein (Loewenstein 1979, pp. 216–222) is reviewed by Neves, who proposes the notion of instrumentalist constitution. This conception, which identifies the acquiescence of the law to the occasional wielders of political power, seems to make sense if we assess the constitutional reality in Brazil in the past 5 years. The interdisciplinarity between Sociology and constitutional theory characterizes the author’s research and academic background. It is applied in this book to question the limits of these concepts: the constitution and the positivity of law in a systemic theory aligned with Luhmannian thought, and from a perspective empirically founded on the observation of constitutional developing conditions in Brazil. This is possibly the main innovation of his thesis. Its originality has contributed to reposition Luhmannian-based systemic theories vis-à-vis the problems of inclusion and functional differentiation in world society (Luhmann 2013; Ribeiro 2013). His thesis points to the problems of the unreflected reception of ideas and legal institutions of the “center” in the “periphery” of Western capitalism. Also, it identifies that in the deep inequality between social groups (the over-integrated and the underintegrated) lies the core of insufficient autonomy of law and its “exploitation” by politics and by the economic system. The main original hypothesis of the book is in the presentation of a constitutional theory that can develop adequate categories to describe the constitutional systems of peripheral modernity. With this purpose, Neves points to the theoretical and empirical limits of systems theory, as well as to the explanatory deficit of the traditional classification of Constitutions of Karl Loewenstein. Both of which are insufficient to arrive at a concept of Constitution in the legal experiences of countries that underwent ‘formal decolonization’, but lack sovereignty in relation to central modernity. According to the author, this situation causes issues of discrepancy between textual constitutional models copied from the center and the structural conditions for their implementation in the periphery (nominalism). Not to mention the instrumental constitutional form used by authoritarian regimes that serve the

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interests of the holders of power (instrumentalism), which promotes a peripheral integration of these countries in world society. The use of highly abstract concepts of social theory in building the argument of the thesis widens its explanatory reach as Neves presents a reflection empirically filtered by the repercussion of the social effects of thought-provoking ideas (Neves 2018, p. 13). This is the reason why the author expresses his reservations to ‘normative rationality’, rather favoring Habermas model of ‘purposive rational action’, concerning the foundation for law legitimation in modernity. He embraces supercomplexity and openness to the future (Luhmann 2007, pp. 325 and 905), which constitute Luhmann’s model of systemic differentiation.1 But he does so to expose their limitations, considering the insufficiency of this model in more complex contexts. Such distinction is made by observing the insufficient operative and functional capacity for processing latent structures of social reality. This is a situation that systemic theory calls unstructured complexity.2

2 Law Positivity and the Concept of Constitution Neves’s analysis takes into consideration the (political and economic) tenets that make up law positivity within a systems theory framework. In the evolution of law, this framework comprises its positivity and identifies its main features in decidability and changeability. Law replicates from sequences that interpose the distinction between cognitive openness to the environment and normative closure guided by the licit/illicit code. Legal norms are counterfactually stabilized as behavioral expectations, while performing a function of congruent generalization of the same expectations. By presenting stability and expectations as founding elements of the concept of law, systemic theory breaks from more traditional positivist perspectives and takes the stance that the normativity of law is also a phatic question. In line with this approach, Neves states that the validity of law depends on a certain degree of legal efficacy. This is a key variable in the main argument of the thesis that allows the author to identify the fragility and even the lack of autonomy of law in Brazil when distinguishing the various constitutional, nominalist and instrumentalist experiences in the country. As in the Luhmannian perspective adopted in the thesis, legal validity (realm of experience) and efficacy (realm of action) cannot be directly determined by the 1 It is worth noticing the complexity of the term modernity in Luhmann’s work. It does not deny the existence of a project of modernity comprising specially semantics developed in eighteenth and nineteenth century Europe. But it also displaces his observation towards a self-description in temporal dimension, following the structures of its own social evolution. 2 According to the author, unstructured complexity ‘ . . .does not entail the case of an absolute undeterminability (. . .) it is, in fact, about the relative lack of capacity of social systems to structure the determinable complexity of their respective environments.’ Neves (2018), p. 107.

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economy or politics. An evaluation of what is law needs to take place according to criteria inherent to the legal system. With the dissolution of a common ethical foundation that was preserved by tradition to justify authority, the autonomous mechanism of law in modernity started to require that two conditioning factors be attained. The first one is democracy, as a mechanism that discharges and absorbs social conflicts through electoral procedures. The second one is no subservience to the economy, i.e., the prevalence of self-regulating and differentiated legal and economic spheres. Therefore, it would be possible for the system of law to carry out its stabilizing function. It would strengthen its learning capacity by combining closure and openness according to the contingencies generated by social complexity gains. This movement would improve decidability and changeability typical to the positivity of modern law. Neves distances himself from both modernization theory and development theory. He also questions the explanatory effectiveness of Luhmann’s systems theory to describe law and Constitution in peripheral modernity due to the insufficient positivity of law in peripheral countries (Neves 2018, pp. 65 and 74). This methodological choice aims at distinguishing “center/periphery” in world society and assumes that the absence of a functionally differentiated Constitution in a highly complex modern society results in the instrumentalization of law by politics and the economy. Neves chooses to expressly adopt the argument that in our current world society, which is primarily economy-oriented, law and politics remain subject to segmentary differentiation in the regional and local levels. It happens according to society’s structural heterogeneity. This results in the distinct systemic capacity between central and peripheral countries to process the complexity of conflicts that require the stabilization of expectations or collectively binding responses. Hence decidability and changeability would be subservient to factors that are alien to law itself, subjecting fundamental rights, the branches of power and political elections to dedifferentiation caused by the interference of political power and money. To build an argument defending rigid limits to the autonomy of law in the periphery of capitalism, Neves seeks to base his ideas on categories found in Luhmann’s systems theory, such as function and provision of law. These categories are employed to analyze the relationship between constitutional text and reality. He, then, asks: “What is the meaning of the (modern) Constitution vis-à-vis the positivity of law? What is the social function that positive constitutional law fulfills?” (Neves 2018, p. 66). Considering the semantic and pragmatic aspects of the process of law realization, which invariably expose the ambiguity and vagueness of constitutional language, the book precisely points that the hierarchical supremacy of the Constitution needs to be relativized in the semantic-pragmatic dimension. This is so because “although the constitutional text works as a metalanguage in relation to ‘constitutional provision’, the interpretative decisions of the Constitution represent a metalanguage with regards to the constitutional text (language-object)” (Neves 2018, p. 80). This remark made by Neves also plays a central role for the argument of the thesis by expounding how the “constitutional text/constitutional reality” distinction is liable to

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interpretative disputes that can be observed by a host of normative expectations of world views. It is necessary to observe and establish a description for the definition of constitutional norms based on a more complex view, taking into account its temporal, social and material dimensions (Luhmann 2011, p. 244). From the perspective of the ‘text/reality’ distinction, Neves points to the hypertrophic use of symbolic legislation (p. 82), building the argument that the normative function of the constitutional text also suffers from reflexive deficit in peripheral modernity. His argument confirms the symptom of insufficient self-determination of law3 or the external asymmetricalization of the legal system in the realm of normative orientation, affecting the subsystem of the Constitution through alternating shifts of constitutional nominalism and instrumentalism.

3 Law and Politics Among the Over-Integrated and Under-Integrated An important point for the analysis of Brazilian constitutional history is the rejection of identifying a ‘conceptual purity’ in these alternating shifts of nominalist and instrumentalist constitutions. Neves rejects the common temptation among jurists to associate a specific constitutional text to a model of normativity described by dogmatic jurists as being the typical way. Instead, he seeks to analyze which features of each constitutional experience initiated by its respective texts stand out. For this purpose, he makes the effort to observe the uses of the constitutional texts in Brazil and the structural difficulties pertaining the positivation of law. He applies three criteria taken from systems theory (Neves 2018, p. 163): function, provision and reflection. In his view, the simultaneous conjugation of these three criteria works as the presupposition for the self-determination of law. However, his focusing on the Brazilian experience to defend rigid limits to law’s autopoiesis in Luhmannian terms doesn’t mean to follow the traditional culturalanthropological views held by the so called ‘interpreters of Brazil’.4 Neves points to the conservative and Eurocentric elements, also present in Luhmann’s systems

In Neves’s words: “The Constitution does not operate as a subsystem internally differentiated from a self-determined legal system. Since there are no preconditions for such, normativity of the constitutional text is not enough to ensure autopoietic reproduction of the systemic elements. The legal system is, above all, blocked or allopoietically determined because constitutional normativity fails: the constitutional text has, primarily, a political ideological function. There is a deep gap between the constitutional making of laws and Constitutional enforcement and observance. For this reason, the ‘nominalist Constitution’ does not function satisfactorily, neither as a way of controlling behavior, nor as an assurance of expectation” Neves (2018), p. 93. 4 For a further explanation about his distancing from this theory, see Neves (2015a), pp. 5–27, wherein he formulates a response to Souza’s (2013) claim that Neves and Luhmann’s theory would be in line with a culturalist and conservative perspective on social reproduction in Brazil. 3

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theory.5 Even though Neves doesn’t overtly claim to adopt postcolonial theory,6 his thesis makes some points about the history of the country’s institutions, which are very close to postcolonial views. By considering exclusion and inequality, he further draws a critique of the primacy of functional differentiation as the preference for inclusion and autopoietic mechanisms of social systems in the Luhmannian paradigm.7 These evidences can be found, for instance, when he criticizes modernization theory (Neves 2018, pp. 100 and 212), and states that liberal constitutionalism in the periphery of capitalism has imported a formal decolonization, which was not followed by national independence or sovereignty “in the sense of central countries”. He points to the colonial roots of Brazilian oligarchy, or coronelism, and kin relationships as a traditional practice. Neves also considers the insufficient autonomy of politics and law as subservience to the codes of the economy (to have/not to have). The failure of transposing the constitutional form from the center to the periphery is evidenced by structural heterogeneity and the marginalization of the masses that characterize economic inequality, and “not due to traditional behavior patterns” (Neves 2018, pp. 131, 218, 258, 275). He notices that the distortions in the institutionalization of fundamental rights, the branches of power and the elections respond to a broader “reconciliation recipe”, whose purpose is to keep or enhance the privileges of over represented groups by resorting to the Constitution (Neves 2018, pp. 134, 220, 255, 274, 278). This feeds into the parasitical relationship between law and politics. He also addresses US interventionist practices in Brazilian political processes as a tool to keep the status quo of power constellation, the international division of labor, and the economic relations between the center and the periphery (Neves 2018, pp. 197 and 256). He also identifies peripheral modernization as subordinate integration of the country in world society. Perhaps the main evidence in Neves’s argument that sets him apart from a culturalist paradigm, in describing law replication and sociability in Brazil, lies in his explicit critique to the displaced appropriation of Weber’s thesis on patrimonialism by the narratives of social sciences in the country, especially in the

5

In this sense, Souza’s (2013) recent reading, which opposes Souza (2000), pp. 196 and 268; and Gonçalves (2013). 6 For more on the differences between Neves’s and postcolonial theory, see Dantas (2016), p. 15. Without dismissing the various perspectives ascribed to the concept of postcolonialism in social sciences, our focus here rests on the Latin American line of thought developed by Walter Mignolo. For a comparison between Mignolo’s and Souza’s perspectives, see Ferreira and Simim (2017), pp. 79–93. 7 In this sense, Maria Eduarda Dantas: “Our reading, nevertheless, notes that Neves takes the exact opposite direction: Basing on the empirical fact of peripheral inequality and exclusion, he sustains how inadequate the primacy of functional differentiation is when it comes to describe modernity in the fringes of world society. The object of his critique, we repeat, is not the so called ‘backwardness’ of the periphery, but, Niklas Luhmann himself and the empirical provinciality of his sociology of modernity; the ‘problem’ with peripheral societies is not allopoiesis in itself – the concept of allopoiesis is, above all, a way to describe the peripheral condition – but, the modes of structural reproduction of social exclusion.” Dantas (2016), p. 19.

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case of Raymundo Faoro’s thesis. About this point, it is worth looking at Neves argument: Taking into account the Portuguese colonization model, this phenomenon in Brazil [in reference to the particularization of public administration] is usually considered an expression of the persistence of traditional determinations over action. In this sense, it is said to be a prevalence of the ‘private order’ over the ‘national political mobilization’ [citing Faoro] or, based on Weber, of ‘patrimonialism’. Although these phenomena, which date back to the colonial period, extending to the Empire up until the Republic, can be interpreted as traditional remnants obstructing modernization, such ingrained notion has lost its meaning in the course of the historical process. Especially with regards to the sweeping peripheral industrialization and urbanization of the past three decades, by means of which society became a lot more complex. On the other hand, it is still about the social structures of a country more integrated in (modern) world society. Hence another meaning should be ascribed to the term ‘patrimonialism’ (Neves 2018, p. 258)

Contrary to the description of the authors Buarque de Holanda (2013 [1936], pp. 145–146) and Faoro (1977 [1958], p. 733) who represent more expressive currents of Sociology of the country in the twentieth century—focused on the replication of public-private relations as traditional practices of ‘patrimonialism’, Neves’s response for the issue of particularization in Brazilian public administration points to the categories of over-integration and under-integration. The exclusion of the under-integrated feeds the structure of privileges enjoyed by the over-integrated, which creates a vicious circle of instrumentalization of law and politics, and political hijacking by the economic groups benefitting from the fragile mechanisms that legitimize the rule of law. In his own words: Seen from ‘below’, extralegal or illegal ‘particularization’ of the Brazilian public administration relies on the extreme poverty of large sectors of the population, who cannot afford to wait as ‘abstract’ and ‘impersonal’ beneficiaries of decisions. From the perspective of the ‘over-integrated’, the public administration, by distributing privileged advantages (positions, grants etc.), is directly employed as a compensation for the fragility of dependent replication in the economy of the country. Furthermore, manipulating the administration through the distribution of privileges among members of the higher strata and ‘assistance’ to the underintegrated works as a legitimation mechanism. For it does not claim the generalization of political support by means of political, administrative and public circulation (democratic legitimation). (Neves 2018, p. 259).

It is in this sense that Neves’s work is considerably distinct from what Souza (2013) described as ‘cyber culturalism’. Moreover, the recognition of the structural inequality which constitutes the relationship between over-integrated and underintegrated, and its effect on the hypertrophic performance of the constitution’s symbolic function can be seen in different works written by Neves (Neves 1994a, p. 153; Neves 1994b, pp. 253–276; 1995, pp. 21–23 and 1996, pp. 321–330). As well as his critique to notions of positivity of law replication in Luhmann and Teubner (Neves 2004, pp. 160–161 and 168), and a response to Souza (Neves 2015a, footnote n. 6 and in the afterword of the work herein analyzed: Neves 2018, pp. 378–389). By discussing the deep inequality between the rights and duties of over- integrated and under-integrated, Neves points to the serious limitations of the

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Luhmannian thesis on the autonomy of law in world society. In the case of the Brazilian constitutional experience, he observes an impossibility for the provision demanded by the social systems. He highlights a few examples of dysfunctions in the legal system regarding the resolution of conflicts through legal procedure, and the continuing exclusion of under integrated groups by the instrumentalization of law.

4 Reflecting on Law and the Constitution from the Periphery of World Society The insufficient provision of law with regards to the political system is addressed in a work on the several problems surrounding legal regulation of the electoral process; the particularization of public administration through hyper-politicizing—to which various types of corporatism attach; the overlapping expansion of the Executive branch that prevents a more functional power division; and, finally—the broader argument—the incoherent interpenetration of law and politics reflected in the consideration that ‘politics (in a broad sense) develops largely without regarding its legal environment, whereas the legal system, in its turn, does not adequately observe its political environment’ (Neves 2018, p. 263). In his view, this framework would prevent the constitutive tension between the political and legal systems, destroying the chances of social learning that constitutional experience could provide. These deficiencies of function and provision in the Brazilian legal system are once again discussed by Neves in the last chapter of his thesis, in which he proposes a more abstract assessment of the relationship between the Constitution and the legal system in the country, taking into account three categories of systems theory: basic self-reference and reflection. If the parameter of law positivity is indeed essential for the possibilities of its reflection in systems theory (Luhmann 2007, p. 773), so is the affirmation of different degrees upon which law evaluates itself and the fulfillment of its function in the social system. It is in the field of specific contingencies of law observing itself—drawing from systems theory, but also opposing Luhmann’s diagnostic, that Neves develops his thought and describes the structure upon which law and the Constitution operate in Brazil. He takes into consideration Luhmann’s view that, in the case of law, elementary or basic self-reference entails in the production and reproduction of legal communication exclusively under the licit/illicit code. Thus, legality takes on a constitutive character of functional redundancy, capable of affirming the consistent autonomy of law in view of the high variation of the environment. However, this is not about legality in the more traditional sense related to positivism, but the dynamics observed in the ‘circularity between the making of law and legal implementation’, whose generalization involves the inclusion of all the population in the legal system itself—requiring the “constitutional mechanisms typical of the welfare state be institutionalized”, as Luhmann understands it (Luhmann 1993, p. 47).

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According to Neves, however, in the case of Brazil, basic self-reference in law is blocked by deconstitutionalization cycles, in which constitutional nominalism and instrumentalism alternate, thus, making the legal system subject to breaches of legality. This phenomenon would be present through constant political intervention in law—turning constitutional principles into empty rhetoric—and through circumstantial moralization of legal communication, which utilizes mixed mechanisms of authoritarianism and particularization of privileged sectors as a way to maintain exclusion. What is observed by Neves is not “the persistence of traditional modes of conduct” (Neves 2018, p. 275), but an emptiness of meaning concerning legality since the exclusion of the masses of under-integrated would prevent the development of a common horizon upon which to act and experience in terms of legal forms.8 About reflexivity, a process of reference unto itself in a systemic level with the same binary code, Neves considers that the Constitution performs a specific function. This is because in establishing the normative hierarchy, the organization of powers and the legislative process, including its own reform, the Constitution would be understood as the “most comprehensive reflective instance of positive law” (Neves 2018, p. 281), and constitutionality as a central manifestation of reflexivity in the legal system. His thesis draws from some examples of the interference of the Executive on the institutions charged with the control of constitutionality in Brazil (Neves 2018, pp. 285–296). Reaffirming the insufficiencies of function and provision of law in this context, he concludes that the generalization of ‘licit/illicit’ is also blocked by the unfeasibility of constitutionality as a maximum instance of reflexivity of the law. Finally, Neves reviews the concept of reflection in systems theory, the meaning of which Luhmann attributes to the comprehensive recursive reference of the system to the system itself—even problematizing its identity. The thesis (Neves 2018, pp. 301–302 and 307) uses the systemic notion of reflection to observe the law from a two-level distinction: the theory of law and legal dogmatics. Again, Neves resorts to the deficit of law positivity as a factor that hinders a proper reflection of the law upon itself, for “legality and constitutionality are indispensable for the development of the dogmatics and theory of law as instances of reflection of the legal system” (pp. 301–302). He adds that the reflections about law, whether in a dogmatic or theoretical level, are not reflected by legal practice since “the constellations of interests prevent a consistent interdependence of decisions” (Neves 2018, p. 302). The thesis admits, however, that a “consequence-based orientation” would not be unique to Brazil. The problem lies in the fact that, in a dogmatic or theoretical level,

8 ‘Structural heterogeneity, such as overlapping, intricacy, and juxtaposition of codes and criteria both within and between social subsystems. And related to this, the relationship between overintegration and under-integration in modern social systems, including positive law. All this makes it impossible to generalize of a differentiated legal code, or, more exactly, the consistent connection of communications under a differentiated ‘licit/illicit’ code. The result, in the structural level, is high legal insecurity, which is not a problem of traditional societies. In these societies, the representations of valid values in all social domains would serve as a guarantee of normative expectations, which is clearly not the case in Brazil.’ Neves (2018), p. 276.

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the lack of adequate legal consistency leaves room for the imposition of particularist variables over “universalist decision practice”. It is also at this point that Neves formulates a substantial and unusual critique among jurists in Brazil, which addresses both the theoretical foundation and the operative problems of law. This critique remains very relevant nowadays. He provides the example of the discriminating use of legality against the Constitution in the case of the eviction of favela inhabitants under the guise of property rights violation—despite the constitutional assurance of housing and social rights. His thesis exposes the contradiction of legalist formalism used by the courts and the judges, who reinforced a structure of dominance over the under-integrated. A stance that was diametrically opposed to the universalism of rights based in the constitutional text. This critique unveils the abyss of meaning of formalist, self-absorbed and colonizing practices so recurrent among jurists in the country. For Neves, such features present in this empty and distant rhetoric would rather evidence a kind of ‘escapism with regards to legal practice that is not consistently defined in terms of legal dogmatics and theory of law.’ (Neves 2018, pp. 306–307). The conclusion of his thesis connects the problems of reflection in the legal system with the issue of the legitimation of law. Neves employs the Luhmannian notion of legitimation as reference, albeit with a presupposition added: inclusion (p. 310). He synthesizes the notion of legitimation: For the legitimacy of the legal system, it must therefore be a matter of regularity that, based on its own components of the legal system, whether norms, procedures, acts or dogmatics, anyone without difficulty can justify their legal actions and expect from others recognition or restructuring of expectation. In the case of legally-positively regulated conflicts, the arguments of the affected parties must be guided by these components. (Neves 2018, p. 310).

Guided by the parameter of legitimation, and in view of the perspective presented in the thesis, the conclusion congruently points to the incapacity of self-legitimation of law and the Constitution in the country, given the insufficient positivity and the serious problems pertaining to the functioning of law as a social system. In place of self-legitimation, Neves presents the persistence of the mechanisms of heterolegitimation of law by politics or the economy—with the deepening of exclusion, highlighting the authoritarian experiences in which constitutional instrumentalism overlapped in Brazil (1937 and 1964). The absent legitimation of law can also be seen, according to him, under the sign of nominalist constitutions (1824, 1891, 1934, 1946 and 1988). Under their term, the constitutional experience in the country was marked by the deconfiguration of the process to implement rights. Neither legality, nor constitutionality were capable of institutionalizing ‘with their universalist and inclusive consequences.’ Hence the “political game is developed above and in the margins of the Constitution, lacking interpenetration between law and politics’ (Neves 2018, p. 312). Given the depth and seriousness of the problems of legitimation described, the thesis concludes in its last paragraph that only a reversal of the dominant and massive exclusion framework through the affirmation of inclusion could provide, in Brazil, the proper functioning

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of law and the Constitution seen from a perspective of living in and acting on the population.

5 Brazilian Peripheral Constitutionalism in Perspective The afterword added to the Brazilian edition comprises three sections. The first is a response to criticisms concerning the argument of the thesis; the second analyzes the repercussion of the thesis due to its repositioning of Luhmann’s system theory; and the third evaluates the present relevance and meaning of his arguments in light of the changes Brazil has been through since this work was first published in 1992. In response to the first group of critics,9 Neves argues that his thesis adopts a constructivist approach according to the systemic paradigm. And that the center/ periphery binomial used to describe world society in the work refers to Weberian ‘ideal types’, rather than to an absolute conception of periphery negatively opposed to the center that would derive from an essentialist stance. In his favor, he presents the Luhmannian distinction of differentiation by territorial political-juridical segmentation of modern States (Neves 2015b, p. 113) and adds that the use of the term peripheral modernity cannot be taken teleologically, nor does it carry negative valuation in relation to the center. Center/periphery binary, according to Neves, embodies the description of a range of structural asymmetries in world society without denying them the contingency in which they are circumscribed. Moving away from both Eisenstadt’s notion of ‘multiple modernities’ and Wallerstein’s ‘world-system’, peripheral modernity, as outlined by Neves, recognizes the high fragmentation of world society, pointing, nonetheless, to the fact that colonial and postcolonial experiences have left deep asymmetries between countries. And that these marks are still present from both the structural (economic) and semantic (circulation of ideas) point of view, due to the global expansion of capitalism, which is why he understands that the center/periphery distinction is still “analytically fruitful” (Neves 2018, p. 376). Referring to another criticism most recently directed at him, that his work was covered by a ‘racism badly disguised as culturalism’, as stated by Souza (2013), Neves takes up (p. 379) some of the passages of the thesis in which the notions of Brazilian “singularity” that would be present in the culturalist and conservative narrative of Brazil’s modernization process are denied. In his answer, Neves attributes to his critic, Souza, the use of a Freyrian culturalist perspective with the notion of a ‘low esteem of the rabble’ present in the mentality of the oppressed and the oppressor’s ‘sadomasochism’ as traces of the permanence of a slave society. In contrast to Souza, the afterword claims that tradition/modernity binomial is critically apprehended according to the contingencies proper to its time, by virtue of which the periphery is described under the sign of hypermodern in relation to the

9

The text expressly cites Aldo Mascareño and Roberto Dutra.

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center, since it is more complex and contingent. Still highlighting the structural asymmetry of world society, several times mentioned in the afterword, Neves relates the distinction between center and periphery to colonial, neo-colonial and postcolonial processes that resulted in massive exclusion in the periphery and enrichment of the center, from which the constitutional ideals of freedom and equality exported. Concerning the repercussion of his thesis on Luhmann’s functional differentiation, Neves criticizes the primacy of functional differentiation, taking into consideration that, in world society at large, exclusion is imposed. This distinction marks a repositioning of Luhmann, who thereafter begins to segment zones of inclusion and exclusion in society, distinguishing integration and inclusion, the latter referring to the ‘chances of social consideration of people’ (Luhmann 2007, p. 492). Luhmann recognizes that the profound degree of exclusion tests the limits of functional differentiation in the various partial systems and raises the thesis that, in such situations, the inclusion/exclusion meta-difference assumes the role of mediatizing the operation of each partial system’s own codes (Luhmann 2007, p. 501; Luhmann 2013), expressly citing Neves’s thesis with reference to the functioning of law in Brazil. However, he denies that this condition implies in the total elimination of law autopoiesis, claiming that the significant insecurity of expectations would also be guided by other factors. Luhmann’s refusal to reject the primacy of functional differentiation, while considering the existence of an inclusion/exclusion meta-code to describe world society, is highlighted by Neves in his afterword (Neves 2018, p. 394), pointing to the contradiction in Luhmann’s position. In this regard, it should also be pointed out that Luhmann himself, while not having sufficiently deepened this point, raises the hypothesis that the seriousness of the framework of exclusion in world society had been giving rise to a new functional system which had as its function the promotion of social security and development. On the distinction between being and person, which would be characteristic of the framework of deep exclusion, according to Luhmann: In fact, it is, nowadays, a collateral effect of the functionally differentiated society, and it is annoying mainly because with it the claims of universal competence in the entire society of functional systems are notoriously exposed in their limitations. It is not possible to wait for the solution of this problem within particular function systems - because, on the one hand, inclusion is only conceivable in the context of possible exclusion and, on the other, because the problem of reciprocal amplification of exclusions cannot be attributed to a single functional system. Rather, it would be necessary to have the formation of a new secondary system of functions that deals with the effects of exclusion of functional differentiation - either at the level of social assistance or that of development aid. Although these efforts depend so strongly on resources - from an economic, political and even religious point of view - that it can be doubted whether a social subsystem has already been formed for this purpose or if it is not a question of very dispersed attempts at the level of interactions and organizations. What is clearly perceived is that it is no longer about assistance or charity in the traditional sense, but about attempts at structural changes (keyword: self-help). We may be contemplating here the emergence of a functional system. (Luhmann 2007, p. 502).

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Although elements are lacking to more accurately evaluate the hypothesis of a functional system in charge of the problems of exclusion in world society—especially because Luhmann does not present them in his late work, it is observed that the theoretical proposal could be contradictory to the initial assumption of prevalence of the inclusion/exclusion meta-code as a type of meta-distinction to observe and describe world society. On the other hand, it would have the effect of safeguarding the primacy of functional differentiation in the terms defended by Luhmann himself, without contradicting Neves’s thesis that functional differentiation in its original form in systemic theory would have taken place only in some countries of central modernity. The last point of the afterword, and the book, reflects on the political and legal impacts of the transformations of social conditions in Brazil since the publication of the original thesis (1992). Neves also questions if this symbolism would have been replaced by a framework of constitutional degradation, given the rupture of the constitutional model of 1988 under the apparent legality of Dilma Rousseff’s impeachment procedure. Considering various social indicators, Neves evaluates the progress of democratic constitutionalism to be insufficient in the exchange for the prevailing constitutional symbolism, recognizing the impact on the expansion of fundamental rights in the country. He highlights the significant reduction of social exclusion during the terms of former President Luís Inácio Lula da Silva, while pointing, on the other hand, to the high level of inequality typical of countries marked by peripheral constitutionalism. According to Neves: The fight against exclusion was not enough for a fundamental transformation necessary to the demands of the textual model of social-democratic constitutionalism. Nor did it have the temporal persistence that would be required to settle a social structure favoring inclusion. There are clear tendencies that show the situation becoming worse under Michel Temer’s presidency, following the ousting of President Rousseff through her controversial impeachment in 2016. (Neves 2018, p. 403).

Indeed, the effects of exclusion remain reflected in the institutional practices of the branches of powers. It is in this sense that the book criticizes a significant portion of post-198810 constitutional doctrine for its misunderstanding in equalizing the judicialization of politics as the most comprehensive process of juridifying the constitution, without considering, however, the politicization of the judiciary. A Judicialization favors the same over-integrated groups, not decisively affecting exclusion. According to Neves, the ‘formulation of constitutional language by the Judiciary does not fundamentally affect anti-constitutional relations and practices, but rather forges political beliefs and movements around the constitutional design.’ (Neves 2018, p. 408). At the end of the afterword, Neves launches considerations on how the processes of political dejuridification and the deconstitutionalization of law paved the way for

10 There is reference to the works of Virgílio Afonso da Silva, Luís Roberto Barroso, Daniel Sarmento, and Cláudio Pereira de Souza Neto.

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judicial action outside the Constitution, especially from Rousseff’s impeachment onwards. Making reference to Palma (2018), the afterword calls the attention to the reflexive deficit that rests in the conception basis of so-called coalition presidentialism, since Brazilian post-1988 presidentialism has largely become extra institutional. Its functioning characterized by extortive practices in the relationship between the Executive and the Congress. This model, which privileges the particularist interference in politics through the concession of mutual benefits, does not meet the demands of a minimum program that could be indeed called coalition. As an example of this, Neves describes Rousseff’s impeachment as a ‘functional equivalent’ of a coup d’état carried out with media support, and collaboration, if not abstinence (in the case of the Supreme Court), of the judicial apparatus. In his words, the judiciary would have instrumentally assumed the Schmittian ‘friend/enemy’ binomial in favor of political sectors and traditional elites who could no longer impose their rule through the electoral procedure. Paradoxically, in the name of the much-publicized ‘fight against corruption’, systemic corruption has expanded to such a degree that, in addition to the rupture of the symbolic model of 1988, the current political-social scenario in the country indicates a tendency towards constitutional degradation. This is characterized by the radicalization of police repression against social movements and minorities; the dismantling of inclusive public policies and institutions in the areas of healthcare, education, and social security, further upholding the privileges of the over-integrated and deepening the exclusion of the under-integrated. A glance at the accuracy of the arguments of Marcelo Neves’s thesis after 26 years of its publication gives the observer the advantage of evaluating which of his diagnoses about systems theory and constitutionalism in Brazil have been confirmed. On the other hand, it requires observers to refrain from projecting ideas not presented in his work when analyzing its appropriateness or resonance to the constitutional debate and democratic learning experience in the country during that period. Indeed, the thesis is distinguished by repositioning the notion of functional differentiation in system theory. Luhmann himself recognized this in the preface of the book, and in a less explicit way in some of his other writings—but with the nuance Neves presented with regards to systems theory (Ribeiro 2013, pp. 105–123). It is equally clear that Neves’s critique of Luhmann’s “empirical provincialism” and the thesis of the primacy of functional differentiation—in spite of exclusion—contributed greatly to the formulation of a critical systems theory, which has been consolidating itself as a relevant field of study, enlarging the borders of Luhmannian thought, even when it opposes or indicates limits to some of the main systemic theses. As for Neves’s conclusions, which at the time pointed to the nominalism of the 1988 Constitution, whose symbolic character would work to hide the insincerity of the owners of power, the current political-legal scenario of the country seems to give reason to the thesis. If in the early days of the Constitution, there were criticisms that pointing to the symbolism of the text would reveal a conservative stance—when the mission of constitutionalists was to build ways of ‘effecting’ the text and

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‘implementing’ the rights of a director Constitution under the sign of normative force—30 years later, we can observe the discrepancy between the text and the country’s socio-political reality has constituted the foundation for the instrumentalization of the Constitution by agents in the political system and in the judiciary branch. This a picture not only shows the contradiction of the neo-constitutionalist discourse, always built on fragile foundations. But it also reveals the existence of a certain level of constitutional cynicism among its advocates, who would soon resort to the defense of explicitly unconstitutional conservative theses as soon as they were imbued with the power to do so.11 Moreover, in a scenario, such as the present one, in which agendas guided by power and money are imposed despite or against fundamental rights, the guarantist discourse of self-proclaimed liberal or progressive jurists takes its “Gattopardo12 change” by conserving the centuries old relationship in which the over integrated rule the under integrated. It is a fact that the constitutional experience in Brazil under the 1988 Constitution extended the degree of popular participation in state deliberations and enabled the reduction of the exclusion that still exists in the country, as recognized by Neves. It can be said today, with greater certainty than in 1988, that the Constitution opened various possibilities for democratic learning by improving the electoral procedure and broadening the channels for exercising rights. Perhaps the main question regarding the present constitutional moment, which the thesis confronted when concluded, leads us to ask about the meaning of the reflection of society on its own constitution, given the limits of this experience in a country where an excluding social structure continues to unequally distribute the access to rights and the fulfillment of duties.

For instance, minister Roberto Barroso’s vote, a past advocate of the ‘Brazilian doctrine of effectiveness’ and the ‘transformative constitutional dogmatics’. In HC 152.752/PR, he took a diametrically opposite position to the fundamental right of presumption of innocence, inverting the meaning of the disposition in item LVII of art. 5th of the Constitution, on behalf of ‘effective criminal justice’. Similarly, minister Edson Fachin who, inspired by Alexy, highlighted the normative content of the principle of dignity of a person, in which the ‘axiological dimension allows us to affirm a prima facie prevalence of the value of dignity to determine all normative implementation’ (Fachin and Pianovski 2008). However, when voting in the same HC 152.752/PR, that questioned the presumption of innocence, he adopted a formalist position, it would be up to the Supreme Court plenary to review the understanding by noting that ‘even from the perspective of fundamental rights, I do not see a change in the legal scenario that authorizes the act of coercion as a sign of illegality or abuse of power’. A decision that contradicts his own writings and the Constitutional text. 12 Il Gattopardo (The Leopard) was an Italian novel written by Giusappe Tomasi di Lampedusa that tells the history of the decline of a noble Sicilian family. Fabrizio, the Prince of Salina, is a patriarch who tries to preserve his family status during the tumultuous years of Garibaldi’s Risorgimento when Sicily was annexed to a united Italy. In a famous dialogue a protagonist says: “if we want everything to remain the same, we need to change everything”, which becomes a mantra that represents the capacity to change the political design to remains the political structure. 11

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References Buarque de Holanda S (2013) Raízes do Brasil. 26ª ed., Companhia das Letras. In: São Paulo [1ª ed. 1936] Dantas MEB (2016) Constitucionalismo periférico e teoria dos sistemas sociais: por uma interpretação pós-colonial da tese da constitucionalização simbólica. Dissertação de mestrado em ciência política, UnB, Brasília Fachin LE, Pianovski CE (2008) A dignidade da pessoa humana no direito contemporâneo: uma contribuição à crítica da raiz dogmática do neopositivismo constitucionalista. Revista Trimestral de Direito Civil 9(35):101–119 Faoro R (1977) Os Donos do Poder: formação do patronato político brasileiro. 4 ª ed., 2 v., Globo [1ª ed. 1958], Porto Alegre Ferreira D, Simim T (2017) Brasil: entre la modernidad alternativa y la alternativa a la modernidad. Íconos. Revista de Ciencias Sociales 57:79–93 Gonçalves GL (2013) Pós-colonialismo e teoria dos sistemas: notas para uma agenda de pesquisa sobre o direito. In: Dutra RT, Bachur JP (orgs) Dossiê Niklas Luhmann. Editora UFMG, Belo Horizonte Loewenstein K (1979) Teoría de la Constitución (trans. Alfredo Gallego Anabitarte). Editorial Ariel, Barcelona. Luhmann N (1993) Teoría Política en el Estado de Bienestar. Alianza Editorial, Madrid Luhmann N (2007) La Sociedad de la Sociedad. Herder, Mexico Luhmann N (2011) Introdução à Teoria dos Sistemas (trans. Ana Cristina Arantes Nasser. Coleção Sociologia. Vozes, Petrópolis Luhmann N (2013) “Inclusão e Exclusão” (trans. Stefan Fornos Klein). In: Bachur JP, Dutra R (orgs) Dossiê Niklas Luhmann. Editora UFMG, Belo Horizonte Neves M (1994a) A Constitucionalização Simbólica. Editora Acadêmica, São Paulo Neves M (1994b) Entre subintegração e sobreintegração: a cidadania inexistente. Dados - Revista de Ciência Sociais. Rio de Janeiro 37(2):253–276 Neves M (1995) Do pluralismo jurídico à miscelânea social: o problema da falta de identidade das esferas de juridicidade na modernidade periférica e suas implicações na América Latina. Direito em Debate 4(5):7–37 Neves M (1996) Constitucionalização simbólica e desconstitucionalização fática: mudança simbólica da Constituição e permanência das estruturas reais de poder. Revista de Informação Legislativa 33(132):321–330 Neves M (2004) E se faltar o décimo segundo camelo? Do direito expropriador ao direito invadido. In: Arnaud A-J, Lopes Jr D (orgs) Niklas Luhmann: do sistema social à sociologia jurídica. Lumen Juris, Rio de Janeiro, pp 145–173 Neves M (2015a) Ideias em Outro Lugar? Constituição liberal e codificação do direito privado na virada do século XIX para o século XX no Brasil. Revista Brasileira de Ciências Sociais 30 (88):5–27 Neves M (2015b) Os Estados no centro e os Estados na periferia: alguns problemas com a concepção de Estados da sociedade mundial em Niklas Luhmann. Revista de Informação Legislativa 52(206):111–136 Neves M (2018) Constituição e Direito na Modernidade Periférica: uma abordagem teórica e uma interpretação do caso brasileiro (trans: Antônio Luz Costa; rev: Edvaldo Moita e Agnes Macedo). WMF Martins Fontes, São Paulo Palma M (2018) As Coalizões do ‘Presidencialismo de Coalizão’ no Brasil: a gênese legislativa na experiência constitucional de 1988. Revista de Direito Brasileira 20(8):408–428 Ribeiro PH (2013) Luhmann “fora do lugar”? Como a “condição periférica” da América Latina impulsionou deslocamentos na teoria dos sistemas. Revista Brasileira de Ciências Sociais 28 (83):105–123 Souza J (2000) A Modernização Seletiva: uma reinterpretação do dilema brasileiro. Editora da Universidade de Brasília, Brasília

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Souza J (2013) Niklas Luhmann, Marcelo Neves e o ‘culturalismo cibernético’ da moderna teoria sistêmica. In: Dutra RB, Paulo J (orgs) Dossiê Niklas Luhmann. Editora UFMG, Belo Horizonte

Alexandre Douglas Zaidan de Carvalho is a Postdoctoral researcher at the University of Barcelona. He holds a PhD in Law, State and Constitution at the University of Brasília and is Professor of Law at the Catholic University of Salvador.

Democratic Legitimation Without Inclusion: An Evolutionary Approach to Brazilian Societal Crisis Fábio Portela L. Almeida

Contents 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Outlines of an Evolutionary Theory of Sociological Legitimation . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Gene-Culture Coevolution: Social Legitimation as a By-Product of Cultural Evolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Multilevel Selection and the Evolution of Complex Societies . . . . . . . . . . . . . . . . . . . . . . . 3 Constitutional Legitimacy as a Multilevel Systemic Adaptation . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 An Evolutionary Analysis of Symbolic Constitutionalization: The Brazilian Deconstruction of Liberal Democracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract In Marcelo Neves’ perspective, political dissent plays a fundamental role in a constitutional democratic polity. However, the continuing divergence between the opposition and situationist parties is at risk in Brazil. In the first decades of the twenty-first century, the political system has degraded in a Schmittian fashion. By using a political language that avoids debate and entrenches a division between friends and enemies, the ascension of far-right politics has attempted to crush the opposition and delegitimize relevant social policies. The article discusses the current state of Brazilian politics through the lenses of multilevel selection evolutionary theory, by proposing that the destabilization of Brazilian political system derives from historical deficiencies in the cultural, organizational systemic structural foundations of Brazilian democracy which, nonetheless, maintain its institutions through the means of psychological and cultural legitimation. As a result, Brazilian constitutional regime can be conceived of as a symbolic constitutional democracy, Marcelo Neves’s description of constitutional formal regimes which do not preserve the material conditions necessary to grant civil, political and social rights to most citizens.

