Two readings of global law




Testo dell’intervento per il seminario di Uninomade “Il diritto del comune”. Torino, 10 marzo 2011.


Sandro Mezzadra poses precise questions in the introductory paper which make it possible to identify convergences and divergences of the two readings of global law. I will address each question and formulate tentative answers.


Question I.What is the Future for the Public/Private Divide?

Both approaches insist on a fundamental critique and on the de-construction of the private/public distinction. For A. Negri, the crisis of modern society is due to the divide of private property and public property in capitalism. My starting point is the inadequacy of the distinction between a private and a public sector and between private and public law.  The problem is however how to dis-place the distinction and how to re-place it. Social theorists have again and again analysed the breakdown of the boundary between state and society, but what they offer instead is a total politicisation of the entire society. Similarly, the distinction between public law and private law has been attacked by numerous legal scholars but has been substituted by the vague assertion that private law is pervasively political. A. Negri takes a different road. He criticizes private property as well as public property, insofar as this is understood as the property of the state, and replaces the distinction by one concept: the common.

My argument starts with the obvious observation that the current distinction between the public and the private sector is an oversimplified account of contemporary society. More controversially, my argument continues that any idea of a fusion of the public and private spheres which is argued by many critical scholars, among them A. Negri, is equally inadequate. As an alternative conceptualisation, I propose to take the opposite direction of a fusion: the public/private divide should be replaced by polycontexturality. The claim is this: Contemporary social discourses and practices can no longer be analysed by a single binary distinction; the fragmentation of society into a multitude of social worlds of meaning requires a multitude of perspectives of self-description. Consequently, the simple distinction state/society which translates into law as public law vs. private law needs to be substituted by a multiplicity of social perspectives which are simultaneously reflected in the law.

The distinction between private law and public law needs neither its destruction nor its fusion, rather its Aufhebung. In the first step, it needs to be dissolved and to be replaced by law’s elective affinity to a plurality of discourses, law’s close relations with the many contexts of intimacy, health, education, science, religion, art, and media. This would lead to a thoroughgoing reflection within law of the distinctive eigenlogics of these various realms of discourse.

The point is to liberate the law from the simplistic public/private divide, which means simultaneously not only to de-economise it but also to de-politicize it, to distance it not only from the private sector but also from the public sector. In the last century legal doctrine had to adapt to the double Great Transformation, the victorious imperialism of both the economic and the political system which had divided the social world into two great spheres of influence. On the one side economic action developed totalising tendencies in its society-wide expansion and transformed non-commercial social relations, e.g. the relationships of the classical professions to their clients, into profit-oriented economic relations. Law followed this ongoing commodification of the social world, sometimes reluctantly, always obediently. On the other side there was the apparently unstoppable growth of the welfare state, transforming social activities into public sector services. Accordingly, law abdicated its responsibilities for the legal regulation of these social activities in favour of state policies. And this error has been the common starting point for the great influential ideologies, liberalism and Marxism, in their countless variations and combinations, including social democracy and New Labour. Accordingly, the debate is then only about whether law should reflect economic efficiency or governmental policies, principles of economic autonomy or of political intervention. And even after the financial crisis, we are faced with another round in this oscillation, after neo-liberal de-regulation now back to a renewed state interventionism. Tertium non datur? Both political ideologies have assisted in creating legal institutions which stress, albeit in different forms, the conflicts between the political and the economic sector, but at the same time – and this is my central point – they have neglected or instrumentalised the wide array of other spheres of civil society.

In this sense, the public/private divide will be discarded, but it takes on a new meaning. Now, it is radically separated from the state/society distinction as well as from the public law/private law distinction. Indeed, it stands orthogonal to them. The traditional private/public duality is dissolved into a plurality of social segments (polycontexturality). The so-called “public” politics and the so-called “private” economy are only two of a whole variety of social segments.

However, the second step is crucial: The private/public divide then reappears within each formerly “private” social sphere. The “public” now takes on a different meaning—no longer, state policies in so-called policy fields of regulatory politics, now the public is that sphere’s expression of its intrinsic normativity in its relation to the whole society, which law legitimately takes into account.

