From transconstitutionalism to transdemocracy

Published date01 September 2017
Date01 September 2017
From transconstitutionalism to transdemocracy
Marcelo Neves*
This article relates to the author's project transdemocracy. It starts with a discussion of transconstitutionalism
and its limits. Transconstitutionalism concerns the fact that multiple legal orders of the same or different kind are
simultaneously involved with the same constitutional issue or case, i.e. issue or case concerning basic rights or
legal limitation and control of political power. Constitutional problems, thus go beyond the state and entangle sev-
eral legal orders, although no new constitution arises in this context. The article points out the limits of
transconstitutionalism in an asymmetric world society so as to seek new alternatives beyond it. Two alternatives
are considered: postconstitutionalism, which demands transcendence of today's world society and thus negate
constitutionalism in general, and transdemocracy, which is rather immanent to our social formation and claims
to be complementary to transconstitutionalism. Because the author prefers the second alternative, the article
begins to outline an approach to transdemocracy that goes across state boundaries and beyond We the People,
that is popular sovereignty, in order to emphasize the sustainable responsiveness for other peoplesin the same
world society. It is a question of sustainability of democracy. In this context, the author intends to develop an eco-
logical approach to democracy with the background of Niklas Luhmann's systems theory, but from a heterodox,
critical perspective.
Social, economic and cultural changes have resulted in a clear increase in the instances in which legal orders overlap
and interplay. In most instances, such interactions occur outside an obvious constitutional framework, and, conse-
quently, none of the legal orders can raise an obvious claim to primacy. In other words, we find ourselves in an emerg-
ing transconstitutional setting albeit deprived of a constitution in any meaningful sense of the word. At best, the
pragmatic and normative questions that result from transconstitutionalism are tackled by more or less formal, more
or less powerbased or powerhiding transnational networks.
In this article, I start in Section 2 by clarifying what transconstitutionalism is. I emphasise that
transconstitutionalism is far from being an exclusively European phenomenon (Section 2.1). By the same token, I dis-
tinguish transconstitutionalism from global constitutionalism and radicalconstitutional pluralism (which entails reduc-
ing the constitution to a set of constitutional fragments) (Section 2.2). Then I consider the normative ambivalence and
limits of transconstitutionalism, paying very special attention to the implications that the asymmetric character of the
Professor of Public Law and Legal Theory at the University of Brasilia Law School. I thank Thomas Duve for hosting me at the Max
Planck Institute for European Legal History in January and February 2017, when I prepared the first version of this article. For enlight-
ening discussion on the text, I am very grateful to my colleagues at the Stellenbosch Institute for Advanced Studies (STIAS), at which I
participate in the project Boundaries and Legal Authority in a Global Context. Last but not least I thank Agustín José Menendéz for the
review of the article and suggestions that also improved the linguistic style to make the text more readerfriendly.
DOI: 10.1111/eulj.12259
380 © 2017 John Wiley & Sons Ltd. Eur Law J. 2017;

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