F. Portela L. Almeida (*) Brazilian Superior Labor Court, Brasília (DF), Brazil © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Nogueira de Brito et al. (eds.), Law as Passion, https://doi.org/10.1007/978-3-030-63501-5_6

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1 Introduction Problems of legitimation and integration are foundational to law (Parsons 1980, p. 62), as they concern the very reasons why individuals should conform to the particular rules of the legal system (Tyler 2006). Despite some sociological theories have quite successfully explained the underpinnings of legitimation processes in modern society (Weber 1947; Parsons 1980; Habermas 1996; Luhmann 2014), little theoretical research has linked them to an evolutionary framework. This is remarkable, as recent developments in the understanding of how humans evolved and cooperation emerged in our species have unfolded in the last decades (Richerson and Boyd 2008; Godfrey-Smith 2009; Mesoudi 2011), paving a significant avenue for intellectual exchange. Theories of cultural evolution and gene-cultural coevolution have provided a framework to think not only about how cooperation originated, but how it stabilized in human lineages (Henrich 2004; Laland and Brown 2011; Mesoudi 2011). In these theories, the role of cultural legitimacy is prominent as a means to foster cooperation and enhance group-fitness (Baron 2012). And they fit nicely with another novel trend in evolutionary theory, which studies how transitions in individuality explain the evolution of ever more complex forms of life (Smith and Szathmáry 1997; GodfreySmith 2009). Combined together, these theories offer an interesting way to explain the emergence and maintenance of cooperation and their role in keeping the integrity of complex social systems. Both theories can be used to develop an analytical framework to understand processes of legitimation in complex societies, understanding how they foster or restrain the maintenance of complexity through integration mechanisms. As a result, this systematic scheme can be employed to understand some differences in institutional legitimation between democratic center and its periphery (Luhmann 2013). This paper builds on cultural evolution, gene-cultural coevolution and transitions in individuality evolutionary theories in order to present a Darwinian approach to societal legitimacy. The first section presents the evolutionary theoretical framework of such proposition, bringing to light the main elements of these Darwinian premises and how they connect to a particular conception of society. The second section develops the functions performed by law in this conception, highlighting how legitimacy could be conceived of in this functional evolutionary frame of reference. The last section discusses the role of legitimation in center and periphery constitutional societies, focusing on the situation of Brazilian political crisis after Dilma Rousseff’s impeachment, particularly on the outcomes that eventually led to Jair Bolsonaro’s election. The Brazilian case is a significant one to be analyzed through the lenses of such framework because it shows how evolution does not provide any guarantee against failures in legitimation and integration performance. Also, this particular choice is justified on the grounds that Brazilian institutions have performed poorly in some of the required conditions to sustain democratic legitimacy and, as such, the political turmoil and suspicion against institutions is to be expected from an evolutionary

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perspective. After the 1988 Constitution and particularly during the governments of Fernando Henrique Cardozo (1995–2002) and Luis Inácio ‘Lula’ da Silva (2003–2010), Brazil seemed to be gradually evolving into a progressive democracy, with institutions capable of counteracting against the political will of corrupted elites. However, the political backlash that began in June 2013, followed through Dilma's reelection (2014) and Jair Bolsonaro’s election (2018) has spilled over other institutions. The paper argues that this scenario is to be expected, as a result of economic exclusion and the lack of systemic integration that should be expected across social systems in a functionally differentiated society.

2 Outlines of an Evolutionary Theory of Sociological Legitimation Recently, evolutionary theory has advanced thought-provoking explanations concerning human behavior and social evolution. Unlike sociobiologists, which relied on a bottom-up model of explanation to argue that human genetics held culture on a leash (Wilson 1978, p. 167), these novel perspectives have proposed more complex models that take into account the role of culture in the evolution of human cooperation and offer new epistemological tools and methods to think interdisciplinarily about the relationship between minds, culture and social structure. As a result, they have built an important road to integrate evolutionary theory with the social sciences, fostering the interdisciplinary research in the field. In this section, I claim that two of these theories, ‘gene-culture coevolution’ and ‘evolutionary transitions in individuality’, offer an interesting venue to conceive of social legitimation within an evolutionary scheme. Firstly, Gene-culture coevolution explains the evolution of human sociality as a by-product of cultural evolution. Culture emerged as an adaptation to coordinate action and cope with the increasing social complexity precipitated by the larger groups where human ancestors lived, demanding not only more cognitive resources to deal with cultural traits and norms, but also to understand intentions and motives of others (Byrne and Whiten 1988). As a result of these demands, culture imposed an evolutionary pressure on our ancestors’ minds, which gradually became capable to live in societies legitimized by specific normative tenets (Boehm 2012). In this sense, an evolutionary approach to the problem of social legitimation focuses on how social norms and institutions are organized on ways that fit to the normative expectations nested within the architecture of human social psychology, offering an interesting path to understand the role legitimation processes played in the course of human evolution and its interplay with human psychological biases. Secondly, the theory of transitions in individuality (Smith and Szathmáry 1997; Godfrey-Smith 2009) intends to explain the evolutionary transitions from simple organisms to complex forms of life, by relying on a multilevel account of evolution (Traulsen and Nowak 2006). Despite having being developed to explain biological

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evolution, the scheme presented by Smith and Szathmáry (1997) and Godfrey-Smith (2009) can be adapted to discuss the evolution of complex societies and, particularly, how integration is essential to stabilize distinct structures needed to further functional differentiation. Both theoretical frameworks fit nicely and, as such, can be invoked to discuss processes of social differentiation.

2.1

Gene-Culture Coevolution: Social Legitimation as a By-Product of Cultural Evolution

Political theory has long recognized legitimacy as a basic foundation of social order (Morris 2008). No social or political organization can withstand for a long time unless it is firmly legitimized as a valid system, bolstered by a set of justified values and norms. According to Max Weber, a social order is legitimate “only if action is approximately or on the average oriented to certain determinate ‘maxims’ or rules” (Weber 1947, p. 124). The German sociologist highlights that, even if individuals frequently do not hold the same beliefs concerning norms, values and moral principles, social order cannot be maintained only through behavioral coordination and obedience to command. Additionally, an effective authority system must also cultivate a belief in its own legitimacy, convincing others that its own decisions are assumed as normatively valid (Tyler 2006). Most philosophical and sociological theories of legitimation have focused on understanding the social processes underlying the construction of legitimate institutions. These approaches usually follow either a socio-psychological approach or a strict sociological perspective. The socio-psychological framework understands legitimacy as the psychological acceptance of sociological order. In this viewpoint, a legitimate order results from particular psychological biases, through which individuals trust the status quo as a fair arrangement (Jost et al. 2004, 2013; Jost and Hunyady 2005). The strictly sociological perspective approaches legitimacy through a different pathway, by focusing on the particular social organization, normative structures and practices fostering its maintenance. This approach neglects the role individual psychology plays, as legitimation processes take place at the sociological level (Luhmann 1995, p. 201; Habermas 1996, p. 289). Political theory seem to balance psychological and sociological conceptions, by assuming that effective authority can only be performed if those in power are able to convince others that their rule is legitimate. As Zeldith & Walker state, “Every authority system tries to cultivate a belief in its legitimacy” (Zelditch and Walker 2003, p. 217). Recent theoretical developments on evolutionary theory suggest that the integration between psychological and sociological elements are vital to understand the role played by legitimacy in supporting the cohesion of human societies. In the 1970s, sociobiologists extrapolated conclusions derived from evolutionary mechanisms

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observed to cause certain animal behaviors in order to explain the dynamics of human social behavior. Following the path opened by such approaches, biologists developed distinct perspectives to study human sociability, including gene-culture coevolution (or dual inheritance theory), niche construction, evolutionary psychology, and human behavioral ecology (Laland and Brown 2011). In this respect, gene-culture coevolution (dual inheritance theory) has developed a relevant theoretical framework that explains how cooperation emerged and is maintained on human cultural groups. This theoretical body promoted a new standpoint through which some sociological issues can be investigated, including a novel conception of legitimacy which link psychological and sociological stances, providing a strong epistemological narrative to a more balanced approach. Dual inheritance theory claims that human evolution can only be explained if we take into account two distinct evolutionary systems. First of all, there is the classic genetic evolutionary system. Our psychology evolved as the result of genetic evolution through natural selection and other evolutionary forces, such as drift and mutation. Eventually, as a result of specific environmental and social circumstances that molded the course of human evolution, our psychology became able to generate and cope with culture, which slowly accumulated and emerged as a second evolutionary system alongside the genetic one (Richerson and Boyd 2008). The two evolutionary systems were entangled from the very beginning: as culture accumulated out of specific psychological traits such as imitation and conformity bias, it also exerted some pressure on our ancestors’ minds. The hominids which were better in interpreting social information transmitted through cultural means would probably be selected vis-à-vis individuals who performed worse in that task. In this sense, culture was a major, long-term, evolutionary cause underlying the adaptation of human psychology to perform cultural tasks. But culture also depended on the underlying psychological evolution, as more refined minds would be capable of sustaining further cultural evolution. This theoretical perspective is deeply connected to a multilevel approach of the evolutionary process, including genetic evolution, human individual psychology and cultural evolutionary dynamics. Each level evolves in a distinct pace and influences how the other levels evolve, in a truly interdependent coevolutionary path. Based on this assumption, dual inheritance theory proposes an intriguing theory about how cooperation emerged among humans, providing an epistemological tool to think about sociological concepts such as legitimacy. Human cooperation is a major evolutionary puzzle, as Homo sapiens is the only species capable of collaborating in large-scale genetically diverse communities. Bees and ants, among other eusocial animals, are a good example of large-scale cooperation, but only as a result of kin selection processes that generate little genetic diversity. Large-scale altruism becomes possible because, by cooperating with each other, genetically similar individuals increase the odds of transmitting their own genes to future generations (Wilkinson 1988; Krakauer 2005; Dawkins 2006; Nowak 2006; Silk 2009). Nonetheless, the evolution of cooperation among genetically diverse individuals is a huge mystery, as reciprocal altruism, the main

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mechanism driving unselfish action among non-kin animals, is capable of sustaining only a small cooperative network. According to this mechanism, individuals cooperate because they expect to be rewarded in future interactions and can control free riding by punishing non-reciprocators (dyadic punishment). However, reciprocal altruism is sustained over the individual ability to memorize past interactions and is subject to the decreasing marginal cost of punishment in larger groups. Huge groups indirectly stimulate defection because the victims of culprits, as a result of memory fails, can forget the transgression and fail to punish in a future interaction. As a result, the wrongdoer reaps the benefit of his behavior without being subject to punishment. Another problem is the decreasing marginal cost of punishment. In bigger communities, one free-rider can always find an altruistic individual they have not exploited before. According to dual inheritance theory, culture enabled humans to cooperate in a more sophisticated manner through the means of indirect reciprocity. Whereas direct reciprocity is applied in dyads where individuals monitor their own past interactions with each other, indirect reciprocity is based on the individual reputation communicated throughout the group. As a result, a member of the group can become aware of free-riders and punish them long before they have been directly harmed. The evolution of indirect reciprocity is a product of gene-culture coevolution (Cronk 1999, p. 92): as hominid groups enlarged, the pressure to deal with free-riders due to the already diminishing marginal cost of punishment in larger groups increased, demanding more sophisticated cultural capacities growth, including the evolution of language, which provided the means to assess and communicate reputational information within the group (Aiello and Dunbar 1993; Dunbar 1998, 2003). Also, the evolution of psychological biases such as prestige and conformist biases enhanced the accuracy of reputational information (Henrich and Henrich 2007, p. 61). Progressively, the emergence of culture alongside indirect reciprocity, coupled with the evolution of a social psychology grounded on normative biases and heuristics, paved the way for the evolution of larger hominid communities. The evolution of normative biases resulted from the natural selection of innate cognitive structures supporting cooperation. The primate mind copes with its social environment through cognitive biases that, at first, induced cooperative behavior toward relatives (kin selection), altruists (direct reciprocity) and fellow countrymen who share the same symbolic system and are acknowledged as members of the same community (indirect reciprocity). These cognitive biases are partially related to our moral psychology, as psychological and sociological experiments have demonstrated. We are prone to recall social norms and normative information vis-à-vis other kinds of information (O’Gorman et al. 2008), to engage in altruistic and empathetic behavior (Batson 1987), punish transgressors (Fehr and Gächter 2002), cooperate with fellow compatriots (Baron 2012), prefer fairness and resist against inequalities (Boehm 1997, 1999). Two of these psychological biases are of particular interest to understand the role of legitimacy played in the evolution of the large cooperative systems we observe in human societies: cooperation with fellow compatriots and the preference for fairness. The first bias is a product of indirect reciprocity, as a shared symbolic system

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(Parsons 2012, pp. 5–7) is a great cue to differentiate whom should be trusted from a potential enemy. As a result, humans are parochialists—we are more likely to cooperate with those who we recognize as members of our community than with outsiders (Baron 2012). The second bias—preference for fairness and resistance against inequalities—is a major product of our primate inheritance (de Waal 1989, 2009; Brosnan and de Waal 2003). Specific circumstances of our evolutionary history, such as the ability to engage in coalition against the alpha male, led our ancestors from the strict pyramidal hierarchy seen in gorillas and chimpanzees to the egalitarian political system pervasive in hunter-gatherer prehistoric human societies for more than 95% of the 200,000 years Homo sapiens natural history (Boehm et al. 1993; Boehm 1997, 2012; Flannery and Marcus 2012; Gintis et al. 2015). Of course, hundreds of inegalitarian societies emerged and developed in the course of human history. As Parsons argued, stratified societies evolved as a result of being more efficient than the ancient egalitarian bands in differentiating social functions and coping with more complex social demands (Parsons 1964). However, they were built over institutions that organized social power in a way that counteracted our innate egalitarian instincts and worked around them (Richerson and Boyd 1999, 2008). And culture—understood as a symbolic system—played a huge part in this process by justifying inequality on egalitarian terms, naturalizing social differences through religion and maintaining stratification based on the assumption that distinct social classes were deeply egalitarian inside each stratum. As a result, the system as a whole was deeply inegalitarian, but the psychological dispositions to fight against inequality became dormant, as the direct class with whom one directly associated himself was egalitarian. A Roman slave, albeit not a Roman citizen, was equal to any other slave. Direct coercion also was a relevant factor in this process by imposing an authoritarian hierarchy. Nonetheless, since this kind of social adjustment was based on an abysmal contradiction between our innate psychology and social organization, conflicts between slaves and owners, plebeians against patricians, and peasants against nobles were not uncommon (Green 1961; Jones 1965; Blickle and Catt 1979; Runciman 1983; Greatrex 1997; Desai and Eckstein 2011). This approach displays two faces of social legitimacy from the standpoint of evolutionary theory. A huge, complex cooperation system can only be sustained over a genetically diverse human population if two conditions are satisfied. Firstly, it must rely on a symbolic system that institute criteria to distinguish between insiders/ outsiders and norm-upholders/transgressors. In the past, religion and morality played this role and, in modern times, legal constitutions replaced them in this function by granting fundamental rights to all and acknowledging the inclusion of every individual in the legal and political system. Secondly, it must cope somehow with inequality by instituting a relatively fair social order or by justifying inequality in terms compatible with a set of widely accepted normative (religious or secular) assumptions (Jost and Hunyady 2003)—in Boehm’s terms, the ‘moral blueprint’ of a given society (Boehm 1999). By doing so, individual expectations concerning equality and fairness become aligned with normative assumptions and social stability can be maintained. Of course, this balance is a fragile one, as it depends on a

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‘critical mass’ of individuals accepting the normative reasons that justify social differences. If this critical mass is not sustained over time due to growing inequality, social distress led by inequity aversion can disrupt social stability. In a context of loose alignment between an inegalitarian system and its normative assumptions, social order can be disrupted (Neves 1994, p. 266).

2.2

Multilevel Selection and the Evolution of Complex Societies

Moreover, evolutionary theory adds another layer to the issue of social legitimation. The emergence of culture as an evolutionary system means that we must take into account a set of nested evolutionary systems and their reciprocal influences on each other. The evolution of culture opened the path to cultural group-selection, because it created conditions for Darwinian processes to operate at the group level of communities (Soltis et al. 1995; Henrich 2004). Given a certain isolation of cultural groups—as they were prone to in-group cooperation—and the presence of mechanisms such as conformist transmission and moralistic punishment, variation, heredity and differential fitness can also be applied at the cultural level, selecting some cultural variants (‘memes’) instead of others (Richerson and Boyd 2008; Toledo 2009; Mesoudi 2011). However, cultural evolution occurs alongside genetic evolution in a self-reinforcing process, as cultural dynamics can affect genes and is also affected by them, insofar as the capacities of human social psychology are one precondition for cultural emergence, accumulation and evolution. As a result, cultural evolution is one case of multilevel selection, as natural selection and other evolutionary forces are acting in multiple evolutionary nested levels. The idea of multilevel selection is not new, as there are many biological examples of this process occurring in nature. Think about the human body. There are have many nested evolutionary levels to be considered, including the DNA, a single cell, individual organs such as lungs or the heart, and at last the whole body of a given person. Each of these levels are subject to particular and maybe contradictory top-down and bottom-up evolutionary pressures which can drive their evolution to distinct paths. Cancer is a masterpiece example of how evolutionary pressures operate on different levels. Cellular reproduction must be controlled in order to maintain the body’s whole organization. Otherwise, cells reproducing more quickly than the pace needed to keep the whole body stability, wouldn’t be able to perform their function well and the whole organism could be harmed. In this sense, there is top-down pressure to keep cellular reproduction controlled while bottom-up natural selection acting on the level of a single cell stimulates disorderly cellular replication in order to increase the odds of expanding the proportion of its own genes in the future. As a result of increasing top-down environmental pressure, natural selection favored the maintenance of more sophisticated organisms and eventually solved the multilevel conflict by assuring that each cell is a virtual clone of other cells in the

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same organism. In time, natural selection evolved cells capable of limiting their own reproduction, paving the way for the emergence of more complex entities (Smith and Szathmáry 1997; Axelrod et al. 2006). The philosopher of biology Peter Godfrey-Smith recently proposed a model to address multilevel evolution. According to him, Darwinian evolution should be understood in a multidimensional perspective, based not only on the textbook definition of variation, heredity and differential fitness, but one grounded on Heredity, Continuity, Variation, Intrinsic Fitness, and Reproduction, which, on its turn, is based on three other variables, Bottlenecks, Germ Lines, and Integration (GodfreySmith 2009). Darwinian evolution would operate whenever a given entity (a ‘Darwinian individual’) scores minimally well on each of these variables, being qualified as a marginal Darwinian case. Populations of entities scoring well in every variable would be more likely to change through evolutionary forces, being a paradigmatic Darwinian case. In this perspective, natural history is an account of how entities evolved from marginal Darwinian populations to paradigmatic ones. Following Eörs Szathmáry and John Maynard Smith (1997), Godfrey-Smith proposes that this process resulted from major transitions that enabled evolutionary increase in complexity through the evolution of more sophisticated, higher-level Darwinian individuals, nested over lower-level Darwinian populations. Examples of these transitions include the origin of eukaryotes, genetic codes (both RNA and DNA), and multicellularity. In every transition, the evolution of higher level entities happened despite natural selection acting in order to select lower units that could possibly disrupt stability at the higher level. Smith and Szathmáry answered to this problem by suggesting three mechanisms: kin selection, contingent irreversibility and central control (Smith and Szathmáry 1997, pp. 8–9). In most transitions, the higher level entity begins with one or a few cells which divide themselves and produce other cells with a high degree of genetic relatedness (kin selection), a procedure that suppresses free-riding. Contingent irreversibility, or path dependence, means that, sometimes, entities cannot revert to previous evolutionary states not because of natural selection, but due to inertia and other accidental reasons deriving from its own historical contingencies. High level organization can also be maintained through adaptations that keep low level integrity by suppressing free-riders (Smith and Szathmáry 1997, p. 10). Another feature of evolutionary transitions are the division of labor and the emergence of novel mechanisms of information transmission. Systems organized in specialized units performing particular functions are usually more efficient than systems whose units perform general functions. This is true both in natural and social evolutionary contexts, as functional differentiation usually entails increase in complexity and fitness vis-á-vis less differentiated entities, which is why Parsons mentioned differentiation as one reason for explaining the evolution of functionally differentiated societies and the erosion of most stratified social civilizations (Parsons 1964, 1966). Through division of labor, a higher-level entity also de-darwinizes its lower-level elements, who become interdependent and channels natural selection towards the whole new organism vis-à-vis its individual components. Its parts

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achieve such a level of integration with the whole organism that they lose their individual capacity of living on their own. The emergence of novel mechanisms of information transmission is also a common feature of evolutionary transitions. New forms of transmitting information unfold when a new evolutionary system emerges. The genetic code evolution is a paramount example, as autocatalytic systems long existed as information-based hereditary systems, but the evolution of DNA highly increased the efficiency of replication and set the evolutionary conditions for the evolution of more complex organisms. In cultural evolution, the emergence of language, the invention of writing and the printing press played a similar role in enhancing the path to more complex societies. In Godfrey-Smith’s approach, a new Darwinian individual emerges on top of pre-existing biological entities whenever distinct kinds of reproducing entities mutually associate. In his perspective, there are different kinds of reproducers. First of all, there are scaffolded reproducers, which depend on another entity to reproduce themselves as part of the replication of larger entities. Virus and chromosomes could be mentioned as major examples of this category. Second, there are simple reproducers, which are elements embedded in collective reproducing entities, but can “reproduce largely (. . .) using their own machinery” (Godfrey-Smith 2009, p. 76), as bacteria and cells do. Third, the most complex Darwinian individuals are organized as collective reproducers which reproduce themselves as a result of its low-level components reproducing themselves. In this sense, animals or plants could be described as a collective reproducer structured over made up cells (simple reproducers) which reproduce themselves based on DNA (a scaffolded reproducer). A new Darwinian individual emerges as an association of different reproducers that could be said to reproduce marginally at the collective level. For instance, a collection of independent cells starts to associate, although each cell reproduces itself autonomously—as it happens with algae or jellyfish (Godfrey-Smith 2009, p. 79). Later on, the different reproducers might connect their reproductive form to the collective unit, gaining integration at the higher level, losing their autonomy and forming a Darwinian entity closer to the paradigmatic case. By losing reproductive autonomy, the low-level components of the new individual are also partially de-Darwinized. Godfrey-Smith’s multidimensional framework can be used in order to examine and model social evolution in a Darwinian fashion and, as a result, highlight the role of legitimacy in upholding the evolution of complex societies. According to Okasha, multilevel selection processes can be defined in two major ways, as MLS1 and as MLS2 (Okasha 2006, p. 56). In MLS1, individuals are the selected units and the structure of the group affects group-member’s fitness, which is just the sum of individual fitness. In MLS2, groups are the selected individuals per se and display true group-level adaptations. The first hunter-gatherer bands of human prehistory were the product of kin selection and direct reciprocity, which stabilized cooperation between individuals in small family groups and non-kin groups. These mechanisms are MLS1 because they sustain cooperation among the members of the group, and do not produce any adaptation at the group level. As human bands grew in size, sustaining cooperation progressively demanded other psychological mechanisms

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necessary to support indirect reciprocity, such as conformity bias, symbolic marking bias, parochialism, and moralistic punishment. Although they were still MLS1 mechanisms associated to human minds, they also instituted generative preconditions for the evolution of specifically social MLS2 adaptations. Gradually, in the course of the last 2,000,000 years, our ancestors evolved from loose bands, marginal Darwinian cases, into the more integrated units pervasive in the last 200,000 years of Homo sapiens prehistory. As Godfrey-Smith states, integration means (i) mutual dependence of parts, (ii) division of labor, and (iii) the maintenance of a boundary between the collective and the outside—or, in Luhmannian terms, the boundary between the system and its environment (Godfrey-Smith 2009, p. 93). A cooperative group unified through a shared cultural system (symbolic marking) achieves this third integrative purpose. Symbols are reliable means of distinguishing insiders from outsiders, and as a result they enclose the group not only as a collective entity possessing a particular package of cultural memes spread through the individual minds of its members, but also as a cultural system in its own right—a memeplex (Dawkins 2006). These large cooperative cultural groups are grounded on another psychological disposition, ‘collective intentionality’, as their members not only reason according to their own perspective, but also from an objective standpoint shared with the group as its collective will (Tomasello 2014, p. 152). Collective intentionality is a necessary precondition for the transition between MLS1 and MLS2 evolved societies from the standpoint of our social psychology, since it enabled us to bridge the link between culture and social structure. Norms are an obvious example of cultural innovation that achieves this structural status, as they are not only embodied within the minds of each member of a group, but also achieve an existence of their own. When individuals evaluate if others are complying with the rule-system, they are addressing the group standard—a normative system that escalates from the individual mind to becoming a feature of the group. Other members expect rules to be obeyed and sanctions to be applied when transgression occurs (Luhmann 2004, p. 9) The system of rules is only one feature that can be attributed to the group as such, and irreducible to the level of individual beliefs. The structure of government, for instance, is another feature irreducible to individual beliefs, as the network of positions and the interconnection between them are a social feature irreducible to individual beliefs (Chwe 2003; Tomasello 2014, p. 89). As groups grew larger as a natural selection result of intergroup conflict, the stabilization of its own social complexity progressively demanded specific collective adaptations. As a result, the transition to cultural-groups-as-Darwinian-individuals (subjected to MLS2 selection) was stabilized after individuals evolved collective intentionality and cultural accumulation coupled with social differentiation, and as a result produced group-level adaptations. Agents with a more cohesive capacity of acting as members of the group, obeying the rules of the band, operated more efficiently as collective intentionality allowed for the evolution of group-features (including group-level adaptations) that could be selected as such, examples of which would be government structuration, rule systems and role-based stratification.

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Probably, the full transition to MLS2 selection only occurred with the emergence of stratified hierarchies typical of ancient empires (Parsons 1966; Almeida 2016). As a result of this process, natural selection could work at the level of the group, selecting group-level features—more specifically, particular social structures resulting from their institutional integration. Although large cooperative groups could be integrated by means of cultural transmission at the lower-societal level (individual interaction), the transition to societies as full-blown Darwinian individuals also generates another form of integration—not between cooperating individuals, but between functional institutions and social systems (Turner 2010, pp. 125–146). The late evolution of modern, functionally differentiated society after the sixteenth century, can be understood as one result of such process (Luhmann 1977; Luhmann et al. 1982; Ziemann 2007; Neves 2013; Brunkhorst 2014). This multilevel selection approach entails that evolution results from a feedback process occurring both through bottom-up causation and via top-down selective pressures, in a true circle of emergence (Sawyer 2005, pp. 90–91; 219). Psychology, culture and social structure constrain and affect each other by mutually inhibiting evolutionary and developmental processes. As a result, the continuous maintenance of integrated but differentiated social systems must rely on a legitimate normative system capable of sustaining its constitutional low-level cultural and psychological cohesiveness and adhesion towards the maintenance of the higher-level social ontological structure.

3 Constitutional Legitimacy as a Multilevel Systemic Adaptation Multilevel selection and gene-culture coevolutionary theory entail a novel conception of legitimacy from an evolutionary perspective. As a matter of fact, legitimacy can only be properly understood as a multilevel adaptation to complex social organization. If gene-culture coevolution theory presented the evolutionary foundations of legitimacy from a psychological standpoint, the multilevel selection approach presented by Godfrey-Smith opens the possibility of thinking about this sociological subject considering its functional role across evolutionary levels, as a ‘glue’ connecting human psychology, culture, and social structure. This is why the evolution of constitutionalism is finely tuned with functional differentiation and its ongoing complexification of society, which could only emerge by instituting an egalitarian way of life and dissolving stratified political and economic hierarchies. As a guardian of functional differentiation, constitutions must assure that social systems operate according to their own functional criteria (Luhmann 2003, 2010). One condition for such achievement is that participation opportunities are assigned to all citizens; otherwise, the inner logic of a specific system would be partially determined by other system and functional differentiation,

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undermined. As a result, differentiation depends on promoting inclusion through universal access to all functional systems. The immunising force of the institutionalisation of equality of political rights depends on external social factors, as comprehensive social inclusion, that is, effective access to the benefits and service provision of the various functional systems. In the presence of significant social exclusion of people and groups, or very substantial inequality, especially in the economic and educational spheres, the immunising and neutralising force of equality in political rights is greatly weakened. (Neves 2013, p. 50)

This is an imperative for the maintenance of functional differentiation, insofar as growing exclusion channels functional benefits (money, education, access to medicine, and so on) to specific segments. Functional differentiation becomes endangered by increasing exclusion as a result of systemic operation, as systemic operations is continuously undermined by other systems’ operations. In this sense, the maintenance of functional differentiation requires an egalitarian dynamic sustained in the delicate balance provided by formal constitutions (Acemoglu and Robinson 2005, 2012). Huge exclusion from access to functional resources blocks functional reproduction of differentiated society, eroding the evolution of some systems, sometimes on behalf of an acute and extraordinary reproduction of others. In this scenario, the legal tradition of constitutionalism provides some legitimation criteria that acts on every layer of social evolutionary ontology. Firstly, modern constitutions finely adjust to our innate social psychology, providing a first layer of legitimacy to institutions: individual acceptance of its tenets. Our social psychology evolved by process of natural and cultural coevolution to accept a shared world of symbolic markers. As the legal scholar András Sajó rightly asserted, based on recent contributions from neurology and psychology, constitutionalism would not have been possible if it had not been backed by our emotions, channeled through institutions in order to constitute a ‘public sentiment’ spread across the whole association of right-bearers (Sajó 2011, p. 25). Although he didn’t offer any theory about how our emotions connect to constitutional legitimation, Sajó’s insight is right from an evolutionary perspective. Constitutions replaced religion and morality as a central source of normativity, offering the symbolic unity assumed by our minds and instituting criteria to distinguish between in-group members (citizens) and outsiders through the wide assumption of fundamental rights which progressively includes foreigners as social members (Hunt 2008, p. 1735). Also, constitutionalism is highly congruent with egalitarianism (Sajó 2011, p. 32). Constitutions institutionalize a framework in which two of the three mechanisms proposed by John Maynard Smith and Eörz Szathmáry to explain the transition to higher level entities operate: kin selection and central control. Like kin selection, which suppresses free riding between cells by assuring a high degree of genetic relatedness between them, constitutions organize cooperation by attributing basic rights to all and formally acknowledging that all persons are equal bearers of rights. Part of what constitutional concepts like the ‘we the people’ do is to signal that all individuals are formally equal and, as such, there is no reason to struggle against others for the formal recognition of rights. Instead of genetic relatedness,

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constitutions grant legal relatedness and, as a result, cooperation emerges as a product of legal communication. Constitutional states might be considered the first social organization in human history that structured cooperation around this psychological trait after the egalitarian tribes of the Pleistocene. Of course, even if we take into account the many differences regarding constitutionalism and prehistorical tribes, we can find numerous similarities in the way both addressed the issue of power distribution. Both are suspicious against the political abuse of power. If prehistorical bands revolted against bully chiefs and valued the equal sharing of power among its members, constitutions protect many spheres of individual and institutional autonomy through the means of the separation of powers, attribution of legal competences to different authorities, distribution of attributions among a federated framework, judicial review and fundamental rights. In this sense, constitutions firstly legitimize social organization by finely tuning its normative tenets to our social psychology. Nonetheless, constitutions also perform a second role in legitimizing social organization by organizing the relationship between distinct social systems. The functional aspect of constitutions relates to the task of stabilizing social systems in differentiated societies, structurally coupling the law with other social systems (Brunkhorst 2014, p. 44). Constitutional institutions also perform the role of central control by incentivizing agents to monitor the behavior of others and, as a result, prevent political free riding. This is the systemic function of institutions such as separation of powers, judicial review, the different attributions between the Senate and House of Representatives, and even the institution of a federative system: each of them impose limits on other institutions, in the hope that conflicts between them will prevent abuse (Przeworski 2010, pp. 127–138). The constitutional state performs the functional role of central control within a constitutional society, structuring the rule of law and the cooperative conditions needed for the integration within law itself and between law and other social systems—what Jonathan Turner denominates institutional integration (Turner 2010, pp. 125–146). The better integrated the social systems are, the more efficiently they will perform their systemic operations. A constitution incapable of regulating these interactions well will probably result in dysfunctional and poorly integrated social system. For instance, a constitution incapable of restraining businesses through legal regulation will probably result in economic colonization of systemic differentiation (Sciulli 1992). In this sense, economic inclusion and political inclusion cannot be achieved unilaterally. Economic exclusion means political exclusion, and vice-versa, insofar as economic power can frequently be used to gain political power and consequently to earn more economic benefits (Friedman 2002, pp. 7–21). One role of the modern legal system is to guarantee that economy and politics do not entangle themselves in such a way that leads to economic and political exclusion. When operating properly, constitutions institutionalize a legal framework in which all social systems become more inclusive. Even if democratic institutions not always work, they do institutionalize counterfactual constraints that protect social systems ensuring they can operate autonomously and properly be steered—not determined—by law’s autopoietic operations.

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From the standpoint of multilevel selection, constitutions provide legitimation to social organization as a result of three processes. Firstly, they institute preconditions of large-scale cooperation by linking the cultural symbolic system to individual social psychology. Secondly, they integrate individual citizens to social organizations by instituting, through the means of fundamental rights, opportunities of inclusion. Thirdly, and at last, constitutions integrate all social systems by legally protecting their autonomy and ensuring structural coupling between them and the legal system. By doing so, constitutions legitimize social organization, being a true adaptation that structures the evolutionary preconditions to the evolution of functionally differentiated modern societies.

4 An Evolutionary Analysis of Symbolic Constitutionalization: The Brazilian Deconstruction of Liberal Democracy Symbolic constitutionalization is one central theory developed by Marcelo Neves (2007). Grounded on Luhmann’s sociological description of the constitution as a structural coupling between law and politics, Neves attempted to address the semantic usage of constitutions in contexts where they cannot efficiently regulate social structure. More particularly, Neves’ analysis is focused on how peripheral countries use constitutions instrumentally, in order to understand how this semantic artifact is referred to in order to justify a certain status quo of institutionalized inequality, where the deep under-inclusion of most citizens and the over-inclusion of an elite are normalized. While constitutions perform a powerful role in deconstructing status quo power relations through the means of particular counterfactual institutions exemplified by regular elections, judicial review, and fundamental rights (Habermas 1996), symbolic constitutionalization maintains privileges and political power in the hands of over-included citizens, excluding the under-included majority from satisfactory access to functional systems. In this context, constitutions cannot perform its function of maintaining the autonomy of law vis-à-vis politics, economy and other functional systems, serving only as a legitimation artifact of a self-described immutable social order. Neves describes symbolic constitutionalization as a fundamental problem of peripheral modernity, derived from economic regional inequalities resulting from evolutionary dynamics, with the consequence of inadequate functional differentiation and the related lack of systemic autonomy (Neves 2015). In these contexts, “there was no constitution of a public sphere grounded on the institutional generalization of citizenship, typical of other organized states (central countries)” (Neves 2007, p. 171). Neves refers to Brazil as a paradigmatic case of symbolic constitutionalization. Examining Brazilian constitutional history, he pointed that even the most liberal and democratic constitutions of 1891, 1934, 1946, and 1988 did not back a institutional

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practice of protecting individual and political rights, instead reinforcing and legitimizing economic, legal and political exclusion (Neves 2007, pp. 180–189). The Brazilian case is, in fact, challenging, as the country has been facing for more than one century political alternation between authoritarian regimes punctuated by small periods of democratic governments. Jair Bolsonaro’s election in 2018 may be read as one more backlash against democratic politics (Saad-Filho and Boffo 2020)—one to be expected from an evolutionary understanding of Neves’ symbolic constitutionalization thesis, as a result of economic exclusion and the lack of systemic integration that should be expected across social systems in a functionally differentiated society. The constitutional transition in the 1980s brought hopes that the country would finally institutionalize respect for individual rights, free elections, government accountability, and economic development. The first years were not easy. A colossal inflation had to be tamed and the first elected president, Fernando Collor de Mello, was impeached after an attempt to resign when it became clear that his removal from the office by the Senate, in the course of an impeachment procedure, was a matter of time. But the subsequent decades furthered dreams of democratic progress, particularly during the governments of Fernando Henrique Cardozo and Luis Inácio ‘Lula’ da Silva. Inflation was tamed and, although economic growth was relatively slow, minority rights became a regular part of the public debate and many inclusive policies were developed. It seemed that Brazil finally had instituted a true liberal democracy. However, after the 2008 American subprime crisis, which was soon followed by an European public debt crisis (2009–2013), Brazilian politics progressively became extremist. At first, Brazilian GDP growth of 7.5% in 2010 seemed to show the world that the country had finally found a way to cope with its long-term economic inefficiencies. That year signaled the end of Lula’s presidency and his popularity naturally led to the election of Dilma Rousseff, who served as Minister of Energy and Chief of Staff during his terms. The following years became problematic, as economic growth stalled, inflation soared and many corruption scandals during Lula’s government became public and were politically explored by conservative right-wing parties. During June 2013, while Brazil was holding the FIFA Confederations Cup, many political confronts were taking place across the country (Rapoza 2014). Conservative right-wing organizations wisely channeled the diffuse unsatisfaction concerning violence, corruption, economic struggling, the financial costs of hosting the World Cup and the Olympic Games in massive protests arranged through virtual networks such as Facebook. Although the protests continued through the following months, Dilma managed to renew her mandate in a tight election in 2014. Nonetheless, the opposition continued to press the public opinion against her and, lacking political support, she was charged with criminal administrative misconduct and disregard for the federal budget and removed in a quite controversial impeachment procedure— which was, according to Marcelo Neves, a functional equivalent of a state coup (Carvalho 2018, p. 362). The following years were hard. Between 2014 and 2018, the GDP shrank more than 5%. Urban violence, increasing unemployment, growing inequality and poor

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public services translated into a persistent feeling distrust of political parties which was successfully captured by Jair Bolsonaro, an obscure congressman who was catapulted to the Presidency in November 2018. His self-proclaimed image of someone being ‘outside the political system’ and committed to the Christian values, morality, fight against criminal violence, and refusal of communism convinced the electorate. So far, his government has been disastrous in terms of commitment to democracy, rule of law, environmental protection, education, protection of individual rights and economic development. Nonetheless, his election and quite resilient political support finds support in the evolutionary reading of legitimation processes. Constitutions can only enforce functional differentiation through a feedback loop communication between distinct, but interdependent, social systems. As Daron Acemoglu and James Robinson argued, inclusive political institutions are a necessary condition for the emergence of inclusive economic institutions—which also create “a more equitable distribution of resources, facilitating the persistence of inclusive political institutions” (Acemoglu and Robinson 2012, p. 82). Translating this insight to the language of systems theory means that functional differentiation depends on generalized inclusion to the resources provided by all functional systems (Neves 2013, p. 182; Luhmann 2013, pp. 16–25). This is imperative for functional differentiation, insofar as growing exclusion channels systemic resources to an elite, undermining systemic autonomy, since social systems become determined by other systems’ operations (systemic corruption). In this sense, the maintenance of functional differentiation requires an egalitarian dynamic which has been sustained, in modern society, not only by the intricate system provided by formal constitutions, but also by a balanced distribution of power. Ferdinand Lassalle (2003), in his 1862 famous conference, nicely captured this insight by relating constitutional authority to how it reflects the distribution of political power. In a sense, he is right, as the constitution reflect power relations— not as a mirror, but as a product of the conflict over its normative meaning. A constitution can only protect functional differentiation whenever the power distribution is balanced and no group can alone define what the constitution is. The constitution must empower as many political organizations as possible in order to resist any attempt of encroachment, protecting its own autonomy through the means of political compromises between competing actors. Whenever the distribution of power is imbalanced, the unequal distribution of functional resources to an elite increases the risk of constitutional disfunctional structuration of systemic differentiation. In this context, constitutions become the product of symbolic constitutionalization, nothing more than a legitimizing device subjected to manipulation: In this sense, symbolic constitutionalization also presents itself as an ideological mechanism that covers the lack of autonomy and inefficiency of the state political system, above all in relation to particular economic interests. The law becomes subordinated to politics, but to a fragmented politics, incapable of consistent generalization and of operational autonomy. (Neves 2007, p. 151)

In these contexts of incomplete functional differentiation, constitutions provide only a tiny layer of social legitimacy. From the standpoint of a multilevel

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evolutionary perspective, the stability and efficiency of functional social differentiation are barely structured since the constitution cannot institute and maintain a wellintegrated unit grounded on legally bounded interaction between distinct social systems. Nonetheless, the constitution still performs a legitimation role as a symbolic marker through which the social psychology of citizens can organize their moral world according to the normative standards introduced by constitutional norms. This is why symbolic constitutionalization can maintain a hardly functional social structure which cannot integrate social systems, provide fair institutions to its citizens, but nonetheless can somehow keep social stability (Jost et al. 2012). As a civic religion, constitutions provide a normative justification for the status quo, backed on egalitarian provisions that build on the normative assumptions of an overlapping consensus (Rawls 2005) at the core of a constitutional society’s identity. These constitutional assumptions are highly compatible with the normative biases nested within human social psychology, engaging our innate sense of fairness based on direct reciprocity and reversed-hierarchy egalitarianism (Boehm et al. 1993; Fehr et al. 2008). In a functional democracy, citizens are equals in rights and can access legal institutions to protect them against perpetrators of actions violating such rights, engaging dispositions related to third-party punishment and to friend-foe distinction (Fehr and Fischbacher 2004; Baron 2012). Even if symbolic constitutionalization erodes the functional integration between social systems, dysfunctional constitutions keep social stability through its symbolic power, as a significant proportion of citizens—albeit distrusting many constitutional provisions—still believe the self-proclaimed democratic institutions and organize their interactions according to the legal standards. As John Jost states, there are “basic psychological needs or motives to believe that the world is just, and that existing social, economic, and political institutions and arrangements are fair, legitimate, and justifiable” (Jost et al. 2013). Of course, the social foundation provided by psychology and culture alone, without support from mechanisms of systemic and structural integration, can barely sustain social stability, resulting in social unrest and a widespread sentiment of revolt, so critical for a constitutional regime permanent legitimation (Sajó 2011). Brazilian current political crisis can be examined through these lenses. Progressively, the charges of corruption faced by former president Lula and many politicians associated to his party, and particularly the economic stagnation of Dilma Rousseff's government, provoked a wave of protests. Even if many right-wing politicians and parties have been struggling with charges of corruption since the beginning of the 1988 constitutional regime, novel political movements captured the diffuse feeling of revolt and channeled it to promote new candidates in the 2018 election. Jair Bolsonaro was politically astute enough to position himself as a leader of these protests and, as a result, managed to be elected President. This is a typical feature of contemporary politics, as right-wing politics seems to fit well with our evolutionary social psychology in times of crisis and widespread fear about criminality, unemployment, and other kinds of social harm, particularly when a target-group has been identified as a political enemy (Graham et al. 2012; Harper and Hogue 2019). In

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Brazilian politics, the new right-wing politics has been successful in addressing Lula Workers’ Party (PT) as the root of all problems, from corruption to the appalling economic growth—which can explain at least partially why Bolsonaro’s support grew quickly during the electoral campaign. Being identified as a novel alternative in Brazilian politics while using social networks such as Facebook, WhatsApp and Twitter to spread misinformation and destroy the reputation of other candidates (Silva and Silva 2018; Cesarino 2020), he effectively detached himself from other right-wing candidates who also attempted to use similar strategies. Nonetheless, the fragile layer of legitimation provided by his election, in a context of a severely dysfunctional differentiation, reinforces the already unstable societal structure. Unworried with the deep inequalities of Brazilian economy and the widespread lack of access to the resources offered by social systems, Bolsonaro’s politics weakens even more the already fragile constitutional institutions, legitimized only in a tiny layer of psychological reference as a cultural (symbolic) framework of fairness. As the systemic normative operations are kept unconstrained, the deficient functional institutions can only deepen the social moat dividing over-included and under-included citizens, boost systemic corruption, reinforce class stratification and erode the crumbly democratic foundations of Brazil. As Marcelo Neves had already foreseen in 1994, the 1988 constitution was another example of the process described when he first published his book Symbolic Constitutionalization. The constitutional normative structure had little support in social practice and, as such, could not ignite feedback loop inclusiveness typical of enduring democracies. On the contrary, it proceeded on an excluding feedback loop emblematic of world society periphery. From a multilevel evolutionary perspective, this context can hardly sustain a stable organization, as the lack of systemic integration blocks micro-dynamic of fair reciprocal interactions grounded on fundamental rights and corrodes psychological legitimation of the status quo, channeling even more diffuse social unrest and functional instability. Legislative and judicial institutions could react in order to protect the systemic differentiation between law and politics, but the malfunctioning separation of powers is so far not blocking Bolsonaro’s politics. Being grounded on the over-included citizenship of specific actors, these institutions operate through a merely formal criteria of legal positivity, becoming incapable of counteracting exclusionary politics performed by the Executive branch.