As for the “private”, there is a potential contrast to A. Negri’s ideas, which tend to reduce the problem of the “private” to the concept of private property. Now, the category of “private” would neither be given up nor be dissolved in an overarching concept, be it the public or be it the common. Historically, the distinction public/private has undergone so many changes of meaning (oikos/polis, internal morality/external law, state/society etc.) that it would be inadequate to identify it exclusively with individual/collective property. Rather, the “private” would be re-instated and developed to further individual and collective actors’ autonomous self-realization. The radical critique of private property has clearly its merits, but should this critique imply the destruction of the many other significations of the private: personal privacy against intrusion by others, space for intimacy in personal relations without society’s interference, autonomous pursuit of strictly individual projects against their collectivization, human rights protection for individuals and groups not only against majority politics but also against capillary power relations in different social disciplines, the Innerlichkeit of the human mind against communicative intrusion, the spirituality of individual conscience against the domination by public religion and politics? In my view, these are all legitimate expressions of the “private” which speak not against but clearly for a reconstruction of the public/private divide, to be sure, not as a division of society into a private and a public sector, but as a variety of distinctions within different worlds of meaning.

“Public” in this new sense would not refer not to the one body politic of collective deliberation and decision, but to a multiplicity of public spaces which make possible communicative reflection processes within each of the formerly “private” spheres of society. In each of these public sites, conflicts, struggles, deliberation and decisions are directed to finding a balance between the site’s relation to the whole society and their contributions to individual and collective actors. Of course, law does not and cannot dictate this reflection processes within these spheres of civil society. Instead, it needs to be responsive to it and simultaneously participate in it through judgments in individual litigation, which are in their turn exposed to the continuing reflection process.

To schematize my argument, the public/private divide needs to undergo a dialectical Aufhebung in the double sense of destruction and preservation.

(1) The simple duality which dominates still today should neither be destructed not should there be a fusion of both poles. Rather it needs to be destructed and replaced by the multiplicity of social perspectives which then are reconstructed within the law.

(2) In a rather limited sense, the old public/private divide will be preserved insofar as this divide is understood as the difference between political and economic rationality, which, however, is relativized, because they represent only two among many other social rationalities.

(3) In the more important different sense, the public/private divide will reappear in each contexture of polycontexturality as the precarious difference between societal responsibility and the pursuit of actors’ interest, and law needs to be responsive to both sides of this divide.

To give an example from my field of private law: The famous and controversial general clauses of bona fide and boni mores in contract and tort law do not, as many lawyers see it, subjugate private contracts to the policies of the democratic state and to public law. Rather they are an expression of what I call the internal public element in so-called private institutions, in other words to the idées directrices of multiple civil society institutions and connects them to the idea of the common good. Another example: Constitutional rights in the “private” sphere are not transfers of state constitutional rights from the vertical relation state-citizen to the horizontal relation between citizens; instead, they protect the integrity of individual and social autonomies against overpowering anonymous social processes within different sectors of society. Both examples have in common is that they make the law responsive not to a unified political process of a new collectivity but to the peculiar public dimension of social configurations.


Question II. Where is the Potential Space for social movements in its relation to global governance?

We have as a common starting point the idea that transformative strategies should not oppose modernity tout court, rather as A. Negri puts it, “subvert” it, i.e. change it fundamentally, but simultaneously exploit the high ambivalences of modernity by attacking their destructive potential and strengthening their productive potential. Karl Marx had this idea making use of the progress of productive forces in capitalism for its transformation, contemporary attempts aim to exploit post-fordistic industrial organization in its inherent democratizing potential. Similarly, A. Negri and I see the ambivalences of the new global governance not only as a target of critique but as a chance for its transformation.

Subversion not opposition is A. Negri’s formula which he directs against private property in global capitalism. My ideas on the constitutional moment use a similar model but they identify the ambivalences of modernity in a different way. My question is: Is there such a thing as collective addiction in the different sectors of late modern societies? Do we recognise this addiction as a genuine social phenomenon, not just as an individual problem? The usual answer would be, binge drinking, or the herd instinct of the bankers before the crisis. In fact, these are social amplifiers of addictive behaviour: they influence obsessive behaviour in the form of peer-pressure, imitation, social norms or mob mentality. But what they are concerned with is ultimately only the addiction of individuals.

