Transnational Networks and Constitutionalism

The concept of modern constitutionalism is intimately related to notions of state sovereignty. The actual influence of the constitution as a hierarchical tool of nation-state design remains a matter of dubious empirical validity. Today, among the conditions of intergovernmentalism and globalization, state centered constitutionalism is confronting governance by networks: both private domestic networks and networks of national governmental institutions are becoming decision-makers, which cannot be controlled within the concepts of state based constitutionalism. Notwithstanding these developments the above difficulties of constitutional social steering and determination of the public sphere have not resulted in the dethroning of the paradigm of state centered constitutional law in the constitutional law community. Such disregard runs the risk to turn constitutionalism into irrelevant speculation in an age of globalization. In the globalized world the most important decisions and events affecting society escape the control of the sovereign state operating on the principle of territoriality. In this paper I consider two structures of polycentric exercise of public power that are decisive for a new paradigm of constitutionalism. The first type of transnational network structure is primarily a network of private ordering with the participation of administrative bodies of the desaggregat­ing state and private entities associated with the administrative entities (transboundary private networks). A second kind of transnational networks (transgovernmental networks) originates from supranational organizations that operate beyond the nation state. Transgovernmental networks take away traditional governmental functions and overwrite/replace the decisions of the state organs. The taking of state functions includes regulation, adjudication, enforcement, material and other services. The actions of the networks are beyond the control of the constitu­tionally designated authorities and follow principles, which are unrelated to the otherwise pertinent constitutional principles. The article considers the impact of international networks on the desaggregation of the constitutional state and the possibility of a new legitimation for transnational network-based governance.