5 Concluding Remarks Marcelo Neves described Brazilian constitutional history as a “vicious circle between constitutional instrumentalism and nominalism” (Neves 2007, p. 177). Classical sociological analysis by Brazilian scholars has attributed this critical characteristic of institutions to a distinct cultural trait, associated to social practices admitting entangled private and public realms, personalization of public issues, and state patrimonialism (Holanda 1995; Faoro 2012). However, this is a quite simplistic

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description of a complex evolutionary process that depends on a multilevel analysis taking into account how social psychology, symbolic culture, social habits/practices, and social systems structurally interact and promote democratic governance, and social stability. This is why Marcelo Neves’ symbolic constitutionalization thesis is an important advance in this debate. His analysis takes into account a multidimensional perspective that delves into structural patterns, systemic operations, characteristics of the center/periphery differentiation in the context of world society and the symbolic selfdescription that legitimizes the absurdly exclusionary Brazilian institutional framework. His functional description of symbolic constitutionalization, and particularly Neves’ theoretical observation of how it shaped the historical development of Brazilian institutions, paves way for a multilevel evolutionary analysis. Even though his analysis does not refer to the psychological foundations of societal evolution, it is possible to describe symbolic constitutionalization processes in terms of a multilevel evolutionary theory, addressing the feedback loop instantiated within and between social psychology, cultural, social and societal structures. Grounded on this approach, this paper attempted to provide a tentative reading of current Brazilian events, examining the sociological foundations leading to Bolsonaro’s election and its consequences on minds, culture, and systemic structure. A consequence of both current global politics (Tooze 2018) and Brazilian internal political conflicts, his election and consequent government have reinforced social inequalities and the fracturing of already fragile democratic institutions. Political practices have been reframed in order to accept Bolsonaro’s crude discourse against state intervention to cope with social inequality and his attempts to override the separation of powers. So far, institutions have been barely capable of constraining him, but only founded on weak compromises and individual manifestations of Supreme Court justices, deputies and senator. More than that, as the left-wing parties lost representation after the 2018 election, the space for opposition forces in public discourse has been substantially reduced. These events will have an enduring impact over future systemic operations, as the Brazilian attempt of instituting democratic legitimation without functional inclusion might lead to institutional and societal disintegration.

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Graham J, Nosek BA, Haidt J (2012) The moral stereotypes of liberals and conservatives: exaggeration of differences across the political spectrum. PLoS One 7. https://doi.org/10. 1371/journal.pone.0050092 Greatrex G (1997) The Nika Riot: a reappraisal. J Hell Stud 117:60–86 Green P (1961) The first Sicilian slave war. Past Present 20:10–29. https://doi.org/10.1093/past/20. 1.10 Habermas J (1996) Between facts and norms. The MIT Press, Cambridge Harper CA, Hogue TE (2019) The role of intuitive moral foundations in Britain’s Brexit vote. J Commun Appl Soc Psychol 29:90–103 Henrich J (2004) Cultural group selection, coevolutionary processes and large-scale cooperation. J Econ Behav Organ 53:3–35. https://doi.org/10.1016/S0167-2681(03)00094-5 Henrich J, Henrich N (2007) Why humans cooperate: a cultural and evolutionary explanation. Oxford University Press, Oxford Holanda SB de (1995) Raízes do Brasil, 26th edn. Companhia das Letras, São Paulo Hunt L (2008) Inventing human rights: a history, kindle. W. W. Norton and Company, New York Jones PJ (1965) Communes and despots: the city state in late-medieval Italy. Trans R Hist Soc Fifth Ser 15:71–96 Jost JT, Hunyady O (2003) The psychology of system justification and the palliative function of ideology. Eur Rev Soc Psychol 13:111–153 Jost JT, Hunyady O (2005) Antecedents and consequences of system-justifying ideologies. Curr Dir Psychol Sci 14:260–265 Jost JT, Banaji MR, Nosek BA (2004) A decade of system justification theory: accumulated evidence of conscious and unconscious bolstering of the status quo. Polit Psychol 25:881–919 Jost JT, Chaikalis-Petritsis V, Abrams D et al (2012) Why men (and women) do and don’t rebel: effects of system justification on willingness to protest. Personal Soc Psychol Bull 38:197–208. https://doi.org/10.1177/0146167211422544 Jost JT, Hennes EP, Stern C et al (2013) Belief in a just god (and a just society): a system justification perspective on religious ideology. J Theor Philos Psychol:1–56 Krakauer AH (2005) Kin selection and cooperative courtship in wild Turkeys. Nature 434:69–72 Laland KN, Brown GR (2011) Sense and nonsense. Oxford University Press, New York Lassalle F (2003) ¿Qué es una Constitutción? Editorial Temis, Bogotá Luhmann N (1977) Differentiation of society. Can J Sociol/Cah Can Sociol 2:29–53 Luhmann N (1995) Social systems. Stanford University Press, Stanford Luhmann N (2003) La Constituzione come Acquisizione Evolutiva. Brasília Luhmann N (2004) Law as a social system. Oxford University Press, Oxford Luhmann N (2010) Los Derechos Fundamentales como Institución. Universidad Iberoamericana Luhmann N (2013) Theory of society. Stanford University Press, Stanford Luhmann N (2014) A sociological theory of law. Routledge, New York Luhmann N, Holmes S, Larmore C (1982) The differentiation of society. Columbia University Press, New York Mesoudi A (2011) Cultural evolution. University of Chicago Press, Chicago Morris C (2008) State legitimacy and social order. In: Kühnelt J (ed) Political legitimization without morality? Springer, Berlin, pp 15–32 Neves M (1994) Entre Subintegração e Sobreintegração: a Cidadania Inexistente. Dados 37:253–275 Neves M (2007) A Constitucionalização Simbólica. Martins Fontes, São Paulo Neves M (2013) Transconstitutionalism. Hart Publications, Portland Neves M (2015) Os Estados no Centro e os Estados na Periferia. Rev Informação Legis 52:111–136 Nowak MA (2006) Five rules for the evolution of cooperation. Science 314:1560–1563 O’Gorman R, Wilson DS, Miller RR (2008) An evolved cognitive bias for social norms. Evol Hum Behav 29:71–78. https://doi.org/10.1016/j.evolhumbehav.2007.07.002 Okasha S (2006) Evolution and the levels of selection. Oxford University Press, Oxford Parsons T (1964) Evolutionary universals in society. Am Sociol Rev 29:339–357

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Parsons T (1966) Societies: evolutionary and comparative perspectives. Prentice-Hall, New Jersey Parsons T (1980) The law and social control. In: Evan WM (ed) The sociology of law. The Free Press, New York, pp 60–68 Parsons T (2012) The social system. Quid Pro Books, New Orleans Przeworski A (2010) Democracy and the limits of self-government. Cambridge University Press, Cambridge Rapoza K (2014) Bringing FIFA To Brazil Equal To Roughly 61% Of Education Budge. https:// www.forbes.com/sites/kenrapoza/2014/06/11/bringing-fifa-to-brazil-equal-to-roughly-61-ofeducation-budget/#c9c1ec36d62e Rawls J (2005) Political Liberalism. Columbia University Press, New York Richerson PJ, Boyd R (1999) Complex society: the evolutionary origins of a crude superorganism. Hum Nat 10:253–289 Richerson PJ, Boyd R (2008) Not by genes alone. University of Chicago Press, Chicago Runciman WG (1983) Capitalism without classes: the case of classical Rome. Br J Sociol 34:157–181 Saad-Filho A, Boffo M (2020) The corruption of democracy: corruption scandals, class alliances, and political authoritarianism in Brazil. Geoforum 0–1. https://doi.org/10.1016/j.geoforum. 2020.02.003 Sajó A (2011) Constitutional sentiments. Yale University Press, New Haven Sawyer RK (2005) Social emergence. Cambridge University Press, Cambridge Sciulli D (1992) Theory of societal constitutionalism: foundations of a non-marxist critical theory. Cambridge University Press, Cambridge Silk JB (2009) Nepotistic cooperation in non-human primate groups. Philos Trans Biol Sci 364:3243–3254 Silva V d N, Silva RHA (2018) Are algorithms affecting the democracy in Brazil? Int Symp Ethical Algorith:1–2. https://doi.org/10.1109/ASONAM.2018.8508646 Smith JM, Szathmáry E (1997) The major transitions in evolution. Oxford University Press, Oxford Soltis J, Boyd R, Richerson PJ (1995) Can group-functional behaviors evolve by cultural group selection?: an empirical test. Curr Anthropol Toledo GL (2009) Controvérsias Meméticas: a Ciência dos Memes e o Darwinismo Universal em Dawkins, Dennett e Blackmore, PUC-RJ Tomasello M (2014) A natural history of human thinking, kindle. Harvard University Press, Cambridge Tooze A (2018) Crashed: how a decade of financial crises changed the world. Viking, New York Traulsen A, Nowak MA (2006) Evolution of cooperation by multilevel selection. Proc Natl Acad Sci U S A 103:10952–10955 Turner JH (2010) Theoretical principles of sociology. Springer, New York, p 1 Tyler TR (2006) Psychological perspectives on legitimacy and legitimation. Annu Rev Psychol 57:375–400. https://doi.org/10.1146/annurev.psych.57.102904.190038 Weber M (1947) The theory of social and economic organization. The Free Press & The Falcon’s Wing Press, Glencoe Wilkinson GS (1988) Reciprocal altruism in bats and other mammals. Ethol Sociobiol 9:85–100. https://doi.org/10.1016/0162-3095(88)90015-5 Wilson EO (1978) On human nature. Harvard University Press, Cambridge Zelditch M, Walker HA (2003) The legitimacy of regimes. Power Status 20:217–249. https://doi. org/10.1016/S0882-6145(03)20008-4 Ziemann B (2007) The theory of functional differentiation and the history of modern society. reflections on the reception of systems theory in recent historiography. Soz Syst 13:220–229

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Fábio Portela L. Almeida is a Legal Advisor at the Brazilian Superior Labor Court and guest member of the Interdisciplinary Centre for European Studies at European-Universität Flensburg.

Part III

Transconstitutionalism

Trans-anticonstitutionalism Maurício Palma

Contents 1 2 3 4

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Social Environment and Displacement of Norms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Asymmetries of World Society and Communication Flows . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Formation of Autocracies in the Beginning of the 21st Century: An Anticonstitutionalist Global Movement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Flows of Trans-anticonstitucionalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract Assuming the existence of non-state normativity, it is reasoned that some typical constitutional problems are currently being settled through anti-constitutional forms, which may stem from non-domestic law and politics. In effect, it is possible to discern movements exploiting the shortcomings of democracy, forming non-state normative flows importing and exporting anti-constitutionalism, and pressuring constitutional orders to change. In this paper, it is demonstrated that anticonstitutional communications can come from both legal and political systems, and from both state and transnational, non-state movements. In my opinion, albeit affecting also the central, rich states, anti-constitutional discourses and practices are finding more fertile ground among the peripheral, weak ones. Illustrating the migration and implementation of anti-constitutional communications with political examples and legal cases, I hold that these phenomena are weakening not only modern constitutionalism as a normative and political fact, but also the conception of democratic constitutionalism as a pivotal normative horizon of world society. Paradoxically, the destruction of modern, democratic constitutionalism through anti-constitutional norms and political decisions appears to be also based on constitutional semantics. I call such a phenomenon ‘trans-anticonstitutionalism’.

M. Palma (*) Unesa/SP, São Paulo, Brazil e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Nogueira de Brito et al. (eds.), Law as Passion, https://doi.org/10.1007/978-3-030-63501-5_7

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1 Introduction Modern constitutions are built on the semantics of democracy and human rights, having in specific contexts proved to be capable of normatively upholding limitations to political power and the affirmation of fundamental rights. Nested both in law and in politics, the constitutionalist movement has spread across the world, achieving uneven normative realization both in rich and in peripheral states, putting into question the very existence of a constitutional reality in a number of different regions. In this sense, modern constitutionalism, as understood by Neves (2013) and Grimm (2004), would be concretely present only in a few rich states, and would move alongside normative instruments called constitutions that organize the functions of the state and serve as a reference point for law, but often fail to limit the powers of rulers and to guarantee the realization of fundamental rights in the legal dynamics, a phenomenon that can be explained by adding an attributive adjective, as does Neves (2013, p. 53), through Loewenstein’s theory of instrumentalist constitutions, and Tushnet through the notions of “authoritarian constitutionalism” (Tushnet 2015) and “illiberal constitutionalism” (Tushnet 2017). Along with its uneven effectiveness when considered marginalized populations and peripheral countries, the constitutional movement has survived opposition from both legal and political mobilizations, which, in some cases, have achieved political power, promoting communicative flows that could be described as contrary to human and fundamental rights, as well as to democratic standards. Law and politics have shaped constitutions and democracies, and it has always been at the base of these settings, influenced by their social surroundings, that democracies have either persevered or have ceased to exist. This means to say that constitutions have always faced problems derived from the dynamics of functional differentiation, understood as the primary form of differentiation present in society. Transconstitutionalism is a theory that affirms that the normativity of state law has become detached from its own geographical boundaries. Based on that theory, Neves (2013) was able to identify a sort of constitutionalism detached from the constitution. The major premise to sustain that argument of detachment is the assumption, factually observed at different structural levels, that common problems have arisen to different legal orders, and that such problems can be or have been addressed through transconstitutional strategies. According to Neves (2013, pp. 19ff.), following Luhmannian assumptions, understanding functional differentiation involves a much broader and more radical process than the mere disentanglement of legal communications, policies and knowledge or the pursuit of economic and religious freedoms that have formed the basis of these systems and their respective codes. In the explanation of his theory, Neves addressed the paradoxical situation of systems that, in attempting to satisfy their own internal rationality, seek to superimpose their own codes over others. More often than not, they also pursue communicative strategies arising from groups that seek to maintain their domination structures, while inserted in a non-differentiated

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social fabric. Accordingly, if it is true that law, politics and the economy can be disentangled, it seems to me that it is also possible to observe that they are merged in most regions of the world or that they attract one another at different levels— creating, in turn, new forms of entanglement, which can be restricted to a particular aspect or not. Transconstitutionalism also analyses communicative legal flows, dealing fundamentally with communications between legal systems from their very center, i.e. the Judiciary power—although communications at legislative level have also been the object of analysis. Communications do not have a fixed or pre-ordered direction. Just as politics and law may be structurally coupled, each dealing with their own selfreferential paradoxes, areas of the legal and political world may also associate with one another seeking to undermine both communication exchanges and pre-existing structures. While law and politics have tackled a number of problems through the application of the constitutional semantics, it is also possible to notice, in recent years, a substantial increase in communicative legal flows which “export and import” anticonstitutionalism under an alleged pretense of tackling constitutional problems. These cases tend to adopt strategies that undermine the semantics of constitutional, democratic and human rights by pushing a distorted use of that semantics. These communications stem from both the legal and the political systems, from both state and non-state agents. Neves (2013) assumed that, in anti-constitutional orders, transconstitutionalism would have limited effects, but that transconstitutional pressures and irritations could result in objective transformation (idem, p. 83). The author also understands that the migration of anti-constitutional ideas could undermine the realization of transconstitutionalism (idem, p. 175), citing Scheppele (2006), Roach (2006) and Gross (2006). Scheppele (2006) also reviews the migration of norms that oppose human rights and constitutional foundations, but she underlines that, in the case of the anti-terror laws, these processes stem from international organizations (idem, p. 351). This article, however, looks at a different direction. First of all, the argument is that the migration of anticonstitutional communications can not only undermine transconstitutional communications but also modern constitutionalism itself; and, therefore, it cannot be considered a mere migration of isolated unconstitutional norms or ideas. Nevertheless, the erosion of democracy has been stemming from the constitutional order and through mechanisms that are typical of constitutionalism. This is because, in the case of legal communications, they are made through the participation of state legislative and judiciary powers, which legislate and interpret constitutional norms, as well as through the rule of autocrats who seek the corrosion of basic constitutional principles. Along with the state forces, it is possible to observe the role of international organizations and transnational networks of unalike actors who somehow seek to undermine constitutionalism. Other influences can also be observed—such as the role of economic sectors willing to profit from the advantages offered by autocracies -, but this is beyond the scope of analysis of this article.

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Although it is possible to argue that, similarly to transconstitutionalism, the problems faced by different orders are of a constitutional nature, the communications stemming from other spheres, intended for the resolution of these problems, can also have an unconstitutional nature and may imply the very elimination of constitutionalism. Thus, anti-constitutional communications can also stem from legal or political orders that have traditionally followed basic constitutional premises, such as fundamental rights and limitations of power, i.e. legal spheres recognized to have a functional constitutional order in the sense provided by constitutionalism. Such orders can likewise absorb the anticonstitutional inputs arising from other systems. This paper analyzes, therefore, the formation, migration and incorporation of anticonstitutional practices and norms. It would be possible to argue that the phenomenon of the sprawling of anticonstitutional communications arising from the legal and political sectors, whether from state agents or not, indicate the fragmentation and complex internal relations between these systems, showing that the connections between the constitution and all other spheres within these systems are not established automatically, depending on their respective vertical and horizontal communication webs. Transconstitutionalism adopts a fluid normativity because the normativity becomes dependent on the other movements. It assumes the double contingency and, therefore, a radical otherness, showing observations and learning processes. Yet, it presents democracy and constitutionalism as normative horizons of society, which can be contested. I will explore, in the next two sections, some of the basic premises of transconstitutionalism, underlining the issue of the space-time displacement of communications, with the creating of similar structures aimed at addressing social problems of a similar nature, as well as the building of intricate communication flows involving asymmetrical world regions. After that, I will discuss the matter of the strengthening of anticonstitutional trends across the world, designated by some authors as being of a ‘populist’ nature. In Section 5, providing examples, I will address the matter of the migration of trans-anticonstitutional ideas between legal orders—which should not be mistaken with the mere blocking of transconstitutionalism by orders more closed to external communications. Thereby, I shall underline the theoretical framework of trans-anticonstitutionalism, as well as the means with which its occurrence can annihilate constitutionalism or even some basic rights depending on the environment where the anticonstitutional migration takes place.

2 Social Environment and Displacement of Norms Different theoretical currents have been describing for decades the emergence of regimes and forms of governance that go beyond state boundaries or the limits of traditional international agreements (Charnovitz 1996; Cutler 2010; Fischer-Lescano and Teubner 2006; Keohane 2005; Keohane et al. 2000; Keohane and Nye 1972;

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Koskenniemi 2012; Risse-Kappen 1995; Zürn 2018). New forms of self-regulation and self-legitimization have emerged at the core of the relationship between different types of social actors such as private agents, social movement organizations, States, international networks and organizations (see the diagnosis by Mascareño and Mereminskaya 2013). Different social sectors seem to task law with the realization of their normative expectations, regulating the relationship between multiple instances, each with a different origin. The society that has developed from modern times has formed equivalent structures in different areas of the world to deal with similar social problems. This fact helps to understand that we are dealing with a world society (see Mascareño and Mereminskaya 2013, p. 26). Events that originated in specific circumstances become displaced in time and space, adapting themselves to new situations. In the constitutional sphere, it can be said that latent normative expectations in areas that deal with problems of a typical constitutional nature tend to be institutionally observed in various parts of the globe. Disembedding would be, according to Giddens (1990, p. 21 ff.), the modern event of the displacement of local circumstances to institutional spheres in terms of time and space.1 Each social system progresses according to its own time. While the economy, for example, is capable of reacting to abrupt price variations very quickly, the scientific system takes time to present results for their research. Tensions between systems occur, in this sense, when there is a correlation between them. While politics is pressured to provide quick answers to immediate complaints, depending on power and knowledge of the matter, law operates much more slowly and shows itself to be dependent of reasoning and attention to detailed aspects related to its own dogmatic—that being the reason for the relevance of the structural effects when one intends to change the structure of the legal system through court decisions (Luhmann 1993, p. 426 ff.). In this sense, disputes over the constitutional sense seem to derive from the timeframe adopted by each system. Also internally, the different state rights, specific legal regimes, as well as state and non-state courts, have each their own specific timeframes. Lawsuits decided through international private arbitration, as they serve the rationality of the economic system, may involve complex disputes encompassing commercial relations and human rights, but still they take a lot less time than regular lawsuits in state Constitutional Courts when dealing with fundamental rights that affect millions of individuals. This means to say that there may be tensions in the relationship between different legal orders motivated by the time factor, and, consequently, the “constitutional conversations” mentioned by Neves (2013) depend on the applicable normative regime.

1

Money would be, according to Giddens, for example, a disembedding mechanism, as it orders time and abstracts specific circumstances related to the economic exchange that has or would have taken place, coupling presence and absence, as well as instantaneity and postponement. To the systems theory, criticized by Giddens (1990), money would be a generalized means of communication that would facilitate commercial exchange, but the argument of the time-space abstraction is still valid.

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In a more abstract approach: law has a structure of its own. Only through internal systemic structures the environment can be observed and have its complexity determined; internally, social structures dictate how the relationship between systemic elements can take place, as well as the level of complexity that is acceptable within a specific system, selecting the themes and the communication chain under a given system. Modern social structures, differently from what is observed in large cooperative groups, emerge from the relationship between institutions, but cannot be reduced to such relationships (see Almeida 2016, p. 206). Considering the repetition that takes place at structural level, there is a stabilization of expectations, i.e. in what is expected from a system or from other systems under analysis. Expectations, while linked to structures, tend to become both limiters of possibilities and limitations per se, but they depend on the strength of internal and external communications in order to bring change or persevere. Communications arising from the global economic system and from normative regimes linked to more powerful states, such as the regime of the UN Security Council, tend to be quickly processed and absorbed by states with more fragile normative structures, while many of these communications involve anticonstitutional stances. Thus, an analysis of the type of constitutional problem or of the type of transconstitutional communication is important to determine both the permeability of a given legal order and the timeframe in which a given legal communication is processed. In transconstitutionalism, Neves addresses the debate of the time-space displacement of ideas and constitutional norms that can be verified in various regions of the globe.2 This discussion has been theoretically addressed before. Originally published in 1974, Watson (1993) argues that the evolution of private law would occur fundamentally through legal transplants, meaning the assimilation and use of external norms by internal laws. Although the term ‘transplant’ seems inadequate, Watson (1993) argument was important to affirm, through his analyses regarding the evolution of Roman law and the more recent private law, that a norm can be displaced from the legal fabric which created it and prosper in different realities, just as law has also been historically created from non-state experiences. In the wake of Watson’s reasoning, there is a debate on ‘constitutional borrowing’, which can be defined as the importing of constitutional norms, with ‘legal exchange’ being an equivalent term. Borrowings could occur, according to the authors who addressed this subject, both in the normative and jurisprudential spheres, considering that, in the case of legal decisions, they would also involve an inflow of legal theories (Da Silva 2010, p. 518 ff.). To Scheppele (2006, p. 347 ff.), the term ‘borrowing’ implies an exchange between equals, such as the voluntary donation of a good; as well as the devolution of what has been borrowed at some point, after its “use”, without any alterations, as if there was an object in that relationship—with the lending party having some rights over the object. The term ‘migration’, adopted by Scheppele, is capable of highlighting, according to Walker 2

Reflections of the author on the place of an idea can also be seen in the work of Neves (2015).

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(2006, p. 321), the nature and the dimension of the differences between national and supranational systems in relation to the flow of constitutional ideas, but it is inadequate for implying a sense of ‘here’ and ‘there’, while there may be different ‘migrations’ that would not be secondary, but central to a legal system and whose definition of original habitat could not be precisely defined, even if that possibility is not ruled out completely by Walker. ‘Migration’ would highlight more clearly the idea that theories can also migrate. In any case, the communicative flow and its processing times depend on internal and environmental aspects. “Anti-transconstitutionalism” would be an adequate term to understand orders that block transconstitutional communications or that are not capable of processing such type of communications. Neves discussed about anticonstitutional legal orders, which would be closed to transconstitutionalism, and which are not formed by or do not recognize the constitutional concepts that have been more recently developed. Undoubtedly there are legal orders, especially state legal orders, which are not willing to collaborate with transconstitutionalism, because they ignore fundamental rights and reject legal limitation and control of those in power. Internally, they do not acknowledge the constitution in the modern sense, which is a constitution at the service of transversal rationality between law and politics. When faced with such orders, transconstitutionalism functions to a very limited extent: transconstitutional irritations, influences and pressure can lead to the transformation of anti-constitutional orders. The alternative to transconstitutionalism in this case is to take a bellicose attitude against orders that are hostile to transconstitutionalism, but this option produces side-effects that make it normatively inadvisable. (Neves 2013, p. 83).

The question that is posed here involves not that other orders block transconstitutional processes for being closed to alterity and learning (antitransconstitutionalism), but that they export anticonstitutional communications to constitutionalized orders or non-state orders. Trans-anticonstitutionalism is a movement that involves processes of time and space displacement, but it does not observe constitutionalism or democracy as normative horizons of world society.

3 Asymmetries of World Society and Communication Flows Neves (1992) sought to, at once, both question the premises of the Luhmannian theory of law and politics and to take a stance on the Brazilian discussion deriving from the reflections of Freyre (1988 [1933]), Buarque de Holanda (1995 [1936]) and Faoro (2001 [1958]) about the relationship between dominant and dominated social sectors, while also including Brazil in the global dynamics. Although profound distancing in relation to the Luhmannian theory can already be seen in “Zwischen Themis and Leviathan” (2000) and in articles of the 1990s, with the theoretical stances adopted after “Transconstitutionalism” Neves departed himself more

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intensely away from more orthodox Luhmaninan views and premises and started to outline a diagnosis of the legal and political relations present in the world society. Starting with transconstitutionalism, the legal phenomenon, most notably the peripheral one, is observed as being even more radically encompassed by the global legal dynamics, which would build increasingly complex communication flows between different spheres. In this sense, structural and normative couplings, as well as the capacity of openness, are seen as structural conditions of world society and even, in some cases, as the normative expectation of society.3 Considering the contingence of a complex society, it can be pointed out that there is nothing that guarantees that constitutionalism as it is currently understood can persist as a means of restricting political power, structuring the state and guaranteeing fundamental rights. To the contrary, there are strong pressures in the world society to the opposite direction, with the communicative flow arising from a functionally dominant system or central states which seem to quickly and strongly overtake fragile legal orders such as those of peripheral states. Often, the anticonstitutional communications stem from rich countries and international organizations and spread across poor countries. The form of differentiation involving states has not taken place only in a segmented way, in the sense that they have developed themselves geographically, as argued by (Luhmann 2000, p. 189 ff.). Rather, it is possible to observe hierarchical relations between states, although it may not be possible to define an aprioristic hierarchization or to observe fixed relationships between peripheral/peripheral, center/center and peripheral/center. The diagnosis most sufficiently complex, in this sense, would be observing the segmented differentiation side by side the global formation of hierarchical and center/periphery forms of differentiation, which are realized both institutionally and through communications stemming from different states and non-state organizations, also having a political dimension.4 3 If Weiß (2016) is correct in his observation of differentiation and contingency as two theoretical routes which have influenced academic developments on political control, on the relationship between inclusion and exclusion, on analyzing the world society, and the emancipatory potential of Luhmann’s view on democracy, then Neves takes the systems theory related to the dynamics of differentiation as the starting point to encapsulate a non-Luhmannian systems theory, including a non-legal nature, while deeply exploring the central aspect of the difference inclusion/exclusion, in a much more broad sense than the democratic view of Luhmann. In Neves’ formulation, the realization of the functional differentiation is conditioned by the form inclusion/exclusion (Bachur 2012, p. 76), and the periphery is regarded as a very contingent locus of society. Neves sought to, in his work, apply the backdrop of law to the asymmetries of world society and the relationships of exclusion and inclusion in its peripheral states; having more recently addressed, in transdemocracy (Neves 2017), the democratic dimensions of the political system itself. Therefore, Weiß (2016) is wrong when considering Neves merely a rechtsluhmannianischer scholar. 4 The formation of supra-national organizations would be the most evident documentation of a means of organizing the already existing communication flows between different political and legal systems. In this interim, politics, sometimes aided by the surface of the legal system, employing state agents or not, may reproduce this hierarchy in different ways: (a) using international institutions such as the UN (United Nations) and the WTO (World Trade Organization), where states have different weights of vote; (b) using bilateral contacts agreed in the diplomatic sphere; (c) using

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Moments of crisis seem to be the most important ones in relation to the organization of institutions, as the alleged goal of international organizations in overcoming asymmetries between States seems to have been left aside, reaffirming the assumption that politics, as a functional system, has not been differentiated only segmentally. In another paper, I argued that the current network of relationships between different social sectors, although not linearly disposed and not vertically organized, can eventually denote relations of dominance and heterarchy. In relation to the Luhmannian conception of law, having as a backdrop the relationships between center and peripheral countries and the central role of the judiciary, it was possible to observe a functional hierarchy alongside a social and positional heterarchy (Palma 2019, p. 159). At last, it can be said that the world society has to constantly deal with rationalities that are perceived as central aspects of society, i.e. as irradiating and magnetic centers of society, as if social processes could be oriented by these centers, which, without taking into account the multiplicity of social environments or the possibility of incompatibility between them. Having current politics as the backdrop, Nassehi (2017) argues that divisions such as right/left, progressive/conservative or liberal/ social-democrat would not be capable of sociologically observing the world with the complexity it possesses; but that partisans of the left and right, for example, would perceive the world as having defining centers of the boundaries of society, such as moral and the economy, shaping a kind of “reason” that ignores the complexity of reality. The political and legal asymmetries of the world society help to explain the communication flows that spread across time and space. In this sense, anticonstitutionalism, just as constitutionalism, depends both on internal and external conditions for its development. Moving forward, two global anticonstitutional flows will be presented. The first is of political nature, and the second is more related to legal norms.

4 The Formation of Autocracies in the Beginning of the 21st Century: An Anticonstitutionalist Global Movement Constitutionalism depends on the systems that form it and the surrounding social environments: the political and legal systems may not be capable of internally processing environmental communications, which may, in their turn, serve as a source of their destruction. States that have persisted, for shorter or longer periods

bilateral or multilateral international treaties for a disproportional imposition of rights and obligations, such as with the NPT (Non-Proliferation Treaty) and the unequal clauses between countries established by international treaties such as, for example, the provision on extra-territoriality, the clause of the most well-off nation and the restrictions to tax autonomy imposed against Japan in the nineteenth Century (Onuma 1986), which was subject to review in the Meiji Era (1868–1912).

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of time, under the regime of constitutionalism as understood by modernity, see themselves today governed or surrounded by parties or political movements that preach the erosion of basic constitutional achievements: be it those of political nature, like the multi-party representation system; or those of legal nature, such fundamental rights and the independence of the Judiciary Power—achievements which have driven or have sought to drive, in such a revolutionary and problematic way, a progressive inclusion of individuals in the political and legal systems. Anticonstitutional movements have used the 09/11 attacks and the 2008–2009 global financial crisis to put into question the grounds of the political, legal, and economic global dynamics, as well as of democratic liberalism, being such events, thus, important to understand the roots of the trans-anticonstitutional phenomenon. The emergence of anticonstitutionalist forces is robust and generally counts with a lot of public support, having origin both in States and in transnational movements. Some examples that can be singled out as having ascended into political power are the Fidesz, of Viktor Orban, in Hungary, the PiS (Law and Justice Party), of Kaczynski, in Poland, the United Socialist Party of Venezuela (PSUV) under N. Maduro’s leadership, the PSL (Social Liberal Party), which is the former party of the current Brazilian president Bolsonaro, who is now a free-rider politician creating a new far-right party, part of the Republican Party in the United States under Trump, the PDP-Laban of Duterte in the Philippines, the AfD (Alternative fur Deutschland) in Germany, the North Italian League led by Salvini, the rise of Geert Wilders in Holland and the Danish People’s Party. This paper will focus on the representatives of the extreme right, as the establishment of networks and the migration of ideas between them can already be verified in the scientific literature. The recent academic inclination is to classify this global movement as ‘populist’. Scheppele (2019) argues that these parties and leaders adopt ‘populist’ practices to ascend into power, although they not always maintain them. According to Urbinati (2014, p. 129 e ss.), “populists”, differently from protest movements (seen as compatible with the diarchic nature of representative democracy) definitively seek to achieve political power, and once they achieve it, in democratic systems, tend to centralize it, strengthening the Executive Power and turning the election process into a plebiscite about the leader, i.e. they attempt to personify the electoral dynamics, paired with a complete disregard for the opposition, provoking not only a transformation but also a likely annihilation of constitutional democracies. “Populism”, however, is a term with little theoretical ability for explaining the phenomenon in view of its scope and its widely diverse use by different actors and in different historical moments (see Cohen 2018, who also suggests, along other arguments, to avoid using this term). In fact, it seems to be an extremely charged term, linked to very specific historical experiences, fundamentally in North America in the nineteenth Century, with the prominence of the US People’s Party, as well as in Europe and Latin America in the twentieth Century. The theoretical definition of Mudde (2004) is appealing: “I define populism as an ideology that considers society to be ultimately separated into two homogeneous and antagonistic groups, ‘the pure people’ versus ‘the corrupt elite’, and which argues that politics should be an expression of the volonté générale (general will) of the people.” (idem, p. 543),

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differentiating it from both elitism and pluralism. This author also affirms that “though populism is a distinct ideology, it does not possess ‘the same level of intellectual refinement and consistency’ as, for example, socialism or liberalism” (idem, p. 544), besides correctly asserting that “populists” are not always against technocrats. The understanding of Müller (2016, p. 119 ff.) goes in the same direction: “populists are not against the principle of political representation; they just insist that only they themselves are legitimate representatives (. . .) not everyone who criticizes elites is a populist. In addition to being anti-elitist, populists are anti-pluralist. (. . .) “they are likely to do so in line with their basic commitment to the idea that only they represent the people”.5 By promoting a homogeneous unity of the “us” around the “people”, “populism” criticizes parliamentarian democratic politics in view of its bargaining, associated to the plurality of views, and seeks to obtain state power “to implement an agenda whose main and recognizable character is hostility against liberalism and the principles of constitutional democracy, from minority rights, division of powers, and pluriparty system. Populism is a radical contestation of parliamentary politics and thus an alternative to representative democracy” (Urbinati 2014, p. 128 ff.). Orbán’s ‘illiberal’ rhetoric is a clear example thereof. Also to this author (idem, p. 131), the simplification and polarization would cause a verticalization of political consent, shaping a unity among the masses, guided by a pretentiously organic narrative and by a leader that would personify it, corrupting democratic politics. Paradoxically, in “populism”, the connection between popular opinion and popular will would be an undemocratic means of government where power would be concentrated instead of dispersed. In fact, “populists” aim at eliminating stronger institutional veto-players of any democracy, such as courts and the parliament, which urges constitutional amendments, as well as placing members of their party in governmental institutions (see Tushnet 2018, p. 643 s.). To such theorizations could be added that “populism” would be connected, according to the line of thought of Nassehi (2017), to a perspective that observes society in a much less complex way that it actually is, trying to identify “friends” and “enemies”, as well as control points in all social spheres (idem, p. 547), with the “populists” grounding their arguments primarily on the moral plane, seen as the ruler of all others. Furthermore, it can be stated that “populism” distorts the notion of popular sovereignty, as a semantic means related to the limitation of political power in constitutional democracies, for the realization of anti-democratic political programs, at the core of democratically established constitutions. Paradoxically, such movements of anti-political intentions act in the area of politics, and, from time to time, achieve relevant political victories, offering an anti-pluralist narrative by consolidating a view of the people or the nation as the solution and force of political legitimacy, not only by concentrating power, but by preventing its dispersion.

5

For a different view, sustaining that a procedural model of democracy would be compatible with ‘populism’, seen as concomitant to the sovereignty of the people, see Möller (2018, pp. 31, passim), who, in any case, criticizes autocratic distortions of ‘populism’.

