Collisions of Societal Constitutions: Hierarchical Power Arrangements and Horizontal Effects in the Management of Human Rights Regimes

Abstract

Societal constitutionalism presents us with alternatives to state-centered constitutional theory. But this alternative does not so much displace as extend conventional constitutional theory as a set of static premises that structure the organization of legitimate governance units. Constitutional theory, in either its conventional or societal forms, engages in both a descriptive and a normative project — the former looking to the incarnation of an abstraction and the later to the development of a set of presumptions and principles through which this incarnation can be judged. Constitutional theory is conventionally applied to states — 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. These emerging realities have produced societal constitutionalism. But like conventional constitutionalism, societal constitutionalism seeks the comfort of equilibrium and stasis as the basic operating premises of self-constituting governance systems. This paper considers societal constitutionalism in its dynamic element — as a system structures constant adjustment among the constituting elements of a governance unit (whether state, corporation, religion, etc.). After an Introduction, Section I 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 II provides an illustration of a societally constituted enterprise operating in three dimensional dynamic governance space. The focus is Apple, Inc.; 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 object is to consider a societally constituted governance unit operating in three dimensional space that is in constant motion, but within which the entity remains stable. Section III then develops the more important characteristics of this new dynamic and permeable constitutional framework. 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, and also the way that expressive communication can have inward affecting consequences. For that purpose, Gunther Teubner’s notions of addiction and chaos and Hans Lindahls notions of spatiality and communication serve as a starting point. 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. It suggests the dynamic consequences of this emerging societal framework of hierarchical power arrangements and horizontal effects for constitutional theory among this amalgam of states and other societally constituted organisms. Final version to be published as “Dynamic Societal Constitutionalism: Transnational corporations’ outward expression of inward self constitution: The enforcement of human rights by Apple, Inc.” in the Indiana Journal of Global Legal Studies.