However, I look for something rather different. It is possible that social processes as such might exhibit the properties of addictive behaviour quite independently of the dependence syndromes of individual human beings. Josef Ackermann is clearly not an addict, and yet Deutsche Bank is in urgent need of detox therapy. This would amount to collective addiction in the strict sense. Independently of the addiction of individuals, communications would concatenate such that they become caught up in compulsive engagement in an activity despite lasting self-destructive consequences.

The definition of individual addiction – compulsive engagement in an activity despite lasting negative consequences – must be rethought for social systems in general, and for collective actors in particular. Which ‘addiction mechanisms’ are responsible for the fact that the autopoietic self-reproduction of a social system through the recursivity of system-specific operations reverts into a communicative compulsion to repetition and growth, bringing self-destructive consequences in its wake?

Such a dynamics raises a fundamental question for autopoiesis theory: how are we to conceive of the relationship between social self-reproduction and the compulsion to growth? The disquieting question remains of whether the autopoiesis of highly specialized functional systems is not secretly dependent on the logic of growth. And, particularly relevant to our discussion, does the recursivity of autopoiesis have inherent tendencies, over and above such normal growth, towards a socially harmful compulsion to repeat and grow? And by what means is such a ‘turbo-autopoiesis’ triggered?

Now, the crucial point is: this societal addiction is not limited to the capitalist economy in its relentless growth dynamics, as many critics of modernity, among them A. Negri, see it. Instead, many, if not all function systems exhibit similar expansionist tendencies – the famous-infamous tendencies towards a comprehensive politicisation, economisation, juridification, medialisation, sexualisation or medicalisation of the world – which indicate compulsive growth-dynamics  inherent in each sphere of functional differentiation. This transforms the critique of the capitalist economy into the critique of functional differentiation. In all function systems, the moment of excessive expectations, a type of high-risk ‘credit’ in future communications, lies hidden in the motivations to accept a communication created not only by the media of money, but also by the media of power, law, truth and love. The moment can only be ‘cashed in’ there with permanently higher payments, and with their reaction, in turn, on increasing ‘credit’-expectations, so that a necessary increase-dynamics, a growth-spiral develops. In that case, the pathological growth-spiral could no longer be regarded as a phenomenon particular to the money-medium of the capitalist economy based on private property, but instead as a inherent characteristic of each function system.

Such growth accelerations of the function systems burden themselves, society and the environment with serious ‘consequences of their own differentiation, specialisation and high-achievement orientation’. Three collision fields can be identified: (1) the collision of the growth imperative of one system with the integrity of other social subsystems; (2) collision with a comprehensive rationality of world society; and (3) the collision of the growth acceleration of a system with its own self-reproduction. The evolutionary dynamics of these three collisions certainly have the potential to blur into social catastrophes. But there is nothing necessary about the collapse, as Karl Marx postulated, and nothing necessary about Max Weber’s ‘iron cage’ of modernity. Niklas Luhmann is more plausible: the occurrence of catastrophe is contingent. It depends on whether growth-inhibiting countervailing structures emerge to prevent the positive feed-back catastrophe within the growth-dynamic.

The experience of near-catastrophe, as opposed to the experience of its contingency as such, may be regarded as the ‘constitutional moment’ in which countervailing structures potentially emerge. It is the moment when the collapse is directly imminent. The similarity with individual addiction phenomena is again obvious – ‘Hit the bottom!’ It must be one minute before midnight. Only then is there a chance that the understanding will be lucid enough, the will to change strong enough, to allow a fundamental change of course. And that applies not only to the economy, where warnings about the next crisis are regularly ignored, but also to politics and science.

This is the message of  societal constitutionalism. A global constitutional order faces the task: how can external pressures be exerted on the function systems in advanced societies of such force that self-limitations of their options for action will take effect in their internal processes? It is “subversive” as it destroys the excesses of the autonomized rationalities but it exploits at the same time their productive dynamics. A ‘hybrid constitutionalisation’ is required in the sense that external societal forces, which are not only state instruments of power, but also legal rules, and ‘civil society’ countervailing powers from other contexts, media, public discussion, spontaneous protest, intellectuals, social movements, NGOs or trade unions apply such massive pressure on the functions system that internal self-limitations are configured and become truly effective.

