The term ‘publication bias’ describes the statistical distortion of data when pharmaceutical groups suppress or manipulate research data. This chapter uses publication bias as a paradigmatic case in order to examine four aspects of the third-party effects of constitutional rights, and to develop alternatives. (1) The third-party effect has so far been configured in an individualist perspective only, but in order to deal with structural conflicts within society constitutional rights in private relations have to be reformulated in their collective-institutional dimension. (2) Instead of being limited to the protection against state-equivalent power in society, the third-party effect must be widened and directed against all communication media with expansive tendencies. (3) Contextualising constitutional rights ought not to be limited to adapting these rights to the particularities of private law. (4) Instead of imposing duties to protect exclusively on state actors, third-party effects must address private actors who violate constitutional rights and at the same time activate counter-forces within society.
This chapter takes as its starting point the transformation of the contract in modern times – in other words, its hybridisation. As the binding force of the contract disappears in the ‘in-between’ of the contextures, what are the consequences of this fragmentation? Can we still discern some operational, structural or systemic ‘unity’ of the contract that can be a suitable substitute for the exchange between two people? Social differentiation splits the formerly unitary contract into three autonomous concatenations of events in the respective legal, economic and production contexts. This difference is always reproduced as an insurmountable hermeneutic dissonance.
This chapter offers a novel interpretation of Franz Kafka’s celebrated parable ‘Before the Law’, inspired by developments in European legal theory, particularly the work of Jacques Derrida, Niklas Luhmann and Giorgio Agamben. It suggests a dual role-change in the confrontation of the parable’s protagonists – the ‘man from the country’ and the ‘law’. According to this interpretation it is not a specific individual who stands before the law’ but the legal discourse itself that is in desperate search of its law. The parable’s ‘law’ for its part is not a generalised and distant authority (power, morality, religion, etc.), but the valid and positive law of our times. The chapter asks the question: What happens within the mysterious relationship between ‘Law AND law’ which has always preoccupied legal theory when that relationship is subjected to the nightmarish logic in Kafka’s universe?’
Trends of constitutionalisation can be identified beyond the nation state. They follow two different directions, as this chapter shows. Outside the limits of the nation state, constitutions emerge in the institutions of international politics, and they emerge simultaneously outside the limits of politics in the ‘private’ sectors of global society. Transnationalisation confronts constitutional sociology with three different challenges: (1) to analyse empirically ongoing constitutionalisation processes beyond the nation state, (2) to develop a theory of transnational societal constitutionalism and (3) to formulate sociological preconditions for normative perspectives in politics and law.
Global legal pluralism is not simply a result of political pluralism, but is instead the expression of deep contradictions between colliding sectors of a global society. It has its origins in contradictions between society-wide institutionalised rationalities, which law cannot solve, but which demand a new legal approach to colliding norms. This chapter develops the thesis with three arguments. (1) The fragmentation of global law is more radical than any single reductionist perspective can comprehend. (2) Any aspirations to a normative unity of global law are thus doomed from the outset. A meta-level at which conflicts might be solved is wholly elusive both in global law and in global society. (3) Legal fragmentation cannot itself be combated. At best, a weak normative compatibility of the fragments might be achieved. However, this is dependent upon the ability of conflict law to establish a specific network logic, which can effect a loose coupling of colliding units.
Dominated by social and legal philosophers, the present debate on justice oscillates between the poles of universality (Rawls, Habermas) and alterity (Levinas, Derrida). This chapter contrasts them with a third position, a sociological theory in which justice appears as the ‘contingency formula’ of law (Luhmann). Here, the question of justice is no longer primarily a problem for philosophy but for concrete social practices in the changing self-descriptions of law. This opens perspectives for historical analyses to investigate affinities of varieties of justice with changing social structures.
In this chapter, the author describes Rainer Bauböck's virtues and limitations of three different principles of democratic inclusion. The principles include all affected interests (AAI), all subject to coercion (ASC), and all citizenship stakeholders (ACS). Bauböck argues that the three principles complement one another, with each providing legitimation for a different set of democratic institutions and practices. He has many illuminating things to say about these three principles, including the ways in which they are derived from different but compatible conceptions of democracy. Bauböck also explores fundamental questions about what a just global political order would require from a democratic perspective. The primary purpose of democracy is to provide legitimacy to coercive political rule through popular self-government. Lots of people would argue that one can be committed to equality of rights and democratic inclusion without embracing the view of the legal rights of irregular migrants.
This introduction presents an overview of the key concepts discussed in the subsequent chapters of this book. The book argues that there is not a single principle of democratic inclusion but several principles, and that it is important to distinguish their different roles in relation to democratic boundaries. It considers the general "circumstances of democracy" that consist in normative background assumptions and general empirical conditions under which democratic self-government is both necessary and possible. The book discusses the principles of including all affected interests (AAI), all subject to coercion (ASC) and all citizenship stakeholders (ACS). It contextualizes the principle of stakeholder inclusion, which provides the best answer to the question of democratic boundaries of membership, by applying it to polities of different types. The book distinguishes state, local and regional polities and also argues that they differ in their membership character.
This book addresses the major theoretical and practical issues of the forms of citizenship and access to citizenship in different types of polity, and the specification and justification of rights of non-citizen immigrants as well as non-resident citizens. It also addresses the conditions under which norms governing citizenship can legitimately vary. The book discusses the principles of including all affected interests (AAI), all subject to coercion (ASC) and all citizenship stakeholders (ACS). They complement each other because they serve distinct purposes of democratic inclusion. The book proposes that democratic inclusion principles specify a relation between an individual or group that has an inclusion claim and a political community that aims to achieve democratic legitimacy for its political decisions and institutions. It contextualizes the principle of stakeholder inclusion, which provides the best answer to the question of democratic boundaries of membership, by applying it to polities of different types. The book distinguishes state, local and regional polities and argues that they differ in their membership character. It examines how a principle of stakeholder inclusion applies to polities of different types. The book illustrates the difference between consensual and automatic modes of inclusion by considering the contrast between birthright acquisition of citizenship, which is generally automatic, and naturalization, which requires an application.