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DIAGNOSIS II: POLYCENTRIC GLOBALISATION

World society is coming about not under the Icadcrship of intcmational politics but at most rcactively accompanied by the latter-as thc globalisation of tcrrorism has shown recently. Nor can it be equated with cconomic globalisation, to the convulsions of which all other spheres of lifc can only respond. Instcad, globalisation is a polycentric process in which simultancously diffc-ring arcas of life break through their regional bounds and cach constitutc autonomous global sectors for themselves. Globalisation is a

“multidimensional phenomenon involving diversc domains of activity and interaction including the economic, political. tcch-nological. military, legał, cultural, and environmental. Each of thcse spheres involves different pattems of relations and activity.”

The outcome is a multiplicity of independent global villages, cach developing an intrinsic dynamie of their own as autonomous iunctional arcas, which cannot be controlled though the outside. Globalisation, then, does not mcan simply global capitalism, but the worldwide realisation of fimctional differentiation.

The decisive thing for our question is now that the globalisation of politics by comparison with other subsystems has relatively lagged behind, and will no doubt continue to for the foreseeable futurę. In view of the notorious weakncsscs of thc United Nations institutions, world politics is at bottom still intcr-national politics, that is, a system of interactions bctwccn autonomous nation-states into which intcmational organisation too arc gradually drawn, without rcplacing thc world of nation-states or even bcing ablc to push it into sccond place. This asymmetry of fully globalised subsystems of society and inercly internationaliscd politics takes thc ground from under thc above-men-tioncd situation whcrc thc political institutions with their own constitutions could at thc same tiinc also be thc constitution for thc whole of society. The nation-statc was still ablc, continuing old concepts of a hierarchical political society in which thc monarch was thc head of society, to make it crcdible that the subsystem of politics at thc same time through its State constitution con-stituted the whole nation, cvcn if thc fragility of this construction was already plain. This is shown by thc repeated emergence of ideas of an independent economic constitution, but also of other constitutions in social subsectors, along with concepts of thc horizontal effect of fundamenta! rights in civil society, rather than them bcing merely ordered by the statc. For world society, however, such a claim can simply no longer be asserted. Sccing thc United Nations as a world sovereign at work giving not just thc UN organisations but also intemational politics, indeed even the non-govemmcntal systems of world society, a constitution with a claim to bindingess, legitimacy and cnforceabili-ty, as some intemational lawyers seek to do, is a mere illusion.

That by contrast a real constitutionalisation process is actually taking place in intemational politics and in intcmational organisations in the narro-wer sense, as noted by many intemational lawyers, is not thereby to be dispu-ted, but indeed to be emphasised. The dcvclopment of human rights applying worldwide vis-a-vis the powers of nation-states is thc clcarcst cvidcncc of this start. The decisive point from our view is that this represents thc constitutionalisation of intemational politics only, a sub-constitution of world society among others, which can no longer use any pars pro toto claim. This takes thc ground away from under the politics-centrcd constitutional thinking. If one then seeks for other constitutional elements in world society, one has to look for them in the separate global subsystems outsidc politics. The ongoing constitutionalisation of intemational politics has no monopoly ovcr constitutiona-lising world society. A kind of constitutional compctition is set into motion by the autonomisation of global sub-constitutions.

DIAGNOSIS III: CREEPING CONSTITUTIONALISATION

If it is accordingly true that intemational politics can at best pursue its own constitutionalisation, but not that of the whole world society, and if it is further true that the evolutionary drift of global rationalisation processes ne-ccssitates to guarantee spheres of autonomy for reflexion, then the question arises whether the sectors of global society at all possess the potential for constitutions of their own.

The point here is to establish an important conncction between juridifica-tion and constitutionalisation. Necessarily, cvcry proccss of juridification at the same time contains latent constitutional normings. In the words of a constitutional lawyer:

“Not every polity has a written constitution, but every polity has constitutional norms. These norms must at least constitute the main actors, and contain certain procedura! rules. Theoretically, a constitution could content itself with setting up one law-making organ, and regulating how that organ is to decide the laws.”

Ultimately, this establishes the constitutional quality of any emergence of a legał system, which leads directly into the thomy issues of the non-founda-tional foundations of law, around which the major legał theories of our time circle. The technical problems that present themselves herc arc known as: sclf-justification of law, resulting paradoxcs that błock thc proccss of law; thc practical “Solutions” of these paradoxes, which always also rcmain problcma-tic, through autological qualities of constitutionalisation. These qualitics havc been played out in ever new variations, by Kelscn in thc rclationship of thc basie norm to the highest constitutional norms, by Hart in thc theory of sccon-