It is only possible to invent, elaborate, and enforce these limitations from within the system-specific logic, and not from outwith. The difficult task of mutually aligning the function of a social system and its contribution to the environment at a sufficiently high level, can only be attempted by a system-internal reflection, which may be initiated or mandated externally but cannot be substituted for. There is no alternative but to experiment with constitutionalisation.

To take the constitution of the economy as the exemplary case, in order to inhibit pathological growth compulsions, stimuli for change need to generate permanent counter-structures that will take effect in the payment cycle down to its finest capillaries. Just as in political constitutions power has been successfully used to limit power, so the system-specific medium must turn against itself. Fight fire by fire; fight power by power; fight law by law; fight money by money. Such a medial self-limitation would be the real criterion distinguishing the transformation of the ‘inner constitution’ of the economy from external political regulation.

Candidates for a capillary constitutionalisation are three. They would create different spheres of the “commons” understood in a wider sense:

- Politicisation of the consumer: Instead of being taken as given, individual and collective preferences are openly politicised through consumer activism, boycotts, product-criticism, eco-labelling,  public interest litigation and other expressions of ecological sustainability. Such politicisation of economic action represents a transformation of the inner constitution, touching the most sensitive area of the circulation of money, namely, the willingness of consumers and investors to pay. And this becomes a question of constitutional importance, or more precisely, a question of horizontal effects of constitutional rights in the economy: how to protect the formation of social preferences against their restrictions through corporate interests.

- Ecologisation of corporate governance: What is meant, here, is not a new managerial ethics, but rather a transformation of the internal company structure, compelled by external pressures; a transformation which limits the tendencies to speculation and compulsions to grow necessarily associated with the emergence of the modern corporate structure. The traditional forms of worker’s participation in the firm would have to be reconsidered under conditions of globalization into new forms of social and ecological responsibility of economic production.

-  Public control of the monetary system would penetrate the arcanum of the global financial constitution, as is proposed to combat growth-excesses. The addictive drug is the creation of non-cash money by the commercial banks. Today the relation of paper money created by the central banks and non-cash money created by the commercial banks is 20 : 80. Commercial banks should be prohibited from creating new money through current account credit and limited, instead, to offering loans that are based on existing credit reserves. Jefferson demanded as early as 1813, “that the right to issue money should be taken from the banks and restored to the people”. But who are ‘the people’ when it comes to money? How can the creation of money be restored to the people? After all that has been said, the answer can only be that money creation belongs in the public sphere, in the sphere of the commons, though not in the domain of the state. The creation of non-cash money should be “given back to the people”, it should become the sole prerogative of public institutions which are not state institutions, the national and international central banks under democratic control. Plain money reform participates in two antinomic thrusts to constitutionalise global markets. Analogous to Karl Polanyi’s analysis of the transformation of modernity, there is a double movement of transnational constitutionalism: first the expansion of sub-systems is supported by constitutive norms, and then turbulent social conflicts force its inhibition by limitative norms which create a sphere of the commons in the center of the economy.


Question III. Would a New Global Law Be Articulated by a Different Subjectivity?

I support A. Negri’s critique of private property insofar as private property is the major obstacle for forming a collective subject which could articulate a common politics. The difficult question however is how to imagine the new contours of such a collective subject. Indeed, proletariat and political party as the avant-garde of the working class, not to speak of nation or even race have turned out to be the grave historical errors in forming the collective subject. But also liberal philosophy and the philosophy of the subject who insist on the human indvidual as the only legitimate subjectivity in historical processes are unacceptable, since both misunderstand fundamentally the transformation of society after the demise of feudalism. A. Negri’s multitude in its relation to the common challenges this reduction profoundly and revitalizes the collective subject against the dominant methodological individualism.