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Institutions start to be seen as unnecessary with the bond people/person of the leader, and, therefore, tend to collapse.6 Exploring both the theory and history of populism, Finchelstein (2019) holds that populism is a democratic adaptation of fascism. For him, populists use the democratic structures to set violent agendas, to persecute their enemies, and to legitimate their political actions. According to this author (idem, 2019, pp. 175ff.), populism is a complex formation: it is an antiliberal, authoritarian democracy that rejects dictatorial rules, but has, simultaneously, dictatorial elements, being as anti-institutional as fascism. Moreover, this author remarks the globality and transnationality of the phenomena and the confluence of experiences among states: the understanding of Trumpism and other current forms of populism must consider populist experiences in peripheral states, especially in Latin America, observing how rich, central states can be similar to the poor ones. Although the characteristics defined as “populist” can be verified, to greater or lesser degree, in the experiences of States, all of them can also be cloaked under the name of “autocracies”, either in formation or already formed, or of democracies bearing merely symbolic constitutions, with constitutions failing to function as the transversal rationality between law and politics.7 Autocracies are regimes where politics is explicitly hierarchically placed above law and other systems, where the political code aims at ruling any other systems code, not functioning the legal code as the second code of politics, and where, therefore, no modern constitution can be found. To the present article is important the observation that a new trend of autocrats or of movements with little regard for democracy, by taking advantage of the contradictions and failures of democratic constitutionalism, tend to obtain and concentrate power in the hands of a leader (Scheppele 2019, using the semantics “liberal constitutionalism”), causing or intending to cause the collapse of constitutionalism as currently understood, as well as the bases of fundamental and human rights. To Scheppele (2019, p. 315), liberal constitutionalism could be understood as a set of

“The author who better foresaw the populist risk contained within the government of opinion was Claude Lefort, who not by chance ended up describing totalitarianism in his attempt to grasp the extreme implication of a project that, while opposing pluralism, aims at materializing the collective sovereign as if it were a homogenous actor. (. . .) Populism produces condensation and concentration of power and does so in the attempt to resolve the “paradox of politics” that is “determining who constitutes the people.” (. . .) A consequence of this is the erosion of the symbolic domain of institutions, which are no longer used as a medium that relates and separates social interests and the state. On the contrary, the state becomes an instrument or a direct expression of the populist conglomerate of social interests.” (Urbinati 2014, p. 132). 7 Levitsky and Way (2010), inspired by a Schumpeterian-like model of democracy, label as “competitive authoritarian” political regimes in which government critics suffer “harassment, arrest, and in some cases, violent attacks, and electoral fraud, unfair media access, and abuse of state resources skewed the playing field heavily in favor of incumbents” (idem, p. 2). According to the authors, these regimes proliferated after the end of the Cold War. Levitsky and Loxton (2013) argue that “populism”, understood as a personalistic anti-establishment movement, is a fertile ground for the rise of competitive authoritarianism. 6

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social theories that support individual rights, the limitation of state powers and a government aware of major changes, under democratic dynamics. Here we can add the set of fundamental rights as the human rights guaranteed by a constitution, and not only individual rights (Grimm 2004). It is a movement that has become global through ordinary political procedures, based on the majority of votes in a population, differently from some experiences of the past century as affirmed by Scheppele. If the authoritarians of the 20th century came cloaked in nefarious ideologies with which they whipped up support for action without limits, the autocrats of the 21st century come wrapped in democratic pretense, holding out the promise that they will provide precisely what their voters want and that they will give voters what they want by legal means. By grounding their legitimacy to rule in election victories and legal change, populists occupy the turf of democrats who can’t quite figure out what is wrong with this picture. (Scheppele 2019, p. 330 ff.)

The analysis of the author points out, therefore, that communication flows of antidemocratic, anti-human rights, and, therefore, anti-constitutional character, take place at the core of democratic structure itself. Such movements have gained elections and promoted constitutional changes without institutional rupture. It is against this background that Tushnet and Bugaric (2020) hold that many forms of populism and of democracy exist, as well as that populist actions that take place in the real world not always go against the principles of modern liberal constitutionalism, suggesting skeptically that the conflicts between populism and constitutionalism are softer than some present: “on the barebones definitions [of constitutionalism and populism] we should not find a general conflict” (idem, p. 23). For the authors, it is important to observe material events linked to specific dimensions of constitutionalism (for instance the free expression dimension, the judicial independence dimension, and the equality dimension) to weigh whether they are antidemocratic. Populist actions are not, according to them (idem, p. 21), anticonstitutional if they are within the “range of reasonable disagreement” of certain right. Besides oversimplifying the notion of populism, putting the question on definitions and isolating dimensions of constitutionalism represents a theoretical strategy that is not capable of observing the big picture involving the broader goals, legal and political programs, and interlaced communication of national and transnational populist movements. In fact, historical researches, for instance, of Finchelstein, 2009, and facts here expounded demonstrate that populism as a movement explicitly advocates that liberal democracy as we know it must erode. To such an end, they use the institutional backbones of democracies, such as the electoral routines and the powers conferred by the constitutional design, to implement or attempt to implement anticonstitutional agendas, being supported by a transnational communicative network. Moreover, albeit analyzing populist actions against judicial independence in some countries, as well as mentioning constitutional problems in different states, the authors take, fundamentally, the Brexit referendum, Boris Johnson’s decision to prorogue Parliament, and the Supreme Court rule on this issue to corroborate their arguments, which does mirror the complexity of the populist phenomena (idem, p. 73 ff.).

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Thorup (2016, p. 223) sustains that “populism” connects democracy and equality to hierarchy and exclusion, as the basis of “right-wing populism” would be its association with “we, the people” a typical idea of modern constitutionalism, although, in this case, “the people” refers only to the people of that particular State (also see Neves 2017 on the exclusively local character of the constitutional “people”, which has always been present in modern state constitutionalism). Also according to Thorup (2016, p. 223), “populism” would include the regular population in the group that has their privileges under threat, seeking rhetorically in the “nation” the source of privileges for a population, and therefore instrumenting democracy through alleged democratic arguments, with reactionary purposes; the nation would also be divided between the “pure” and “honest”, and the “corrupt”. In this sense, another paradoxical formulation is the defense of privileges through democratic semantics, as well as the use of mechanisms of direct democracy with the purpose of maintaining a personalist relationship with rulers, as well as concentrating power. The attacks on representative democracy and on corrupt political elites may have reasonable grounds, but ‘populists’ offer a distorted political representativeness and another type of elitism.

5 Flows of Trans-anticonstitucionalism Networks between political leaders and parties, as well as connections between parties and rulers demonstrate that both the environment and the systems that interact with national constitutions are transforming themselves for the implementation of anticonstitutional measures, understood as norms that seek to erode human rights, fundamental rights or the limitation of power. As examples of the anti-constitutional actions which in law are expressed as trans-anticonstitutional communications, it is possible to point out the amendment of norms which restrict the basic rights of citizens, migrants and refugees, norms which curtail the rights of women and LGBTQ+ individuals, norms regarding the “pro-life” agenda, and the revision of anti-terror laws. In peripheral environments, where the normative structures are not strong enough, the problem may even be aggravated.8

8

Against the opinion of Runciman (2018), it can be observed that peripheral democracies are not simply living a mid-life crisis, because the fragility of their legal and political arrangements is the old reality. Analyzing the political context of Latin America, Germani (2004, p. 100) affirms that “populism” exploits popular mobilization and the inability of democratic institutions to responding to the demands of the population, with the distinction populism/democracy being the normative correspondent of tradition/democracy, the latter being a structural differentiation (see Mascareño and Chernilo 2009, p. 82). Whenever there is a high expectancy for inclusion among the population, without the later developing a “self-awareness of class”, and when the expectations of this population are not met by mechanisms of institutional and procedural integration, ‘populism’ seems to find fertile ground—it can be observed, nonetheless, according to this conception, that popular participation in ‘populism’ is only a façade.

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Regarding the formation of extreme right-wing interlocks, it can be noted that S. Bannon, a former strategic advisor to Trump, in the United States, created the network “The Movement”, which has among its members Salvini, Bolsonaro, Orbán, Le Pen, as well as the Spanish extreme-right party, Vox. Bannon defined “The Movement” as an “engine for evangelization”, which offers dinners and conferences seeking to establish and strengthen networks between agents (Bannon 2019). He openly advised these politicians or movements, which embrace the characteristics mentioned in the previous topics, such as supporters of Brexit, the M5S, the North League, as well as Bolsonaro in his 2018 Presidential campaign. Other steady networks and channels of communication are examples thereof. Salvini and Orbán associated themselves politically to limit migration rights,9 whereas the Visegrád Group allows Czech Republic, country where the extreme right was less successful, along with Hungary, Poland and Slovakia to articulate joint agendas of rejection to immigrants and minorities (Cichocki and Jabkowski 2019). Organizations such as the Spanish group CitizenGo, the Europa Agenda and the World Congress of Families (WCF) disseminate agendas linked to the extreme-right, being strongly active in the social networks. Regarding the creation and amendment of legal norms, according to scholars such as (Chua 2007; Den Boer and Wiegand 2015; Poynting 2009; Scheppele 2006), both the American and English anti-terror legislations were against basic constitutional principles and have caused other legislatures to adopt anti-constitutional measures, such as the widespread use of indefinite preventive incarceration and the transference of defendants to be tortured in other countries, not to mention the maintenance of special detention centers such as Guantanamo. There were also transnational pressures to homogenize legislations in different countries arising both from such States and from international institutions such as the UN Security Council and the Financial Action Task Force on Money Laundering (FAFT). The extreme-right movements oppose and detract the demands of the feminist and LGBTQ+ movements by adopting stances against same-sex marriage, against abortion and against “gender ideology”,10 using to that end a rhetoric that accuses

On the occasion of a meeting between the leaders of both countries, Salvini affirmed that “We want to change Europe’s commission. We want to protect our borders. We are going to fight the pro-migrant policies supported by [Emmanuel] Macron and [George] Soros”, having also said that Italy would no longer be “Europe’s refugee camp”(Tondo 2018). 10 Morán Faúndes (2019, p. 409) summarizes this concept as: “‘Gender ideology’ is an empty signifier that functions as a mobilizing tool against same-sex marriage, access to abortion, sexual education, etc. It concentrates multiple and even contradictory agendas and actors (Marxism, feminism, LGBTI, United Nations, global capital, etc.) under the same conceptual umbrella (Kováts and Põim 2015; Kuhar and Zobec 2017; Mayer and Sauer 2017). This strategic discourse has allowed neo-conservative activism to attract wide audiences from beyond the mainstream (Korolczuk and Graff 2018; Kováts and Põim 2015; Paternotte and Kuhar 2017; Pető 2016). It serves as the ‘symbolic glue’ (Grzebalska and Pető 2018) for agenda-setting between traditional neo-conservatives and other forces, such as neo-fascist movements and far-right paramilitary groups that believe that feminist and LGBTI agendas are updates of Marxist philosophies. What is more, some anti-globalization actors interpret these agendas as the forces of new imperialism 9

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these social movements of being “colonizing”, “neoliberal”, “totalitarian” and even “terrorist” (Corredor 2019, p. 628 ff.), adopting a semantic manipulation of constitutional and human rights. The demands of the extreme-right, such as to put an end to an alleged “gender ideology”, linked to different movements, including of religious nature (understanding this phenomenon from a countermovement theory, see Corredor 2019), already find shelter in legislations and legal decisions, as I shall expose, and sometimes launch ambitious campaigns (see the CitizenGo 2017 campaign) even though they represent demands in the opposite direction of the basic human rights guaranteed by constitutions and human rights treaties. The “pro-life” agenda is transnational in relation to its tactics, people and funds. It takes advantage of the semantics of the constitutional right to life or maternal health to affect legislations in countries such as the USA, Russia and Ireland (Mason 2019), causing strong repercussion in Eastern European and Latin American countries (on the development of the idea of “gender ideology” in Argentina and its global connections, see Morán Faúndes 2019). Their conservative rhetoric has found widespread resonance, in 2018, in the electoral campaigns of countries such as Brazil, Colombia, Costa Rica, Mexico and Venezuela (Mariano and Gerardi 2019). As demonstrated by Mason (2019), campaigns against the reproductive rights of women, such as those promoted by the organization Abolish Human Abortion, hold that abortion would be equivalent to black genocide or the Jewish holocaust, positioning itself at the same time in favor of human rights and of criminalizing those who support abortion. To Graff et al. (2019, p. 544), feminism is the most vulnerable social movement in this context: “In other words, cynical followers of the alt-right can have a gay leader, and Catholics can have a relatively progressive pope, but there is one place where these trends converge: they see feminism as an enemy”. In Poland, attacks to the so-called “gender ideology” were a central point in the 2015 elections, with some cities passing laws that prohibited the “LGBT ideology” (Jastrzembska 2019, pp. 15ff.). The Supreme Court of Bulgaria, by eight votes to four, declared that Articles 3(c) and 4(3) of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, also known as Istanbul Convention of 2011, would be contrary to the dispositions of their Constitution. Their unconstitutionality would be grounded on the definition of “gender”, as the said Convention makes reference, for example, to gender-based violence (Vassileva 2018).11 According to Beltrán and Creely (2018), in the case of Colombia, sectors of the evangelical community argued that the Peace Treaty established between the Government of Colombia and the FARC would be filled with semantics related to the “gender ideology” and therefore could not be approved by the population—the campaign for the “No” in 2016 was successful, with moralizing agendas having a major relevance. The campaign was propelled following a

(Anić 2015; Korolczuk and Graff 2018). Thus, SR and SOGI rights are being threatened by new neo-conservative alliances”. 11 The full court decision is available only in Bulgarian at http://constcourt.bg/bg/Acts/ GetHtmlContent/f278a156-9d25-412d-a064-6ffd6f997310.

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decision of the Colombian Constitutional Court (“Sentencia T. 478,” 2015) which established the implementation of measures for education on reproductive rights, with the Ministry for Education creating a manual on the matter to realize the decision. Likewise, the conservative campaign of 2018 in Costa Rica was propelled by the consultative technical opinion 24/17 of the Inter-American Court of Human Rights (2018), which was followed by a majority decision from the Constitutional Panel of the Supreme Court of Costa Rica (Rulings 2018-12782 and 2018-12783, Issue 15-13971-0007-CO, of 8 August 2018), ruling on the mandatory requirement of recognizing the civil rights of gay couples. In relation to the rights of migrants or refugees, it can be said that constitutions, infra-constitutional legislations, as well as pacts on human and migration rights signed by different countries remain clear in the sense of protecting the lives of refugees and migrants, consequentially establishing a waiver of liability for those who protect other people’s lives, and the guaranteeing the observation of the principle of non-refoulement. However, there is a wide range of policies and norms which seek to criminalize migrants, their supporters and even those who act to save their lives in extreme situations, subduing these human rights by giving, in essence, anti-constitutional treatment to such individuals. In legal terms, these movements seek to remove the efficacy of basic guarantees such as the non-refoulement principle, due legal process, the right to seek and receive asylum, the right to free legal assistance, of full protection to migrating children and the principle of non-discrimination on the basis of migration, as well as the prohibition of mass deportation (Torelly et al. 2017). Since it is a very recent movement, reports from NGOs are important sources for the observation of norms and their effects. In the case of the European Union, there are ambiguous movements. Although there are stances in favor of the rights of migrants, as well as governmental actions of reception, as seen in Germany, the European Commission argued that it was important to impose mechanisms to block people who were entering the continent from Mediterranean routes, having announced, in June 2018, that the value used by the European Border and Coast Guard Agency—Frontex would be tripled. Still, under the argument that they sought to counter the role of smugglers and guarantee the rights of migrants, the agreement between the European Union and Turkey (EU-Turkey Declaration of 18 March 2016), encourages that the European responsibility in relation to migrants be outsourced to countries outside its political and economic area. The crises in Libya and Syria, fundamentally, have been causing serious consequences to those who are forced to migrate. According to UNHCR, the total number of deaths in the central Mediterranean route has been dropping since 2016, but the relative proportion of the number of people migrating and their deaths has increased proportionally.12 Most individuals try to migrate or seek refuge in 12

In 2015, there were 25 deaths for every 1000 people; in 2016, 24 deaths; in 2017, 54 deaths for every 1000 people. There is a count of 152 deaths or disappearances for every 1000 migrants analyzing the first months of 2019 alone. The occidental Mediterranean route had, over the same period, about 11 deaths per 1000 persons, having increased to 18 in the first months of 2019, while in the Eastern route, there are about four deaths for every 1000 people.

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contiguous countries, with Europe receiving only a small fraction of people. Still, there are alarmist policies in relation to migration. In Italy, the Mare Nostrum operation was cancelled in 2014, after having saved more than 150 thousand people, after complaints from other European countries in relation to the increase in the number of people arriving to the continent. Italy established, in recent years, increasingly closer relations with Libyan authorities, training their coast guard to prevent access of migrants to European soil, taking them to Libyan detention centers, even though the European Court on Human Rights considers that Libya is not a safe place to transfer rescued individuals to13 (Hammerl 2019, p. 15; Papanicolopulu 2013). In this case, it is a legal and political strategy from Italy, which exports its human rights violations to other countries, just as the US did with torture in its “war on terror” (Poynting 2009). In 11 European states, according to the Research Social Platform on Migration and Asylum (ReSOMA), 158 people have been investigated or prosecuted between 2015 and July 2019 because of their fight for the rights of migrants. For instance, members of the NGOs Jugend Rettet, Erci (Emergency Response Center International), Open Arms, MSF, and Save the Children were accused of crimes. On orders of the Italian Minister Matteo Salvini, a number of decree-laws entered into force in 2019 restricting migration rights.14 The Inter-American Court on Human Rights has been deciding that the principles of non-discrimination must be observed, as well as the due legal process, to ensure the efficacy of the right to asylum, just as of the right to seek asylum.15 European courts have been deciding that the rights of migrants are still in effect. The European Court of Human Rights (ECtHR), in light of the European Convention on Human Rights, as already highlighted, has ruled as illegal the forced return of individuals under risk of human rights violation to Libya. It is interesting to note that such court has ruled that the mere signature of international treaties is not sufficient to classify a country as safe host country.16 The European Commission opened in 2015

13 European Court of Human Rights, Grand Chamber. Judgment. ‘Case of Hirsi Jamaa and Others v. Italy’, Application no. 27765/09, Strasbourg, 23 February 2012. 14 These include Decree-Law No. 113 of 8 October 2018 and the “Siccurezza bis”, Decree-Law No. 53 of 14 June 2019, this with the subtitle “urgent dispositions in relation to order and public security”, which introduced dispositions on the fight against terrorism and mafia crime. The rights of migrants arriving in the Italian coast have been restricted, such as the abolition of authorization for humanitarian residency for those requesting asylum (with the possibility of special authorizations for one year remaining only for restricted hypotheses), with a norm establishing a penalty from 10 thousand to fifty thousand euros for captains, skippers or owners of rescue boats, according to Art. 2, §1, of Decree-Law No. 53, which modified legislative decree No. 286 of 25 July 1998. 15 See the cases Pacheco Tineo Family vs. Plurinational State of Bolivia, Judgment of 25 Nov. 2013, pp. 51 e 52, Vélez Loor vs. Panamá, Judgment of 23 de noviembre de 2010, and Nadege Dorzema y otros vs. República Dominicana, Judgment of 24 de octubre de 2012. 16 “The Court is bound to observe that the existence of domestic laws and the ratification of international treaties guaranteeing respect for fundamental rights are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities (. . .). The Court notes

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proceedings against Greece, Italy, Malta, Hungary and Croatia for breach of European Union procedures regarding asylum requests. In July 2018, the European Union Commission affirmed the decision to sue the State of Hungary under the Court of Justice of the European Union in view of detentions made in transit zones, as well as for violations to the principle of non-refoulement (see European Parliament 2018). Adopting nostalgic and xenophobic discourses against Muslims and Mexicans, the Trump government has positioned itself as against the reception of migrants and refugees, besides its intention of erecting a wall all across the border with Mexico (Inglehart and Norris 2016, p. 5 ff.; 15 ff.). A representative of the NGO No more Deaths, Scott Waren, has been arrested in 2018 for feeding migrants in the state of Arizona. The construction of camps for detaining refugees, such as the Tornillo tent camp in El Paso, USA, can be observed, as well as the adoption of policies that are against basic human rights, such as indefinite detentions and the separation between children and their immigrant parents or asylum seekers, fact which causes a negative repercussion in the children (Wood 2018). Fundamentally, from 2017, under a policy of zero tolerance and interpreting the Flores agreement and other legislations, such as the 2002 Homeland Security Act and the Immigration and Nationality Act, his government has understood that children could not be under custody for more than 20 days in the USA, but many illegal situations persist.17 The illegal treatment to migrant children is not exclusive of the USA. As a matter of fact, rich countries such as Australia, Canada and United Kingdom have also acted against the basic rights of children under these situations (UNICEF 2016).18

again that that situation was well known and easy to verify on the basis of multiple sources. It therefore considers that when the applicants were removed, the Italian authorities knew or should have known that, as irregular migrants, they would be exposed in Libya to treatment in breach of the Convention and that they would not be given any kind of protection in that country (ECtHR, Grand Chamber, Hirsi Jamaa and Others v. Italy, §§128 e 131)”. 17 The Flores Agreement (Flores v. Reno, Case No. CV 85-4544-RJK (Px) (C.D. Cal. Jan. 17, 1997), and its extension, Flores v. Reno, Case No. CV 85-4544-RJK (Px) (C D. Cal. Dec. 7, 2001)) rules the detention and treatment of children in US immigration custody. According to 1997 Flores v. Reno agreement, families and children can only stay in places accredited by public competent institutions. This premise also established that minors could be kept with their chaperons, and not only their parents, if they were waiting for trial, under the custody of the USA. More recently, Ninth Circuit has decided that the legal premise would also be valid for minors who entered the US accompanying their parents. According to Trump administration policies, if the parents of these children were detained for a long period, or even indefinitely, in order to be prosecuted for illegally crossing the US border, these children would have to remain separated from their parents. There was a strong political pressure for the policy of separation of families to be modified. From an executive order of 20 June 2018, the Trump government, in theory, wanted families to remain with their children indefinitely in public establishments until the decision on their permanence could be taken. In addition, more recent information account that hundreds of children have been separated from their parents since June 2018, often without communication to the public authorities on the reason of the separation (Jordan and Dickerson 2019). 18 In relation to the Americas, the UNICEF report adduced that “in practice, severe deficiencies have been identified – including by the U.S. Government Accountability Office – in the way vulnerable

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Moreover, anticonstitutional normative flows go beyond countries and regions, with rich countries being the greatest violators of constitutional norms and basic human rights, besides counting on the aid of international organizations, networks and bilateral lobbying to assume a key role in the export of anticonstitutional norms and, generally speaking, of anti-constitutionality. Paradoxically, as previously explained, the violators of these norms and exporters of anti-constitutionalism base their claims in constitutional norms or human rights, such as the protection of life, and the right to safety and wellbeing of a population living in a given country. If this demonstrates, from one side, that it is hard to openly support autocracies or anticonstitutional regimes, from another side it is clear that constitutional democracies may not be strong enough to block processes that use the same type of semantics as they do.

6 Conclusion By exploiting the deficiencies of democracy, as well as the polyarchal structure of contemporary media, global movements that question the basic premises of constitutionalism have gained traction in recent years. Anti-democratic and anticonstitutional communicative flows are the result of a dynamics of functional differentiation and are present at the structural level of the legal and political systems. These systems find challenges in dealing with problems through the typical solutions of a democratic constitutionalism, such as through the invocation of human and fundamental rights. The challenges to constitutionalism are posed both to rich states and their supranational organizations, and even more seriously to peripheral states and their organizations, which tend to have more fragile normative structures. Furthermore, problems of constitutional nature may be dealt either through semantics that are openly anticonstitutional, antidemocratic or against human rights, or through a distorted use of the normative bases of the constitutional and democratic movements. In this sense, the constitutional environment and systems transversally touched by the constitutional structure may adopt stances that are contrary to the core foundation of constitutions and democracies. As it is a global tendency, verifiable both in law and in politics, involving several constitutional principles and the establishment of communication networks, it is possible to distinguish an era where trans-anticonstitutionality appears as a strong force in the horizon of the political and legal systems. Hence, democracy and constitutionalism cannot be observed as solid normative horizons of society, because powerful social sectors children’s rights are addressed at the border. Those deficiencies have included extended periods of detention while awaiting immigration proceedings and limited access to legal representation for unaccompanied children. Just one-third of unaccompanied children have had legal representation during legal proceedings, significantly lowering their chances of successfully navigating the system. Whether a shortcoming of policy or of practice, it is vulnerable children who pay the price” (UNICEF 2016, p. 71).

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and legal orders, besides not being open to conversations or learning processes, expect neither democratic solutions to democratic problems nor constitutional solutions to constitutional problems. Anticonstitutional communications arising from powerful legal, economic, and political areas are inclined to exert strong impact on legal regimes with fragile normative structures. Processes of time and space displacement, therefore, depend on social asymmetries and structures. It does not mean, however, that law and constitutional and democratic politics do not react or have not reacted. Beyond the dispute for the meaning of concepts, semantics such as that of human rights of democracy concur, since their very conception, with other semantics (Palma 2019, p. 30 ff.). The strengthening of world asymmetries and the increase of anticonstitutional actions can be blocked or stimulated, depending on the structural bases of each political and normative arrangement, either of state nature or not. The builders and protectors of democracies are the democracies themselves, therefore it seems that democracies themselves can give rise to democratic semantics of the defense of human and constitutional rights.

References Cases Colombia Supreme Court of Colombia. Sentencia T. 478 (2015) Sala Quinta de Revisión. Judgment of 3 August, 2015

Costa Rica Supreme Court of Costa Rica. Sala Constitucional. Sentencias 2018-12782 and 2018-12783, Issue 15-13971-0007-CO (2018)

United States Flores v. Reno. Case no. CV 85-4544- RJK(Px) Stipulated Settlement Agreement (C.D. Cal. Jan. 17) (1997) Flores v. Reno, Case No. CV 85-4544-RJK(Px), Stipulation Extending Settlement Agreement and for Other Purposes (C D. Cal. Dec. 7, 2001)

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European Court of Human Rights (Grand Chamber) Hirsi Jamaa and Others v. Italy (2012). Judgment. Application no. 27765/09, Strasbourg, 23 February 2012

Inter-American Court of Human Rights Advisory Opinion OC-24/17 of November, 24, 2017. Requested by the Republic of Costa Rica. Gender identity, and equality and non-discrimination of same-sex couples Nadege Dorzema y otros v. República Dominicana (2012) Judgment of 24 October, 2012 Pacheco Tineo Family v. Plurinational State of Bolivia (2013) Judgment of 25 November, 2013 Vélez Loor v. Panamá (2010). Judgment of 23 November, 2010

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Mauricio Palma is a lecturer in Law at Unesa/SP. He holds a PhD in Law (UnB, with a period at the University of Bremen funded by PROBRAL - CAPES/DAAD) and a LL.M (PUC/SP). He authored the book “Technocracy and Selectivity: NGOs, the UN Security Council and Human Rights” (2019), Nomos Publishing, Baden-Baden.

Between Transconstitutionalism and Technical Practices: Normative Challenges for Brazilian Legal Order Ramon Negócio

Contents 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Horizontality of Statehood: Privatization and Architecture of the Network as Conditioning Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 For a Narrative of Mutual Learning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 The Incorporation of Technical Values by the Legal System . . . . . . . . . . . . . . . . . . . . . . . . 3.2 The Incorporation of Legal Values Through Technical Practices . . . . . . . . . . . . . . . . . . . 4 For Openness of Transconstitutionalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Destructive Potential of Technical and Legal Normativity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 The Problematic Relationship Between Technical Practices and Legal Norms: The Brazilian Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

164 165 167 169 170 172 176 178 181 181

Abstract This article aims to understand the dimension of law and transconstitutionalism as a social practice. To this end, we work with the relationship between legal norms and technical practices, especially in the relationship between legal orders and technical actors of the Internet. Thus, it becomes apparent how actors responsible for regulating the internet and programming algorithms solve legal and constitutional problems, even though they are not qualified as legal orders. Being mediated by an Internet architecture, technical actors and legal orders increasingly need a more horizontal relationship of mutual observation, at the risk of being mutually destructive.

R. Negócio (*) University Sete de Setembro (Uni7), Fortaleza, Brazil © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Nogueira de Brito et al. (eds.), Law as Passion, https://doi.org/10.1007/978-3-030-63501-5_8

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1 Introduction In July 2013, Edward Snowden, a low-ranking employee of the CIA (Central Intelligence Agency)—publicly denounced espionage activities that had been undertaken by that agency for the purposes of gathering strategic information on other countries. A few months later, after it became known that Brazil was one of the countries targeted by these activities, Brazilian President Dilma Rousseff,—speaking on behalf of her nation—expressed her disavowal of such practices during a speech at the opening session of the 68th United Nations General Assembly.1 President Rousseff highlighted a number of points, including: that human and fundamental rights were being violated; that such practices could not be justified as acts of combating terrorism; that both a public retraction and a guarantee that such proceedings would not be repeated were due; that technologies should not serve as a “battlefield among states”; that the UN should fulfill its leadership role in order to regulate “the behavior of states in regard of these new technologies.” Furthermore, she declared that Brazil was willing to propose a “multilateral civil agreement on internet governance and use regulations” that aimed at expanding data protection to all internet users, and that the principle of neutrality of the Web, among others, should be respected in accordance with technical and ethical standards and guaranteed without any sort restriction or constraint. Furthermore, President Rousseff argued that the sovereignty of one state should not supersede that of any other, lest relationships among nations be rendered impossible. Two weeks after this UN speech, a meeting between President Dilma Rousseff and Fadi Chehadé, President of the Internet Corporation for Assigned Names and Numbers (ICANN), announced that an international meeting on internet governance should take place in Brazil in 2014.2 Prior to that, ICANN, an agency that, though bound to the US-legal system, plays a fundamental role in global international regulation, had previously announced that it would rapidly increase the pace of the globalization of its functions and move them “towards an environment in which all stakeholders, including all governments, participate on an equal footing”.3 By conceiving this event, Internet governance was placed in a different international field, transnationalizing the debate between private agents on an equal footing. Beyond this event, a horizontal relation between state actors vis-à-vis the Web was already noticeable, and has been transforming the concept of statehood. Moreover, it has indicated a different normative relationship between technical practices and legal norms. Brazil is interconnected in a network, where it should be a leading stakeholder like other states and private institutions—in other words, it is one network

1

Available on http://www2.planalto.gov.br/imprensa/discursos/discurso-da-presidenta-darepublica-dilma-rousseff-na-abertura-do-debate-geral-da-68a-assembleia-geral-das-nacoes-unidasnova-iorque-eua. 2 Available on http://blog.planalto.gov.br/brasil-vai-sediar-encontro-mundial-sobre-governanca-dainternet-em-2014/. 3 Available on http://www.icann.org/en/news/announcements/announcement-07oct13-en.htm.

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node among many. The issue of Internet governance ceases to be purely local given its global consequences. As a node, the role of Brazil is only possible in this normative interconnectedness when it is understood within the global context. This article attempts to explain how the State started to establish a horizontal relationship with private agents (first topic) and how technical and legal normativity are interrelated (second topic), which would demand an openness to transconstitutionalism as a theory (third topic). The need for balance will enable an understanding of how to process hierarchical relations to the Web (fourth topic). With these premises established, an attempt is made to understand how Brazil has exercised its role in network normativity (fifth topic).

2 Horizontality of Statehood: Privatization and Architecture of the Network as Conditioning Factors To comprehend the process of horizontality of the State is to understand the process of privatization, more precisely the privatization of mass media in the United States. As the initial developer and strongest globalizing agent of the Internet, the United States was in favor of less state intervention already at the time of development of telegraphs.4 The privatization ideas of “deregulation and competition” of the Internet were reinforced, considering that the only alternative would be nationalization.5 Such privatization encompassed the suitability and technical improvement of communication structures, and even permitted a network of governmental operations to transform itself into a commercial service.6 Not only was infrastructure privatized, but also administrative organization. Hence, the exchange, maintenance and servicing of cable for the transmission of information, along with the promulgation and administration of technical standards, were fields of control that became predominantly private in the USA. Given the breadth of influence these fields enjoyed, they became predominantly private on a global basis as well. Although it is understood that the role of architecture has the primacy of institutionalist ideas, the process of horizontality under the latter is still noteworthy. Although, previously, the representativeness of the United States for technical standardization was through the International Telecommunication Union (ITU), this has been weakened since the 90s to the point of providing quick answers to technological innovations on the Internet and for new transnational institutions, which don’t participate in the traditional dynamic between the states, but which nevertheless produce technical standards with high potential to impact every stakeholder on the Web. More than this, institutions with a high level of informality such as Internet Engineering Task Force (IETF) and World Wide Web Consortium (W3C) exercise an International Public Authority (IPA) 4

Shah and Kesan (2007), p. 95. Ibidem, 96. 6 Ibidem. 5

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approach, producing some of the most central technical standards and working as an important node.7 Hence, the state—already transformed by privatization schemes— shares transnationally important functions of network structural management with other actors (such as W3C, ICANN and IETF). The State is more a node, whose hierarchical potential is in a heterarchy; however, the transformation of statehood is not only due to an evaluation based on institutions, but also based on imposed conditions of the network architecture logic and its practices (which includes the use of software). This enables the emergence of other agents, which can become even stronger nodes, such as, for example, Google. The Internet, as a complex information system organized in itself,8 is a technical network divided into different layers (from cable infrastructure to content production) and has a transnational regulatory requirement, which regulates through the creation of technical standards. Furthermore, the Internet is an adaptive system rather than a linear one, characterized by interdependence and emergence of decentralized structures that can be identified as quaternary media, because they depend on technological artefacts, having senders and receivers and being sensitive to reactions therefrom.9 The Architecture is composed essentially of four layers: Physical, Logical, Application and Content. The Physical Layer includes all transmission by the physical infrastructure, namely, wire (line, trunk, coaxial cable, copper wire and fiber) and wireless (satellite and terrestrial radio). The Logical Layer ensures the correct sending of information through the previous layer, having in the transfer of protocols, such as the Domain Name System (DNS) and Transmission Control Protocol/Internet Protocol (TCP/IP), coordination systems of the hardware and software. The third layer is composed of communication services to the end user, like Voice over Internet Protocol (VoIP), e-mail, instant message etc. The last one applies to the sending of content and data to end users through the communications network, including texts, videos, music, telephone conversation etc.10 The architecture “is governance”:11 It affects the involvement in the network and the operability of the internet services. Based on that, any structural changes interfere with and define “intellectual property rights, the right to privacy of users/clients, or their rights of access to content”.12 The complexity of the relation between infrastructure and absence of centrality between actors does not seem to authorize a comprehensive approach, like a lex digitalis or digital constitution.

7

Company (2016), p. 56. About International Public Authority, see: Goldmann (2008), pp. 1865–1908; Bogdandy et al. (2008), pp. 1375–1400. 8 Vesting (2015), p. 179. 9 Just and Latzer (2016), p. 5; 7 (also available: http://mediachange.ch/media//pdf/publications/Just_ Latzer2016_Governance_by_Algorithms_Reality_Construction.pdf). 10 Chiang (2013), pp. 9–10. 11 Musiani (2013), p. 6. 12 Ibidem.

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3 For a Narrative of Mutual Learning Although there is a descriptive tendency in society in terms of defending creative spheres or constitutional self-development that is not embraced here, it does not ignore the importance of such an idea in a closed context,13 namely, in technical structure of the Internet. This structure is decentralized and, while conditioned for legal norms, will not always work directly with the coding legislation. For example, when the Internet Corporation for Assigned Names and Numbers (ICANN) regulates about the domain name, having the World Intellectual Property Organization (WIPO) as a decision-making body, it will make use directly and explicitly of a legal codification, in contrast to algorithms programming, which doesn’t have legal logic at its core, but rather the technical element. This doesn’t stop the Law from affecting programming, but only indirectly in the application of what was previously programmed. Furthermore, although they operate on different levels, one cannot deny a claim of horizontality between stakeholders like Google—primarily known for their search engine—and ICANN, for example. Both are, in respective interests, limited to the architecture of the Internet and its different layers. Finally, not all technical practices can be reduced to norm production, such as technical standards or legal norms. They can, moreover, influence and be influenced by the norms in a technical structure. In an interesting attempt to describe society constitutionally, it does not seem to be adequate to choose some stakeholder from the Internet—with its multiplicity of influential agents in different layers (from physical to the content)— as the key gatekeeper for the normative organization of the entire technical structure.14 The transformation condition of statehood invokes mutual self-questioning and observation between legal norms and technical structure of the internet (institutions, standards and technical practices). This seems to be necessary in any search for horizontality, enabling a reduction in complexity, such as Karl Heinz-Ladeur defends: “The actors accept rules and complex sets of rules due to authorized references of other possibilities; the play never starts from the beginning, its rules are not stipulated”.15 Such normative heterarchy develops also through the application of the law, that interacts with practical knowledge.16 This is a condition of network self-transformation, intrinsically connected to “Computer culture” that demands a variation of legal self-description: a capacity for learning and flexibility, which is influenced by horizontal connections and expectation compatibility, but not—in the end—by programming.17 This is why it is necessary to admit the coexistence of law with other “codes” on the Internet: In cyberspace, we must 13

Teubner (2012), pp. 35–40. About a constitutional description of the society, giving examples of the “Digitalverfassung”: Teubner (2012), p. 165. 15 Ladeur (1992), p. 49. 16 Ladeur (2016a), p. 25; Vesting (2015), p. 179. 17 Ladeur (1990), pp. 142–143. 14

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understand how a different “code” regulates how the software and hardware—(i.e., the “code” of cyberspace) that make cyberspace what it is—also regulate cyberspace as it is.”18 In this normative relation, the legal system cannot operate merely with models of application of law or for traditional dogmatic use. Also, it cannot act like a stable order of values. Therefore, the law needs to reinforce external normative forms such as social self-organization processes19 for the adequacy of instable social transformation. The application of the law is conceived as experimental knowledge, which proves and produces, whose observation and interpretation should be seen as part of a permanent process of self-construction and self-renovation of a system. The Internet’s creative potential works with knowledge that generates uncertainty— that is, hard to establish through law—created by institutions and applied through technical practices. Consequential decision making by the courts can privilege technical praxis, the logic of which is produced in a collective and, at times, spontaneous cooperation, which performs innovation in productive concerns. Heterarchical, acentric and dependent on quick transfer mechanisms between nodes of acquisition, filing and forgetting knowledge: this characterizes the practice register and its practices, which perform not only a function, but also ensure another new purpose.20 Software, technical standards and Internet architecture fulfill an innovative function for legal order itself, just as the legal order “must be open to learning and the possibility of innovation”.21 The State, through its legal order, becomes a stakeholder that cannot be destructive for the logic of technical knowledge, because law itself is part of this practical register in a network of relations.22 If legal normativity has colonial designs upon this knowledge, there is a considerable chance of destructive potential in the Internet. However, technical knowledge, in the use of Internet’s structure, can also impose conditions paralyzing to the legal order. It is not about a normative collision or binding in a network of legal orders23, but rather about a process of more cognitive openness of the law and normative structuring of technical practices. It remains to be seen, then, how this relationship will be built in practice.

18

Lessig (2006), p. 5. Augsberg et al. (2009), p. 38; Ladeur (1992), p. 200. 20 Ladeur (2016b), p. 182. 21 Ibidem, 190. 22 Ibidem, 283. 23 This is a described model for Teubner (2012), pp. 237–242. While it is different, the author acknowledges the necessity to work with horizontality and to compatibility due to norm collision among network nodes. Each node is responsible internally not only for norms, but also by the entire aggregated order. 19

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The Incorporation of Technical Values by the Legal System

The Internet comprises and is comprised of norms—not necessarily legal—which organize a logical structure that search a horizontality between actors and, based on that, can interpret the legal issues in accordance with a legal order. “Web neutrality” (or “Network neutrality”24) is a norm, which refers to the fact that all data in the Web should not suffer blocks or restrictions in its velocity. It ensures that all people can have free access to information produced on the Internet. An example can help to clarify: when the standard VoIP (Voice over Internet Protocol) was developed, which allowed users through services of companies such as Skype and Whatsapp to make long distance communication, converting an analog wave-form into a digital format, breaks the digital into packets, and transmits these packets using the packet switching approach underlying the Internet”,25 telecommunications companies wanted to request a “toll” or to attribute different tariffs to data transmission. Although, the idea of net neutrality in the network prevents this standard from being classified differently from another. This principle can be invoked to defend the freedom of speech, especially to avoid censorship in data transmission, such as in China. Net neutrality demands even more legal openness,26 because it could prevent potential exacerbated empowerment in the face of users and the State. At the same time, the incorporation of this principle applicable to the Internet reveals a recognition of the horizontality that is required from stakeholders, including the States, to guarantee creativity inside the network.27 This is reinforced by the fact that not only communications companies but also the State itself can be a potential agent against net neutrality, especially when it prevents a given communication service from circulating data through court rulings. The incorporation of technical or legal values does not respond to a mere procedural restructure, but to a single consequence of statehood transformation. The statehood transformation ensures that the legal normativity has responsibility with the Internet’s structure, reinforcing confidence amongst stakeholders. The “Marco Civil da Internet”—Law no. 12.965/2014—is more than an answer to the international community about the abuses of espionage and surveillance committed by the US government and adherence to constitutional principles (“guarantee of freedom of speech, communication and expression of thought, in accordance with the Federal Constitution”; and “protection of privacy”, Art.
3, I and II), it is also an initiative of normative recognition of Internet principles and of the self-regulation of the State beyond technical structure, since this recognizes “the global scale of the network”, “plurality and diversity” and “preservation of the participative nature of The coined term for the first time by Wu (2003), p. 141. Denardis (2014), p. 139. 26 Ibidem, 146. 27 It is no coincidence that it searches in USA a legal recognition of the Net Neutrality, according to Audibertand and Murray (2016), p. 120. 24 25

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the network” (Art. 2
, I and III, 3
, VII) as grounds for Internet use. It shares responsibility with private stakeholders for the storage of data, ensuring preservation of private life and intimacy, except by court order: public administration cannot autonomously obtain any data of this nature. Finally, it recognizes “mechanisms of governance that are multi-stakeholder, transparent, cooperative and democratic, with the participation of the government, the business sector, the civil society and the academia”. It is an important instrument for promoting horizontality, because the administration is collaborative and technological policy can monitor only minimally the innovations that technical knowledge promotes. It is important to recognize that regulation, that is, self-restraint of the state legal order, will not always be sufficient to prevent colonizing intentions, because new situations can arise without appropriate legal provision. While the law has legal content now for Brazilian courts, it is possible that, due to the speed of technical innovation, they need to take in consideration the consequences of the technical structure of the Internet. In situations not provided for, court rulings are recommended that promote the autonomy and protection of creative spheres that are technical in scope.28 Although the phenomenon of incorporating technical values must be a recurrent activity in the legal system, it conceives that technology must also incorporate legal values, considering this is a social practice.

