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If this is not the case, constitutional theory should develop genuinely new post-modern concepts and paradigms adequate to the challenges of post-Westphalian constitutionalism at the beginning of the twenty-first century. The task of this book is to problematise both the challenges of global constitutionalism, perceived as a holistic concept and composite phenomenon, to the classical Westphalian outlook of the constitutional systems, and the responses of the constitutional systems to them in the form of gradually emerging post-Westphalian features of national and supranational constitutionalism.

Thus it considers both the post-Westphalian challenges to Westphalian ideas, theories, concepts and institutions, and the Westphalian heritage and determinants of post-Westphalian constitutional theory and constitutional law. Naturally, the book does not provide for either exhaustive analysis of the issues of global constitutionalism or final and definitive answers and solutions.

The Concept of Law in Global Societal Constitutionalism | SpringerLink

It contains just topical and multi-discursive analysis of some issues of concern related to the constitutional dimensions of the globalisation of law. The book provides both conceptual and abstract theoretical analysis of global constitutionalism and an approach to global constitutionalism rooted in comparative constitutional and comparative historical analysis.

The book is structured in three parts. The first part is devoted to the general theory of global constitutionalism. It is focused especially on the crisis of hierarchy as normative paradigm of the Westphalian constitutional geometry in the context of post-Westphalian and global constitutionalism while discussing also the idea of open statehood as a bridging normative concept between the constitutionalist and pluralist approaches to global constitutionalism. The second part analyses the limits to global constitutionalism. The third part contains contributions which explore key issues of the EU constitutionalism as the main manifestation of the emergent supranational constitutionalism.

There are several common topics in the papers published in the book. These are key issues which determine the overall contribution of the volume. In general, the book problematises the need for new constitutional paradigms sufficiently adequate to grasp the complexity of the current constitutional situation and to serve as a theoretical background to the emerging global and post-Westphalian constitutionalism. The volume assesses the deficiencies of sovereignty in the post-Westphalian context especially with a view to EU constitutionalism.

These deficiencies are xviii predetermined by factors which frequently simultaneously produce a crisis of hierarchy as theoretical ordering paradigm that has been fundamental for Westphalian constitutional law. Another topic relating to the crisis of hierarchy and sovereignty is the emergence of open statehood.

The opening function of the constitution, the constitutional conditions for open statehood and the role of the domestic constitution as a linking factor between the national and supranational legal orders is a common topic for most of the papers in this volume. Constitutional openness is explored with regard to its prerequisites, instruments and limitations. Moreover, the stretching of global constitutionalism between constitutional openness and culturally predetermined identitarian self-restraint is the axis of intellectual juxtaposition and analytical encounter between the papers of Giuseppe Martinico and Manuel Gutan.

Thus constitutional openness is a central topic of the book as a whole. The preservation and safeguarding of the rule of law as a key constitutional principle of global constitutionalism in the early post-Westphalian situation is an object of scientific concern for many of the papers published in this volume.

So far a clarification has been provided of the common issues and the common objects of research that are analysed to a different extent and from different viewpoints by all or most of the contributors to the book. Let us turn now to a brief summary of the main ideas launched by the different authors. This short outline of the key conceptual content presented by the xix authors should inform the reader and form the framework of their expectations. It must demonstrate which issues of global constitutionalism are analysed by the distinct presentations and what are the main arguments and conclusions of the contributors.

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In his paper Auby derives the legitimation of the theories of global constitutionalism from the crisis of state-centred national constitutionalism produced by globalisation. According to him, this crisis has a twofold nature. The structural crisis, which concerns the organisation of the legal order, is paralleled by a functional crisis, being a crisis of the production of law, which is related to both form and content of the normative and institutional order.

Hence the Westphalian nation state legal order is increasingly dismantled and replaced by post-Westphalian global disorder. According to Auby this situation is a result of the multiplication and plurality of both legal producers and places of legal production. All these phenomena produce the need for global constitutionalism as post-Westphalian ordering and explanatory paradigm. Globalisation is conceived by Auby as a producer of normative disorder, but also as a chance for restructuring of the constitutional paradigm around a mixture of novel and traditional constitutional paradigms.

Auby focuses on the function of the constitution and constitutionalism to produce a coherent normative system as implemented and reinstated on a global scale. Hence his paper provides an analysis of the chances and xx channels for emergence of a global legal taxonomy. Auby differentiates between four main aspects of global constitutionalisation.

