20 Soc. & Legal Stud. 244 (2011)
Constitutional Law from the Perspective of Power: A Response to Gunther Teubner

handle is hein.journals/solestu20 and id is 242 raw text is: 

Social & Legal Studies 20(2)


Constitutional Law from the Perspective of Power:
A Response to Gunther Teubner
Chris Thornhill
University of Glasgow
Gunther Teubner's work stands as one of the most highly evolved positions in the
contemporary sociology of law and legal-political norms, and it demands the deepest
respect. Above all, his work has this distinction because it is very serious about the formative
theoretical problem underlying sociology as an academic discipline. That is to say, it aims to
examine law as an aggregate of highly contingent and interdependent societal facts whose
normative dimensions have variable causality (that is, they are inseparably interwoven with
other social functions, they cannot be reduced to any natural or deductive/prescriptive
source, and they are not simply or formally counterposed to other institutions), and it seeks
to develop a methodological model that is able to capture the emergent and multi-centric
reality of society's legal fabric. To a large degree, the question of society's unstructured
and interwoven normativity was at the formative centre of theoretical sociology in its
very first emergence, and Teubner re-visits this question in deeply penetrating and
unusual fashion. His analysis of constitutions as arising from interdependent 'processes
of societal differentiation', linked to his description of constitutional rights as societally
contingent and subject to varied extensions of validity and changes in vertical and hor-
izontal impact, re-commences the original sociological desire to propose a context-
sensitive, multi-causal and institutionally inclusive account of the dominant normative
and political legitimating structures of modem societies. His emphasis on recent and
contemporary transformations of statehood, and on the altered status of constitutions
and constitutional rights resulting from the end of society's 'state-centricity', including
his analysis of the quasi-constitutional force attaching to (formally constructed) private
rights, can also be seen in this light. This aspect of his work also marks a vital attempt to
actualize the original potentials of theoretical sociology in contemporary society, and to
push theory to such a level that it can reflect and explain the multiple sources of norma-
tivity in society. The claim that contemporary societies have an informal constitution-
ality that is neither normatively nor directively centred on states and contain multi-
valent and multi-layered legal structures appears to me to represent a key position in the
legacy of the original sociological project of establishing a complex, non-naturalized
and post-ontological conception of society and society's norms.
   The new sociology of simultaneously public and private, vertical and horizontal or sim-
ply hybrid law proposed by Teubner culminates in a sociological view which attributes the
following features to modem society. Contemporary global society is viewed as: (a) lack-
ing a constititive legal/political and normative centre; (b) containing normatively forma-
tive and legally restrictive impulses that are not concentrated in national or even
state-centred constitutions; and (c) drawing normative order from a multiplicity of legal
forms, often (but not necessarily) articulated as rights. I strongly applaud the sociological
focus on highly varied patterns of constitutional formation in this line of inquiry, and
I greatly welcome its attempt to produce a sociological theory of legal-constitutional
formation adequate to describing the realities of a normatively 'fragmented world society'.

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