3.2

The Incorporation of Legal Values Through Technical Practices

It is also possible to note receptiveness of the legal structure by technical practices that involve technical standards. Such standards are strict and numeric rules, which hardware and software developers use to guarantee the interoperability of their products with others, such as Wi-Fi, HTTP, IP, VoIP, TCP/IP etc.29 The standards demand effectiveness and establishment of procedures that “adhere to the principles of openness [contribution to designing of a standard], responsibility and participation”.30 The most important standards are TCP/IP and IP respectively, both serving for e-mails, like SMTP (Simple Mail Transfer Protocol), file sharing (FTP: File Transfer Protocol); and layout and addressing of packets for Internet transmission.31 28

It is not really a decision that take the consequences in consideration, but it is possible to realize the argumentative acknowledge by the US-courts, such as this decision, that, while it invokes to a decision-making reason of the legal means, still consider the argumentation of the network neutrality: “United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued December 4, 2015 Decided June 14, 2016 No. 15-1063 United States Telecom Association, Et Al., Petitioners V. Federal Communications Commission And United States Of America, Respondents Independent Telephone & Telecommunications Alliance, Et Al., Intervenors”, 7–8. 29 Denardis (2014), p. 65. 30 Ibidem, 84. 31 Ibidem, 67–68.

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These protocols are the core that enable the existence of other technical standards. Therefore, it seems necessary to state that the public sphere and political speech becomes dependent on them.32 This involves an observation of legal values, which can comprise a path to human rights. For example, it was the standards created by W3C (World Wide Web Consortium) that facilitated access by people with disabilities, bearing in mind the Convention on the Rights of Persons with Disabilities (CRPD), like the screen reader that speaks out loud or speech recognition software.33 There are also standards elaborated by IETF (Internet Engineering Task Force) that protect the identity of the person, when someone uses a given IP.34 Outside traditional institutions and technical standard fields in Internet governance, large corporations use algorithms in software to filter data. Algorithms “are problem-solving mechanisms. To empirically grasp their role, this paper focuses on Internet-based services that build on algorithmic selection. Algorithmic selection is essentially defined by the automated assignment of relevance to certain selected pieces of information”. There are different kinds of algorithm, such as the bestknown search engine (Google search), content production in the journalistic field (Quil; Quakebot), and recommendations (Amazon; Netflix).35 The operation goes through input User Request or the use of “Big Data Sets”, followed by the throughput of the Selection Algorithm (A1)—mediated by Intermediary Data Set (DS2)— and selects the Relevance assigning Algorithm (A2), leading finally, to the output Data Set (DS3). This use will serve as something that will provide feedback as basic data (DS1).36 There are some risks with algorithms, such as, for example, manipulation, reduction of variety and distortion of reality, censorship by filter, surveillance, violation of intellectual property rights, social discrimination etc.37 Such risks can be moderated by State intervention (co-regulation, tax benefits or warnings about the risks) and through technical means like The Onion Router (TOR) and Virtual Private Network (VPN), causing anonymization, or using other search methods that do not use search data as a future data source (DuckGo).38 Not only can technical knowledge circulate as knowledge incorporated by the legal system, but also the law itself, as a social practice, is incorporated by technical practices. One illustrative example is the performance of Google with its search mechanisms. There is data removal, upon request, of personal information that can be susceptible to causing damage, like bank accounts, credit card number and images of signatures. The companies propose blocking results relating to child pornography. Algorithms, as enforcement of a command, already have some legal filters in their

32

Ibidem, 77. Ibidem, 77. 34 Ibidem, 79. 35 Ibidem, 2–3. 36 Ibidem, 4. 37 Saurwein et al. (2015), p. 37. 38 Ibidem, 38–39. 33

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technical system, although sometimes legal compliance results from US legal provisions, such as the “Digital Millennium Copyright Act (DCMA). With these short examples, there seems to be a fundamental need for a model of self-regulation and mutual observation amongst stakeholders. Thus, given that some of the technical practices appropriate constitutional values to reduce damage and to generalize them, theoretical openness of trans-constitutionalism seems important.

4 For Openness of Transconstitutionalism Fundamental (and human) rights have lost their exclusive place within national legal systems. More than national issues, such rights are rather globally relevant. Connected problems call upon a manifestation of the legal structures, resulting in a permanent transversal relationship between legal systems around common constitutional problems. Constitutional Law shows a visible emancipation, bearing in mind that other legal systems are involved in solution of constitutional issues. In such cases, it is not uncommon for rulings to be against the related legal system.39 In his publication “Transconstitutionalism”, Marcelo Neves performs a theoretical leap in terms of systems theory, when he understood that the concept of “transversal reason”, created by Welsch, has space in the elaboration of constructive connections. This reason, differently from structural coupling (although there are affinities), has the “preordained complexity” of a system that enables “constructive exchange of experiences among several partial rationalities”.40 This reasoning works as “‘transition bridges’ between heterogeneous systems”.41 This enables Neves’ comprehension regarding the State constitution from its processed rationalities i.e., democracy in politics, and the principle of equality in law.42 Neves recognizes the proliferation “of different legal orders, that are subordinate to the same binary code, i.e. ‘lawful/unlawful’, but with different programs and criteria”.43 When one notes the existence of “transition bridges” developed from the respective judges and courts, the multiplicity of relations between these orders acquires greater significance:44 the center of one legal order will serve as the fringe of another, developing a relationship of learning without “ultimate primacy of one of the orders, that is, a legal ultima ratio”.45

39

Neves (2009), p. XXI. Ibidem, 37–38. 41 Ibidem, 39. 42 Ibidem, 62. 43 Ibidem, 115. 44 Ibidem, 116–117. 45 Ibidem, 117. 40

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It is possible that this “dialogue” has a virtual character of dispute over the object on which it focuses, given the diverse legal perspectives, which do not enable permanent cooperation.46 The main entanglement is between courts, but not only: since the incorporation of normative meanings of the other orders can be found in the informal relationship “between legislative, government and administrations of different countries”. When it comes to “transconstitutionalism” what matters is the “constitutional dialog” without a hierarchy between orders, implying “a re-reading of sense according to the receiving order”: by quoting each other, the courts will be opened to constructive learning from a cross-rationality, which would result in a binding decision between courts.47 In transconstitutionalism, it is important to identify that “the constitutional issues arise in different legal regimes, demanding solutions based on the interconnectedness between these regimes”,48 based on the binary code legal/illegal common to all legal orders. Thus, transconstitutional learning enables different orders in a normative openness that “can be verified in the solution of legal cases in which two (or more) orders are involved”.49 There is no denial of the programs and criteria of each of the orders involved: “the normative content becomes the process enabling the constructive interaction between orders”.50 When constitutional questions are submitted “to concrete legal treatment, passing several jurisdictions, constitutional ‘dialogue’ is indispensable”,51 but, aiming for full development, it always requires the presence, in each order, of the principles and rules that take the basic problems of constitutionalism seriously.52 Neves explains that, particularly among courts, there is a “double contingency”,53 in which one order considers the possibility that the action of another is different from that designated and vice-versa.54 Thus, trust and distrust are the most important consequences of the double-contingency.55 In this situation, an order, due to its inability to see a problem clearly, has the opportunity of experiencing another order’s privileged point of view. The order must consider its identity, avoiding the risk of losing the difference in its environment. In constitutional confrontation common to several orders, “otherness must be considered”.56 It is, therefore, the starting point of transconstitutionalism.57

46

Ibidem, 118. Ibidem, 119. 48 Ibidem, 119. 49 Ibidem, 121. 50 Ibidem, 126. 51 Ibidem. 52 Ibidem, 130. 53 Ibidem, 270. 54 Ibidem, 271. 55 Ibidem, 272. 56 Ibidem, 272. 57 Ibidem, 276. 47

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Technical practices, organized around communities of practice—companies, regulatory institutions and Internet users—linked with each other, are also stabilized through technical standards that strategically enable knowledge and creation the “possibility for development of new cognitive ‘intermediaries”.58 However, technical practices can be outlined through technical standards, but not the enforcement of standards. Practices also incorporate delineation of legal normativity, because the law produces not only the meaning of rights and duties and the organization of responsibility, but also a social image assimilated in technical programming. Thus, there is a tendency for self-limitation of technical knowledge through legal knowledge: the enforcement of a programmed command would carry legal knowledge, contained in its activity without requirement for legal norm application through a specific legal order. It does not exclude that the (tense) relationship between technical matters and law can gain constitutional contours. There is a significant contribution and necessity for a theoretical leap in transconstitutionalism, understanding that it can be an agent in the coordination between creative spheres and legal normativity on the Internet.59 It would act horizontally among actors around common constitutional problems, being mediated through mutual observation, which would not merely be a link for legal codification, but also a perception of the law and its constitutional problems (and solutions), associated with technical practices, as something culturally absorbable. It is not a matter of democratic legitimation— because this would not be required only for technical agents but also for the States that form the network60—but of understanding that legitimation of their agents takes place through approaching fundamental rights.61 In view of the lack of a democratic legitimator—either by technical specificity or by actual impossibility—transconstitutionalism presents itself as an integrator from the observation and incorporation of constitutional values in technical structures. However, this is not sufficient to guarantee a creative field for technical structure in the network. Technical knowledge cannot be observed from a central vision of the State, but rather through a cooperative performance between external pressures and processes of internal discovery.62 In the network, there is necessary mutual observation: incorporation of legal and constitutional values by technical practices and the incorporation of technical values in legal norms. Transconstitutionalism still has relevance when mediated by legal/illegal code, but there is another dimension of social practices, giving new meanings to constitutionalism. ICANN itself, through its Uniform Dispute Resolution Policy (UDRP) and with the support of arbitration by WIPO, encounters constitutional problems

58

Ladeur (2016b), p. 38; 40. Ladeur (1992), p. 202: There is a similar idea, but delimited and influenced by the Market logic. In this article, it aims the comprehension of the constitutional ideal inside of the technical network. 60 Demonstrating the difficulty of the democratic discourse in the Internet: Denardis (2014), p. 15. 61 In a similar sense, but in institutionalist terms of the governance and not from technical practices Viellechner (2007), p. 56. 62 Teubner (2012), p. 147. 59

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without location, but involving a constitutionalist rhetoric on the decision. For example, it is common to have problems involving malicious use of “Top Level Domains (TLDs), such as “.com” and “.org”, which results in the extinction of the domain name, according §4ª (iii) of the UDRP. Case n
D2000-0477,63 decided by WIPO, Arbitration and Mediation Center, is about the issue between the Walmart company and people who registered the domain name “walmartsucks.com” or close to it. Walmart claimed they disrespected the company brand, according to US legislation and that of other countries, as well as malicious intent of these people in the utilization of the domain. In general, the other parties claimed disrespect for freedom of speech and freedom of information as other consumers would be unable to inform themselves about the problems of the company, if the domain was removed. While the court of arbitration did not deny freedom speech, it understood that there were limits for libel. The court confirmed malicious intent in view of the request for money from site owners to remove the domain names. During constitutional considerations, the Court explained that this decision did not seek an argument for or against the company or freedom of speech, but rather to demonstrate that it, in this case, established rules governing domain usage had been violated. The decision could only be made in US courts because of the location of the servers working with gTLD (generic top-level domains). Even so, in practice, one does not always encounter the celerity and low cost that make decision-making efficient.64 There is a limitation to the constitutional discourse, notwithstanding territory. However, it is possible to see the risks to building a Lex Americana, because arbitration courts of ICANN frequently refer to US constitutional norms,65 but cannot deny the transnationalizing tendency of the law regarding domain names, especially knowing that interpretation and application give new meaning and create new normative premises for other future norms.66 There is a need to give amplitude to transconstitutionalism demands returning to the constitutional observation of private agents that are not mediated primarily through legal/illegal code. There is not, necessarily, a direct obligation for Google from a legal order, when it provides a policy for privacy and intimacy protection. However, algorithm programming seeks to avoid serious consequences not only for users, but also for the legal orders. It can be said that constitutional values are present not only in a local/global relationship, but also in social practices. It would not be unprecedented, if it weren’t for the horizontal conditions of internet architecture that impose on private stakeholders—including informal ones—and the State. Likewise, it is important that there

63

Similar cases were studied by Karavas and Teubner (2003). Although, the central idea of the paper is the construction of a lex digitalis and its decision formation basis compared to the lex mercatoria (see pp. 27–31). 64 Froomkin (2011), pp. 9, 187–233. 65 Karavas and Teubner (2003), p. 9. 66 Möllers (2015), p. 183.

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be measures to incorporate technical values in the legal order, as already seen in the idea of Network Neutrality. This does not exclude the transformation that technical resources impose on the legal order, like the concept of intellectual property. However, the focus is on internet governance, which invokes an excluding form of values: the preservation of the technical sphere ensures constitutional values (for example, freedom of speech), just as constitutional values preserve creative structures in society (especially the maintenance of Net Neutrality). Hitherto, we have expressed how important a balanced relationship is. However, there is reciprocal destructive potential between technical practices and legal orders, i.e., how technical normativity and legal normativity can be mutually destructive.

5 The Destructive Potential of Technical and Legal Normativity There is constructive potential in heterarchical relations on the Internet. Nevertheless, there are expansive tendencies on both sides of the network, which do not always lend themselves to a “collective learning of self-limitation”.67 The idea of self-containment is due to preservation not only of the network as a structure interconnected by nodes,68 but also to the inhibition of elements destructive to constitutional values, like freedom speech and privacy. The comprehension of “network interest” needs to be delimited by technical and constitutional interests. In view of the inevitable absence of a single hierarchy there would seem to be a need for self-containment that deals with both sides, which, in turn, will enter into conflict with one another. While there are some examples of mutual observation and self-containment, it can be stated that there is imbalance in the relationship between normativity from the legal and technical fields. The example below refers to the overlapping of US legal normativity over the internet’s technical structure. The revelations by Snowden resulted in visibility of the Internet infrastructure. Thus, it is relevant to show what the legal source was for those practices. Such practices were not allowed due to the Fourth Amendment of the Constitution. However, the interpretation of these amendments is limited to American citizens, who had already reinforced a decision of the Supreme Court in 1967, Katz v. United States, whereby the American government was obliged to stop the abuse of power in surveillance against their own citizens by technical means.69 The Supreme Court continuously stated, as in the case United States v. Brown from 1973, that domestic surveillance without authorization was unconstitutional, but that of foreigners was constitutional.

67 There is a similar hierarchy tendency, but described in terms of social constitutionalizing and in the meaning of a collective self-containment, in: Teubner (2012), pp. 129–132. 68 In similar sense and clarifier idea of Ladeur, Augsberg (2009), pp. 23–24. 69 The reported case in Alhogbani (2014–2015), pp. 469–501.

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This kind of situation remains strongly present, particularly with the USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001) in the section 217 that reserves the right for American authorities to access any information saved on computer platforms in USA. Thus, global companies like Google, Apple, Amazon etc., are subject to this legal mechanism. In addition, the Foreign Intelligence Act is enforced, with an amendment from 2008, (FISA), that sets procedures for electronic search and surveillance when there are allegations of espionage or terrorism against the USA.70 In section 1881a of this Act, the American government is enabled to monitor foreign communication and access data of overseas citizens situated abroad.71 Thus, through surveillance, US legal normativity overlaps other legal orders and technical structures. Conditioning of technical structures suggests a destructive method because it acts in an imperialist way to damage internal confidence among stakeholders in society. Furthermore, international action on storing information runs the risk of balkanization of input and output of information in the Internet. Internet demands, in general, two elements of its users: identity and authentication.72 While identification and authentication are easier to recognize in the “offline” world, there are some remnants that suppose the author and locality of the user. This reduces precision of those who use the machine, where the ISP (Internet Server Provider) attaches the IP, but it is possible to state when and where the potential user that left “traces” of data behind. Nevertheless, it is possible to cryptograph the connection through The Onion Router (TOR), protecting privacy of the user with a specific browser that makes identification of the IP difficult. Originally created by the US Navy to protect governmental communication, the TOR is also in civil use. It is a “network of virtual tunnels that allows people and groups to improve their privacy and security on the Internet”.73 Installing TOR on a computer enables anonymity of user activity through an anonymous proxy (intermediary server). Thus, the servers (not anonymous) have access only to the exit node of the TOR, because the data are automatically encrypted, giving them a fake IP. Therefore, in the search for a site (with pseudo-TLD) on the TOR network, there will be access to the information, but not who has searched for or sent it. The program seeks to enable communication between excluded groups who suffer persecution, or where there are restrictions on free speech: cases in which the information circulates, but does not identify the user. However, a dangerous layer is noticeable in the TOR, popularly known as “Darknet”. Taking advantage of anonymity, criminal activities are common in this space: from the theft of card data to child pornography.74 Perhaps, when the software was created, it was not

70

De Filippi (2013), p. 66. Ibidem, 67. 72 Lessig (2006), p. 43. 73 Accessible in https://www.torproject.org/about/overview.html.en. 74 More details see: Soghoian (2007), p. 311; Croft (2013), p. 514; Dion (2013), p. 166. 71

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possible to imagine that it could be destructive for legal norms. Yet, it confirms only the need for observation of legal norms in technical programming. Without that, architectural logic of horizontality loses its purpose. Based on the above considerations of the importance of horizontality of the Internet and openness to social practices in transconstitutionalism, it remains to review how the relationship between technical practices and legal norms has been difficult in Brazil.

6 The Problematic Relationship Between Technical Practices and Legal Norms: The Brazilian Case After her speech at the UN, former elected President, Dilma Rousseff, stated that Brazil would promote a meeting (NETmundial) with other important internet governance stakeholders, aiming to reduce the problems identified in her speech. It may have gone unnoticed that the President promoted a meeting apart from the international fields, where traditional international stakeholders have a voice: both formal representatives of States and representatives of private administration (formal or informal) of the Internet were present. In 2014, NETmundial reinforced in its statement greater autonomy of stakeholders and the elaboration of “Internet governance principles” and a “roadmap for the future evolution of internet governance”. Basically, it was the guarantee that governance would not be built in a hierarchical way, declaring a commitment to human rights, stability, transparency, innovation and unfragmented space. Following this meeting, Brazil passed the Internet Regulation bill, Marco Civil da Internet. This Law enables analysis of how Brazil incorporated these values and network neutrality with other social stakeholders regarding the Internet. The Law is advanced in content compared with other state’s Internet regulation. However, lack of law enforcement continues to be a constant problem for Brazilian courts. Two cases have had huge repercussion in Brazil in regard to intervention: one, when the television hostess, Daniela Cicarelli, and her boyfriend at the time, Renato Malzoni Filho, sued YouTube Inc. in 2006, along with Globo Media Network and Internet Group (IG), demanding removal of an intimate video and compensation for moral and material damages; the other, a case of technical impracticability in sending data to Justice on an investigated defendant. The case of the hostess and her boyfriend was judged by the 23ª Vara Cível de São Paulo (a Lower Court), which established that the case should be judged in confidentiality. While the Lower Court denied the request to remove the video from websites, in an appeal the Higher Court, in Bill Review number 472.738-4, granted

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an injunction, demanding removal of the video, because, otherwise, they would be fined R$ 250,000. It was hard to remove the videos due to YouTube being only a place where users upload old files, it being impossible to control. Consequently, the Court demanded blocking of the company’s website for disobeying the court order. According to the decision requiring blocking of the service by backbones—the network responsible for the data sent between states or outside the country—millions of Brazilian users were left without access to the biggest video site on the web. Due to the negative impact and pressure from the press, the Higher Court Judge ordered restoration of the website’s service. The judge stated that difficulty dealing with such situations was due to the uniqueness and lack of measures to enable civil liability action.75 The decision was made in 2007—seven years before the Marco Civil da Internet. The judges did not take into consideration the resulting dimension of all those affected by the decision. The case shows that the tribunal in a country is also jointly responsible for avoiding the destructive potential of technical structure in their decision-making. It is important to resize the sovereignty of the legal order in a broader context, i.e., inside of a technical structure, understanding that an affected technical stakeholder will, consequently, affect other people not interested directly in the case. The case involving Whatsapp Inc. concerns the court injunction (Mandado de Segurança number 2271462-77.2015.8.26.0000) in the 11a Câmara de Direito Criminal de São Paulo, that was filed against the Judge of the 1a Vara Criminal de São Bernardo do Campo. The contested judge demanded temporary suspension of activities of the application Whatsapp, because the company did not provide information on three people investigated for drug trafficking, requested by the Public Prosecutors (Ministério Público). Facebook—the organization holding the rights to Whatsapp—stated that it was impossible to obey the court order on data interception. Since they failed to comply with the court order, in addition to a pecuniary penalty, the judge demanded suspension of the application in Brazil for a period of 48 h. The company alleged that this decision was illegal, because millions of users could not have access to their services; the court did not subpoena the company to fulfill the court order and it violated the Marco Civil da Internet. Facebook also claimed that the decision would transcend the Brazilian territory, because those in other countries could not communicate with someone in Brazil. The judge who examined the injunction understood that the imposed measure was unreasonable either because it affected other users or also because the penalty could be raised to a higher level that could force the adoption of the initial measures. Thus, the judge, in December 2016, demanded postponement of the decision on temporary suspension until the final decision on the court injunction.76

75 The reported case was based on collected data by De Souza; Moniz; Vieira Junior: http:// bibliotecadigital.fgv.br/dspace/bitstream/handle/10438/2795/Neutralidade_da_Rede_Filtragem_ de_Conteudo_e_Interesse_Publico.pdf?sequence¼1. 76 For more details, see the Court Injunction number 2271462-77.2015.8.26.0000 – available in http://s.conjur.com.br/dl/tj-sp-suspende-bloqueio-whatsapp.pdf.

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It should be noticed that, even with enforcement of the Marco Civil da Internet, there is still a lack of knowledge of how the internet works. Furthermore, there is ignorance of the interconnectedness between technical and constitutional dynamics on the Internet: one preserves the other. If a service is suspended like this (disrespecting network neutrality), constitutional principles such as freedom of speech are harmed. It should be emphasized, furthermore, that the decision did not provide an overall answer. Article 22 of the Marco Civil states: “The interested party may, for creating evidence in civil or criminal legal procedures, incidentally or autonomously, require the judge to order the entity responsible for keeping records to provide the connection or access logs to internet applications”. One paragraph defines the conditions for release of data: “Without any impairment to other legal requirements, the request shall contain, under penalty of inadmissibility: I – justified evidence of the occurrence of the illicit activity; II – motivated justification of the usefulness of the requested records for investigation or probative instruction; and III – the period to which the records correspond”. In other words, if it is not possible to give the information, it means that technical practice will not be in accordance with the legal norms. It is important to create ways to pressure for adaptation of technical means to the legal order, for example, giving a reasonable period for companies to adjust to the legal order. In fact, it is normal to notice mutual pressures between the legal system and technical stakeholders for adaptations.77 Technical practices must not be accepted uncritically due to the potential destructive nature of technical control. Even with the caveats above, the Brazilian courts still have an inappropriate idea of imposition of the legal order against technical stakeholders. It seems that there is little taste for openness and consideration to technical practices within the legal system. When it ignores technical interconnectedness with law, it also ignores the constitutional consequences they resulted from.

77 There are some other forms of resistance of the technical space in the face of global effects of the legal normativity. An emblematic case was the resistance form by strong actors of the network against the bill “Stop Online Piracy Act” (SOPA) and “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PIPA), that had as a pretext the fight against the piracy through blocks requirement of websites if they make easier the access to the pirate content and the interruption of provision of direct payment transfer or services to these websites. Under the allegation that there was a restriction to the freedom of speech, important social actors of the Internet (such as Google and Wikipedia) demonstrated dissatisfaction, and others threatened to start blackouts. PIPA and SOP lost the support of the stakeholders, which weakened the potential voting of the bill. Or when the Ligue le Racisme et L’Antisemitisme (LICRA-League Against Racism and Anti-Semitism) entered a judicial litigation against Yahoo! Inc., because the company hosted a site with Nazi-content, which was contrary to the French legal order, the case was judged by both French court and US court. The pressure forced Yahoo! to change the technical control over the hosted content. More details in Denardis (2014), pp. 2–6; e Mizuno (2001).

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7 Conclusion This suggested model will not solve all the problems of normative imbalance, because there are still limits in the infrastructure of the Internet for containment of strong nodes over the weak ones. A country like the USA, who can impose their territory on the biggest companies and global entities of the Internet, poses a risk to global surveillance without authorization through its normativity. The other side can also be destructive: non-incorporation of legal values in the Internet’s programming, subjugating legal norms to technical practices. While there are limited examples, there is only one appropriate model of action, that in which stakeholders incorporate technical and legal values mutually. Brazil played a constructive role when it understood equality with private stakeholders. It assumed transformation of statehood with enforcement of the Marco Civil. However, there technology and apps are blocked when ruled, given the recurrent intervention of the courts in network functioning. There is still little understanding that sovereignty of the legal order is interconnected with the logic of technical normativity: uncritical imposition of the legal norm has destructive effects not only on the network, but also on the legal order itself, because it can there is interconnectedness between fundamental rights and technical values (especially network neutrality). Going beyond a localized discussion, there is a new research agenda that can help to understand how this normative balance can also be stimulated for the actions of whistleblowers, who, through technical means, provoke not only scandals, but also demands that the decision-making power seek horizontality with technical structures; or how the States can generate pressures to improve adaptation and improvement of technical practices, especially, when working with data files—it can have bargaining power with some States. In any case, if there is no all-encompassing measure (which seems unlikely), maybe first steps can be taken towards a new place in legal normativity, a place where there is a constructive network with the striking factuality of technical structures.

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Company B (2016) A public law approach to internet standard setting. Goettingen J Int Law 7 (1):49–94 Croft D (2013) Encryption, privacy and the dark side of the internet. Oklahoma Bar J 84 (8):511–515 De Filippi P (2013) Foreign clouds in the European sky: how US laws affects the privacy of Europeans. Internet Policy Rev [online] 2(1). Available at https://policyreview.info/articles/ analysis/foreign-clouds-european-sky-how-us-laws-affect-privacy-europeans De Souza CAP, Moniz PP, Vieira Junior SB. Neutralidade da rede, filtragem de conteúdo e interesse público: reflexões sobre o bloqueio do site Youtube no Brasil. Available at http:// bibliotecadigital.fgv.br/dspace/bitstream/handle/10438/2795/Neutralidade_da_Rede_ Filtragem_de_Conteudo_e_Interesse_Publico.pdf?sequence¼1 Denardis L (2014) The global war for internet governance. London, New Haven Dion DA (2013) I’ll gladly trade you two bits on Tuesday for a byte today: Bitcoin, regulating fraud in the E-conomy of hacker-cash. Univ Ill J Law Technol Police 1:165–201 Froomkin M (2011) Almost free: an analysis of ICANN’s affirmation of commitments. J Telecommun High Technol Law 9:187–233 Goldmann M (2008) Inside relative normativity: from sources to standard instruments for the exercise of international public authority. Germ Law J (09)11:1865–1908 Just N, Latzer M (2016) Governance by algorithms: reality construction by algorithmic selection on the internet. Accepted manuscript forthcoming in Media. Culture & Society. Available at http:// mediachange.ch/media//pdf/publications/Just_Latzer2016_Governance_by_Algorithms_Real ity_Construction.pdf) Karavas V, Teubner G (2003). http://www.CompanyNameSucks.com: The horizontal effect of fundamental rights on private parties within autonomous internet law. Bepress Legal Ser 23:1335–1358 Ladeur K-H (1990) Lernfähigkeit des Rechts und Lernfähigkeit durch Recht. Erwiderung auf J. Nocke. In: Görlitz A, Voigt R (eds) Postinterventionistisches Recht Pfaffenweiler, Centaurus, (Jahresschrift für Rechtspolitologie), pp 141–147 Ladeur K-H (1992) Postmoderne Rechtstheorie. Selbstreferenz – Selbstorganisation – Prozeduralisierung. Duncker & Humblot, Berlin Ladeur K-H (2016a) Recht – Wissen – Kultur: Die fragmentierte Ordnung. In: Schriften zur Rechtstheorie 282. Duncker & Humboldt, Berlin Ladeur K-H (2016b) Die Textualität des Rechts: Zur poststrukturalistischen Kritik des Rechts. Velbrück Wissenschaft, Weilerwist Lessig L (2006) Code. Version 2.0. Basic Books, New York Mizuno S (2001) When free speech and the Internet Collide: Yahoo!-Nazi-Paraphernalia case. Curr Int Trade Law J 10(56) Möllers C (2015) Die Möglichkeit der Normen. Über eine Praxis jenseits von Moralität und Kausalität. Suhrkamp Verlag, Berlin Musiani F (2013) Network architecture as internet governance. Internet Policy Rev 2(4):1–9 Neves M (2009) Transconstitucionalismo. São Paulo, Martins Fontes Saurwein F, Just N, Latzer M (2015) Governance of algorithms: options and limitations. Info 17 (6):35–49 Shah RC, Kesan JP (2007) The privatization of the internet’s backbone network. Broadcast Electr Media 51(1):93–109 Soghoian C (2007) The problem of anonymous vanity searches. J Law Policy Inf Soc 3(2):299–318 Teubner G (2012) Verfassungsfragmente: Gesellschaftlicher Konstitutionalismus in der Globalisierung. Suhrkamp, Berlin Vesting T (2015) Rechtstheorie. Ein Studienbuch. C. H. Beck, München Viellechner L (2007) Können Netzwerke die Demokratie ersetzen? Zur Legitimation der Regelbildung im Globalisierungsprozess. In: Boysen S et al (eds) Netzwerke. Nomos Verlag, Baden-Baden, pp 36–57

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Wu T (2003) Network neutrality, broadband discrimination. J Telecommun High Technol Law 2:141–178. Available at SSRN: https://ssrn.com/abstract¼388863 or https://doi.org/10.2139/ ssrn.388863

Legal Decisions Court Injunction (Mandado de Segurança) number 2271462-77.2015.8.26.0000 – available in http://s.conjur.com.br/dl/tj-sp-suspende-bloqueio-whatsapp.pdf United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued December 4, 2015 Decided June 14, 2016 No. 15-1063 United States Telecom Association, Et Al., Petitioners V. Federal Communications Commission and United States of America, Respondents Independent Telephone & Telecommunications Alliance, Et Al., Intervenors”, pp 7–8

Ramon Negócio holds a Master in Constitutional Law from the Pontifícia Universidade Católica de São Paulo (PUC-SP) and a PhD in Law Theory from Goethe-Universität Frankfurt. He is a Lecturer in Law at the University Sete de Setembro (Uni7).

Between Systemic and Agency Normativity: The Constitutionalism of Marcelo Neves Miguel Nogueira de Brito

Contents 1 Introduction: Max Weber’s Solution to an Intractable Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 The Tension Between the Normative and the Sociological Points of View . . . . . . . . . . . . . . . 3 Luhmann’s Breakthrough: The Point of View of Society’s Communications, Not of the Individual Subject’s Reason . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 The Content of a Systemic Normativity: Two Examples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 Luhmann’s View on the Welfare State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Marcelo Neves’s Concept of Transconstitutionalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Beyond Functional Differentiation: Back to the Agency Normative Point of View? . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract In this paper I explore the possibility that with the move from the concept of transconstitutionalism to the concept of transdemocracy Marcelo Neves has exhausted the possibilities of systemic normativity. The transforming of national democracies into sustainable democracies in a global world is an intellectual project that, even if informed by a systems theory approach, can no longer be pursued within its framework. Rather, transdemocracy is a product of the constitutional imagination, and one that is meant to trigger political action.

1 Introduction: Max Weber’s Solution to an Intractable Problem In Max Weber’s thought, perhaps more than in any other, we find acute awareness of the problem of the objectivity of the sciences, in particular the social sciences. According to him, not only should science be immune to any value judgments, but M. Nogueira de Brito (*) Faculty of Law, Lisbon University, Lisboa, Portugal e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Nogueira de Brito et al. (eds.), Law as Passion, https://doi.org/10.1007/978-3-030-63501-5_9

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the sphere of value ultimately defied any rationality. As we know, even his idealtype theory was developed to filter out questions of value from sociological analysis as much as possible (Mommsen 1974, p. 66). But without prejudice to the fact that the concept of ideal types itself depends on values, as results from the theory of types of legitimacy, the truth is that the central concern with objectivity is at the base of the partition of Weber’s reflections on politics: political sociology and political action. His 1919 text on Politics as a Vocation illustrates well the tension between the two dimensions (Weber 1992, pp. 247–249). In fact, if we think only of Weber’s political ideas, we must put aside all the positions he defended about the objectivity of the social sciences and their impermeability to values (Lassman 2000, p. 87). Without being able to develop here the relationship between norms and values, it seems clear that the tension inherent in Weber’s thought between values and objectivity also applies at the level of the distinction between normative and sociological analysis. But is there a necessary antinomy between these two dimensions (Thornhill 2008a, p. 167)? The extraordinary development that studies on the sociology of constitutions have known in recent years, largely influenced by systems theory [Blokker & Thornhill (2017), Calliess & Zumbansen (2009), Deflem (2008), Febbrajo & Corsi (2016), Kjaer (2014), Schneiderman (2008), Teubner (2012), Teubner & Beckers (2013), Thornhill (2011), Thornhill (2016)], seems to indicate that such an antinomy is not necessary, or even that it has been definitively overcome. In the pages that follow I will try to demonstrate, with support in the development of Marcelo Neves’ ideas about constitutionalism, that this conclusion is perhaps premature. This statement is, at first glance, a source of perplexity. Marcelo Neves is one of the most relevant authors in the field of the sociology of constitutions. His theory of transconstitutionalism is based precisely on the possibility of a meaningful connection between normative claims and the functional requirements of an efficient articulation of the different social systems. In his own words, “transconstitutionalism presents itself as a basic normative counterpoint to both the expansionary primacy of the cognitive structures of world society (linked to the economy, technology, and science) and the semantics of the control of information (and knowledge) by the mass media” (Neves 2013, pp. 180–181). At the same time, in Marcelo Neves’s more recent work this seems not to be enough. The problem of political and legal inclusion challenges not only traditional constitutionalism, but also transconstitutionalism (Neves 2017a, p. 298). How to move beyond? Does the answer still lie in the explanations provided by sociological constitutionalism? In a recent study Marcelo Neves has introduced the concept of transdemocracy, emphasizing the sustainable responsiveness of each people towards other peoples in the same world society (Neves 2017b, p. 393). National democracies become sustainable democracies in a global world. How is this possible, or even meaningful? My hypothesis is that these developments are no longer possible to pursue entirely in the framework of an account of norms as social facts, such as the one provided for in the framework of Luhmann’s theory. There is a point at which the social theorist becomes a political person and norms are no longer viewed as knowledgeable products of society but as guides to reshape it. Even if the social

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theorist adopts a stoic stance in acknowledging that “there are no solutions for the most urgent problems but only restatements without promising perspectives”, there is a moment when staying “at the job” (Luhmann 1982, p. 137) may no longer be an option. This is the political moment. Regarding the adoption by Luhmann of the motto nec spe nec metu (Luhmann 1982, p. 137), Weber’s politician would surely concur in what refers to fear, not to hope (Weber 1992, p. 252).

2 The Tension Between the Normative and the Sociological Points of View After Weber, most authors have sought to soften the antinomy between normative and sociological approaches. Thus, starting with a theory of justice that is admittedly normative, John Rawls is concerned with the problem of the stability of a wellordered society, that is, the need for a conception of justice to generate its own support among the members of the political community to which it relates (Rawls 1999, pp. 398–399). In turn, Habermas’ attempt to combine “norm-free” system and “normatively rich” lifeworld (Baxter 2014, p. 227; Baxter 2011, pp. 50–51) can also be seen as an attempt, certainly more consistent in its intention, to overcome the Weberian antinomy. However, these attempts to articulate the normative perspective and the sociological perspective start precisely from the assumption that both are in opposite fields. It is this assumption that Niklas Luhmann came to contest. Luhmann adopts a radically positivist concept of law.1 Furthermore, he replaces the traditional distinction used by jurists and ethicists between fact/norm by the more sociological one between learning/not-learning. Norms are no longer understood as presupposing “a particular manner of existence that since the 19th century has been termed ‘validity’ and distinguished from factual existence”. Instead, norms are dealt with “as facts as well – obviously as facts of a particular kind” (Luhmann 2008, p. 20). According to this view, and in Habermas’s words, “the difference between ‘is’ and ‘ought’, between truth and normative validity, is reduced to two possible ways of reacting – learning and non-learning – which represent alternatives only in the area of cognitive expectations. Cognitive expectations are then considered ‘normative’ if one is not willing to revise them in the event of their disappointment” (Jürgen Habermas 1996, p. 50). In fact, for Luhmann, “although counterfactually oriented, the meaning of the ought is no less factual than the meaning of the being. All expectation is factual, its

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As noted by Michael King and Chris Thornhill (2003, p. 39) Luhmann is certainly a positivist in that he removes any ethical content from the operations of law, but he is already moving away from positivism to the extent that the later is viewed as a theory that presents law as a sphere of validity distinct from all other areas of research; differently, Luhmann presents positive law as one of the “various systems of meaning through which society communicates about itself”.

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fulfilment as much as its non-fulfilment. The factual includes the normative. The usual contrast between the factual and the normative should therefore be abolished” (Luhmann 2014, p. 33). The contrast between Rawls’s thinking as the paradigm of a normative theory of politics and justice—a theory that conceives the basic principles and institutions of a well-ordered society as deserving the rationally motivated agreement of all citizens, to be based on the idea of justice as equity—and the perspective of systems theory is developed by Habermas himself. He inserts the latter in the views of the “objectivist disenchantment of law” (Habermas 1996, p. 43), and considers the former as a manifestation of “a rational project of a just society, in abstract contrast to an obtuse reality” (Habermas 1996, p. 57). Against the systemic view, Habermas seeks to maintain that only common language can serve as a means of general communication above functionally specified systemic codes and, consequently can ground a moral reason that transcends those codes. Against the idea of a purely normative theory, he questions whether the rational project of a just society can be realized once “confidence in the dialectic of reason and revolution has been exhausted and replaced by the reformist way, but also morally reasonable, of trial and error” (Habermas 1996, p. 57). But Habermas attempt at reconciling “the normative reconstruction and the empirical disenchantment of the legal system” (Habermas 1996, p. 66) is still characterized by an universalistic impulse disengaged from a “defective” social reality. Furthermore, this universalistic impulse is seen as the basis for a unifying consensus of all participants in legal and moral discourses but it remains to be seen whether it is not in fact just an imposition of such a consensus from the outside, that is, from a certain ontological structure of thought that persists since the dawn of occidental philosophy.2 Despites all claims of Habermas to the contrary, it is at least arguable that the imposition of the goal of an agreement between all participants in a discussion has not freed the philosophy of modernity from its metaphysical premises. In fact, according to Luhmann, Habermas has only proceduralized those premises (Luhmann 2002, p. 188).3 To make of nonconflictual agreement a condition of the rationality of the outcome of a discussion is still to act under the assumption that all participants in the discussion “live in one and the same world and it is a matter of reporting in accord about this world” (Luhmann 2002, p. 189). What is thus lost is the notion, characteristic of modernity, of second-order observation, that is, that which occurs when one does not directly observe something but observe it as it is observed by someone else. Through the practical purpose of reaching an agreement, And as mentioned by William Rasch, for Luhmann ontology is a “historically-determined category to be dismissed” (Rasch 2013, p. 38). 3 For Marcelo Neves own criticism of Habermas’s orientation towards the construction of consensus see 2008, 124 ss. 4 In a somewhat different line of criticism, Wilhelm Hennis (1977, p. 221) invokes against Habermas not James, the pragmatist but Rousseau, the democrat: “Mon ami, ne disputez jamais; car on n’ éclaire par la dispute ni soi, ni les autres” (Rousseau 1762, p. 120). 2

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the notion of difference involved in any observation is also lost. Luhmann stresses in this regard the importance of William James’s text published in 1899, On a Certain Blindness in Human Beings (Luhmann 2002, p. 190). In that text, James states that “neither the whole of truth nor the whole of good is revealed to any single observer, although each observer gains a partial superiority of insight from the peculiar position in which he stands” (James 1992, p. 860).4 In this regard, it must be acknowledged from the outset that the image just mentioned—one can see the blind spots that limit the other’s view—was used by Luhmann in a primarily descriptive and observational context. In this context Luhmann’s radicalism must be acknowledged. For him, a purely normative concept of rationality means subordinating observation and the description of what is observed to practical interests, based on the belief that there is only one account of that observation. The result, according to Luhmann, “is a specific case of blindness, as it excludes the possibility that what society has become gives rise to the worst fears but cannot be rejected” (Luhmann 2002, p. 193). The image of the blind spot is at the very center of Marcelo Neves’s transconstitutionalism, in the sense that it “entails the recognition of the limits of observation of any given order and acknowledges the alternative: the other can see your blind spot” (Neves 2013, p. 184).

