Article from the Frankfurter Allgemeine Zeitung, the leading newspaper in Germany, 23 May 2012
Occupy the Law!
Turin is far away from Frankfurt, and over the last week there was not much „Blockupy“ protest against the banks in the North Italian city. Those who wished to experience the Zeitgeist of systemic critique had to go to the small town of Moncalieri in the outskirts of Turin. There, in the neo-classic splendor of the Collegio Carlo Alberto, a group of sociologists, lawyers and philosophers were wrestling with the problem whether social theory can provide tentative answers to the practical question, whether and how much we have to endure the expansionist tendencies of world finance and of other global systems. And what we can do to defend ourselves.
The main initiator of the conference was Gunther Teubner (Frankfurt), legal sociologist and Niklas Luhmann’s most influential successor in the field of law. At this moment his new book Constitutional Fragments appears simultaneously in German, English and Italian. Constitutions, according to Teubner’s thesis which he developed over the last years, exist not only in nation states, but are emerging in many sectors of global society. The function systems of society, politics, the economy, science, media, medicine or technology develop massive tendencies of blind expansion at the cost of their environment and subordinate other sectors to their specific functional logics. This produces strong resistance from the other sectors and ends up in massive stress which re-enters the expansive systems and compels them to accept limitative rules for themselves. In politics these rules are called constitutions. Constitutions produce on the one hand an autonomous basis for power which makes politics relatively independent from religion, family and other social systems, on the other hand constitutions create barriers to their expansionism in the form of fundamental rights.
Teubner illustrates this, appropriate to the genius loci, with a classical image: Ulysses asks his comrades to bind him to the mast so that he can enjoy the singing of the sirens without falling to their deadly temptation to steer the ship to wreckage on the riffs. This is what is needed today for global markets and other transnational social systems: self-binding in order to gain higher degrees of freedom for society as a whole, in other words, constitutionalisation.
What worked quite successfully within the territorial boundaries of the nation state – can this also work in transnational contexts like the global financial markets? This is where the controversies started. The pouvoir constituant has ceased to be a national phenomenon and furthermore can no longer be separated from the pouvoir constitué. With these arguments Chris Thornhill (Glasgow) supported his Luhmannian ally Teubner pointing to the dense network of transnational rights which have not been legislated by any constitutional assembly but by a judiciary which has been constitutionalised in its turn.
Emilios Christodoulidis (also Glasgow), obviously under the impression of circumstances in Greece, objected. The transnational realm has been „colonised“ by the economic logic of competition and is basically immune against irritations by the political system where Teubner puts his hopes. Who wants to domesticate the markets, must turn to (national) politics, not to the markets.
Does he have the courage to tell this to an Italian? - Teubner countered. In Italy the nation state and its institutions are perceived as passive instruments of economic interests – this was the message of Ugo Mattei (Turin), the law professor who has become the star activist of the Italian Occupy Movement. Public goods like cultural and welfare institutions even when they are in the hands of the state have fallen prey to the appropriation by private actors. A genuine constitutionalisatin of the „commons“ is needed which would exclude both nationalisation and privatisation.
It did not come as a surprise that Saskia Sassen (New York) did not wish to rely on the state as the tamer of expansive social systems. In her analysis „global high finance“ differs from traditional banking as it lends money which it does not possess. Thus it is compelled to invade more and more sectors of society. For this purpose global high finance exploits globally, albeit with local variations, the law of the nation states. The famous sociologist did not explicitly make reference to constitutionalism, but enriched the debate with valuable data on landgrabbing by states and hedgefunds, the massive acquisition of land with the help of corrupt governments at the cost of the indigenous population. The territory which has been privatised in this way amounts today to two hundred and twenty million of hectars.
In a concrete case study Moritz Renner (Berlin) demonstrated that constitutionalisation tendencies of transnational regimes are actually taking place. He analysed the regime of autonomous accounting standards of the global economy with its detailed rules of procedure and competences as a piece of transnational constitution making. In the same constitutional perspective Jaye Ellis (Montreal) analysed the ecological standards of non-governmental certification organisations in forestry and high sea fishery.
The most fascinating case study however was conducted by the private law theorist Dan Wielsch (Cologne). He criticized the strictly economic rationality of intellectual property law of the state world where international agreements actually subvert national constitutional guarantees of free and equal access to information and communication media. However, parallel to these state agreements alternative transnational copyright regimes are emerging within the internet community. Software, photos, texts are published under Open Source or Creative Commons Licences which make it possible that the works can be used and distributed without any costs – under the conditions that users apply the same licence for their future partners. This means, private copyright is used to guarantee - not its private character - but its public use.
This, according to Wielsch, is an example for civil society appropriating a legal regime in order to protect the conditions of its own autonomy. That is societal constitutionalisation. What does this mean for the Occupy Movement? „Don’t occupy the system“, Wielsch concluded, „Occupy the law!“ 
The conference contributions will appear in Indiana Journal of Global Law and under the title „Transnational Societal Constitutionalism“ in Indiana University Press.