A Sociology of Constitutionalism
Students will learn about sociological approaches to the legitimacy of constitutional democracy resting on two main pillars: popular sovereignty and the rule of law and civil rights based constitutionalism. A political system is democratically legitimate if it is imposed by the sovereign people on itself, and political power can be exercised either directly by the people, or through their elected representatives. The system itself needs to be constitutionally legitimate in the sense that its principles, rules and procedures are expressed in legal form and public officials and their actions are subject to the law. Democratic practices are governed by the rule of law and, at the same time, the legal rules are open to democratic change. This paradox of constitutionalism is going to be discussed within the context of discursive and social systems theories. Furthermore, two different functions of the modern constitutional state as social organisation, namely limiting the exercise of sovereign power by means of constitutional checks and balances and symbolically constituting the whole of society, will be sociologically analysed to comprehend the constitutional state's social and historical context. Different sociological perspectives shall be introduced to understand a sovereign act of popular constitution-making as both constitutive of the systems of politics and law as well as expressing the collective identity of a democratic polity. This expressive mode of collective identity stretches beyond the domain of law and politics and establishes the ethical and cultural self-reflections of the people as a real political force and a symbolically imagined community. Interpretive sociology of modern nationhood, therefore, shall further compliment the functional and institutional analysis of constitutionalism within and beyond the modern state. The final part of the course shall address the problem of societal constitutions without the state and different forms of constitutionalism evolving in global society.
Understood structural relationship between individuals and society. Law as an instrument of social control plays a dubious and possibly counter-productive role in this relationship. It is hoped that the lectures and contributions of the participants in this unit can improve the understanding of the function of both law and social control.