ABSTRACT
The starting-point of the inquiry was the observation that the debate on the migration of constitutional concepts and semantics beyond the state has, to date, unfolded within two separate discourses. The dominating approach is, in the main, being advanced by public lawyers and political scientists, and is essentially occupied with the adjustment of the constitutional apparatuses developed in nation-state contexts in order to make it compatible with public international organisations and regimes. The other approach, which adopts a minority position, is dominated by private lawyers, and focuses upon how legal instruments are being deployed in order to stabilise private-law-based social processes normatively through a dual set of limiting and facilitating rules. Both of these perspectives have their blind spots. The latter essentially keeps the core concepts of law and the political constant, and merely assumes that the exercise of law and the political is being transferred to new sites. The former position, on the other hand, has engaged in a challenging exercise of developing a concept of law which is suitable for describing and understanding legal processes unfolding beyond the state. But, in doing so, they systematically ignore or downplay the political aspect of the processes which they describe, and they thereby fail to recognise that a context-adequate concept of the political also needs to be developed. The bridging of the gap between the two positions, furthermore, necessitates the activation of a more complex conceptual apparatus which is capable of linking the evolution and the function of constitutional frameworks to deeper structural transformations. Thus, the development of a theory of constitutionalism suitable for the global realm needs to take the form of a sociological inquiry.
