Document Type


Publication Date

Summer 2013

Publication Citation

20 Indiana Journal of Global Legal Studies 805 (2013)


Societal constitutionalism presents us with alternatives to state-centered constitutional theory. But this alternative does not so much displace as extend conventional constitutional theory as a set of static premises that structure the organization of legitimate governance units. Constitutional theory, in either its conventional or societal forms, engages in both a descriptive and a normative project-the former looking to the incarnation of an abstraction and the later to the development of a set of presumptions and principles through which this incarnation can be judged. Constitutional theory is conventionally applied to states-that is, to those manifestations of organized power constituted by a group of individuals, bounded by a territory, and evidenced by the institution of government. But today a certain measure of disaggregation has managed to manifest a constituting power. Globalization has opened holes in the walls.that used to serve to police and protect states and their power authority. Societal aggregations can exist now between borders. Groups of individuals (and not just natural persons) incarnate abstractions of governance and then judge them in ways that are consonant with constitutional theory. These emerging realities have produced societal constitutionalism. But like conventional constitutionalism, societal constitutionalism seeks the comfort of equilibrium and stasis as the basic operating premises of

self-constituting governance systems. This paper considers societal constitutionalism in its dynamic element-as a system structures constant adjustment among the constituting elements of a governance unit (whether state, corporation, religion, etc.)-in three dimensional governance space. After an introduction, Section I engages in framework setting, focusing on the structures of societal constitutionalism within the logic of globalization. Section II provides an illustration of a societally constituted enterprise operating in three dimensional dynamic governance space. Section III then develops the more important characteristics of this new dynamic and permeable constitutional framework. The paper concludes where it started-suggesting the need to expand our understanding of constitutional theory to include communication among systems in a complex polycentric constituting universe.

Transnational Societal Constitutionalism Symposium, Collegio Carlo Alberto, Turin Italy, May 17-19, 2012