However, I have two objections against A. Negri’s collective subject. Is the “multitude in its entirety” as the new collective actor not still bound to a traditional understanding of the collective, as if a number of separated human beings were united in a new community? In my view, the idea of the collective cannot be revitalized as the antonym of the individual. Collective actors do not consist of individuals in concert. These are historically discredited formulations. A community is created neither in the corporeality of real people, nor in their consciousness, but only in their communication. Communities are living and dynamic language games, not  mysterious unities of peoples’ consciousness and bodies – which organicist thinkers like Gierke suggested and which return today under the new labels of bio-politics and corporeality. As a consequence, one should strictly follow A. Negri’s recourse to Wittgenstein’s language games and life-practices and expand it so that collective actors can be identified exclusively as chains of communications that thematize themselves and gain capacity for action and reflection in their own right as compared to the action and reflection of individual human beings. Collectives are social communicative configurations that cannot be identified with an ensemble of real people. No doubt, the material basis of collectives are human minds and bodies, but this should not lead us to holistic mystifications of the collective subject as a new unity of corporeality, consciousness and communication.

The other objection has to do with the omnipotency fantasies of politics. The collective energies of societies cannot be bundled in the one great political process, in Negri’s words, “in the active and autonomous self-regulation of the multitude in its entirety”. Here I feel a second holistic mystification in the rhetorics of the common. The collective potential of society’s communication does not exist as a unified political entity in its entirety, it develops its specific force only as a multiplicity of highly specialized social potentials, energies and forces. This is the historical achievement of the specialization of communicative media – power, knowledge, money, love. And only there is the place of the new collective subjectivity, where diverse collective subjectivities constitute themselves within the different worlds of meaning.

The self-identification of such collective subjectivies aims at the reflection of their social identity. How do the various collective subjects define autonomously their relation to society as a whole, to the other collective and individual subjects and to themselves? This triadic structure of social identity makes visible its hidden connection to the tradition of subjective rights of the autonomous individual. The autonomy of the individual was not understood as pure pursuit of individual interest  or as the will to self-realization. It stood in a constitutive relation with the individual’s responsibility toward the whole community and toward the others which could not be externally imposed but only formulated via the singular internalization of the world in individual self-reflection. Thus, it is the duplication of subjectivity, the individual human being and the communicative chains that will not and cannot be fused into a new entity. This duplication creates two independent, different and parallel contexts of autonomy and responsibility. I would suggest to identify the “commonwealth” in this duality of individual and social reflection and in the multiplicity of communicative centres of reflection. Modern society has no apex and no centre, and the commons should never attempt to take this place. Such a multiplicity of public spaces would be my counter-vision to the commonwealth of the multitude in its entirety.


Question IV. How Could Institutional Imagination Develop?

Again, we have a common starting point, the promise of the future lies not in institutionalized politics of the state or in the institutions of global governance, but in a constitutionalization of spontaneous processes in civil society. Here, the concepts of empire, of multitude and of the common have indeed a liberating effect against the state-centered conceptions of the tradition. But, as I said, the bifurcation begins when I understand A. Negri arguing for a comprehensive and unifying politicization of society via the concept of the commons, while I argue for a strictly pluralist constitutionalization which strictly requires the extensive autonomy of different social rationality spheres. This however, raises the critical counter-question to my argument: Does this not imply that society is de-politicized in these partial pluralities? Does giving account of multiple global legal orders really require moving beyond politics-centred constitutional thinking? And what is the value of constitutionalization without political democratization?

My tentative answer: Societal constitutions are paradoxical phenomena. They are not part of the constitution of the political system in society but, at the same time, they are highly political concerns. The paradox can be solved with the help of a double conception of the political. This is a widespread idea and the difference between le politique and la politique, is understood in a variety of ways, e.g. by Lefort, Badiou, Agamben, but I would interpret the double meaning of the political as follows. First, by ‘the political’ is meant institutionalised politics: the political system of the world of states. In relation to this world, social sub-constitutions ‘go the distance’; they require extensive autonomy against the constitution of international politics. And with regard to the participation of the political system in the process of the social sub-constitutions, particular ‘political restraint’ is required. Second, the concept indicates the political in society outside institutionalised politics. It indicates, in other words, the politicisation of the economy itself and of other social spheres; the politics of reflection on the social identity of the social system involved. In this respect, the particular social constitutions are highly political, but beyond the state.

