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Document Type

Symposium

Publication Date

Summer 2013

Publication Citation

20 Indiana Journal of Global Legal Studies 697 (2013)

Abstract

This paper scrutinizes the fundamental assumption governing Gunther Teubner's theory of societal constitutionalism, namely that societal constitutions are ultimately about the regulation of inclusion and exclusion in global function systems. While endorsing the central role of inclusion/exclusion in constitutions, societal or otherwise, I argue that inclusion and exclusion are primordial categories of collective action, rather than functional categories. As a result, the self-closure which gives rise to a legal collective is spatial as much as it is temporal, and subjective no less than material. Inasmuch as legal orders must establish who ought to do what, where, and when, this entails, or so I argue, that any legal order we could imagine-including a global legal order such as cyberlaw-is necessarily bounded in space, time, content, and membership. This impinges directly on the inclusion/exclusion difference: that there can be no inclusion without exclusion entails, most fundamentally, that there can be no (il)legality without alegality, i.e. comportment that contests, sometimes radically, how a legal order draws the distinction between legality and illegality. In this fundamental sense, all legal orders have an outside-literally. Building on this insight, I suggest that the functional cosmopolitanism advocated by a theory of societal constitutionalism retains a residue of the logic of totalization it seeks to overcome. I conclude by exploring how a first-person plural theory of law both supports and transforms the insight that constitutions regulate the inclusion/exclusion difference by putting into place constitutive and limitative rules.

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

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