Transnational Economic Constitutionalism in the Varieties of Capitalism

by Günther Teubner

Notwithstanding the ordoliberal theories and the theories critical of a world ‘economic constitution’, globalization has not produced a unitary economic constitution, but a fragmented constitution of collisions: ie a metaconstitution of constitutional conflicts, whose conflicting units are no longer the national States, but the regimes of transnational production. The alternative (developed for national States by Franz Bohm and Hugo Sinzheimer) between an ordoliberal economic constitution and a social democratic economic democracy has resulted – as regards the current transnational economic constitution – in the opposition between continental Europe’s production regimes organized in a neo-corporative way on one hand, and Anglo-American inspired production regimes characterized by financial capitalism on the other. Contrary to all expectations, continental Europe’s neo-corporative economic constitutions have revealed a surprising resilience, notwithstanding globalization and the economic crisis. New opportunities for an economic-democratic constitutionalization are emerging in as much as social forces outside the corporation (and so, in addition to state intervention, legal regulations and the counterpowers of ‘civil society’ coming from other contexts: media, public discussion, spontaneous protest, intellectuals, opposing social movements, non-governmental organizations (NGOs), trade unions, professions) are putting such intense pressure on corporations so as to force them to self-limitations driven by the public wealth, as demonstrated by the ‘Corporate Codes’ case.

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