Societal Constitutionalism, Social Movements, and Constitutionalism from Below

Abstract

Within constitutional theory, in comparison to other fields of scholarship, the significance of transnational social movements has been relatively unexamined in the literature. Societal constitutionalism, grounded in the sociological method and open to reexamining received understandings of constitutionalism, would appear conducive to undertaking this enterprise. However, the general absence of social movements from the societal constitutionalism literature is not coincidental, and reflects a shared commitment with more conventional approaches to an institutional conception of constitutionalism, and a belief in the latter's necessary benevolence and Western origin. These assumptions reflect the limited focus of contemporary analyses of globalization and constitutionalism upon "globalization from above." As key protagonists within "globalization from below," social movements represent a form of "constitutionalism from below." Incorporating social movements within constitutional discourse deepens the sociological turn favored by societal constitutionalism by revealing the always-existing noninstitutional dimension of constitutionalism. Moreover, doing so locates in social movements the potential for a transformative constitutional agency which has often proven elusive.

Between Law and Transnational Social Movement Organizations: Stabilizing Expectations of Global Public Goods

“…Social movements are increasingly recognized for their role in an important`constitutionalism from below'. 157 Gunther Teubner (who has also employed Luhmann's systems theory, albeit from a very different perspective) has, for example, recently presented the development of the social movement as a`sectorial constitution' to which law can externalize its foundational paradox to gain legitimacy, an arrangement which, in turn, allows the social movement to acquire legitimacy as part of a fragmented transnational public order which is free from state constitutions. 158 The 372 thesis presented here, however, suggests that constitutional studies can only be developed in this direction through a methodological shift away from distinctions such as`spontaneous/organized-professional', 159 or`left-wing/ right-wing' 160 which obscure the importance of social movement organization.…”

Constitutionalism ideal-types

“…Yet, the version offered as a more comprehensive alternative -predicated on the need to ensure social differentiation as a strategy of resistance to top-down institutional pressures -is by no means unequivocal. While some accounts clearly turn their eye on market-oriented sectors, which are supposed to emerge and self-regulate spontaneously 50 , others focus on and overtly advocate forms of equally spontaneous popular resistance and 'constitutionalism from below' -for example, through social movements 51 -which may sometimes antagonise not only the statist institutional apparatus, but also other, more established public entities beyond the State.…”

Claiming Food Sovereignty: Legal Mobilization in an Era of Global Governance

“…In this context of expanding transnational legal pluralism (Berman, 2006;Michaels, 2009;Zumbansen, 2010) and shifting modes of regulatory governance, social movements have developed legal strategies and rights claims that attempt to take advantage of new political opportunities. Building on socio-legal scholarship that has begun to examine how social movements are responding to shifting structures of transnational law (Anderson, 2013;Ferrando 2017;Morgan, 2011;Santos & Rodríguez-Garavito, 2005;Szablowski, 2007), this chapter looks to the development and practice of food sovereignty mobilization to ask: how are social movements rearticulating and mobilizing rights in the context of global governance?…”