These are: first, the constitutionalisation of international law and international institutions; second, the opening of the national constitutions to the international and supranational legal order; third, the reconceptualisation of classical Westphalian constitutional concepts to the challenges of globalisation; and fourth, the constitutionalisation of both public international law and public actors and the private actors of global governance. Auby determines the conditionality of the success of global constitutionalism as a theoretical approach.

He recommends a broader version of global constitutionalism which encompasses all norm-setting agents allocated on the various levels of the emerging infrastructure of the global legal order.

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He opts for a value-oriented theory of global constitutionalism focusing on the issue of safeguarding a value-oriented version of rule of law in a global and post-Westphalian context. Hence the central concern of Auby is how to establish and sustain a global, value-based and ordered system of norm production. Auby takes into account the plurality of the emerging global order.

He asserts the translayered and multilevel character of the current normative order. Auby detects two types of legal disorganisation produced by globalisation. These are normative disorganisation and institutional disorganisation. According to him there are two reasons for this phenomenon. The first is related to the insufficient legitimacy of the agents of globalisation and the international and supranational agenda setters and norm producers.

The second reason concerns the normative arrangements, substantive hierarchies and dissemination of the essential principles of the rule of law. The issue of the crisis of normative hierarchies is also central to my paper. These are the dysfunctionalities of the linking mechanisms between the xxi legal producers and the legal orders in the global constitutional context, the mechanisms of hierarchical normative arrangements and the channels of dissemination of the essential principles of the rule of law. Consequently Auby outlines the main directions of the challenges of the post-Westphalian situation to the normative and institutional infrastructure of the constitutional order as well as to its capability to master the complexity of global constitutional pluralism.

Auby explores the opening function of the domestic constitutions to the international and supranational legal orders. He analyses the instruments and mechanisms for adjustment of the plurality of constitutional and quasi-constitutional orders in the current global constitutional pluralism. He stipulates the inadequacy of the traditional and simple hierarchical models of Westphalian constitutionalism to reconcile and explain the interrelation between the orders in the global world disorder a topic central also to my paper. Judicial dialogue as an instrument for adjustment of the increasing plurality of legal orders in the post-Westphalian situation is also explored by Auby.

Auby outlines the role which is played by non-traditional agenda setters and norm producers in the post-Westphalian context. Auby emphasises the multiple dimensions of the rule of law to the current post-Westphalian and global legal context—international, supranational and domestic. Again he points out the necessity of taking into account both the constitutionalisation of international law and the internationalisation of domestic constitutional law with a view to the principle of the rule of law.

On the other hand, Auby notices that there are international regimes, such as the World Bank, the WTO and the IMF, which still do not match the rule of law requirements.


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Thus there is an inherent controversy between one of the most important principles of Westphalian constitutionalism, which also seems to have a strong chance to persist in the post-Westphalian situation, and the evolution of some international organisations into supranational quasi-constitutional regimes pretending to expose constitutional features without a sufficient bond to key constitutional principles such as the rule of law.

Last but not least, Auby demonstrates the challenges of the quasi-constitutional activity of non-state actors to the rule of law as a key principle of both Westphalian and post-Westphalian constitutionalism. Auby concludes with an analysis of the advantages and disadvantages, the capabilities and limits of global constitutionalism. My paper aims to clarify the analytical concept of constitutional geometry, explaining the constitutional geometry of Westphalian statehood and demonstrating the evolution of the Westphalian constitutional geometry of the constitutional nation state to the post-Westphalian constitutional geometry of the supranational and global constitutional law at the time of globalisation and information revolution.

The paper reflects on the challenges to constitutional semiotics produced by the current early post-Westphalian situation. The first part of the paper is devoted to defining and explaining the concept of constitutional geometry. Constitutional geometry is proposed by me as a semiotic constitutional law concept. I am launching it as both an analytical paradigm of constitutional theory and a constructive ordering paradigm of constitutional law. Constitutional geometry is a semiotic phenomenon which aims to analyse the meaning of visual codes and visual representations of fully or partially institutionalised normative ideas.

The function of constitutional geometry is to serve as an additional explanatory paradigm that exemplifies the main structural features of the constitutional order and the constitutional system. Constitutional geometry is a creative collection of supportive ideologies, concepts, paradigms and structural codes developed by different constitutional, legal and political theories throughout Western Modernity which try to explain the state, the constitution and the constitutional order by using geometric metaphors.

