Document Type


Publication Date

Summer 2011

Publication Citation

18 Indiana Journal of Global Legal Stuides 617 (2011)


What is special about the intertwining of private and public corporate codes? It is not only tendencies of juridification but also of constitutionalization that materialize in this interplay. Both types of corporate codes taken together represent the beginnings of specific transnational corporate constitutions conceived as constitutions in the strict sense. This point is based on a concept of constitutionalization that is not limited to the nation-state and implies that also nonstate societal orders develop autonomous constitutions under particular historical circumstances. The following arguments highlight how corporate codes feature functions, structures, and institutions of genuine constitutions:

1. To the extent that 'public" and "private" corporate codes juridify fundamental principles of a social order and establish rules for its self-restraint at the same time, they fulfill central constitutional functions.

2. With their characteristics of double reflexivity and binary metacoding, both codes develop genuine constitutional structures.

3. As constitutional institutions, the two codes do not form a hierarchy of public and private constitutions but an ultracyclical linkage of qualitatively different networks of constitutional norms.

(First presented at a symposium in the context of the biannual conference of the German Law & Society Association (Vereinigung fur Recht und Gesellschaft e. V) on "Transnationalism in Law, the State, and Society." This conference was organized together with the Collaborative Research Center (CRC) 597 "Transformations of the State" at the University of Bremen from March 3-5, 2010. The Collaborative Research Center 597 'Transformations of the State," U. BREMEN, www.staat.uni-bremen.de)