Collisions of Societal Constitutions: Hierarchical Power Arrangements and Horizontal Effects in the Management of Human Rights Regimes
International conference, Societal Constitutionalism and Globalization, hosted by the Hague Institute for the Internationalization of Law and the International University College, Torino, Italy, May 18, 2012.
Abstract: Constitutional theory is grounded in two principal objectives—the first is to incarnate an abstraction, and the second is to develop a set of presumptions and principles through which this incarnation can be judged. With respect to the first, constitutional theory can be understood as engaging in a descriptive project. With respect to this second objective, constitutional theory can be understood as engaging in a normative project. This is a project that is meant to help distinguish among incarnations, as well as among those societal aggregations from which such constructions might arise. Constitutional theory, traditionally, has been applied to creations holding political power—that is, to those manifestations of organized power constituted by a group of individuals, bounded by a territory, and evidenced by the institution of government. But today a certain measure of disaggregation has managed to manifest a constituting power. Globalization has opened holes in the walls that used to serve to police and protect states and their power authority. Societal aggregations can exist now between borders. Groups of individuals (and not just natural persons) incarnate abstractions of governance and then judge them in ways that are consonant with constitutional theory. This paper considers the consequences of this emerging framework of hierarchical power arrangements and horizontal effects for constitutional theory among this amalgam of states and other societally constituted organisms. After an Introduction, Section II engages in framework setting, focusing on the structures of societal constitutionalism within the logic of globalization. This consideration necessarily frames societies and their constitution from a spatially static and inward looking perspective. That investigation is divided into two parts; first a consideration of societal constitutionalism as a set of parameters for the ordering system of states and non-state actors, and second a brief consideration of the organization of corporate actors within this framework, specifically Apple, Inc. Section III then considers these constituted societies in a more dynamic and outward looking perspective. If societies can be understood as subject to certain principles for their inward constitution, to what extent might there be principles that affect the outward expression of inward self constitution. That consideration requires both an examination of the way in which societally constituted entities may be felt and seen by outsiders, but also the way that expressive communication can have inward affecting consequences. For that purpose, Gunther Teuber’s notions of addiction and chaos and Hans Lindahls notions of spatiality and communication serve as a starting point. The operationalization of these theories of constitution and its effects are considered in Section IV. The context is the enforcement of international human rights norms through the governance activities of Apple Inc. and its supply chain, and the focus are the spaces where systems converge, harmonize and collide. The paper concludes where it started—in constitutional theory. It will suggest the need to expand our understanding of constitutional theory beyond incarnation and judgment, to include communication among systems in a complex polycentric constituting universe.