3 Luhmann’s Breakthrough: The Point of View of Society’s Communications, Not of the Individual Subject’s Reason Even if Luhmann sees norms as social facts this does not mean that he denies norms or assigns them no place whatsoever in his social theory.5 It means that “they are the facts of society’s (not humanity’s) self-construction, and they must be observed and examined (not deduced) as terms that refract the evolutionary exigencies of society (not humanity)” (Thornhill 2008b, p. 49). What does this really mean? Norms are not the foundation of society; rather society is the foundation of norms. In other words, norms are devices that enable the functioning of society as the “necessarily heterarchical totality of differentiated communications” (Thornhill 2008b, p. 50). The price do be paid for by this socially embedded conception of the normative is that “the question of norms or values can never be explicitly raised”, for to raise it would involve to impose a politically centered conception of society which can no longer be factually assumed in a highly differentiated society (Thornhill 2008b, p. 47). Two fundamental concepts ground this sociological normative conception. These are the concepts of semantics and paradox. In a perceptive analysis of Luhmann’s conception of norms, Chris Thornhill illuminates how Luhmann links norms to

As Luhmann emphatically says, “skeptical abstinence vis-à-vis norm-centered theory does not, of course, imply that one can imagine a possible societal life without norms” (1995a, pp. 325–326).

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semantics and semantics to paradoxes. In order to understand this linking, it is first necessary to briefly introduce these two important concepts of Luhmann’s conceptual terminology. In the useful synthesis of Hans-Georg Moeller “semantics is the general understanding of ‘things’ or the ‘world’ – including itself – that a society has and uses in communication. It comprises both ‘common semantics’ – such as the semantics of the ‘swearing of the rowers in the galleys’ – and the ‘cultivated semantics’ developed in science or religion that enables the ‘take-off of a specific revolution of ideas’” (Moeller 2006, p. 51). Semantics is the social secretion of values that allows the foundation of society and enables its functioning in the context of its contingency. With regard to the concept of paradox, what is important in Luhmann’s thought is not exactly the definition he gives us of the concept, which is always implicit in his argument, but the twist that paradox takes in his theory. When he reflects on the history of “the traditional distinction between the logical interdiction and the rhetorical recommendation of paradoxes” (Luhmann 1995b, p. 40), Luhmann questions whether this double tradition was not just a strategy to elude the inevitable presence of paradox in the communication of society. In reality, for Luhmann, all communication, and therefore society, and in particular functionally differentiated modern society, is built in essence on paradoxes. The paradoxical “nature” incorporated in social systems simply does not prevent them from functioning. On the contrary, this is precisely what allows them to develop (Hans-Georg Moeller 2015, p. 173; Emilio Gonzalez-Diaz 2004, p. 17). We have already found this paradoxical nature in the “blind spot problem”. As showed by Thornhill it is by means of this “correlation between norms, semantics and paradoxes”, that Luhmann raises his most far-reaching questions for more conventional political analysis and political theory (Thornhill 2008b, p. 51). Political theories are not to be conceived as authoritative rational constructs that impose norms and values on society; instead, they have “the factual function for a society that they enunciate paradoxes (Hobbes, for example, proposed the paradox of the social contract; Locke offered the paradox of natural law and natural rights; Montesquieu added to this the paradox of the constitutional state; Sieyès augmented these reserves by formulating the paradox of the sovereign nation capable of parliamentary representation) in order to cover, authenticate and organize society’s norms” (Thornhill 2008b, p. 51). Politics does not orient society from outside but is from the beginning inside society as one of its communication domains. At the same time, so Thornhill argues, this does not exhaust the possibility of a political theory in the framework of Luhmann’s social theory. Such a political theory would be one that recognizes that “some norms, in certain societal conjunctures, are necessary for society, and they thus require specific preservation (both by theory and by society)” (Thornhil 2008b, p. 53). These norms—to be considered in the context of a “functional normativity”—would be the ones “that specifically uphold the differentiated form of society as a whole and that prevent the convergence – or the de-differentiation – of society around expansive or trans-systemic regulatory duties or totalizing accounts of its orientation or direction” (Thornhill 2008b, p. 54).

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Before going on to discuss what are the norms and principles in question, it is important to underline the novelty of the perspective on normativity adopted by Luhmann. Norms are not affirmed as imperatives of reason to which the individual has privileged access as a rational being but are rather formulated from the point of view of the observation of society and the contingent communications that constitute it.6 Commenting on the idea of an emancipating reason developed by critical theory, Luhmann stated, not without some irony, that this would be “a notion of reason that is equally suited to the individual human being and society, despite the fact that there are now 5 billion [today more than 7 billion] people who, when not sleeping, act simultaneously, that is, uncoordinatedly. Instead of the distinction between individual and society, the concept of rationality should be guided by the distinction between system and environment” (Luhmann 1992b, pp. 660–661, note 65). In a similar vein, Luhmann asked: “isn’t this human merely an invention of this theory [that is, the theory of the Frankfurt School], merely a veiling of this theory’s selfreference?” And he added: “If he or she were meant as an empirical object (with the name of subject), the theory would have to declare who, then, is meant, for obviously it cannot send five billion humans, who are at the same time living and acting, on a discursive search for good grounds” (Luhmann 2002, p. 193). Even more emphatically, Luhmann stated that “no logical concept of distinction will ever lead to the return of the position of unity and authority [of reason]. Reason – never again!”. This means, first, renouncing any claim that “we can describe the world as it really is and then communicate to others how they should think and act” (Luhmann 1992a, p. 76). Implicit here is an allusion to Habermas and his “insistence that reason is the universal cure for all evils”. On the contrary, for Luhmann, “rationality is always a contingent product or the construction of a system and there is no such thing as universal reason” (Hans-Georg Moeller 2012, p. 25).

4 The Content of a Systemic Normativity: Two Examples What is the content of the systemic normativity that I have been referring to? Luhmann approaches the subject in a diffuse way in his work, certainly for the reasons already mentioned that Thornhill advances: to fully explain the content of these norms would imply acknowledging politics as a guiding role for society as a whole, something that systems theory emphatically refuses. However, it is possible to find an expressive example of the concept of systemic normativity in the way he views the welfare state. Marcelo Neves, in turn, develops the concept of systemic normativity in an innovative sense, through the idea of transconstitutionalism.

6 M. King and C. Thornhill even claim, namely on this ground, that Luhmann’s work constitutes “one of the major scientific revolutions in the recent history of the social sciences” (2006, p. 8).

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Luhmann’s View on the Welfare State

One way in which systemic, or functionalist, normativity manifests itself is the way Luhmann views social rights and the welfare state. Luhmann’s position on this topic is the subject of controversy, and it is possible to state opposite understandings about the meaning of Luhmann’s position on the matter. One the one hand, there are those such as Michael King and Chris Thornhill, who claim that for Luhmann the limited form of the state is distorted in the welfare state by “the assumption that the state is the center of society, which can assume accountability for all manner of concerns. The political system then becomes the addressee for problems which are best addressed by other administrative resources, and it is even made accountable for economic issues, whose susceptibility to regulation by political decisions is minimal” (King and Thornhill 2003, p. 78). The welfare state carries the potential of undermining “the necessary differentiation of politics from other systems” (King and Thornhill 2003, p. 79; see also 82). In a different way João Paulo Bachur takes as a starting point the distinction made by Luhmann between the social state (Sozialstaat) and the welfare state (Wohlfahrtsstaat). The first one refers to the reasonably spontaneous and improvised character of the social aid provided due to the consequences of industrialization, as a political reaction to external factors (economic and of another order); differently, the second one represents a general principle of compensation that is socially institutionalized in a reflexive way. The principle of compensation to the individual for the negative consequences of a particular organization of life triggers a dynamic that leads from the social state to the welfare state (Luhmann 1981, p. 9). In this context the passage from the Sozialstaat to the welfare state is, according to Bachur’s interpretation of Luhmann’s thought, a product of the evolution of the political system itself. The social legislation introduced by Sozialstaat was selected and stabilized by Wohlfahrtsstaat as a political subsystem (Bachur 2013, pp. 116–117). By presenting the Welfare State as a product of the evolution of the political system, Bachur intends to call into question an appreciation of Luhmann’s theory built on an overly simplified version of one of its central categories, autopoiesis: “if the functionally differentiated society allows itself to be represented by autonomous communicative spheres that reproduce themselves according to their own logic (the autopoietic social systems), the inter-systemic relations [such as the ones between the political and the economic systems involved in the welfare state] would then be seen as necessarily harmful interference” (Bachur 2013, p. 102). In this way, Bachur sums up Luhmann’s description of the welfare state in modern societies. However, he fails to mention Luhmann’s judgment regarding the prospects and possibilities of the welfare state in a differentiated society. It is undoubtedly true that Luhmann does not make a “moral defense of the free market”, as stated by Bachur (2013, p. 117), but it is equally true that he does not adopt any moral defense of the welfare state. Indeed, much of the political discourse on the economy and the ability to intervene politically in economic matters is described by Luhmann in the form of utopia. According to him, a period of

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economic growth generates an expectation of well-being so strong that in all economic recessions and restructuring the help of politics is expected. To all these calls for help “politics cannot avoid saying: I can. So, it takes refuge in utopias” (Luhmann 1994, p. 196). Thus, “political utopia is the way in which society’s uncontrollability is reproduced in the political system” (Luhmann 1994, p. 197). The creation of jobs can only be a goal of politics to the extent that it is assumed as a utopian component of political communication. However, the effective creation of these jobs is still a matter to be decided only within the scope of the economic system.7 It is impossible not to side with Michael King and Chris Thornhill on this issue. The “functional normativity” of systems theory necessarily limits the overburdening of the economic system by the political system. Luhmann does not deny “the political power of persuasion of the welfare state and, in particular, the idea that undeserved misfortune ought to be compensated by the community” (Luhmann 2004, p. 412). But he strongly advises against yielding to the charms of those powers. His position on the relationship between the welfare state and the constitution is rather clear: The original function of the constitution – to limit politics – disappears from view. It is easy to see that the welfare state is a fast-selling item, but it is not recognized that the function of the constitution should be to oppose such trends. Thus, the adjustment of the constitution to the conditions of the welfare state should be sought in a guarantee of independence for the central bank and by mandating firm limits on government spending. (Luhmann 2004, p. 412)

The role of the constitution as a structural coupling between politics and law is not to enhance the welfare state but to limit its operation. However, all these considerations are valid on the assumption of the primacy of functional differentiation. This feature of Luhmann’s theory is exactly what is questioned by Marcelo Neves.

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Marcelo Neves’s Concept of Transconstitutionalism

Before analyzing such questioning, it is relevant to point out that Marcelo Neves has also developed the content of systemic normativity with his concept of transconstitutionalism. Transconstitutionalism is a specific case of transversal rationality, understood as an intersystemic rationality (in the case of the constitution, between law and politics, but not necessarily restricted to these two domains), that is, as a “starting point to go beyond the notion of ‘structural coupling’” (Marcelo Neves 2017a, p. 386, note 38). As revealed by this last quote Marcelo Neves’s framework for thinking about politics, law and society is Luhmann’s systems theory. In this context he envisages

7 As Luhmann says, “politics is faced with the effects of its impacts on its environment, without being able to attribute these repercussions to itself” (Luhmann 2000, p. 425).

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society as world society and therefore as a multicentric society developing a plurality of autonomous spheres of communication, each based on a binary code on which it operates. Each social domain develops its own rationality, which confronts itself with other rationalities, each with a pretense of autonomy, without the existence of a “privileged center or place of society”. In this context, the view that “puts politics at the center as a supersystem of modern society, has led only to disillusionment” (M. Neves 2013, p. 20). Similarly, the theory of society itself would be a partial observation of society, such as morality,8 law, politics, religion, economics, or art. Its greater social adequacy would derive only from its ability to describe the “multicentricity of the social in modernity” (Neves 2013, p. 20). However, the multi-centric character of modern society does not dispense with the development of mechanisms that enable “the various social spheres to build links and learn from and influence each other” (Neves 2013, pp. 25–26). In this context Luhmann developed the concept of structural couplings, in which each system makes available to the other its disordered complexity, allowing the incorporation of some flows of meaning in each of the coupled systems, excluding others, but without the rationality processed by each of the systems being made available to the other. Thus, ownership and contract are presented as structural couplings between the economic and legal systems. In the sphere of law, contract and property serve as guiding criteria for the definition of what is licit and illicit, while in the sphere of economics they are instruments for obtaining profit in the light of the difference between having and not having. However, the economic and legal meanings remain specific to each system, one primarily normative and the other primarily cognitive, as Marcelo Neves points out; at the same time, the modern economy cannot do without these legal instruments for its development under secure conditions, and law presupposes a dynamic of exchange, circulation and economic appropriation of goods and values (Neves 2013, p. 26). Politics and law, for their part, find their structural coupling in the constitution. In the constitution politics finds conditions of stable realization and the law, in turn, establishes its criteria of positivity. Thus, “there is a political legitimation (democratic) of law and a legal legitimation (rule of law) of politics” (Neves 2013, p. 39). However, this does not mean any intermediation between legal rationality and political rationality. Proposing his own ideas on this framework Marcelo Neves develops the concept of transversal rationalities. Instead of each system merely making its disordered complexity available to the other, it is the rationality itself processed by each system 8 Cf. Marcelo Neves (2013, p. 31), rejects, following Luhmann, the possibility of a moral integration of society. See Niklas Luhmann (1990, pp. 23–25). According to Luhmann we have today “moral inclusion as always but without moral integration of the system of society” (1990, p. 25). It would be even possible to say that without prejudice to its multicentric character society “develops primarily on the basis of cognitive expectations (economics, science, and technics)” (cf. M. Neves 2013, pp. 21–22).

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that becomes accessible to others, allowing the “construction of a transversal rationality between autonomous spheres of communication in world society” (Neves 2013, p. 27). Does this mean that instead of a mechanism of connection (or interpenetration, in the expression used by Marcelo Neves 2013, p. 27) between different social systems, we have a normative principle capable of establishing a relationship between these same systems? In fact, transversal rationality is associated by Marcelo Neves, as we shall see, with “a morality of structural dissensus, reproduced diffusely and requiring an exchange and respect for the plurality of perspectives of observation and description of society. It implies the presence of a certain ‘moral reason’ which does not constitute a ‘super code’ yet runs transversely and fragmentarily through the various particular rationalities and orders one to look ahead, to include alternatives and dissension and to reflect on their relations’” (Neves 2013, p. 34). This transversal rationality can only legitimately present itself “as a consensus about dissensus”, as Marcelo Neves states, quoting Wolfgang Welsch.9 What is accepted here is the ultimately inconclusive nature of reason, which involves accepting the contingent character of decisions (Welsch 1999). Moreover, while structural coupling is presented bilaterally as a mechanism between two autonomous systems, transversal rationality enables the intertwining of more than two systems: this would be the case with taxes, the state budget and central banks, which involve a close relationship between politics, economics and law, or universities, which involve a relationship between science and education and other systems, depending on which faculty is concerned (Neves 2013, p. 35). In this light, the constitution does not appear merely as a structural coupling between politics and law, that is, as a “filter of irritation and reciprocal influences between autonomous systems of communication”, but as a model of transversal rationality (without prejudice to others), in so far as it presents itself as an “instance of reciprocal and lasting relationship of learning and exchange of experiences with the particular rationalities already processed in politics and law, respectively” (Neves 2013, p. 42). The constitution, as a mechanism of structural coupling between politics and law, will however not contribute to the construction of a transversal rationality between the two systems in the case of existing tendencies towards the judicialization of politics and the politicization of law (Neves 2013, p. 35). Although Marcelo Neves is influenced by Welsch’s transversal reason, he rejects its nonetheless ambitious claims, drawing closer to Michael Walzer’s thinking and his distinction between different spheres of justice (Walzer 1983, 3ss., pp. 19–20). According to Neves, the concepts of “all-encompassing transversal reason” and “supraordered postmodern metanarrative” would be “debatable under the conditions of reproduction of a multicentric, polycontextural world society” (Neves 2013,

9 Cf. Marcelo Neves (2013, p. 34); Wolfgang Welsch (1996, p. 322). According to Welsch dissensus refers to the antagonistic character of what appears to be a mere controversy.

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p. 30). If so, then one must ask: what does the idea of transversal rationality add to the mechanism of structural couplings between different social systems? The answer to this question is given significantly by Marcelo Neves through the “negative side” of both concepts. The negative side of structural coupling lies “in the reciprocal blockages of systemic autonomy through corruption of the systems involved” and, in the extreme case, in structural systemic corruption. This happens when “the code of one system is sabotaged by the code of another system, such that it loses its consistent reproducibility”. Thus, for example, the “having/not having” code in the economy may corrupt democracy rules without the political system being able to react. In the event that this inability becomes structural there may be effective functional de-differentiation, in which one social system “is determined directly (not only conditioned) by others, being incapable of consistent self-production or operative closure” (Neves 2013, pp. 30–31). The negative side of transversal rationalities, in turn, is that the sphere of rationality proper to one system loses its learning capacity in relation to another, manifesting itself in autism and the expansion of one rationality without recognizing the other (Neves 2013, p. 32). The first phenomenon (autism) brings us to the selfcentering of a purely technical view of the world; the second, perhaps even more troubling, phenomenon (expansion) manifests itself in the economization of all areas of social life, as well as in the above mentioned judicialization of politics, or, conversely, in the politicization of justice. However, several questions arise here: (i) beyond the recognition of structural dissensus and openness to the plurality of perspectives, what is the content of a fragmentary morality, or, if one prefers, what is the “positive side” of transversal rationalities? (ii) is the transversal rationality beyond the rationalities inherent in each system equivalent to the requirement of opening one sphere of rationality to the others? And how to understand such a requirement? (iii) is it possible to develop a transversal rationality in cases of systemic corruption? and what are the resources of such rationalities in these cases? First of all, there is no content of a fragmentary moral reason beyond the recognition of the structural dissensus of modern society. The core of this fragmentary morality seems to be an imperative of openness and learning, a predisposition for the building of “bridges of transition” (Neves 2013, pp. 34, 36). Then, there is no transversal rationality common to the various systemic rationalities, and the very use of the term “reason” is avoided as involving imperialist pretensions. Finally, it appears that it is not possible to develop a transversal rationality if, as a precondition, there is no operative closure of the social system to which this rationality relates. Thus, in the case of the allopoiesis of law,10 there are no conditions for structural coupling between the legal system and the other social subsystems and, for this reason, it also does not seem possible to develop a transversal rationality.

Allopoiesis refers to a “generalized compromising of the operative autonomy of law. The boundaries between legal system and environment dissolve, even in respect to an alleged social diffuse law without state” (see Marcelo Neves 2001, p. 259).

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This means that transversal rationalities are not just “a ‘scarce product’ of the contemporary social world”, as Marcelo Neves puts it (Neves 2013, p. 34, 177; idem 2017b, p. 388). More than that, they appear to be a product that is only available in the countries of central modernity, where functional differentiation and integration are effective. It is at this point that Marcelo Neves’s construction of transconstitutionalism reveals his greatest interest. Simply put, transconstitutionalism is the differentiation of the emergence of constitutional problems and the emergence of new constitutions, in the sense that the former is not necessarily connected to the second. It points to situations in which “two or more legal orders (national, international, supranational or transnational, involving public, quasi-public or private actors, or non-state normative orders – for example those based on the customary practices of indigenous communities) engage with and raise a claim to provide the legal solution to concrete constitutional problems without involving the emergence of new constitutions” (2017b, p. 386). It appears as if in the framework of transconstitutionalism a social integration would be allowed, via legal inclusion, while at the same time enabling an effective system integration.11 This marks the difference between transconstitutionalism and other forms of constitutionalism: in transnational “constitutional orders”, such as the law of the World Trade Organization, for example, we find system integration but no social integration (inclusion); in state constitutions we find less system integration, “so that ‘social integration’, especially in the form of political and legal inclusion, can be increased” (Neves 2017b, p. 385). In the case of transconstitutionalism it is clearly possible to distinguish a positive and a negative dimension (Neves 2013, p. 174): “On the one hand, transconstitutionalism creates the conditions that render possible the development of a transversal rationality across legal orders. On the other hand, and by the same token, transconstitutionalism can easily result in blocking and destructive relations between legal orders” (Neves 2017b, p. 386). So, it appears that transconstitutionalism can reproduce inside the legal system the negative dimensions of both transversal rationalities and structural couplings, but it can also add to those dimensions a positive one, that is the development of a common law language across legal borders. We can, however, question to what extent transconstitutionalism does not appear as the “easy case” of transversal rationalities, as it functions always inside the legal

On the concepts of “system integration” and “social integration”, see Marcelo Neves 2017a, 385, note 34: system integration refers to the degree of dependency of social systems on each another; social integration refers to the extent to which persons have access to the benefits of social systems. In this respect, social integration refers to the difference inclusion/exclusion. 12 For Marcelo Neves’s view on fragmentation see 2013, 178–180. 13 On the connection between the global functional system of politics and the political segmentation of the world into states and humanity into states’ peoples, see Klaus Holz 2003, 41; Mathias Albert 2016, 150. In a way similar to Holz I think the political segmentation of the world in territorial states is the very instrument of the global functional differentiation of politics. This is, however, no place to develop this view. 11

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system and not in between different functional social subsystems. Transconstitutionalism is an antidote to the well known phenomenon of fragmentation in international and transnational law.12 At the same time the very possibility of transconstitutionalism is enabled by the still segmentary differentiation of the political system in nation-states. But in transconstitutionalism the primacy of segmentation in the system of world politics is, in a way, overcome,13 as it opens up the prospect of the “de-territorialisation of juridical-constitutional problem cases, which, as it were, have emancipated themselves from the state” (Neves 2016, p. 191). The great challenge is to know whether such a move is also possible in relation to the political dimension of constitutionalism, that is, democracy. The promise of Marcelo Neves’s concept of transdemocracy is precisely to compensate political segmentation while promoting social integration.

5 Beyond Functional Differentiation: Back to the Agency Normative Point of View? As mentioned, Luhmann sees the development of the welfare state as the embodiment of the principle of compensation. But he accords greater significance to a further principle, that of inclusion. According to Luhmann, The phenomenon that is designated as inclusion also has its own historical character. It only makes its appearance once the status stratified society of ancient Europe is dissolved. This society assigned each person (better: each family) only to a single status. The person was defined by his status of belonging and was thus located and socially integrated. Consequently, through this scheme of differentiation of society, man as a social entity was, at the same time, differentiated and socially determined. With the transition towards a differentiation oriented primarily on the basis of functional criteria, this order had to be abandoned. For it is obviously impossible to attribute people to the system of religion, economy, science, education and politics, so that each individual lives only in one of them. The place of the old order is occupied by the access rules. Man, as an individual, lives outside the functional systems, but each must have access to each functional system as long as his way of life requires him to resort to social functions. From the perspective of the social system, this claim is formulated with the principle of inclusion. Every functional system incorporates the entire population but only in those aspects of their way of life that have the respective functional relevance. All enjoy legal capacity and legal protection, all receive a school education, all can acquire or spend money, etc. Against the background of these norms of inclusion, the effective inequality of possibilities becomes a problem; precisely because it no longer rests on the differentiation scheme of society, but rather reproduces itself functionally. (Luhmann 1981, p. 26; my translation).

The problem of Marcelo Neves with this view is that the preference it expresses for the “primacy of functional differentiation and the structural preference for inclusion in the respective social contexts” (Marcelo Neves 2018, p. 391) is only available for the countries of central modernity. On the contrary, for all the states of peripheral modernity, such as the ones in Africa and in vast zones of Asia and South America, what really prevails is a structural practice of exclusion. In these regions, comprehensive and diffuse networks of systemic corruption prevail over functional

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differentiation and block the state as the center of the territorial political system (M. Neves 2018, p. 399). Individuals are over or sub-integrated in functional social systems but not, as a rule, merely included in them. How to combat this situation? In this context Marcelo Neves points to the “transdemocratic model” which implies “a redefinition of the people’s sovereignty, pointing to a sustainable responsibility of the consolidated democracies in relation to their political and social environment in the world society” (Neves 2018, p. 400). With this move the resources of systemic normativity seem to have been exhausted. Systemic normativity is inherent in functional differentiation and its primacy, in that is it presupposes the necessary differentiation of politics from other systems. From this point of view “transdemocracy” appears to be a product of constitutional imagination,14 and one whose accomplishment requires political action. Its appeal, in my view, is that it seeks to realize utopianism, as the center of constitutional imagination, no longer by means of the nation but mainly through the claims of cosmopolitanism and universal human rights (Loughlin 2015, p. 24). The social theorist paves the way to the political man and if the prospects do not look good for the later it won’t surely be by lack of theoretical elaboration.

References Albert M (2016) A theory of world politics. Cambridge University Press, Cambridge Bachur JP (2013) O Estado de bem-estar em Hayek e Luhman. Tempo Social, Revista de Sociologia da USP 25(2):101–121 Baxter H (2011) Habermas: the discourse theory of law and democracy. Stanford University Press, Stanford Baxter H (2014) Habermas’ sociological theory of law and democracy: a reply to Wirts, Flynn and Zurn. Philos Soc Crit 40(2):225–234 Blokker P, Thornhill C (eds) (2017) Sociological constitutionalism. Cambridge University Press, Cambridge Calliess GP, Zumbansen P (2009) Rough consensus and running code: a theory of transnational private law. Hart, Oxford Deflem M (2008) Sociology of law: visions of a scholarly tradition. Cambridge University Press, Cambridge Febbrajo A, Corsi G (2016) Sociology of constitutions: a paradoxical perspective. Routledge, London Gonzalez-Diaz E (2004) Paradox, time, and de-paradoxication in Luhmann: no easy way out. World futures. J New Paradigm Res 60(1–2):15–27 Habermas J (1996) Between facts and norms: contribution to a discourse theory of law and democracy (trans: William Rehg). The MIT Press, Cambridge

I understand this concept as referring “to the manner in which constitutions can harness the power of narrative, symbol, ritual and myth to project an account of political existence in ways that shape—and re-shape—political reality. The phrase draws our attention to the capacity of constitutions to offer alternative perceptions of reality, revealing new ways of conceiving the boundaries of practical political action” (Martin Loughlin 2015, p. 3). 14

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Hennis W (1977) Politik und praktische Philosophie: Schriften zur politischen Theorie. Klett-Cotta, Stuttgart Holz K (2003) Politik und Staat. Differenzierungstheoretische Probleme in Niklas Luhmanns Theorie des politischen Systems. In: Kai-Uwe H, Fischer K, Bluhm H (eds) Das System der Politik: Niklas Luhmanns politische Theorie. Westdeutscher Verlag, Wiesbaden, pp 34–48 James W (1992) Writings 1878-1899: psychology, Briefer course, the will to believe, talks to teachers and students, essays. Library of America, New York King M, Thornhill C (2003) Niklas Luhmann’s theory of politics and law. Palgrave Macmillan, New York King M, Thornhill C (2006) Introduction. In: King M, Thornhill C (eds) Luhmann on law and politics: critical appraisals and applications. Hart, Oxford, pp 1–10 Kjaer P (2014) Constitutionalism in the global realm: a sociological approach. Routledge, Abingdon Lassman P (2000) The rule of man over man: politics, power and legitimation. In: Turner S (ed) The Cambridge companion to Weber. Cambridge University Press, Cambridge, pp 83–98 Loughlin M (2015) The constitutional imagination. Mod Law Rev 78(1):1–25 Luhmann N (1981) Politische Theorie im Wohlfahrtsstaat. Günter Olzog Verlag, München/Wien Luhmann N (1982) The world society as a social system. Int J General Syst 8(3):131–138 Luhmann N (1990) Paradigm Lost: Über die ethische Reflexion der Moral. Suhrkamp, Frankfurt am Main Luhmann N (1992a) Beobachtungen der Moderne. Westdeutscher Verlag, Opladen Luhmann N (1992b) Die Wissenschaft der Gesellschaft. Suhrkamp, Frankfurt am Main Luhmann N (1994) Kapitalismus und Utopie. Merkur 48(540):189–198 Luhmann N (1995a) Social Systems. Translated by John Bednarz, Jr. with Dirk Baecker. Stanford University Press, Stanford Luhmann N (1995b) The paradoxy of observing systems. Cultural critique. Polit Syst Environ 31 (2):37–55 Luhmann N (2000) Die Politik der Gesellschaft. Herausgegeben von André Kieserling. Suhrkamp, Frankfurt am Main Luhmann N (2002) I see something you don’t see. In: Rasch W (ed) Theories of distinction: redescribing the descriptions of modernity (trans: O’Neil J, Schreiber E, Behnke K, Whobrey W). Stanford University Press, Stanford, pp 187–193 Luhmann N (2004) In: Kastner F, Nobles R, Schiff D, Ziegert R (eds) Law as a social system. Oxford, Oxford University Press Luhmann N (2008) Are there still indispensable norms in our society? Soziale Systeme 14(1):18–37 Luhmann N (2014) A sociological theory of law, 2nd edn. (trans: King-Utz E, Albrow M). Routledge, London Moeller H (2006) Luhmann explained: from souls to systems. Open Court, Chicago and La Salle, Illinois Moeller H (2012) The radical Luhmann. Columbia University Press, New York Moeller H (2015) O Paradoxo da Teoria: Interpretando Niklas Luhmann. Tempo Social, Revista de Sociologia da USP 27(2):167–179 Mommsen W (1974) Max Weber und die Deutsche Politik 1890-1920, 2., überarbeitete und erweiterte Auflage. J. C. B. Mohr (Paul Siebeck), Tübingen Neves M (2001) From the autopoiesis to the allopoiesis of law. J Law Soc 28(2):242–264 Neves M (2008) Entre Têmis e Leviatã: Uma Relação Difícil. O Estado de Direito a Partir e Além de Luhmann e Habermas. Martins Fontes, São Paulo Neves M (2013) Transconstitutionalism. Translated from the Portuguese by Kevin Mundy. Hart, Oxford Neves M (2016) (Dis)Solving constitutional problems: transconstitutionalism beyond collisions. In: Blome K, Fischer-Lescano A, Franzki H, Markard N, Oeter S (eds) Contested regime collisions: norm fragmentation in world society. Cambridge University Press, Cambridge, pp 169–197

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Neves M (2017a) From constitutionalism to transconstitutionalism: beyond national constitutionalism, cosmopolitan constitutional unity, and fragmentary constitutional pluralism. In: Blokker P, Thornhill C (eds) Sociological constitutionalism. Cambridge University Press, Cambridge, pp 267–312 Neves M (2017b) From transconstitutionalism to transdemocracy. Eur Law J 23:380–394 Neves M (2018) Constituição e Direito na Modernidade Periférica: Uma Abordagem Teórica e uma Interpretação do Caso Brasileiro. Martins Fontes, São Paulo Rasch W (2013) Luhmann’s ontology. In: la Cour A, Philippopoulos-Mihalopoulos A (eds) Luhmann observed: radical theoretical encounters. Palgrave Macmillan, Basingstoke, pp 38–59 Rawls J (1999) A theory of justice, revised edition. The Belknap Press of Harvard University Press, Cambridge Rousseau J (1762) Émile, ou de l’Éducation. Tome Troisième. Jean Neaulme/Libraire, Amsterdam Schneiderman D (2008) Constitutionalizing economic globalization: investment rules and democracy’s promise. Cambridge University Press, Cambridge Teubner G (2012) Constitutional fragments: societal constitutionalism and globalization. Oxford University Press, Oxford Teubner G, Beckers A (2013) Expanding constitutionalism. Indiana J Glob Leg Stud 20 (2):523–550 Thornhill C (2008a) Towards a historical sociology of constitutional legitimacy. Theory Soc 37:161–197 Thornhill C (2008b) On norms as social facts: a view from historical political science. Soziale Systeme 14(1):47–67 Thornhill C (2011) A sociology of constitutions: constitutions and state legitimacy in historicalsociological perspective. Cambridge University Press, Cambridge Thornhill C (2016) A sociology of transnational constitutions: social foundations of the postnational legal structure. Cambridge University Press, Cambridge Walzer M (1983) Spheres of justice: a defense of pluralism and equality. Basic Books, New York Weber M (1992 [1919]) Politik als Beruf. In: Mommsen WJ, Schluchter W (eds) Max Weber Gesamtausgabe, 17/1. Mohr/Siebeck, Tübingen, pp 157–252 Welsch W (1996) Vernunft. Die zeitgenössische Vernunftkritik und das Konzept der transversalen Vernunft, 2nd ed. Suhrkamp, Frankfurt am Main Welsch W (1999) Reason and Transition: On the Concept of Transversal Reason. http:// sammelpunkt.philo.at/192/1/Reason.html

Miguel Nogueira de Brito is Associate Professor at the University of Lisbon’s School of Law and senior researcher at CIDP—Lisbon Centre of Research in Public Law where he coordinates the area of Constitutional Law. He worked as a law clerk at the Portuguese Constitutional Court. His publications include A Justificação da Propriedade Privada numa Democracia Constitucional (Almedina, 2007) e As Andanças de Cândido (Edições 70, 2011), as well as, as co-editor, The Political Dimension of Constitutional Law (Springer, 2020).

Part IV

Systems Theory and Public Law

A Few Notes on the Uses of Historiography in Sociology: The Case of World Society and the Necessity of Historical Reconstruction Nathaly Mancilla Órdenes and Gustavo Zatelli

Contents 1 2 3 4

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . World Society as a Historiographical Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The First Sociological Approaches to World Society and Their Obstacles . . . . . . . . . . . . . . . . Luhmann’s Concept of World Society and the Necessity of Historical Reconstruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Taking History Seriously in Systems Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Final Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This article raises a few questions about the relation between sociology and history. This relationship could be observed by many perspectives, but here we will focus on the advantages of testing the sociological categories through historical examination with primary sources. By taking the development of the concept of world society as an example, the problems that arise when the sociological concepts undergo historical scrutiny becomes clear enough (such as mismanages of secondary literature, and generalizations or distortion of historical sources as well). To solve part of these problems, we claim it could be helpful for the sociologist to borrow methods from the historian, that is, go directly to the historical sources and work with them in a serious manner. This relation may also work as a two way street: not only does the sociological theory can help shed light in matters that are mainly unexplored by the historian community, but the empirical results from the research with historical sources can open new theoretical discussions and work as a testing platform for the applicability of theories.

The draft of this paper was read and commented by Carina Calabria, Fernando Nagib Coelho, Patrícia Ramos Barros, Manuel Bastias Saavedra, Claudio Frites and, Gilberto Guerra Pedrosa. We thank them for their valuable contributions, although all of the text’s shortcomings and flaws are due to our own account. N. M. Órdenes (*) · G. Zatelli University of Brasília (UnB), Brasília, Brazil Institut für Recht- und Verfassungsgeschichte, University of Vienna, Vienna, Austria © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Nogueira de Brito et al. (eds.), Law as Passion, https://doi.org/10.1007/978-3-030-63501-5_10

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1 Introduction In this article, we point out some blind spots between sociology (specifically, the systems theory) and its links with history and usage of historiography. Our starting point is that some historians and some sociologists don’t take each other seriously. Beyond the so-called interdisciplinarity, there are adhoc uses of history in sociology (and vice versa) that raises more problems than solutions. As Peter Burke wrote, historians and sociologists are not good neighbors,1 mainly due to efforts of maintaining the autonomy of both fields. It must be recognized, nonetheless, that interdisciplinary studies have gained prominence in recent years— in North American sociology more than anywhere else.2 For the purposes of this study, however, this intersection should not be identified with terms such as “historical sociology” or “history of sociology”. Rather, it is about uncovering the blind spots of this relationship by pointing at existing bridges between these fields and the possibilities they represent. In this sense, our goal is to clarify some viable paths of interconnection and auxiliary borrowing that one field can lend to another.3 Here, we will focus more on one end of the rope: that of the gains that sociologists can have by taking historiography seriously.4 This essay takes as a case the treatment given by history and sociology on the emergence of communicative relationships that surpass territorial limits. It is initially shown how this phenomenon brought about the appearance of semantics that are traceable in history. Later, we focus on how the first sociological approaches dealt with these phenomena. In the next section, how system theory observed and described the concept of world society and how there is a necessity of historical 1

Burke (1980). Klein (2017), Tilly (1984), Skopcol (1991). 3 For this argument, we may use Tilly’s appointment on how the analyses of individual historical cases may be more helpful than “dozens of broad statements” when it comes to understanding social processes: “We should build concrete and historical analyses of the big structures and large processes that shape our era. The analyses should be concrete in having real times, places, and people as their referents and in testing the coherence of the postulated structures and processes against the experiences of real times, places and people. They should be historical in limiting their scope to an era bounded by the playing out of certain well-defined processes, and in recognizing from the outset that time matter—that when things happen within a sequence affects how they happen, that every structure or process constitutes a series of choice points. Outcomes at a given point in time constrain possible outcomes at later points in time” (Tilly 1984, p. 14). 4 That is not to say that there are not ways that historians would benefit from a serious incorporation of sociological theory. For instance, the categories or theoretical concepts are not merely heuristic instruments (while this use, for itself, would already be compelling to make an argument for the advantages of historiographic reception of theory, including sociological ones). They also may be used as ground stones for the constructions of historical hypothesis. For example, the historical emergence of the world society and its characteristics, as described in the sociological theory, could be treated as a material for construction of historical questions and tested with primary sources. This would be beneficial mainly because it would help the historian with ways of relating his or her’s particular object of study with other phenomena and supply him with a category that would help to compare different treatments of problems very much alike in sparse places of the world. 2

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reconstruction. In section five, we elaborate on the obstacles and possibilities of combination that the system theory has been through in its contact with history. Finally, we close the text emphasizing the benefits of bona fide relation between sociology and history, especially for the reflexivity of systems theory.

2 World Society as a Historiographical Problem The history of modern society is also the history of world society. The emergence of a world that is “joined together, by so few threads”,5 sparked diverse efforts of intellectual comprehension since the eighteenth century. In the context of cosmopolitan enlightenment, these attempts took the form of an embryonic universal history that, through works such as Kant’s Idee zu einer allgemeinen Geschichte in weltbürger Absicht,6 promoted a recognizable modern universalism.7 The eighteenth-century bourgeois society—through the philosophy of history—“saw itself as the new world, laying intellectual claim to the whole world and simultaneously denying the old”.8 Although regionalist approaches also flourished in the same context, it is not fairly correct to characterize them as an objection to the contemporary universalism. Works such as those of Edward Gibbon9 and William Robertson,10 that described Europe as a great republic or great federation, by emphasizing the points of convergence through the semantics of civilization, also displaced the focus of observation from the state, territory or kingdom. The ways of organizing power, the system of arts, laws and values, were used by the enlightenment intellectuals to differentiate Europe and its colonies from the rest of humanity.11 The concept of humanity itself has a double function here: to expand local boundaries and the notion of the world, as well as to project the image of the old continent as the only possible humanity.12 On the other hand, the nineteenth century would mark a turn towards localisms or nationalism. The romantic tradition embodies the cultural expression of a particular society in a nation, while the State is presented as its political manifestation. In this framework, cosmopolitanism loses strength and is presented—only—in the form of internationalism. The initiative to observe beyond the territorial borders takes off 5

Herder [1774] (2002), p. 70. For this work: Kant [1784] 1917. Also, other of Kant’s work, considerably more famous, Perpetual peace (1795), would be the pinnacle of this cosmopolitanism. 7 Hopkins (2002), p. 14. 8 Koselleck (1988), p. 9. 9 Gibbon [1776-88] (1990). 10 Robertson [1792], (2008). 11 Gibbon [1776-88] (1990). 12 For a narrative on the ancient and medieval roots of this Eurocentric gaze, its predominance in the nineteenth century alongside an ideology of progress, and its present and lingering repercussion in the literature of International Law, see Koskenniemi (2012). 6

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from the presupposition that, at a basic level, there is a sum of national states in which the in/out scheme prevails. The world is now an extension of narrower national interests, where what exceeds the limits of the nation-state is often treated as pieces that must be incorporated into national history. As History started to be treated as a scientific field and the claim to write it wie es eigentlich gewesen (How it really was)13 became more relevant, national issues were also gaining ground.14 This tendency would remain until the twentieth century,15 when works like those of Toynbee and Braudel—each one in its own way—modified this view. To some extent, this enterprise has now been assumed by the global history. Nevertheless, despite there being concerns about conceptualizing the history of a social system in the global scope, the persistence of certain analytical limits is noticeable. The main difficulty is that the discipline has proved to be incapable of manufacturing a global history that explains the implication of the processes of globalization, beyond the history of the national states that led the imperial expansion.16 Some analyzes try to describe globalizing trends as something different from the transposition of national interests to an international level.17 This is however still a sensible point, and many critics have pointed out that researches on global history have not been able to take this assumption critically. As Dirlik puts it: “the hegemony of a European, and subsequently American, conception of globality recedes before alternative claims to the globe, or to significant portions of it, that are accompanied by demands for writing the past non Eurocentrically”.18 Thus, it is difficult to observe a series of transformations that involve a complex relationship between the local and the global, and that far exceeds the issues related to international relations and the colonial framework19 in which many of them developed. 13 The translation of this quote has been subject to many critics and analysis. We use the translation suggested by Boldt, who actually explained that the reason for some variants of this quote contain the auxiliary verb ist in the end is because of grammatical actualization of Ranke's linguistic mannerism (Boldt 2019). 14 This emphasis in discovering how (or what) it really happened was linked to Ranke’s quest for objectivity in the Geschichtsschreibung and the specialization of the historical profession and activity. Not only did he intended to eradicate value-judgement statements in the writing of history but he also intended to place history in a middle ground between art and science in a way that it would not be confounded with poetry or fictional literature (see Vierhaus 1987; Rüsen 1990). In this frame, national issues gained relevance in historical researches. One of the main arguments of Ranke was that state-building constituted the characteristic activity of the epoch that he called modern. This view considered official or state documents were more reliable than others: the actions of the State were those actions that lingered in history, and were not transitional or accidental. All of this does not mean that Ranke was not attracted to the idea of world history. Indeed, most of his endeavor as a historian is directed towards this goal, but for him the large forces of world history depends on the impulses that come from individual nations (see Kriger 1977, p. 247). 15 Hopkins (2002). 16 Bayly (2004). 17 Hopkins (2002). 18 Dirlik (2002). 19 For the postcolonial critic about this point, see Malreddy et al. (2015).

