The Horizontal Constitutions

Adams, Tyler and Bersier Ladavac, Nicoletta and Pitasi, Andrea and Taricani, Ellen (2018) The Horizontal Constitutions. Rivista di Criminologia, Vittimologia e Sicurezza, XII (3). pp. 36-46. ISSN 1971-033X

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The goal of this paper is to describe the “horizontalization” of state/national constitutions in a scenario of globalizing law, where the Supranational World Order Legislative Policy Modelling (WOLPM) is dramatically redesigning the traditional hierarchy of legal sources, whose top were with state–national constitutions. The current scenario is radically different and state/national constitutions are no longer frameworks for law-making; rather they are part of a larger frame, but rather framed in a different framework. This new framework is vertically shorter and horizontally much longer, as transnational and supranational treaties are shifting the sovereignty is going more and more supranational and global; as a consequence, a condition of interdependence is emerging, which shapes a non-reversible network of networks. This horizontalization process evolves the innovative power of the legislative function in the global law system; this system is the one which can proactively support an innovation policy viable to the key challenges of our times. Furthermore, this power shift leverages and increases the quality of democracy: by a dramatical downsizing of the meso and the micro organizational Wiliamson’s costs -which can also facilitate a direct link between the macro and the psycho-social levels- an evolution seems to be emerging from different peoples to one People (eg: from the EU member states peoples to the EU people). A better comprehension of this evolution is based upon two theoretical grounds. On one side, Lawrence Friedman’s works about the globalization of culture and technology, which is also recombining social, political and religious traditions in the globalized law making process. On the other side the Luhmann-Teubner’s vision based on the concept of Law System (just one and global all over the planet); in this case, a Global Law System is implies two evolutive directions: a vertical direction, which means increasing law production at the top of this System; and a horizontal direction, consisting of structural couplings with local juridical social systems. These couplings can also show conflictual features. As a matter of fact, as Teubner points out, there is a crisis in traditional constitutionalism, that is caused by transnationalization. As a matter of fact, traditional constitutionalism is Nation-state based and hardly can it accept supranational sovereignties. Furthermore, tendencies are strong among social systems, to put themselves outside the state and to engender individual or institutional autonomy. In order to foresee the possible outcome of this trend, the best theoretical tool is the system/environment distinction. This notions draws a neat distinction between a more and more formalized and unified global world order (through supranational treaties as mentioned above) and a more and more turbulent and noisy environment, consisting of strong protests. According to systemic theory, irritation and resonance might make the law system oscillate, nevertheless the noisy environment has no construction function.

Item Type: Article
Uncontrolled Keywords: horizontalization; Constitutions; WOLPM; Global Law System
Subjects: 300 Scienze sociali
Depositing User: Prof.ssa Raffaella Sette
Date Deposited: 14 Jan 2019 12:15
Last Modified: 14 Jan 2019 12:15

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