The constitutional geometry of modern constitutional law is a device for rationalisation via formalisation and abstract and symbolic depiction of the constitutional order, the normative order, the institutional sub-systems of the constitutional system and the inter-institutional dynamics in it.

The second part of the paper presents the constitutional geometry of modernity, the reasons for its emergence in that concrete design and outlook and its most important structures, shapes and forms. Constitutional geometry was born out of the general pathos of Western modernity to rationalise, systematise and construct socio-political relations and the realm of the public power.

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It is closely related to some of the most important concepts and paradigms of Western modernity and modern constitutional law and constitutional theory, such as the concepts of state institution, institutional system, system of sources of law and territorial structure of public power. Westphalian constitutional geometry is predominantly organised in hierarchies and pyramids. It rarely uses circles and networks as analytical matrixes for description and representation of institutional, normative or power relations. The network has failed to serve as either analytical or normative concept of Westphalian constitutional law with the victory of the territorial state.

The network and the circle regained their explanatory and normative importance only with the development of the international legal order in the second half of the twentieth century and with the pluralisation and constitutionalisation of that order at the end of the twentieth and the beginning of the twenty-first century. The hierarchy is used both normatively and analytically as the natural power matrix, explanatory and ordering scheme and intellectual and ideological code of modernity from the age of the absolute monarchy until the second half of the twentieth century.

It is the most widespread, typical and frequently used form of constitutional geometry in Westphalian constitutional law. With the emancipation and differentiation of the public power from the broader category of social power and with the emergence of the state as governing system and mechanism for introduction and maintenance of social order, the hierarchy has become a universal code for structuring power relations. The victory of the territorial nation state over alternative models for organising the public power, the necessity for providing a conceptual model for accomplishment of the public authority, the need for maintenance of the interstate equilibrium, for sustainable and durable legitimation of public coercion and for rational explanation of constitutional ontology have produced universal recognition of the hierarchy as the main shape of modern constitutional geometry.

Westphalian constitutionalism has additionally reinforced the hierarchy as an instrument for national unification, centralised political domination and rational government. The establishment of efficient central government required the hierarchy as a universal ordering model. The latter consisted in the introduction of the hierarchy as a universal ordering code and of the pyramid as a key matrix for the rational-emotional visualisation of the structure of the public order.

The constitutional entrenchment of the hierarchy led to the establishment of the pyramid as the central form of modern constitutional geometry. The third part of my paper concerns the post-Westphalian challenges of supranational constitutionalism, global governance and information revolution to the constitutional geometry of Westphalian constitutional law.

It demonstrates that there is an increasing dysfunctionality of the analytical shapes of Westphalian constitutional geometry in the early post-Westphalian context which is caused by several complex, but to a large extent objective factors relating to supranational and global constitutionalism, global xxiv governance, globalisation and the information revolution. They produce structural changes in the ordering and organising schemes of the public power and in its constitutional design and start to change the constitutional geometry of modern statehood.

I am systematising the structural changes of Westphalian constitutional geometry in three main groups. The first group encompasses challenges to constitutional geometry imposed by the constitutionalisation of international and EU law that has led to the emergence of supranational constitutionalism. The second group includes changes of constitutional geometry produced by global governance as a broader governance paradigm that takes into account both the supranationalisation and globalisation and the privatisation of public power. The third group concerns the emergence of the Internet as a global virtual reality.

My key thesis is that the hierarchy and pyramid are challenged, partially dismantled and replaced by the network and the circle as explanatory and ordering schemes of constitutional epistemology and constitutional semiotics. Thus the objective processes of globalisation and the information revolution are producing structural changes in Westphalian constitutional geometry and are fostering the emergence of a new visual and normative world of post-Westphalian constitutional geometry. I provide a critical assessment of the leading constitutional paradigms relating to global constitutionalism, such as multilevel constitutionalism and constitutional pluralism, from the viewpoint of constitutional geometry.

I also present concrete examples that should prove my hypothesis of the partial dismantling of Westphalian geometry by post-Westphalian constitutional geometry. The original contribution of Martinico is the demonstration of the endogenous causes for the development of constitutional openness. Martinico convincingly shows that multilevel constitutionalism and constitutional pluralism as post-Westphalian concepts have their foundations and origin in the domestic constitutionalism of the latest period of the development of the nation state. From such a perspective, these theories seem to have a stronger ontological bond than usually considered in the supranational constitutionalism doctrine.