When I read A. Negri’s ultimate chapter and the three platforms in which he formulates demands on a new “government”, I do not find any trace of this double concept of politics, rather a totalizing concept of the political in which what he calls “government” is supposed to constitutionalize and regulate pervasively every sector of society. Why am I sceptical about Negri’s idea that a political government, even if it is fundamentally democratic, pervasively regulate the fundamental structures of social sub-spheres? If it is ultimately the greatest privilege of the multitude to create a constitution for society, why do I favour auto-constitutionalisation of social sectors and not collective decisions by the whole body politic? Again, the answer has to do with the basic social structures of modernity. They make it necessary to re-define the traditional relationship between representation, participation and reflection. In the functionally differentiated society, the government, even a fully democratic government in Negri’s sense, cannot fulfil the role of defining the fundamental principles of other social sphere without causing a problematic de-differentiation – as occurred in practice in the totalitarian regimes of the twentieth century. In modernity, society can be constitutionalised only in such a way that every sphere of rationality acts reflexively in developing its own constitutional principle for itself, and the results cannot not be prescribed by “government”, old or new. Modern society regards participation and representation as identical and, at the same time, abolishes them. We must resist the seductive idea that a unified political process represents society and that other social spheres participate therein. No social sub-system, not even democratized politics, can represent the whole society.

To be sure, there is an important role for the general political process. While it cannot prescribe the constitution of the economy and other social subsystems, it can produce constitutional impulses for them. If democratic politics, together with other actors, particularly civil-societal actors, exerts massive external pressure in order to compel changes in fundamental social structures, for example, in the capillaries of the payment cycle of the economy, that would be the appropriate division of labour. Social systems have the best constitutional chances where they can develop their own constitutions in the shadow of institutionalized politics.

However, what is the value of constitutionalization without democratization? Very little. Constitutionalization of social institutions makes sense only if it is realized by their internal democratization. The democratic legitimation of different social spheres must, indeed come up in relation to society as a whole – but it need not proceed through the channels of a totalizing political process which seems to be A. Negri’s vision. While societal constitutionalism keeps its relative distance from institutionalised politics and sees no great democratizing potential in a stronger legitimation by a general political process, the politicisation and democratization of the economy and other social sectors themselves is high on its agenda. Politicising a social sector means to unleash intense and conflictual processes of collective reflection which deal with the social consequences of the extension and the limitation of its medium. Politicisation is realized by ‘collegial institutions” in the general public, citizen groups, NGOs, labor unions, professional associations, universities  and corporations. A strengthened politics of reflection is required within the economy and other social spheres that at the same time needs to be supported by constitutional norms. Historically, collective bargaining, workers’ participation, and the right to strike had enabled new forms of societal dissensus. In today’s transnational regimes, institutions of social responsibility of formal organizations will have to be developed that fulfil a similar role. Societal constitutionalism sees its point of application wherever it turns the existence of a variety of ‘reflection-centers’ within society, and in particular within economic institutions, into the criterion of a democratic society. In these reflection centres it is fiercely discussed and finally decided whether, in a concrete situation, the growth compulsions of the social sector are excessive or not.

If it is true that ‘… psychic and social systems must develop their own reflexive processes of structure selection – processes of thinking about thinking, or of loving love, of researching into research, regulating regulation, financing the use of money or overpowering the powerful” then societal constitutionalism cannot be limited to the rule of law and human rights. Its overriding concern must be to democratize not only institutionalized politics but to democratize all sector and all institutions of society. The democratic character of a society does not only depend on democracy in political institutions (general elections, referenda, participatory politics etc.), but on the democracy of all societal institutions.

If this makes sense, then the crucial point is: It would be a categorical mistake to transfer democratic institutions and procedures that have been developed in the political system directly to other social sectors. This was one of the main errors of 1968. Every world of meaning must find its own way of democratization. Power politics democracy with its compulsive division of the world into the binary distinction progressive/conservative would impair the proper rationality of other rationality spheres. Democratizing the accumulation of power for collective decisions cannot be the model, neither for the inner constitution of scientific inquiry and the universities, nor for the judicial process, nor for the health sector, nor for the media of information, nor for economic production. What is needed, instead, is to generalize a concept of democracy from the experiences of politics, and then to respecify it for the other spheres of rationality. This would be the politics of the commons not in the entirety of the multitude, but in the fragments of polycontexturality.

In the case of law: electoral politics for judges or the referé legislatif would be the categorical mistake, instead, radically broadening access to justice and transforming the private litigation process into a site of public deliberation where not only the parties but concerned third parties and the general interest are heard, points to the right direction which respects the inner triadic structure of the judicial process. In the case of economy: transforming post-fordist tendencies of decentralization and functional democratization into genuine processes of participation of the productive coalition which creates the monetary surplus necessary for securing future needs of society.


