Societal constitutionalism: social and theoretical foundations of the concept

The concept of societal constitutionalism was a reaction to the serious transformations of power that took place during the 20th century, which called into question division of this power into private and public. The activities of powerful national and transnational corporations carried out today affect citizens and civil society as a whole no less than the actions of public authorities. Supporters of societal constitutionalism seek to set limits on such social power through the constitutionalization of various spheres of social relations (economics, ecology, culture, science, health care, etc.). The theoretical prerequisites of societal constitutionalism are represented by various areas of legal thought, the most significant among which are the concepts of the economic constitution, legal pluralism, legal institutionalism, N.Luhmann’s theory of social systems and functional differentiation, global constitutionalism. The ideas developed within their framework largely correspond to modern realities, when society appears as a multitude of self-reproducing and self-regulating social systems that reach a global level and are relatively independent of national states. Legal regulation in such a society is increasingly being implemented not on a territorial basis within the borders of national states, but by functional spheres, including by the participants in the relevant relations themselves. All these diverse, relatively autonomous legal orders must be subject to constitutionalization in order to limit the forms of power realized in them. What the societal constitutionalism means to do is to solve this problem. Proponents of societal constitutionalism define it as a theory of a “new legal pluralism” and constitutional pluralism. In the context of societal constitutionalism, legal pluralism acquires a dynamic character; it focuses not on rules and structures, but on actions, and is defined not as a set of conflicting social norms, but as a multitude of diverse communicative processes and legal discourses, where the official law of national states or international institutions does not have any superiority.