From transconstitutionalism to transdemocracy

• Published date: 01 September 2017
• DOI: http://doi.org/10.1111/eulj.12259
• Date: 01 September 2017

ORIGINAL MANUSCRIPT

From transconstitutionalism to transdemocracy

Marcelo Neves*

Abstract

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: post‐constitutionalism, 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.

1|INTRODUCTION

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 power‐based or power‐hiding 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 ‘radical’constitutional 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 reader‐friendly.

DOI: 10.1111/eulj.12259

380 © 2017 John Wiley & Sons Ltd. Eur Law J. 2017;23:380–394.wileyonlinelibrary.com/journal/eulj