Question V: Where are the main differences and convergences?

I try to summarize them in three points:

1. My counter-category to the excesses of the “private” is not the “common” but the “public”. To be sure, this is not the “public” of the state, of public law and of institutionalized politics. Rather, it is the public outside the state, within society, within the many so-called private fields. While the “common” seeks to overcome the alienation of the private via collective activities and collective modes of attribution, the “public” tends to strengthen the space of open and democratic deliberation which finds its different forms in each social field. Undoubtedly, common property has a powerful potential which has been suppressed under the domination of neoliberal policies of private property. But the choice between different attributions of property rights cannot be decided a priori on theoretical grounds in favour of the commons but needs to be governed by public reflexion processes within each sphere of life. Democratic reflexion processes will draw diverse boundaries in each sphere of life of what should be legitimately kept private, part of intimate life, excludes others, and what should become a common enterprise shared by all.

2. What I call polycontexturality has certain similarities to the fragmentation of Empire and Multitude, but as a result of longue durée historical processes it is much less fluid and cannot and should not simply be overcome by political fiat. Rather, any subversive transformation of modernity that wants to overcome it but simultaneously to draw on its productive potentialities will have as one of its priorities to cultivate polycontexturality. If A. Negri wants as he says to build not only on natural science and technical knowledge but also on existing sociological knowledge he would have to take centrally into account what I see as sociology’s most important diagnoses of modernity, starting from Emile Durkheim’s division of labor, Max Weber’s new polytheism, Talcott Parsons’ and Niklas Luhmann’s functional differentiation, Bourdieu’s champs sociaux ending in its most radical formulations in Gotthard Günther’s polycontexturality and Francois Lyotard’s différend. I should stress that polycontexturality cannot be identified exclusively with  functional differentiation which dominates today. It is more abstract and opens the space  for new social differentiations that we are partially witnessing today, including the multiplicity of discourses, identified by postmodern thinkers, and the variety of hybrid cultural distinctions, modes of  A. Negri’s “altermodernity”, as a result of the double fragmentation of world society. Polycontexturality in my view does not only result from fragmenting power structures of the Empire. We have to take the high ambivalence of polycontexturality much more serious. Unleashing the relentless and reckless dynamics of specialized rationalities, not only in the capitalist economy, but in all function systems, it is responsible for the catastrophes of modernity, for the alienation of individuals, for devastating social conflicts and for ecological disaster. And at the same time, this very polycontexturality embodies the conditions of possibility, to fulfill the promises of siècle des Lumières and modernity: the liberation of reason from religious and political repression, the autonomy of the rule of law against political and economic power, the democratization of the political process and its protection against economic corruption, and last not least, the concentration of the social surplus production in the field of economic action.

3. While these two points drive our projects in different directions, there are linkages, open connections and hidden convergences in many other respects which would worthwhile to be worked out in detail. I try to summarize: Societal constitutionalism and the politics of the commons argue both against the political quietism of many strands of post-structuralism, against the Gelassenheit and against the passive waiting for a new subjectivity. They both identify the janus face of capitalist modernity; its self-destructive as well as its productive potential and see in this ambivalence the chances for its “subversion”. Both criticize the sterile alternative of state-centeredness versus private property of the private/public divide and change the focus of attention to wider processes in society. They dismiss both the old collective subjectivities (class, avant-garde, nation, race) and formulate ideas of a new subjectivity in the tradition of Wittgenstein’s language games. Subjectivity appears no longer exclusively as the identity of the self-reflecting individual but as a dense web of social events in its ruptures and repetitions – autopoiesis of the collective. In their critique of the excesses of private property and its underlying growth compulsion, both argue for a thoroughgoing politicization of the so-called private sectors of society. In contrast to contractual theories of societies they see social conflicts as the driving force but stress at the same time an urgent need for institutionalizing and constitutionalizing new political dynamics within all sectors of society. And perhaps most importantly, they judge the democratic character of a society not in terms of formal democratic procedures in institutionalized politics but in democratizing processes within different domains of society.





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