Martinico enters the debate on internationalisation of domestic constitutions from a specific angle.

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On the basis of comparative and comparative historic examples he demonstrates the tendency of many European post-totalitarian constitutions to perform the opening function and to link the national with the international and supranational legal orders especially with a view to the rule of law and human rights. Martinico critically analyses the opposition between constitutionalism and pluralism as launched in the constitutional discourse by prominent authors such as N Krisch.

According to Martinico this is a false dichotomy based on outdated and not properly conceptualised perceptions of both of these normative paradigms of the global constitutionalism theory. Such transition is based on the assumption that some core concepts of classical constitutionalism that emerged in the initial phase of Western constitutional civilisation have to be reconsidered and reassessed in the light of the current post-modern and post-national challenges without necessarily being radically replaced by genuinely new concepts.

It proposes a new typology of the anti-globalist and illiberal phenomena currently distorting the universalising trend in the spread of Western liberal-democratic civilisation which has been the mainstream during the decades since the fall of the Berlin Wall. It researches the emergence of global anti-constitutionalism and anti-global constitutionalism. A common issue between the papers of Konrad Lachmayer and Manuel Gutan is the importance of illiberal and even anti-liberal political culture and constitutional self-identification as limits and impediments to the development of both classical liberal-democratic constitutionalism based on democracy and rule of law and of post-Westphalian global constitutionalism predetermined by open statehood, jurisdictional proliferation and interpenetration and transnational constitutional dialogue.

The re-emergence of constitutional nationalism and identitarian or expressivist [20] constitutionalism is underlined by both authors. Lachmayer demonstrates the growing importance of these phenomena in an abstract theoretical and comparative perspective while Gutan provides a case study on the matter. Lachmayer researches the preconditions and factors for the new tendency towards a rise in constitutional authoritarianism. He makes use of a socio-legal approach for examining the novel trends of suppression of global constitutionalism and liberal constitutionalism and for launching traditional and novel forms of illiberal constitutionalism.

The research is allocated in a comparative and multi-discursive approach exploring phenomena and tendencies on both national and supranational levels. He points out that constitutionalism is an essentially liberal concept which cannot be deprived of its liberal philosophic background and normative content thus being installed with illiberal philosophical and normative content instead.

That is why Lachmayer suggests using the concept of constitutional authoritarianism instead of authoritarian constitutionalism. Lachmayer delimits two threats to global constitutionalism. These are anti-global constitutionalism and global anti-constitutionalism.

According to him, examples of anti-global constitutionalism are Brexit and recent developments in US policy. Having in mind this consideration of Konrad Lachmayer one can conclude that in the current context constitutionalism is, in one way or another, necessarily a composite concept consisting of both national and global dimensions. Thus the emergence of supranational and global constitutionalism and the migration, reception and transplantation of constitutionalist ideas create a transnational constitutional space which predetermines the existence of national and subnational constitutionalism.

In other words, the emergent post-Westphalian constitutionalism also seems a crucial safeguard for the persisting elements of Westphalian constitutionalism. It demonstrates that both constitutional democracy and competing power models, such as authoritarianism, have inevitably become global in the current post-Westphalian context. Thus the objectively emerged global scale of law, politics, economy and social relations, predetermined by the information revolution, defines the inevitably global dimension of either constitutionalism and democracy or authoritarianism, oligarchy and technocracy.

The early post-Westphalian conditionality, established by globalisation and the information revolution, imposes restrictions, but also creates new opportunities for the spreading of global anti-constitutionalism. On the other hand, the emergence of transnational and global public space also facilitates the spread of anti-constitutional and anti-democratic ideas.

Thus he asserts the chances of further development of constitutional globalisation due to the interest also of authoritarian regimes in the continuation of some of the trends in neo-liberal globalisation and because of the objective existence and increase in global interdependencies. The process of its elaboration should consist both in a return to the roots of constitutionalism thus containing elements of the classical Westphalian constitutional design and in a search for new paradigms, concepts and institutions adequate to the contemporary post-Westphalian developments.

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According to him, this is the only way to prevent the domination of global authoritarian tendencies. Following the theories of G Teubner and P Blokker, Lachmayer proposes to use the paradigms of societal constitutionalism and decentralised direct democracy in order to achieve some viable form of global constitutionalism in the post-Westphalian situation. This case study demonstrates how important the deep socio-legal determinants are for the proper understanding of the resilience of the national constitutional systems to the development of global constitutionalism.


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