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This difficulty arises exactly from the problem of writing a global history that is not Eurocentric and at the same time does not adopt culturalist or ethnical perspectives, i.e., histories centered in specific aspects or traits of a culture while emphasizing their particularism.

3 The First Sociological Approaches to World Society and Their Obstacles In the field of social theory, the situation does not differ that much. Recently, beyond the seminal work on the formation of a cosmopolitan world trade, after a review of notes that were until then unpublished, Marx has been pointed as an author through which it would be able to link social theory and world history. According to this view, Marx was determined to understand the global world historical process of the formation of capitalism in order to complement what was stated in the preface to “Contribution to the critique of political economy”.20 Despite this, the main axis of analysis continues to be the State and its particular formations, in such a way that the analysis of the world is redirected towards understanding the form of capitalism in European and non-European countries. Although there is always a risk with temporal precision, it can be said that it was the decade of 1940 that marked a significant shift towards the elaboration of a theory of world society.21 At least this is how the theories of the international system described their own evolution. From then on, modern society and globalization became essential elements for the academic understanding of social matters. It is in these theories that a world society characterized by the independence and simultaneous interdependence of its communities was conceptualized for the first time.22 Subsequently, the rise of the theory of modernization in response to the problems of the so-called underdeveloped countries, through the tradition/modernity dichotomy and the taxonomy of different development pathways, influenced a series of critical voices. Among the most important, are two traditions that at least in some measure made reference to the theory of world society: the dependency theory and the world-systems theory. Both traditions tend to consider underdevelopment as a structural problem of capitalism, attributing it to its division between center and periphery.23 Nevertheless, it is without a doubt that the works of Immanuel Wallerstein, within the world-system theory, were those that gained greater relevance for the historical reconstruction of world society.

20

Krätke (2018). Without a doubt, both the World War II, as a global event, and the radical transformation of the way armed conflicts had hitherto played an important role in this transformation. 22 Mcdougal (1953). 23 Neves (1992). 21

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Inspired by the second generation of the School of the Annales, and mainly by the ideas of historical cycles and the possibility of long-term generalization in the history of Braudel, Wallerstein intended to establish a unit of analysis for a holistic historical social science: the world-system.24 After laying the ground that the only existing social system is the world system (since it is through the evolution of this unit that all other categories of analysis are understood as State or national societies), it remains open for questioning when did this system came into being, i.e., what is the historical starting point of this unit. Thus, he stated that the world-system took throughout the sixteenth century the form of a world-economy of capitalist type (originating in Europe), which involved the transformation of a feudal European economy (that was a redistributive mode of production). This transformation was promoted by the division of labor between different parts of the globe, and gave birth to a rather different social system. From this perspective, the capitalist world economy was described as having three fundamental characteristics: (a) it has expanded enough to cover the entire planet; (b) it has followed a cyclical model of expansion and contraction, in which center and periphery are mobile; (c) it has undergone a secular transformation process that is still underway. In this historical-sociological proposal, the hallmark of the modern world-system is the unlimited possibility of capital accumulation.25 However, for Wallerstein, the world-system, as an integrated scheme of global reach, does not promote a homogeneous development, specially of economic and political processes. In Wallerstein’s proposal, on the contrary, it is much rather a system that maintains inequalities by being “limited by the time and space of productive activities within which the ceaseless accumulation of capital has been the objective or economic ‘law’ that has prevailed”.26 Thus, the expansion of the capitalist world-system itself has resulted in an asymmetric structure in which, on the one hand, the creators of the rules control the system (center) and, on the other, the rest (periphery and semiperiphery) are forced to abide by these rules or “suffer the consequences”.27 The presence of an international system of pseudo-sovereign units with varying degrees of political power allows the successful action of entrepreneurs within the center/periphery scheme of the world system.28 Hence, Wallerstein describes the relationship between politics and economics as practically indistinguishable. The concentration of economic capital in the central areas of the world-system laid the fiscal and political foundations for the construction of relatively strong states with the ability to ensure, in turn, that the state apparatuses of the periphery became or continue to be weak.29 Thus, the existence of a large center of technological

24

Wallerstein (2004). Wallerstein (1984), p. 12. 26 Wallerstein (2011b), p. 7. 27 Wallerstein (2011b), p. 7. 28 Wallerstein (2011a). 29 Wallerstein (2011b), pp. 20–23. 25

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development, and a periphery that provides raw materials and cheap labor, is maintained—although often in a nonexplicit way—thanks to a geoculture capable of guiding social action throughout the world-system: that is, liberalism.30 Wallerstein’s proposal to theorize society by taking the world-system as the initial starting point, as well as understand the process of its historical formation, raised criticisms of various types. Some emphasized the problems that arise at the intersection between history and sociology, mainly concerning the use of secondary sources ad hoc to the confirmation of the hypotheses.31 In a similar sense, economic historians have pointed out the superficiality of Wallerstein’s analysis of the Industrial Revolution and the relevance of the European urbanization process, which would have created—before the revolution itself—an environment conducive to creativity and the flourishing of art, commerce, and industry.32 Even in the historiographic field, Wallerstein’s casuistic analysis also seems to have certain deficits, which ends up impacting on some dynamics established by the author for the relationship center/periphery/semiperiphery. Thus, for example, studies of the English33 and Spanish34 cases shows that the Europe of the so-called long sixteenth century was not prepared to respond to a possible demand for overseas trade and that the contribution of the periphery for the development of these centers was paradoxically peripheral.35 Wallerstein’s theoretical structure assumes that trade and the international division of labor, through which mercantile capital conducts unequal exchanges between centers and peripheries, would allow both the supply and development of the centers, but the historical evidence seems to break—at least in these cases—such foundations. In the theoretical field, the world-system proposal received countless criticisms that can be grouped into two main axes: (a) objections from the Marxist tradition;36 and (b) criticisms linked to the underlying methodological nationalism: the world-system would be nothing more than the interaction between various regional societies.37 Beyond the criticisms that—with justice—can be made to the tangled historicalsociological world-system, the questions that Wallerstein’s theory enlighten—that is: how did the historical process that gave rise to a worldwide system occur? and how does it produce and reproduce the difference between center and periphery?— continued to inspire and mobilize discussions. 30 Wallerstein (1991). It is important to underline that, in Wallerstein, center/periphery/semiperiphery are geographical areas of the world-system that do not remain motionless throughout history. 31 Goldthorpe (1991). 32 De Vries (1976). De Vries himself (1978) makes a fine analysis of the Dutch case, which questions Wallerstein’s historical argumentation. 33 O’Brien (1982). 34 Yun-Casalilla (2010). 35 Fragoso (2017), p. 50. 36 A good synthesis of this tradition can be found in Osorio (2015). 37 Luhmann (2007), p. 119.

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4 Luhmann’s Concept of World Society and the Necessity of Historical Reconstruction Luhmann, himself a critic of Wallerstein, a few years before (1971) had taken the first steps in the elaboration of a sociological theory for the world society. From his perspective, to affirm that the history of modern society is also the history of world society refers, in an abstract sense, to the fact that the communicative space or horizon is primarily global, being its regional limitation permanently impossible.38 Thus, unlike the so-called premodern societies, today’s society is an all-encompassing system in which all communications can be referenced to. In this sense, nothing happens (communicatively) outside of it. For each communication with capacity to form links, there is only one society; hence, unlike the autarchic-city systems of antiquity,39 modern world society is not territorially delimited but rather it molds itself to what is or is not communicated, based on the distinction between communication/no-communication. The external limit of society is then constituted by the limits of the communication itself. In system theory, it must not be inferred that this society with worldwide reach also has egalitarian development; but rather, it is a system that produces and reproduces inequalities.40 The structural development is asymmetrical, divided into centers and peripheries, in which it would or not prevail, respectively, the functional differentiation.41 At the structural and operational level of the concept of global society, the result is that “there can be only one society on earth and even in the entire communicatively accessible world”.42 Even so, in a self-describing plane, the expression of global society implies that each society (“including, retrospectively, societies in the traditional view”) builds its own world image so that the semantics of this image must be plausible and adapted to the structures of society.43 This reciprocal implication serves as a corollary that the structural evolution of the society impels changes in the semantics of the world and vice versa.44 In this sense, the world society does not present itself far away from the self-understanding of the object it indicates. In its quality of autological concept, reference is made to a series of semantics that very 38

Stichweh (2012a), Luhmann (2007), Neves (2015). Luhmann (2007), pp. 108–111; (2012), pp. 83–84. 40 Stichweh (2012a), Luhmann (2007), Neves (1992, 2015). 41 Neves (1992, 2015); Luhmann (2007). In this point, the work of Marcelo Neves are of vital importance. Through an analysis of the Brazilian case, Neves showed how within the same paradigm of systems theory the observation and description of a peripheral modernity is possible, since the center/periphery difference would be a functional distinction of modern world society, oriented primarily by the economy (Neves 1992, p. 105). In this sense, the hierarchical structuring of world society would be determined by the lack of autonomy of the political and legal systems of the periphery, compared to other social systems such as the economy (Neves 1992, p. 106). 42 Luhmann (2007), p. 117. 43 Luhmann (2007), p. 117; Luhmann (2012), p. 90. 44 Luhmann (1980). 39

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early on elaborates an understanding that relationships have reached world levels; then, for example, in the midst of the sixteenth century, after arriving in Mexico, Hernán Cortés wrote to Carlos V about the material possibilities of becoming a “monarch of the world”.45 A few years later, Francisco de Vitoria, in his Relectio de Indis (1539), promoted a universalist vision whose horizon was the whole of humanity by reconstructing the scholastic concept of roman Ius gentium. This notion maintained itself as the predominant self-description of this new reality up to the beginning of the eighteenth century.46 Although the concept of world society is central to the Luhmannian theoretical architecture,47 it is recognized within this paradigm that the implementation of the system theory program to world society (as a research object) has not been fully realized.48 Studies on the historical development of world society are a recent trend.49 In this sense, it can be affirmed that while the problem in Wallerstein lies in the internal consistency of its proposal and its analytical extension (the worldsystem is an economic system), in Luhmann the difficulty lies in the historicization of its own world society. Overcoming this difficulty means (re)building a detailed history of world society,50 which raises a complex challenge. Such challenge demands, at first, to face the obstacles and methodological problems of the so-called “historical sociology”, that is, to coherently arrange the intersections, uses, and differences of history in sociology.51

45

Cortés (2012) [1852], p. 85. Bethell (1995), pp. 33–35. 47 For the “discovery of the world society” and its theoretical implications, see Greve and Heintz (2016). 48 In this sense, Stichweh (2011) recognizes that the theoretical program of systems theory at this point is still unfinished: “since the seventies, Luhmann proposed and taught, constantly that today’s society is a world society. But this hypothesis is not born from reading The society of society, because it is a more general book about society, without its limits being very well defined, although it often says that the borders of society are identical with the limits of communications. But then you can find a separate subchapter on ‘World society’, and later another on ‘Globalization and regionalization’ that emerges that these are specific issues of a more general book on society. From this observation we can deduce the need for a correction, for a more consistent execution of the program that Luhmann announced in the 1970s. It is probably necessary to do it” (Stichweh 2011, p. 90). 49 Stichweh (2012a). 50 Stichweh (2012a). 51 What striked Luhmann as shocking, in one of his late speeches, was that there was no dialog between history and sociology: namely, the mutual isolation of hypothesis and the lack of crossconnections between these two fields (Luhmann 1994, p. 260). 46

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5 Taking History Seriously in Systems Theory The relationship between history and sociology has been a close one from the start, even if representatives of these fields are not particularly willing to accept it. This connection could be traced back to when social sciences were being established as scientific disciplines in Germany at the nineteenth Century. In this intellectual context, one of the main focuses of discussion was the variable distinction and proximity between the methodology of human sciences (Geisteswissenschaft) and that of natural sciences (Naturwissenschaft). How could a chain of causality be logically perceived and constructed in the observation of human actions? Was there possibility for the discovery of social laws based on empirical studies of societies? What role did individual agency and accident played in the overall scheme of social phenomena? How did they relate (if at all) to general structures or conditions (such as economy, religion, ideologies, etc.)? These were only some questions that directed a group of German intellectuals deeply worried about constructing a plausible epistemology and methodology for their researches in view of debates around History and social or human sciences as a whole. The so-called “method dispute” in German universities at the end of the nineteenth century, revolved around the distinction between nomothetic and idiographic sciences, that is, the classification of disciplines according to their ‘cognitive purpose’, be it the establishment of general laws (Gesetzeswissenschaften) or the comprehensiveness of an event (Ereigniswissenschaften).52 In this classification, sociology would have a nomological character, since it would seek to establish basic principles about its object (society) that could be generalized beyond an established temporal or territorial dimension. History, on the other hand, as the science of the particular, would be idiographic in the sense that it would individualize events and characters by describing them in the most detailed way possible.53 Such distinction guided the problem though the points of intersection, uses and differences between history and sociology, and was unfolding at the same time that both sought to consolidate as specific fields. Sociologists such as Max Weber54 and more recently Giddens,55 have argued about the undifferentiation of both disciplines and without a doubt the so-called “historical turn of the social sciences”56 opened the field for novel sociological, economic studies etc., in which history is shown as a fruitful analytical tool. Despite 52

Windelband (1894), p. 16. Collingwood (1952), pp. 194–206. 54 Although Fritz Ringer affirms that Weber underwent a sociological turn in the 1910s, it is not the same to say that Weber abandoned altogether his prior argumentation about the epistemological basis shared by history and sociology, but rather that his concerns changed. Ringer himself describes this as a shift from history to sociology in Ringer (2004, p. 175ss). Weber then started a strenuous work of manufacturing ideal types, tools for the use of sociologists. But his formation as a (legal) historian was not simply neglected in his late publications. 55 Giddens (1979). 56 Klein (2017). 53

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all this, some differences, mainly methodological, must be observed in order not only to respect the boundaries of each discipline, but also to construct a non-positivist theory to deal with the past and its reconstruction. This implies rescuing the distinction between nomothetic and idiographic sciences and processing it as a difference of emphasis within sociology. In this sense, Goldthorpe pays attention to the diversity of the evidences each discipline works with, and when evidences of history (sources, vestiges) are useful to the general conclusions about the social action and structures that sociologists produce. For him, the fruitful relationship between vestiges and sociological hypotheses is given by the temporal delimitation of a phenomenon that occurred in the past, that is, sociologists should turn to history only when faced with a temporarily limited object of study that has occurred in the past, and in no way attempt to prove a theory of the present using the past as has been the tonic of the so-called great historical sociology.57 From this, in a second moment, the challenge also implies tracing in the primary sources, the various available vestiges of the processes and mechanisms that led to the emergence of dynamics not territorially anchored. Developing a sociologicalhistorical research of this type makes it necessary to keep in mind the limitation of the historical source itself, consequently, sociologists will have to assume in the reconstruction of the process of globalization of society, the form of historiographic research through the construction of inferences from vestiges. Without a doubt, this requires a less orthodox posture on the part of the Luhmannians about the theory itself. This implies understanding that there is an overestimation of the formal logic of theoretical architecture.58 On the one hand, although system theory is a meta-theory of society that cannot by itself account for particular historical studies, its concepts can be useful to specific historical researches if applied reflexively and without dogmatism.59 In this sense, one way to handle primary sources with the intellectual tools—sometimes underutilized—that systems theory itself provides is, as an entry point, to observe the (semantic) self-descriptions generated by social systems in their own evolution. This implies approaching the primary sources or vestiges as scripts,60 reconstructing the conditions of possibility of emergence of a historical semantics (on the side of the historian’s profession) and the emergence of structures, mechanisms and processes (on the profession side of the sociologist).61 On the other, the theory cannot be seen

57

Goldthorpe (1991), p. 220 and further. Spode (2007). 59 Neves (2020), p. 35; Hespanha (2017), p. 10. Historians can also benefit from the use of theory, for example, by not emphasizing so much causalities but rather coincidences (according to the theory of evolution not Luhmann). For an analysis of the Luhmannian observation over the historian’s craft Cf. León (2012). 60 The idea of script is used to stress the gains in observing the fragments of semantics presented in the primary sources as part of a bigger chain, a bigger structure. 61 Luhmann (2007). 58

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as a monolith without inconsistencies, these can be revealed in historical analysis on a case-by-case basis and simultaneously help to refine the theory.62 While such enterprise must overcome the obstacle of dealing with primary sources in a critical way, that is, approaching a small spectrum of much larger historical processes that are impossible to reconstruct point by point, it must also face the fact that the reception of the system theory by historians has been unenthusiastic.63 Although, during the last fifteen years, some historians have increasingly shown interest in the system theory64—while, in some more specific fields, such as the history of religion of early modernity, the Luhmannian theory has been used for more than ten years and accepted as a valid theoretical framework among other options65—Luhmann’s theoretical architecture continues to be unpopular among historians in general. This seems to be due to three main points, first, that within social history Hans-Ulrich Wehler was definitive on the usefulness of Luhmann’s theory, describing it as not much open to debate and modifications.66 Indeed, according to Ziemann, Wehler would have indirectly—and ironically— criticized Luhmann’s notion of functional differentiation, by calling it a “historically naïve conceptual acrobatics.”67 Second, the abstract and hermetic language of system theory is undoubtedly a barrier that repels most historians in delving into it.68 And thirdly, the so-called “disappearance of the human being” whom Luhamnn placed at the environment of the social system69 is foreign to a historiography 62

Spode (2007). Becker (2004) and Ziemann (2007). 64 Spode (2007), Buskotte (2006) and Ziemann (2007). 65 Ziemann (2005). 66 Becker (2004), p. 7. 67 Ziemann (2007), p. 222. Wehler (2000), p. 267. 68 Bastías (2017). 69 Probably one of the most controversial and poorly understood points of the systems theory is the epistemological decision to distance itself from the subjectivist approach in social analysis, i.e., of those theories centered on subjects (men, actors, players, etc.) and their actions, thoughts, intentions, and intersubjective relationships. Many of the criticisms of Luhmannian theory have focused on this point (calling it epistemological anti-humanism), not only because it touches on sensitive points of sociology but also of the European philosophical tradition itself and the relevance of semantics of individuality in modern society. For Luhmann, the premise that society is made up of men represents an epistemological obstacle (in Bachelard’s sense). For him: “The “human being” (as opposed to animals) was traditionally described on the basis of distinctions (such as reason, intelligence, will, imagination, emotion, morality), received ideas that, although revised, were specified neither empirically nor in their mode of operation. These distinctions seemed to suffice for mutual clarification, but their neuro-physiological basis remained unclear. In particular, these “anthropological” concepts offer no possibility for connecting with the psychic/social distinction (. . .) it is clear that not everything that individuates the human being (if anything at all about him) belongs to society. Society does not weigh exactly as much as all human beings taken together, nor does its weight change with every birth and death (. . .) Nor would anyone seriously regard neurophysiological processes in the brain inaccessible to consciousness as societal processes” (Luhmann 2007, p. 13). This observation of the intransparecy of consciousness, which corresponds to an empirical interpretation of the conclusions of Husserl’s transcendental logic (mainly the ideas present in “Logische Untersuchungen”), paved the way to a conceptual decision of researching 63

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extremely focused, mainly, on the cast of protagonists and characters of the events.70

6 Final Considerations A historical reconstruction of the concept of world society (as well as other theoretical concepts) requires a bona fide approach between historians and system theorists. Thus, for example, by letting go of the focus on the “characters of events”, historians can obtain interesting results by using the theory as a possibility of recognizing the operations that underlie real events.71 Luhmann himself affirmed, in the 1980s, that a conciliation between the requirements of theory and concrete historical facts was possible through the adoption of a good and sufficiently abstract theory (in this case, the system theory) to deal with a complex historical research design.72 Becker, later on, developed how this connection between system theory and historical research could take form: to understand the system theory as “quarry”, from which the researcher would take only what is pertinent to his own object of study, which is only a historical fragment of society. In other words, the system theory provides heuristic elements which are useful for the historical investigational labor. But by doing this, another option is opened: that the results from individual historical researches provide feedback for theoretical reevaluations. By opening itself up to a test through the historization of its own concepts (even when this results in a greater flexibility of the latter in the face of historical evidence), the system theory not only has the possibility of unfolding some of its own blind spots, but would also, be taking seriously its own reflexivity. Currently, Legal history has shown itself as a discipline capable of developing these questions and problems, relevant both for history and for sociology. Thus, the what would be a properly social operation by taking subjectivity and intersubjectivity out of the picture. Luhmann answers this question with the concept of communication. Communication as a three-part operation that involves alter and ego, is the basic unit of the social, and its production and reproduction allows the distinction between system and environment. Communication is the boundary of the social. Leaving the subject in the environment does not mean, as is commonly understood, eliminating him. Subjects are still required for the communication to take place. The difference is that when communication emerges, it becomes independent from its author, because of the double contingency. This characteristic makes communication the only primarily social element, since once started, it does not belong to anyone else than to society. On the other hand, locating the subject in the environment is also for Luhmann a theoretical decision to take his own subjectivity seriously (Luhmann 1998). 70 Becker (2004). In this subject, it is noticeable that Tilly also points out that the belief that social behavior results from individual mental events is a pernicious and erroneous postulate in social sciences (1984, p. 11). 71 Becker (2004). In this sense, the semantic/structure distinction is undoubtedly useful, because it allows access to the self-descriptions of the various social operations. A careful reconstruction of the semantic chains, their overlaps, mismatches, etc., can reveal valuable clues about the way in which some historical events occurred. 72 Luhmann (1987).

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focus on case studies of the processes-mechanisms that drove the globalization of society as the historical reconstruction of the functional differentiation of law, as well as its implication in various global and local dynamics,73 build little by little part of the history of the world society itself, through a history of the normativities of global society.

References Bastías M (2017) Weltgesellschaft, functional differentiation, and legal system. Modernization of law in the chilean frontier (1790–1850). Archiv für Sozialgeschichte 57:187–210 Bastías M (2018) Jurisdictional autonomy and the autonomy of law: end of empire and the functional differentiation of law in 19th century Latin America. Rechtsgeschichte-Legal Hist (26):325–337 Bastías M (2020) Diversity as Paradox: Legal History and the Blind Spots of Law. Max Planck Institute for European Legal History Research Paper Series No. 2020-05 Bayly CA (2004) The birth of the modern world, 1780-1914: global connections and comparisons. Blackwell, Oxford Becker F (ed) (2004) Geschichte und systemtheorie: exemplarische fallstudien, vol 37. Frankfurt am Main, Campus Verlag Bethell L (ed) (1995) The Cambridge history of Latin America, vol 10. Cambridge University Press, Cambridge Boldt AD (2019) Leopold von Ranke: a biography. NY Press, Routledge Burke P (1980) Sociology and history. Allen & Unwin, London Buskotte F (2006) Resonanzen für Geschichte. Niklas Luhmanns Systemtheorie aus geschichtswissenschaftlicher Perspektive. Münster, Lit-Verlag Collingwood RG (1952) The idea of history. Oxford University Press, Oxford Cortés H 2012 (1852) Carta de Hernán Cortés a Carlos V. Available at http://as-sets.espapdf.com/b/ Hernan%20Cortes/Cartas%20de%20relacion%20(10018)/Cartas%20de%20relacion%20-% 20Hernan%20Cortes.pdf de Vitoria F (1539) Relectio prior de indis recenter inventis. Available at https://www.uv.es/correa/ troncal/resources/Relectio-prior-de-indis-recenter-inventisVitoria.pdf De Vries J (1976) Het Wereldmode van Wallerstein. Theoretische Geschiedenis 3:105–122 De Vries J (1978) An inquiry into the behaviour of wages in the Dutch Republic and the Southern Netherlands, 1580–1800. Acta Historiae Neerlandicae 10:79–97 Dirlik A (2002) History without a center?: Reflections on Eurocentrism. In: Fuchs E, Stuchtey B (eds) Across cultural borders: historiography in global perspective. Rowman & Littlefield Publisher, pp 247–284 Fögen MT (2005) Mit den Vokabeln der Systemtheorie. Rechtsgeschichte Legal Hist 7:209–211 Fragoso J (2017) Poderes e mercês nas conquistas americanas de Portugal (séculosXVII e XVIII): apontamentos sobre as relações centro e periferia na monarquia pluricontinental lusa. In: Fragoso J, Monteiro NG (eds) Um reino e suas repúblicas no Atlântico. Comunicações Políticas entre Portugal, Brasile Angola nos séculos XVII e XVIII.Rio de Janeiro: Civilização Brasileira, pp 49–99 Gibbon E (1990) The decline and fall of the roman empire, vol I. Encyclopaedia Britannica, Chicago Giddens A (1979) Central problems in social theory. McMillan, London

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Ringer FK (2004) Max Weber: an intellectual biography. The University of Chicago Press, Chicago Robertson W (2008) The history of the Reign of the Emperor Charles the Fifth.Vol. 1. BiblioBazaar, LLC Rüsen J (1990) Rethoric and aesthetics of history: Leopold von Ranke. Hist Theory 29(2):190–204 Skopcol T (ed) (1991) Vision and method in historical sociology. Cambridge University Press, New York Spode H (2007) Frank Becker (Hrsg.): Geschichte und Systemtheorie, Frankfurt a. M. 2004 In: VSWG VSWG, 94;3: Vierteljahrschrift für Sozial- und Wirtschaftsgeschichte Stichweh R (2011) La teoría evolucionista y la teoría de la sociedad mundial. In: Torres J, Rodríguez D (eds) La sociedad como pasión, aportes a la teoría de la sociedad de Niklas Luhmann. Universidad Iberoamericana, México DF, pp 89–108 Stichweh R (2012a) En torno a la génesis de la sociedad mundial: innovaciones y mecanismos. Revista Mad (26):1–16 Stichweh R (2012b) El concepto de sociedad mundial. Génesis y formación de estructuras de un sistema global. In: Cadenas H, Mascareño A, Urquíz A (eds) Luhmann y el legado universalista de su teoría. RIL, Santiago Tilly C (1984) Big structures, large process, huge comparisons. Russel Sage Foundation, New York Vierhaus R (1987) Leopold von Ranke: Geschichtsschreibung zwischen Wissenschaft und Kunst. Historische Zeitschrifft 244(2):285–298 Wallerstein I (1984) El moderno sistema mundial II: el mercantilismo y la consolidación de la economía-mundo europea, 1600-1750. Akal, Madrid Wallerstein I (1991) Geopolitics and geoculture: essays on the changing world-system. Cambridge University Press, Cambridge Wallerstein I (2004) Análisis del sistema mundo: una introducción. Siglo XXI, México DF Wallerstein I (2011a) El moderno sistema mundial III. Siglo XXI, México DF Wallerstein I (2011b) Historical capitalism: with capitalist civilization. Verso Trade, London Wehler HU (2000) Umbruch und Kontinuität. Essays zum 20. Jahrhundert. C. H. Beck, München Windelband W (1894) Geschichte und Naturwissenschaft. Rede zum Antritt des Rektorats der Kaiser-Wilhelms-Universität Strassburg, gehalten am 1. Mai 1894. J. H. Ed Heitz, Straßburg Yun-Casalilla B (2010) Entre mina y mercado. ¿Fue América una oportunidad perdida para la economía española? In: García D (ed) La historia sin complejos: la nueva visión del Imperio Español. Actas, Madrid, pp 204–229 Ziemann B (2005) Rezension zu: Becker, Frank (Hrsg.): Geschichte und Systemtheorie. Exemplarische Fallstudien. Frankfurt am Main 2004. ISBN 3-593-37587-7, In: H-Soz-Kult, 25.01.2005, www.hsozkult.de/publicationreview/id/reb-6168 Ziemann B (2007) The theory of functional differentiation and the history of modern society. Reflections on the reception of systems theory in recent historiography. Soziale System 13 (1–2):220–229

Nathaly Mancilla Órdenes doctoral researcher at the University of Brasília (UnB), L.L.M. at the University of Brasília, LL.B University of Chile (2013). Visiting scholar at the Institut für Rechtund Verfassungsgeschichte at the University of Vienna, Vienna, Austria, mancilla.ordenes@gmail. com Gustavo Zatelli is a doctoral researcher at the University of Brasília (UnB), L.L.M. at the University of Rio de Janeiro (UFRJ), LL.B University of Santa Catarina (2013). Visiting scholar at the Institut für Recht- und Verfassungsgeschichte at the University of Vienna, Vienna, Austria, [email protected]

The Intersystemic Rationality of Administrative Law: Reflexiveness, Structural Couplings and Environmental Observation Luís Heleno Terrinha

Contents 1 Introduction: Social Systems Theory and Administrative Legal Science . . . . . . . . . . . . . . . . . . 2 The Intersystemic Rationality of Administrative Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Identity of Intersystemic Administrative Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Reflexiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Structural Couplings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Environmental Observation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This article seeks to elaborate a description of Administrative Law in a society differentiated in autopoietic social systems. I will employ Niklas Luhmann’s social systems theory to grasp the societal dimension of Administrative Law and characterize its systemic rationality in contemporary society. My aim is to develop a sociologically informed theory that explains why this particular field of law is configured as it is today. What is at stake is the identification of the operative logic lying behind the heterogeneity of its positive manifestations. This endeavor, if successful (or convincing), promises to: generate an unified and coherent account of Administrative Law, highlighting its regulatory core features and its distinguishing identity; focus the interplay between Administrative Law and administrative power in society; complement the predominant dogmatical discourse of administrative legal science, allowing the scholar to look at Administrative Law from a different angle and engage in a re-description and reconceptualization of its main institutes and categories.

This article is based on the text of my Ph.D. dissertation published in Portuguese language. I would like to thank Diogo Lourenço and Pedro Cerqueira Gomes for insightful comments on an earlier draft. I also thank Miguel Nogueira de Brito for the invitation to join in this publication, thus affording me the opportunity to pay tribute to the inspiring Marcelo Neves. L. H. Terrinha (*) NOVA School of Law, Lisbon, Portugal e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Nogueira de Brito et al. (eds.), Law as Passion, https://doi.org/10.1007/978-3-030-63501-5_11

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My central thesis is that current Administrative Law evinces an intersystemic rationality, translated in legal configurations that aim at regulatory reflexiveness, the establishment of structural couplings and the promotion of environmental observation. Such intersystemic rationality is an answer to the functional and organizational differentiation of society in autonomous social systems, as well as to the challenges that ensue for both the Law and the Public Administration. Finally, I focus how the aforementioned configuration of Administrative Law is, on the one hand, an essential resource for administrative power to better disseminate and assert itself across society and, on the other hand, an instrument of administrative self-legitimation. I engage in a systemic and epistemic reading of democracy to still ascribe democratic quality to said legitimation.

1 Introduction: Social Systems Theory and Administrative Legal Science This article departs from the premise that both the Law and the Public Administration are to be understood as autopoietic social systems.1 While the former is a typical functional social system,2 the latter is an organizational social system.3 Correlatedly, Administrative Law must be understood as a differentiated subsystem within the Law (the legal system) specialized on a specific type of legal operations: those that are to be qualified as administrative legal operations by autopoietic legal processes themselves.4 Notwithstanding the inescapable paradox inherent to the system’s foundation,5 two elements seem to particularly concur to the differentiation of Administrative Law as a legal field: on the one hand, the existence of a specific legal object construed as Public Administration;6 on the other hand, the normative endeavor of promoting and protecting the public interest.7 Systems theory can, thus, be productively used by administrative legal science. First, it allows one to observe Administrative Law and the Public Administration as distinct autonomous systems, each with its own specific autopoiesis and systemic rationality. Such view is not common currency among European continental legal scholars, whose overwhelming normativist and dogmatical approaches tend to obliterate the

1

Generally Luhmann (1987). See Luhmann (1993), p. 30. 3 See Luhmann (2009b), pp. 389–450. 4 This is a mere adaptation of the insight that law determines what is law. See Schulte (2003), pp. 767–789. 5 See Nobles and Schiff (2006), p. 47 (footnote 40). 6 See Terrinha (2017), pp. 541 ff. 7 See Otero (2013). 2

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social system nature of the Public Administration (independently, or beyond, its legal constitution and legally ordered activity). In the typical dogmatical accounts, the Public Administration is seen exclusively from a legal point of view, thus leaving out of the picture much of what is at stake in the operations of administrative bodies and—if one accepts current critiques—actually portraying wrongly the interaction between Administrative Law and administrative bodies.8 Systems theory can then be of help since it posits the Public Administration as a separate organizational social system,9 simultaneously underlining its multi-referentiality10 (i.e., its ability to determine its operations according to different systemic rationalities, be they legal, political or economic).11 It is this plurality of references in the day-to-day work of the administrative bodies that dogmatical legal narratives have trouble accounting for, since they concentrate on just the legal reference of administrative activity. The downsides are blindness to how other factors shape the use of law by the Administration and difficulty in discussing how proposed legal solutions or interpretations interact with other systemic rationalities playing out in administrative operations.12 Nonetheless, it would be unfair to overlook the effort of the German Neue Verwaltungsrechtswissenschaft to overcome said state of affairs.13 This strand of administrative legal science puts forward a more comprehensive view of the administrative phenomenon, which, on the one hand, includes the understanding of the Administration as an information-processing system14 and, on the other hand, acknowledges the variety of normativities influencing administrative actions.15 Second, it allows one to observe Administrative Law and the Public Administration as parts of a wider societal context. In fact, they exist among other differentiated systems: they are systems in a society of systems. Hence, one has to consider not only their inner systemic domain, but also their environment. In light of the functional and organizational differentiation of society, the emphasis on the environment has two corollaries. On the one hand, in line with more recent research, it pays added attention to the relations among systems (instead of simply focusing on operative closure) and to how each system engages with what lies outside its borders (even if reflexively).16 On the other hand, it underlines how Administrative Law and the

8

See Pöcker (2007) and Schröder (2007). See Badura (1970), pp. 18–22; Männle (2011), p. 56. 10 Männle (2011), p. 166. See, also, Teubner (1991), p. 134. On the systemic implications of the aforementioned multi-referentiality, see Kneer (2001), pp. 407–428; Kieserling (2005), pp. 433–436. 11 See Hejl (1982), p. 96. 12 Avoiding those downsides in American legal scholarship, see Vermeule (2016), pp. 56–86. 13 See the three volumes of Hoffmann-Riem et al. (2012). 14 See Scherzberg (2000a), pp. 79–80; Scherzberg (2000b), pp. 195–223. 15 See Vesting (2008), p. 248. 16 See Febbrajo (2013a), pp. 1–2, contrasting a “functionalism of distinctions” to a “functionalism of links”. 9

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Public Administration operate in a context of knowledge fragmentation and pluralization. Indeed, that is the case in a society differentiated in autopoietic and selforganized systems, developing in self-referential manner and generating their own internal complexity. Systems self-produce information according to their own criteria and rules, notwithstanding cognitive irritations and perturbations among systems. Ultimately, then, there is autopoietically no way of performing a direct and integral transfer of information from one system to another.17 Thus, risk, uncertainty and ignorance (or opaqueness among systems) are inherent to a functionally differentiated society.18 All these issues have been extensively captured and described by that strand of administrative legal science that accentuates the cognitive dimension of the Public Administration.19 This literature highlights how the Administration depends on societally different sources of information to carry out its activity.20 In turn, that points to the essentially informational nature of its operations,21 which are irreducibly information-gathering and knowledge-processing.22 Unsurprisingly, the legal scholar’s attention turns to the administrative means of generating the necessary and convenient information and knowledge.23 Administrative law is thereby envisioned has having the role of promoting, configuring and supporting the Administration in fulfilling its cognitive needs, providing legal instruments, mechanisms and procedures which contribute to its operations’ success. Moreover, given the inability of the Administration to be an omniscient system in a context of social differentiation and the societal multiplication and rapid evolution of the body of knowledge available, it is only natural for the Administration—as an autopoietic system among autopoietic systems—to develop communicative, interactive and connective features.24 Systemically, the reduction of the informational asymmetry between the Administration and other systems25 depends decisively on the establishment of linkages and relations between them,26 so as to ensure either the circulation of information (to be productively used by the Administration) or a cooperative and collaborative exercise of the Administration’s function (in order to pool the various resources of other systems and productively use them in attaining administrative goals). Once again, German legal scholarship has pinpointed the emergence of an Informational Administrative Law, with both theoretical and practical-positive

17

See Willke (2001), pp. 89–90. See Willke (2002), p. 35. 19 See van de Donk and Snellen (1998), pp. 3–19; Lenk (2000), pp. 59–99; Voßkuhle (2008a), pp. 13–32. 20 See Schuppert (2008), pp. 259–303. 21 See Vesting (2012). 22 See Lenk (2000), p. 92; Voßkuhle (2008b), p. 645. 23 See Vesting (2012), para 9. 24 See Vesting (2012), para 53. 25 See Trute (2010), p. 23. 26 See Stoll (2008), pp. 34–49; Vesting (2012), para 53. 18

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dimensions.27 The latest noteworthy work in this regard is that authored by Ino Augsberg, who resorts to the aforementioned idea not only as a way of scientifically reimagining administrative legal science in light of the systemic nature and societal context of both the Administration and Administrative Law, but also as a way of apprehending and systematically ordering a set of administrative legal rules and institutes which serve different cognitive purposes in connection with the Administration’s function.28 This new field, according to Augsberg, occupies itself of rules that focus on the information good in the administrative setting and for administrative purposes, namely caring for the production of knowledge, the circulation of knowledge, the reception of specialized knowledge, the distribution of knowledge and the management of ignorance. More concretely, the positive informational administrative law seems to include the legal discipline of matters such as data protection,29 informational relations within and between public entities,30 informative actions by public entities,31 or informational relations between citizens and between these and public entities.32 Third, it allows one to better grasp the regulatory problem of Administrative Law in society, concerning both the Public Administration and the other systems that may come within its rules’ purview. The issue is how one autonomous system (Law) regulates other autonomous systems in ways that are respectful of their autopoietic integrity.33 My thesis is that most regulatory features of contemporary Administrative Law, notwithstanding their heterogeneity, are traceable to the need of dealing with social differentiation and ensuring the compatibilization between systems. Indeed, most regulatory techniques and strategies are best understood as ways for Administrative Law to take into account the autonomy of its addressees and engage in enhancing the ability of other systems to consider their own environment. Accordingly, Administrative Law also plays a role of intermediating between systems, structuring their relations and linkages and making them more responsive to societal transformation. Relatedly, the legal configuration that Administrative Law has given itself is elucidative of the role Law plays in supporting, disseminating and legitimating the exercise of administrative power in society.34 This connects with the advantages arising out of a second-codification of power in law.35 The narrative that I will present about the adaptation of Administrative Law to the systemic differentiation of society (through the development of an intersystemic rationality) can be read as

27

See Vesting (2012), para 4 ff. Augsberg (2014). 29 See Albers (2012). 30 See Holznagel (2012). 31 See Feik (2007). 32 See Gusy (2012). 33 See Willke (1987), pp. 6–9. 34 See Thornhill (2008), p. 172; Thornhill (2011a), pp. 145–146. 35 See Ashenden (2006), pp. 127–144; Di Fabio (2012), pp. 63–78. 28

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partially encompassing a concomitant adaptation of administrative power. Thus, the here focused traits of an Intersystemic Administrative Law may be taken to also suggest corresponding ways in which administrative power reinvented itself to be more effective and pervasive across society.36 In such (slightly more instrumental) reading, Administrative Law, while helping the Administration to calibrate its borders and inclusivity, concurs to structure the relation between the Administration and its environment in a fashion which is ultimately beneficial to the success of administrative operations.37 Administrative legal categories, institutes and rules thus appear as serving the management and deployment of an intelligent administrative power (i.e., able, with the support of the law, to account for the autopoietic nature of much of its addressees), therefore minimizing resistance in favor of the Administration’s apparatus.38 Indeed, it becomes possible to say that the Public Administration finds in Administrative Law—and in the compliance with legal determinations—an instrument through which it can not only generalize, transmit and apply its power, but also generate its own legitimation.39 Thus, Administrative Law appears as an enabling and legitimating device.40 In sum, Administrative Law is auxiliary to the administrative operativity, to the diffusion of administrative communications across society, and to the potentiation of the social acceptability of administrative decisions.41

2 The Intersystemic Rationality of Administrative Law The thesis advanced in this article is that contemporary Administrative Law understands itself as intersystemic law.42 While this section aims at shedding some light on such concept, the following ones will tease out what it means in the administrative legal realm. The theoretical focus on the operative closure of social systems (so as to observe and describe the emergence of differentiated spheres of meaning) should not obliterate a more relational systemic view.43 It seems defensible to consider that Luhmann’s theory already suggests a systemic mode of being that could be characterized as intersystemic.44 That stems, first,

36

See Clam (2006), pp. 145–162; Thornhill (2011b), pp. 16–19. See King and Thornhill (2003), p. 179. 38 See Loughlin (2013), pp. 11–24. 39 See Di Fabio (2012), p. 66. Also, previously, Machado (1993), p. 426. 40 See Luhmann (1993), p. 136. 41 See Terrinha (2017), pp. 1040–1041. 42 See the reference to intersystemic relations in Willke (1983), p. 76. More recently, see Kjaer (2012), pp. 159–175. 43 See Nelken (1988), p. 208; Nassehi (2003), pp. 14 ff. 44 See Luhmann (1974), p. 58. 37

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from the fact that the environment is co-constitutive of any system: systemic operations are always operations in an environment (which, in society, is precisely composed of other differentiated systems).45 Second, the operative closure of systems cannot be thought of independently of their cognitive openness.46 Third, systems are interconnected namely through structural couplings, which channel cognitive irritations between them and contribute to their evolution.47 Finally, communication is something common to all systems, thus pointing to the eventual pluri-systemic relevance of the same communicative event and, henceforth, to the possibility of communicative interlinkages.48 Accordingly, the intersystemic focus is no stranger to social systems theory,49 even though one must acknowledge that it slightly displaces (or presumes as antecedent) the emphasis on the internal operativity of systems (i.e., the question of how they constitute themselves as systems) in favor of a broader view highlighting their interconnections and interdependences.50 The intersystemic outlook is concerned with the relationships among systems (with how each one observes the leading difference used by others in their autopoietic self-reproduction),51 meaning that, beyond function, attention is also paid to their performances (Leistungen).52 What matters is how systems put their complexity to each other’s service so as to mutually foster each one’s operations.53 This explains, then, why this article is not primarily devoting itself to observe Administrative Law as a system (something which would tilt the discourse towards the elements, relations and structures that constitute a differentiated realm of administrative legal meaning). Instead, it assumes Administrative Law qua system (within the legal system) and seeks to observe its relations with other systems. The here pursued interpretation of administrative legal rules, categories and institutes will thus aim at underscoring either how they represent ways of Administrative Law taking into consideration the autonomy of the systems in its environment, or ways of Administrative Law promoting fruitful interconnections between systems and channeling irritations between them, or still ways of Administrative Law increasing the alterity and responsiveness of other systems to their own environments to further increase intersystemic compatibility. The specific intersystemic competence of Law could be advocated for on several grounds.

