Quod Omnes Tangit: Transnational Constitutions Without Democracy?

Abstract

Critics of global constitutionalism rightly point to a democratic deficit of transnational regimes. They base their critique on a time-honoured principle of democracy: the identity of authors and affected people is the universal core of democracy. However, in its long winding history, the democratic principle had always been recontextualized. Such a recontextualization of democracy which requires generalization as well as respecification is needed again today under the conditions of transnationalization. As for generalization, the article's main thesis is: political representation, the traditional concept of democracy for the nation state, is replaced by self-contestation, which needs to be firmly institutionalized in transnational regimes. As for respecification, the main thesis is: self-contestation cannot be established in a one-sizefits-all approach, but in multiple variations that reflect the extreme epistemic diversity among issue-specific transnational regimes. The constitutional principle of`epistemic subsidiarity' may open new perspectives for developing different procedures of self-contestation for different regimes. WHO CARES FOR REGIME DEMOCRACY?Is the constitutionalization of transnational regimes accompanied by their democratization? This is a hotly disputed topic in democratic theory, but not only there. In the real world, national and international courts, international political actors, social movements, and the regimes themselves experience the grave democratic deficit of transnational regimes as an urgent problem for which they desperately seek novel solutions. S5

A constitutional reflector? Assessing societal and digital constitutionalism in Meta’s Oversight Board

“…Teubner finds that the democratic principle is tied to building an identitarian consensus, which is reinforced paradoxically by the organization of internal dissent through the institutionalization of politics. 118 Thornhill concurs, indicating that these two tendencies are interlocked in a chain of communication that allows democracy to become institutionally entrenched, stabilizing contestation and consent within the democratic nation-state. 119 Therefore, in re-specifying the democratic principle from modernity to the current transnational legal order, Teubner argues that it is necessary to promote a division of labour between the two central attributes of democracy.…”

“…119 Therefore, in re-specifying the democratic principle from modernity to the current transnational legal order, Teubner argues that it is necessary to promote a division of labour between the two central attributes of democracy. 120 Within this division, the dogma of political representation needs to be reinterpreted as self-contestation. In transnational institutions, building identitarian consensus between its members might be unfeasible as transnational regimes are composed of fluctuating constituencies and not well-defined collective demos.…”

“…150 Thus, the institutionalization of internal dissent through the establishment of rules and institutions regarding electoral disputes and the transference of power allows an inexorable link between societal dissent and nationwide consensus. 151 Through institutionalization, commitments cannot be abrogated unilaterally, which in turn maintains the societal commitments achieved by the government and opposition in their disputes of power. 152 In the regime-specific system of Meta's platform governance, the Oversight Board may be able to institutionalize the multiple interests of users from different regions vis-à-vis the transnational governance apparatus.…”

Constitucionalismo digital: um convidado (in)esperado

“…No fundo, recordando aqui a conhecida problematização em torno das constituições semânticas (LOEWENSTEIN, 1976), o constitucionalismo digital parece propor uma espécie de constitucionalismo-sem-constitucionalismo. Isso para não falar, conforme já reconhecido por Teubner (2018Teubner ( , 2022, do grande ponto fraco relativo aos regimes transnacionais: o déficit de legitimidade democrática. Tudo indica, em suma, que o constitucionalismo digital é desprovido dos elementos fundacionais próprios do constitucionalismo, seja ele moderno ou contemporâneo, uma vez que salta, literalmente, a questão central em torno do poder constituinte e todos os seus desdobramentos.…”

Constitutional Imaginaries and Legitimation: On Potentia, Potestas, and Auctoritas in Societal Constitutionalism

“…ON THE IMAGINARIES OF TRANSNATIONAL DEMOI, AND DISSENT IN SOCIETAL CONSTITUTIONALISM In light of these initial conceptualizations of the theory of societal constitutionalism and their criticisms, 67 Teubner's most recent article,`Quod Omnes Tangit: Transnational Constitutions Without Democracy?' 68 represents a significant change because it returns to the two most defining political issues of any general theory of constitutionalism, namely, the problems of legitimation and constitutional subjects.…”