45

Augsberg (2014), p. 293. Luhmann (1988), p. 335. 47 See Simsa (2002), pp. 149–170. 48 See Teubner (1989), pp. 104–111. 49 Willke (1996), p. 8. 50 See Schimank (2007), p. 150; Vesting (2011), pp. 34 and 41; Augsberg (2013), p. 24. 51 See Chanos (2003), pp. 684–687. 52 See Luhmann (1997), p. 757. 53 See Nobles and Schiff (2013), p. 224. 46

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One of them recovers an earlier Luhmann who referred to Law as a “structure” of society which reduces complexity in favor of other systems.54 This idea resonates in Edelman and Suchman’s description of Law as a regulatory and constitutive environment of organizations, providing meaning, categories and forms that concur to support and promote the operations of organizations.55 Another ground underscores the special responsibility of Law for the integrity of the functional differentiation of society, curbing negative externalities arising out of the cyclopic vision of systems that could disruptively affect the current evolutionary stage of social differentiation.56 The description of fundamental rights as a societal institution that preserves the integrity of the borders between systems fits said concern.57 More recently, Teubner’s societal constitutionalism also highlights this special role of Law since it emphasizes the entanglement of Law’s reflexivity with other systems’ reflexivity (which substantiates his notion of constitutionalization).58 The purpose is not only one of supporting and securing that other system’s differentiation and autopoiesis, but also one of legally taming self- and hetero-disruptive operations.59 A last ground underlines Law’s ability to promote and structure relationships between systems, interconnecting them via legal categories, instruments and procedures. For example, Wielsch’s insightful “epistemic analysis” puts forward an “ecologic rationality of Law” focused on the needs of its environment and on the importance of legally easing the circulation of decentralized cognitive resources among systems.60 All in all, a self-description of Law emerges focused on how this realm must evince a stronger awareness of its relation to its own environment,61 act in structuring and facilitating intersystemic linkages,62 support the operations of other rationalities in society63 and contribute to avoid systemic crisis arising out of the autopoietic “hitting the bottom” inbuilt tendency.64 Additionally, Law must not

54

See Luhmann (2008), pp. 132 ff. Somewhat along the same lines, see Kjaer (2011), p. 401. See Edelman and Suchman (1997), pp. 479–515. 56 See Willke, Dystopia, p. 248. 57 See Luhmann (2009d). 58 See Teubner (2012), pp. 159–161. 59 Teubner (2012), pp. 161–165. 60 See Wielsch (2009), pp. 67–77. See, also, Preuß (2011), p. 506. 61 See Teubner (1989), p. 29. 62 See Sand (2009), pp. 871–886. 63 See Philippopoulos-Mihalopoulos (2010), pp. 69–70: “The legal system’s function is less to do with law and more to do with enabling other system’s function to carry on their autopoiesis, by including them all in the form of external reference of the legal system”. 64 Teubner (2011), pp. 9 ff. 55

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only learn from its environment (which some have coined as a movement of cognitivization),65 but also promote other systems’ learning abilities,66 so that reasonable levels of systemic integration are guaranteed through intersystemically motivated self-adaptation and self-evolution.67 For Administrative Law, in particular, a description is articulated that accentuates its self-understanding as a system among systems with a vocation to specially answer the needs of another autonomous system, the Administration. Accordingly, differently from the more typical dogmatical narrative emphasizing the role of Law in constraining and controlling administrative actions, this reading points to its constitutive role in converting administrative power into administrative legal power, with all the ensuing operative advantages for the Public Administration. Administrative Law is an important administrative resource, aiding the Public Administration in executing its function of preparing collectively binding decisions and pursuing whatever the political system defines as public interest. It does so, namely, by providing structured legal forms of acting, by designing decision-making procedures, by channeling cognitive irritations to the Public Administration through legal categories (for example, subjective rights), or by making the Public Administration more responsive and sensitive to both the demands of its environment and the impact of its own decisions. The aforementioned intersystemic rationality of Administrative Law has essentially three core dimensions: reflexiveness, structural couplings and environmental observation. The first dimension concerns the consideration and guarantee of the integrity of systemically differentiated realms, which for Administrative Law encompasses a double-edged mission. On the one hand, Administrative Law is to be configured, programmatically and regulatorily, so as to reduce the chances of itself producing negative externalities on other systems, avoid a disruptive overextension of its operativity,68 and generate internal models of the environment which account for and accommodate the existence of other autonomous systems.69 This pertains, especially, to regulatory configurations that consider the autopoietic nature of the Public Administration. On the other hand, Administrative Law is also to be configured in ways that impede and minimize the possibilities of negative externalities produced by other systems on their own environments.70 This pertains to regulatory configurations that seek to establish the relation between the Public Administration and other autonomous systems in increasingly paritary and mutually respecting terms. In sum, legally reflexive strategies consist in self-limitation of systems to

65

See Renner (2011), pp. 93–111; Febbrajo (2013b), pp. 51–64. See Ladeur (2000a), pp. 197–200. 67 See Schimank (2005), p. 190. 68 See how Otero (2013), pp. 152–153, refers an intrinsic imperialist and expansive vocation of Administrative Law. 69 See Febbrajo (2013b), p. 62. 70 See Ladeur (2000b), p. 231. 66

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avoid the destructive growth of their operations, something which, to quote Teubner, gives shape to a “principle of public responsibility of the social system”.71 The second dimension underlines the interlinking ability of Administrative Law as means of establishing structural couplings between different autonomous systems (namely between the Public Administration and other realms),72 so as to promote their cognitive openness to each other and the flow of irritative signals.73 That eases the circulation of data among systems and the systemic self-constitution of relevant information. Simultaneously, it concurs to the self-transformation and self-adaption of systems.74 Interlinkages are particularly important, for example, in circumstances of cognitive need by administrative bodies, given the informational asymmetry and the fragmentation of knowledge in society.75 The third and last dimension cares for the observation of the environment by systems.76 That is, once again, also double-edged for Administrative Law. On the one hand, Administrative Law must make itself able, through the configuration and design of its programs, to capture and process legally pertinent changes in the environment. On the other hand, Administrative Law must lead other systems (namely, the Public Administration) to be responsive to whatever happens outside their borders.77 The aim is to strengthen the chances of the environment finding resonance in the system, thereby inducing variation in the operations of the latter in a way that fosters the execution of its function and its inter-system compatibility.78 On a final note, it bears notice how the proposed intersystemic description of Administrative Law does not go without some commonalities with the theory of transconstitutionalism developed by Marcelo Neves. In fact, he explains how transconstitutionalism is concerned not only with the emergence of a constitutional transversal rationality (positing a dialogue between legal orders, the openness for reciprocal learning, and an alterity-based construction of identity), but also with the avoidance of destructive tendencies between different normative orders. These are, at its core, also pervasive aspects in the intersystemic administrative law, albeit with different configurations and goals. As it will become apparent, the reflexiveness, structural couplings and environmental observation on which intersystemic administrative law rests, support a certain degree of transversality: either because different normativities and systemic operativities are considered, or because entanglements among different systems are promoted, or finally because inter-system learning and adaptation are simply favored. The problems faced by constitutionalism and

71

Teubner (2011), p. 32. See Schmidt-Aßmann (2006), p. 48. 73 See Preuß (2011), p. 507. 74 See Heller (1988), p. 297. 75 See Augsberg (2014), pp. 18 ff. 76 See Wielsch (2009), p. 73. 77 See, generally, Willke (1996), pp. 74–75, especially when referring to the need of institutes promoting the self-enlightenment of external systemic effects. 78 On the concept of “learning Law” (lernendes Recht), see Pöcker (2007), p. 79. 72

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administrative law (as well as the actors involved) may be different, but the strategies to deal with the social differentiation of society run along the same lines.79

3 The Identity of Intersystemic Administrative Law 3.1

Reflexiveness

An autonomous system should be able to reflect itself as part of a broader societal spectrum composed of a plurality of autonomous systems. It has to internalize that it inhabits society with other self-referential and operatively closed systems,80 for whom it should be an adequate environment.81 Admittedly, the hope is that any given system makes operative selections that maximize its inter-system compatibility.82 The school of reflexive law, notably advanced by Gunther Teubner and Helmut Willke, translates said insight into the legal realm.83 It seeks to enhance the reflexive capacities of Law, shaping legal structures and programs based on the fact that a relation between two autonomous systems underlies legal regulation.84 In turn, the autonomy of both regulator and regulatee postulates a rejection of any legal causallinear hetero-determination of other systems.85 Indeed, the regulated system, in light of its internal complexity, will process the regulatory signal according to its own criteria of relevance.86 Accordingly, reflexive regulation is a mode of regulation which considers both the operative recursiveness of the regulated system and the horizontal parity between systems (acentrism).87 Unsurprisingly, reflexive law favors forms of “indirect intervention” or “contextual control”, to detriment of more hierarchically inspired or command-and-control strategies.88 Administrative Law, in particular, then faces the question of how to regulate given that it is itself an autonomous system aiming at other autonomous systems.89 This question has two main dimensions: one concerning the administrative legal consideration of the Public Administration; the other concerning the administrative

79

See Neves (2017), pp. 267–312; Neves (2014), pp. 201–232. See Luhmann (2009a), pp. 89–127. 81 See Willke (2006), p. 100. 82 Willke (2006), pp. 100–101. 83 See Teubner (1983), pp. 239–285; Willke (1987), pp. 3 ff. 84 See Teubner (1989), p. 87; Willke (1988), pp. 280–298. 85 See Lange (1998), pp. 449–471; Preuß (1999), pp. 126–132. 86 See Teubner (1989), pp. 88–90. 87 See Teubner (1989), p. 96. 88 See Teubner (1984), pp. 109–149. 89 See Febbrajo and Teubner (1992), pp. 3–16. 80

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legal consideration of other autonomous systems that may come within the rules purview (generally referred to as private parties).90 In the more direct relationship between Administrative Law and the Public Administration, Law’s reflexiveness has an immediate impact on how we conceptualize the principle of administrative legality. Albeit under heavy critique today, more traditional dogmatical accounts have described legality predominantly in hierarchical terms, presuming or implying the societal primacy of Law over the Administration and the capacity of the former to causally hetero-determine the operations of the latter.91 A systems theory inspired view, however, suggests an understanding that integrates the systemic nature of both the Law and the Administration, as well as the core autopoietic tenets. Thus, the principle of administrative legality has to be seen as the meeting point between the operative autonomy of the Administration and its legal heteronomous programming. That is why I have interpreted the principle of administrative legality as establishing an intersystemic relation between politics, the Law and the Administration. In this reading, administrative legality represents an intersection between the Legislator (itself a structural coupling between politics and law) and the Administration.92 This reframes the dynamics of administrative legality in communicative terms—similarly to Vesting and Rubin—, so that the Law appears as sending a communicative signal or making a communicative proposal to the Administration, subject to further processing by the operative network of the latter (without being totally controllable by the former).93 Accordingly, the principle of administrative legality is hereby re-envisioned as administrative self-bindingness to legal hetero-bindingness.94 Such administrative self-bindingness to legality is motivated by the advantages brought by the conversion or codification of administrative operations in the medium of law.95 These insights into the principle of legality favor new approaches to classic topics of administrative legal science. On the one hand, the so-called informal administrative action can be apprehended as a sort of administrative action that does not code itself in the medium of law, so that no intersystemic relation is established between Law and the Public Administration.96 Hence, a pure administrative character of administrative operations is revealed. This is problematic for dogmatical narratives precisely because they can only see the legal(ized) Public Administration.97 But a systems theory inspired view,

90

See Terrinha (2017), pp. 533 ff. Also Trute (1996), pp. 950–964. See Dreier (1991), pp. 125 ff.; Sordi (2008), pp. 1–28. For an illuminating critique also Leisner (2001). 92 Terrinha (2017), pp. 607–608. See also Dreier (1991), p. 211; Di Fabio (2012), pp. 63–78. 93 See Rubin (2005), pp. 56 ff.; Vesting (2012), para 34. Accord Scherzberg (2008), p. 865. 94 See Otero (2003), pp. 701–703; Vesting (2012), para 33. Similarly, Dreier (1991), pp. 163 ff. 95 See Terrinha (2017), pp. 611–612. 96 Terrinha (2017), pp. 612–620. See also Bohne (1981), pp. 119 ff. 97 See Möllers (2002), pp. 22–61 (35–36). 91

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which highlights the autonomy of both the Law and the Public Administration, explains more easily the lack of direct legal effects produced by informal administrative actions. The same view also manages to account for situations in which the Law is sensitive to administrative informality, possibly trying to establish limitations aimed at avoiding disruptive conflicts within the multi-referentiality of the Public Administration.98 That would be the case whenever non-legal references used by the Administration systematically clash with whatever is legally prescribed. Accordingly, it is intuitive to expect a reaction from the Law if informality is overtly used in the administrative realm to subvert, and escape to, legal demands.99 On the other hand, the intersystemic perspective allows one to theorize administrative discretion in connection with the social differentiation of society. In fact, Law acknowledges the systemic autonomy of the Public Administration by designing programmatic structures that either rely on open textured language or merely frame various possible courses of action that are left to administrative selection.100 These strategies create room for a—more or less wide-ranging—operationalization of the legal normative program at the administrative level.101 Thus, Administrative Law evinces its reflexiveness by promoting and securing a productive interaction between legislation and administrative rationality, ensuring that the Public Administration’s autonomy and self-direction bear on the meaning or effects of legal rules.102 Accordingly, it is more than reasonable to ascribe a specific value to normative indeterminacy,103 at least with the dogmatical consequence of refusing a preference for necessarily stricter formulations.104 Such value will be all the more noticeable whenever the systemic and institutional characteristics of the Administration—in terms of resources, cognitive capabilities, and ability to engage in cooperative or collaborative endeavors—reveal themselves as crucial to the fulfillment of public tasks.105 Thus, legislative drafting favoring legal normative indeterminacy or administrative autonomy, in general, may be a vehicle to increase the chances of effectiveness of the legal program.106 Relatedly, administrative autonomy vis-à-vis the legislator ties with autonomy vis-à-vis the courts. In fact, it is sensible to assume that the open-ended character of legislative provisions (requiring densification and concretization by administrative bodies) should be respected, as such, by judges.107 Once again, the differentiation of the judiciary and the Public Administration, as well as its distinct systemic and

98

Terrinha (2017), pp. 621–623. See Otero (2003), pp. 916–918; Schmidt-Aßmann (2006), p. 351; Fehling (2012), para 67 ff. 100 See Dreier (1992), pp. 137–156; Hoffmann-Riem (2012a), para 1. 101 See Franzius (2012), para 18–19. 102 See Jestaedt (2010), p. 334. 103 Endicott (2011), pp. 14–30. 104 Schmidt-Aßmann (2013), p. 41. 105 See Haack (2008), pp. 43–78. 106 See Hoffmann-Riem (2012a), para 52; Endicott (2011), pp. 26–28. 107 See Hoffmann-Riem (2012a), para 85 ff. 99

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institutional logics and characteristics, speak for a self-restriction of the courts when reviewing decisions that, due to their underlying complexity, policy implications or vagueness of the legislative mandate, could not have been properly adopted other than by administrative bodies.108 The aforementioned intersystemic perspective brings to the forefront, more generally, a shift in Administrative Law’s profile: it becomes a prospective, enabling and activity-oriented law, rather than a merely limiting and controlling one.109 For administrative legal science, the intersystemic lens widens the scope of issues considered, namely adding the non-legal criteria that influence administrative activity110 and the concrete effects of administrative decisions.111 As highlighted by Scherzberg, scholars should acknowledge, and work with, a comprehensive global rationality of the Administration (in line with its multi-referentiality).112 Otherwise, they will not only have a very partial view of their own object, but—more importantly—they will be blind to the interplay of administrative references in administrative decision-making (for example, how political or economic criteria affect and shape the use of law by the Public Administration). These concerns match Vesting’s “heterarchical concept” of Administrative Law.113 Methodologically, unlike the model in which administrative bodies were taken as merely executing a prior rule (as a subordinated automatous),114 the intersystemic view obviously emphasizes their role in generating the law that they themselves apply. Indeed, what becomes apparent is that the meaning of administrative legal rules is constitutively dependent from the Public Administration’s operativity,115 so that the conception which sees such meaning as completely and heteronomously posited by the legislator must be rejected. Accordingly, what is usually labeled as the “political” character of the Public Administration’s activity—in contrast with the wrongly presupposed mechanicity of legal application—is, in fact, still administrative in nature,116 for the carrying out of administrative tasks unavoidably includes a legally generative dimension pertaining to the concretization and densification of legal rules.117 The reflexiveness of Administrative Law extends, however, to other systems in society.

108

See Otero (2003), p. 289; Augsberg (2014), pp. 20–21; Vermeule (2016), pp. 123–124. Schmidt-Aßmann (2006), pp. 17–18; Franzius (2012), para 38. 110 See Franzius (2012), para 38; Jestaedt (2010), p. 329; Schoch (2008), pp. 543–574. 111 Hoffmann-Riem (2012a), para 13. 112 Scherzberg (2008), p. 842. Accord Hoffmann-Riem (2012a), para 36. 113 Vesting (2008), p. 248. 114 Critically, Leisner (2002), pp. 34 ff. 115 See Trute (2008), pp. 211–232. 116 Terrinha (2017), pp. 729–731. 117 See Otero (2003), p. 701; Franzius (2012), para 87. 109

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One the one hand, that is acutely demonstrated by variations on the so-called modes of fulfillment of administrative tasks.118 Full public responsibility was followed by privatization waves, which in turn were followed by public-private collaboration and cooperation across several domains.119 The pursuit of the public interest became a shared endeavor of both public and private entities.120 Administrative Law not only enabled said evolution, but it also structured the increasingly intense and strategic relationship between the Public Administration and the private actors or organizations in its environment.121 Against such background, it can be no wonder, first, that the once proscribed122 contract became a predominant, if not preferential, means of performing administrative missions123 and that, second, the concept of “administrative legal relationship” rose to prominence, accentuating the formal-structural parity between the Administration and the private parties to detriment of the classical hierarchical view.124 Accordingly, Administrative Law has instrumentally aided the Public Administration’s boundaries redefinition and increased intersystemic openness to contributes of private parties.125 Concomitantly, it has helped the Administration to calibrate and regulate the inclusivity of its power.126 In fact, the externalization and the added role of private parties in the performance of administrative tasks has to be analyzed in conjunction with the societal challenges faced by the Administration, both in terms of social differentiation and complexity of its environment’s demands.127 Ultimately, however, the new modes of pursuing the public interest support the autopoiesis of the Administration and may well actually underpin the effectiveness and broader dissemination of its power across society.128 On the other hand, reflexiveness also pervades phenomena such as the “public regulation of private self-regulation”,129 the normative production by private parties,130 the public induced private commitment to goals (substituting heteronomous regulation),131 or the modes of private control and supervision (both as private

118

See Schulze-Fielitz (2012), para 1–6. See Terrinha (2017), pp. 733 ff. 120 For example, Voßkuhle (2012), para 59, even alludes to the “mobilization of the endogenous potential of society”. 121 See Chevallier (2008), p. 64. 122 See Bauer (2012), para 1 ff. 123 See Cotza (2007), p. 109; Otero (2003), pp. 838–839. 124 See Machete (2007) and de Moncada (2009). 125 See Terrinha (2017), pp. 742–743; Schulze-Fielitz (2012), para 70–74. 126 I am inspired here by the work of Thornhill (2011b). 127 See Ladeur (2000b), p. 228. 128 Again, I am inspired here by the work of Thornhill (2011b). 129 See Grimm (2001), pp. 9–20; Schmidt-Aßmann (2001), pp. 253–271; Thoma (2008). 130 See Gonçalves (2005), pp. 695 ff.; Höfling (2008), pp. 45–59. 131 See Eifert (2012), para 73 ff. 119

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self-control and control performed by private parties).132 In all of these cases, and for different reasons, Administrative Law and the Public Administration either retreat in terms of regulatory scope or regulate in a way that accommodates for, and relies on, the autonomous operations of other systems in their environment. Along the same lines, the design of optative regulation (allowing the rationality of the regulated system to select among different normative consequences)133 or of legal instruments inclusive of other systemic references (for example, the economic reference in incentives for the creation of a CO2 emissions market) is also imbued with reflexiveness.134 These developments reveal an intelligent Administrative Law that has adapted itself to what it purports to be the relevance criteria of its addressees in order to strengthen the likelihood of success in the implementation of its determinations and purposes.135 In sum, through reflexiveness, Administrative Law has opened itself to consider the specific and differentiated systemic logics of its addressees, designing programmatic structures that respect and rely on the self-direction of autonomous systems.136

3.2

Structural Couplings

Another dimension of the intersystemic rationality of contemporary Administrative Law consists in providing for the establishment of structural couplings between the Public Administration and other systems. One of the more pertinent categories in this regard is that of the administrative procedure, which can be viewed as a legally designed space of intersystemic communication.137 Different systemic rationalities are able to converge in it without experiencing disruption to the integrity of their autopoiesis. Accordingly, the administrative procedure not only serves the connective and interactive needs of the Public Administration, but it also fosters intersystemic cooperation and harmonization.138 The aforementioned view is in line with the now rather common understanding of the communicative and relational nature of the administrative procedure,139 in turn

132

See Di Fabio (1997), p. 243; Huber (2012), para 188. See Schmidt-Preuß (1997), pp. 185–187. 134 See Terrinha (2017), pp. 775–782. Also Sacksofsky (2012). 135 See Hoffmann-Riem (2012b), para 25. 136 See Pitschas (1990), pp. 275 ff. 137 See Febbrajo (2013a), p. 4 (“[. . .] procedures appear [. . .] as conventional buffer zones where law is allowed to «learn» from the intersection of internal and external legal cultures and from the intersection of social actors and legal professionals”). Also Pitschas (1990), pp. 90–92. 138 See Nigro (1980), pp. 273–274; Pitschas (1990), pp. 345–347. 139 See Pitschas (1990), p. 84; Barnes (2008), pp. 255–280; Rossen-Stadtfeld (2012), para 43. 133

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accompanied by the general trend of its dogmatical revalorization as a central category of Administrative Law.140 Said trend is easier to comprehend in light of the increased normative indeterminacy of the legislation addressed to the Public Administration, associated with the multiplication of discretionary administrative decisions substantively (content-wise) unreviewable by the courts.141 Procedural rules, thus, tend to compensate for the absence of more substantive legal guidelines orienting administrative operations.142 Even the categorical distinction between substantive and procedural law loses much of its appeal, for the meaning of the law to be applied by the Public Administration is generated in, and through, the decision-making procedure.143 The intersystemic function of the administrative procedure, interlinking the Public Administration with a variety of other entities, is all the more critical given the complexity and knowledge-intensive character of the Administration’s tasks.144 In this regard, the procedure assumes the cognitive function of providing the administrative decision-maker with the information necessary to pursue its missions.145 Moreover, as a space of intersystemic communication, the procedure attenuates the informational asymmetry between the Administration and other systems by providing a forum in which a vast array of data may be shared and circulated.146 Accordingly, it can be understood as a legal instrument that ensures the connection of the Administration to the “cognitive infrastructure of society”.147 This highlights the relevance of the rules pertaining to the participation in the procedure, since the scope and success of intersystemic communication will greatly depend on them.148 Participation in the administrative procedure not only enhances its cognitive potential,149 but it also reinforces the inclusion, consideration and influence administratively afforded to private parties.150 Hence, while the Public Administration enjoys the benefits of more data, better decisions and improved rationality, private parties enjoy the benefits of voicing their concerns and irritating administrative operations.151 Relatedly, the administrative procedure can be taken as a space of administrative democracy, since it enables the Public Administration to engage in communicative relations with its public.152 This provides for an

140

Pitschas (1990), p. 17. See also da Silva (2003), pp. 302 ff. See Schmidt-Aßmann (1984), pp. 1–34. 142 See Fehling (2011), p. 284. Also Quabeck (2010). 143 Pitschas (1990), p. 162; Möllers (2008), pp. 502–503. 144 See Quabeck (2010), p. 192. 145 See Wollenschläger (2009). 146 See Ladeur (1995), pp. 65–66. 147 See Ladeur (2011), p. 149. 148 See Kaiser (2009), pp. 136 ff. 149 See Rossen-Stadtfeld (2012), para 1. 150 See Chettiparamb (2007), pp. 263–281. 151 See Glaeser (1984), p. 93. 152 See Mclaverty (2011), pp. 402–418. 141

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interactively obtained legitimation of administrative decisions,153 subsumed by some under a “decentralized-responsive model of democracy”.154 Dogmatically, the emphasis on the functional and systemic importance of procedural rules and procedural participation may motivate stricter sanctions on their violation by administrative bodies, thereby rejecting the still dominant tendency for attaching weaker legal strength to procedural requirements.155 Nonetheless, Administrative Law establishes further structural couplings through other legal institutes. The contract allows, especially, for the coupling between the Public Administration and the organizations of the economic system. As previously underlined, the contract has an inbuilt paritary nature and can be used as a vehicle for including private parties in the performance of administrative tasks,156 while leaving room for the self-direction of the actors involved.157 It is, thus, a novel instrument of intersystemic communication,158 generating obligations between different social systems.159 Concomitantly, it strengthens the reciprocal responsiveness and adaption between the contractually interlinked systems.160 The resort to scientific experts in administrative decision-making procedures,161 as well as the references to pertinent scientific information in legal rules (which I term intersystemic normative references),162 are ways of coupling the Law and the Administration with the scientific system.163 They enable the consideration of scientific data and insights in the resolution of legal and administrative problems,164 something crucial whenever neither the legal system nor the administrative system possess the relevant knowledge for their operations. In particular, the general reference in legal rules to scientific standards or to the best available techniques are especially interesting from a systems theory point of view, for they depend on a legal construction of their meaning which may not coincide with the corresponding scientific construction: the scientific data is integrated in legal operations and

153

See, generally, Luhmann (1983). Also Luhmann (2009c), pp. 159–168; Duarte (1996), pp. 159–164; Black (2000), p. 614. 154 See Quabeck (2010), pp. 186–188. 155 See Terrinha (2017), pp. 900–916. 156 See Bauer (2012), para 12–14. 157 See Bauer (2012), para 98. 158 See Andersen (2013), pp. 129–154; Amstutz (2013), p. 176. 159 See Andersen (2008), p. 84. 160 See, again, Andersen (2013), p. 136; Amstutz (2013), p. 178. 161 See Terrinha (2017), pp. 938 ff. And also Nussberger (2004), pp. 282–207. 162 See Terrinha (2017), pp. 924 ff. 163 See Ladeur (1995), p. 84; Schulte (2008), pp. 259–269 (266); Augsberg (2014), p. 264. 164 See Plagemann and Tietzsch (1980), p. 20.

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submitted to specific legal criteria.165 That is most clear in the example of the “best available techniques” whenever the law requires them to be also economically feasible.166 Finally, individual or subjective rights structure a relation to the system’s extrasocietal environment, increasing the responsiveness of both the Law and the Administration to the cognitive irritations coming from human beings.167 Besides the more systemic stance of subjective rights as instruments to increase and internalize the alterity of Law (i.e., the non-legal),168 this legal institute also channels irritations that promote the learning and evolution of the coupled systems, allowing them to take into account fragmented and distributed knowledge.169 For example, procedural rights—through which legal subjects access and participate in administrative decision-making procedures—can be analyzed against such cognitively inspired background: the Administration not only engages in a broader intersystemic interaction, but it can also benefit from the knowledge and perspectives these other actors possess.170

3.3

Environmental Observation

The final dimension of the intersystemic Administrative Law concerns the observation of the systemic environment. This embodies an imperative of reciprocal consideration between systems. In particular, any system must pay attention, and be sensitive, to the broader societal consequences that its own systemic operativity unleashes.171 Accordingly, it is important to develop the ability and establish the instruments to observe the impact of a system’s communications on others, while continuously monitoring and being responsive to dynamics occurring outside the system’s borders.172 The ultimate goal is to enable systemic learning (i.e., learning by the observing systems), so as to foster self-transformation and self-evolution in ways that guarantee intersystemic compatibilization and harmony.173

165

See Terrinha (2017), pp. 931–934. Also Ipsen (1990), p. 189; Nobles and Schiff (2013), pp. 112–115; Augsberg (2014), pp. 296–298. 166 See Gomes (2007), p. 459. 167 See Luhmann (1999), pp. 360–373; Guibentif (2013), pp. 255–288. 168 See the illuminating analysis of Menke (2008), pp. 81–108. Worth noting is also his latest book: Menke (2015). 169 See Ladeur (1994), p. 50. 170 Ladeur (1994), p. 55. 171 See Luhmann (1974), p. 9. 172 See Luhmann (1974), p. 59. 173 See Vesting (2007), p. 32.

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The aforementioned implies twofold for Administrative Law: it has to observe its own environment; and it has to support and induce other systems—namely, the Public Administration—to observe their environment.174 Generally, the Law has institutionalized different ways to actualize the aforementioned imperative of environmental observation.175 It occurs, right at the outset of the lawmaking process,176 by fulfilling the duty to consider the anticipated effects of legislation.177 The idea that good legislation depends on an ex ante evaluation of its impact straightforwardly serves intersystemic purposes, for both the legal and political systems. One should add, in the same vein, the consensus on also carrying out an ex post evaluation, in order to determine the concrete and real impact produced.178 This enables the assessment of legislation in light of past intentions, unforeseen effects, and corresponding reform or correction needs.179 Further examples are the famous German Nachbesserungspflicht (already implying the temporal continuity of environmental observation)180 or the so-called experimental legislation (which pre-defines an effects’s end date, associated with the evaluation of the rules’ consequences before transitioning to something temporally more stable).181 Accordingly, it is possible to speak of a responsibility for the consequences or impacts of legal rules,182 which, in my view, is easily subsumed under this dimension of a legal system increasingly attentive to its environment (while inducing other systems to follow, namely the political system). Given that the underlying value of this feature is intersystemic compatibility and harmony, it becomes more understandable why some dogmatically ground it in a legal principle of sustainability.183 At the administrative legal level, what is at stake is to enable the Public Administration to observe its own environment: on the one hand, Administrative Law must capacitate the Public Administration to grasp and appraise the consequences and effects of its actions;184 on the other hand, Administrative Law must strengthen the Public Administration’s sensitiveness (including that of its decision-making procedures) towards environmental dynamics, while simultaneously enhancing— through appropriate legal means—the possibilities of those dynamics finding resonance within the Public Administration’s operative network.185 Whereas the first prong leads to self-observation and self-evaluation of administrative activity, the

174

See Franzius (2012), para 90. See, generally, Helmrich (2000), pp. 471–484. 176 See Canotilho (2009), pp. 109–122. 177 See Köck (2002), pp. 1–21. 178 See Wintgens (2013), pp. 1–32. 179 See Wintgens (2012), pp. 301–304; Ladeur (2007), pp. 84–85. 180 See Wintgens (2013), pp. 28–29. 181 See Hoffmann-Riem (1993), pp. 55–69. 182 See Köck (2002), pp. 7–8. 183 See Windoffer (2011), pp. 121 ff. 184 See Hill (2000), pp. 27–39. 185 See Luhmann (2007), p. 193; Hoffmann-Riem (2010), p. 203. 175

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second prong points to instruments which afford not only the consideration of the state of affairs in the environment, but also the revision and modification of previous administrative operations (so that ensures that previous administrative decisions can be adapted in accordance with the environmental observation done).186 At the outset, Administrative Law shall support and induce the Public Administration to assume a responsibility for the consequences of its decisions187—something which appears to have been dogmatically subsumed under the principle of good administration.188 Thus, decision-making procedures are to be designed to ensure said systemic imperative,189 so that the Public Administration takes into account the expected consequences as a selection criterion190 and does not remain indifferent to the real consequences after the implementation.191 Furthermore, this may motivate administrative legal science to adopt a more consequentialist methodology,192 for example, either through teleological interpretations or balancing judgments.193 Relatedly, dogmatical accounts will also have to work out rules to delineate the normatively relevant consequences.194 As previously highlighted, increased sensitivity to environmental dynamics has to be matched by increased chances of those outward looking observations finding actual resonance in the administrative system, so that the latter shows the capacity to adapt and transform itself to pertinent environmental variations.195 Attention has been paid, in particular, to instruments of administrative post-direction (Nachsteuerung) or post-control (Nachkontrolle), which support the permanent and continuous self-revision of administrative operations.196 As highlighted by Augsberg, said self-revision is to be understood as a process of learning.197 Several of those instruments are worth mentioning: non-jurisdictional administrative control (especially, reflexive or self-control),198 which may resort to non-legal standards (examples are the control of the quality of the service delivered,199 the creation of certification systems,200 or the financial controlling201); monitoring and post186

See Terrinha (2017), p. 977. See Windoffer (2011), p. 186. 188 See Efstratiou (2008), pp. 302–303; Otero (2013), p. 482. 189 See, especially, Windoffer (2011), pp. 681 ff. Also Terrinha (2017), pp. 982 ff. 190 See Pitschas (1990), p. 273. 191 See Bråten (1986), pp. 193–205 (202). 192 Generally, Larenz (1991), pp. 229 ff. See the critical position of Luhmann (1974), p. 35. 193 See Voßkuhle (2012), para 36; Franzius (2012), para 79. 194 See Luhmann (1974), p. 36. 195 See Terrinha (2017), p. 991. 196 See Franzius (2012), para 88–91. 197 See Augsberg (2014), p. 69. 198 See, generally, Kahl (2012) and Schiedermair (2012). Also Terrinha (2017), pp. 993–1001. 199 Generally, Reimer (2010). 200 See Schiedermair (2012), para 81 ff. 201 See Schiedermair (2012), para 44. 187

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evaluation of individual decisions202 or contracts;203 design of procedures to deal with complexity and uncertainty;204 accommodation of contingency through precarious or temporally limited administrative acts;205 legal admissibility of a revision of the previously decided;206 and adaptation of previously signed contracts by means of public unilateral modification or resolution grounded in the public interest.207

4 Concluding Remarks I have sought to present a sociologically grounded legal theory of Administrative Law. It tries to explain the current configuration of Administrative Law in connection with the social differentiation of modern society. Unlike dogmatical accounts, this reading brings together administrative legal categories, regulatory techniques and other overall normative developments under a coherent theoretical roof. At the outset, this theory appears to have a strong descriptive value by tracing heterogeneous positive manifestations of Administrative Law back to underlying societal dynamics arising out of social differentiation. For example: discretion and linguistic indeterminacy relate with the respect for the autonomy of the Public Administration; regulation of self-regulation and cooperation between public and private parties relate with the respect for the autonomy of so-called private systems; the valorization of administrative procedure relates with the increased need of promoting interconnections between the Public Administration and its addressees for purposes of administrative decision-making; legal references to scientific knowledge relate with the necessity of relying on specialized knowledge of other systems; the strengthening of the subjective legal status of citizens relates with the inclusion and consideration of psychic systems by the Law and the Public Administration; the importance of paying attention to the consequences of the administrative action relates with a desirable intersystemic balance and harmony; the multiplication of means for modifying and adapt previous administrative decisions relates with legally enabling the Public Administration to better adapt to variations in its environment. The normative value is perhaps more discreet, but it exists: the description of an Intersystemic Administrative Law, albeit with the risk of legitimizing the status quo, is also a theory about how to regulate in a socially differentiated society in light of 202

See Herzmann (2007), pp. 670–674. Also Terrinha (2017), pp. 1001–1007. See Schmidt-Aßmann (2006), p. 346. 204 See Hoffmann-Riem (1994), pp. 590–626. 205 See Di Fabio (1994), p. 311; Calvão (1998); Schröder (2010), pp. 255–264. 206 On the need to ensure the existence of “flexibility reserves” concerning administrative acts, thus highlighting how flexibility and stability must functionally complement each other in this form of administrative action, see Schmidt-Aßmann (2006), p. 349. See also de Andrade (1994), pp. 185 ff. 207 See de Almeida (2007), pp. 3–17; Cotza (2007), p. 557. See also our own remarks concerning the tension between the aforementioned powers and the reflexiveness of the Public Administration in Terrinha (2017), pp. 1024–1026. 203

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the autonomy of both regulator and regulatees. Reflexiveness, structural couplings and environmental observation can thus be seen as the backbones of a systemically viable administrative legal discipline in modern society. Nonetheless, that does not hinder internal legal discussion on how to better ensure such features in light of the functions and goals of Administrative Law and the Public Administration. It does not hinder also a critique of said features whenever disruptive systemic effects can be identified. The biggest impact is perhaps to be felt in administrative legal science, which has been until now hegemonically dominated by dogmatics. First, because the narrative developed here is more abstract and encompassing than the one offered by classical accounts. Second, because some fundamental categories and institutes have to be re-analyzed with their societal dimension in mind. Third, because legal interpretation of administrative legal rules cannot ignore the systemic dynamics at play. From my point of view, a sociologically grounded theory of Administrative Law expands the discourses available about this field, namely by bringing society to the forefront of how one systematizes, interprets and thinks about the administrative legal phenomenon. This was just a first attempt at framing the structure of that discourse.

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Luís Heleno Terrinha is an Assistant Professor at NOVA School of Law, Lisbon. He holds a Ph.D. in Public Law from the University of Lisbon and a LL.M. from Yale Law School. He is also a registered Attorney-at-Law with the Portuguese Bar Association.