II. Constitutional concepts and society's functional structure

III. The second gouvernement des juges

Despite its largely internalistic, formulaic status, the concept of constituent power has shadowed the history of constitution-making from the eighteenth century until the recent past. As mentioned, the image of the volitional externality of law's origin to the factual, positive form of the law which this concept projects has proved a persistent principle for envisaging the distinctive legislative authorisation of the modern political system.Footnote ²⁰ The insistence on law's original founding externality to itself remains a deeply embedded claim in theoretical reflection on politics.

In contemporary global society, however, it is increasingly apparent that the norm of constituent power can no longer produce adequate supplies of legitimacy for political institutions that perform functions of decision-making and legislation. Empirically, we can see that the defining revolutionary/constitutional self-construction of the political system is quickly forfeiting its adequacy to contemporary society. In contemporary society, the political system (that is, institutions applying generally binding laws in society) extends across several societal and geographical levels, and it is increasingly split into functions focused on national phenomena and functions focused on phenomena either positioned outside, or crossing the lines between, delineated national jurisdictions. Indeed, in contemporary society it becomes necessary to examine the political system, not as a specifically mandated body of organs in one national society, but rather as a mass of global political exchanges. The political system appears now as a diffuse aggregate of institutions and actors involved in authoritative decision-making, which include – with all their specific diversity and characteristic features – national political institutions, but which also clearly connect integrate national institutions with organs of supra-, inter- or transnational decision making and norm construction. In this global political system, notably, it is increasingly the case that the legitimating principle of constituent power is invalid: the space for the exercise of an originally extra-juridical will to authorise law has (at least partly) disappeared, and, at different levels, the political system is unable to explain its legislative acts through reference to mono-centric or external/volitional acts (see Somek, Reference Somek2012). The fate of constitutional democracy appears, in fact, to be that constituent power and constituted power are increasingly fused together, and founding laws are established by actors with a constitutionally hybridised character. At different tiers of the global system, in fact, even primary laws are now in fact routinely constructed through inner-juridical functions: that is, through the application of laws and legal norms that are already formed within an existing legal/political system, and through the implementation of laws and norms by already constituted judicial institutions. In consequence, legally preconstituted actors, typically judicial bodies, now assume manifest and far-reaching responsibilities for the exercise of those primary law-making and legitimating powers which were classically accorded only to constituent actors.

We can find numerous examples of this constitutional tendency towards the partial supersession of constituent power by constituted power in contemporary society.

In the first instance, we can see the displacement of constituent power occurring, in different ways, in national polities. This is especially prevalent in national polities in a process of democratic or post-authoritarian transition. In such polities, founding constitutional laws are typically pre-constructed and legitimated by international codes and agreements (especially those enacting international human rights norms), and they are authorised by institutions, most often courts of law, exercising powers, and enforcing specific legal norms, that are, in the strict sense, already constituted: i.e. which are defined under international conventions and treaties. This results mainly from the fact that emergent democratic states are almost invariably subject (normally before they even exist) to international jurisdictions, and they adjust their primary domestic laws to international directives, especially regarding human rights, in order to gain acceptance and perceived legitimacy in the international community of states.Footnote ²¹ However, this also results from the fact that emergent democratic polities usually signal compliance with international expectations by establishing powerful national Constitutional Courts, which are commonly armed with strong provisions for judicial review of legislation (both constitutional and statutory) in the light of international human rights obligations. Once operative, these courts form solid structural links between national state institutions and international judicial communities, and they regularly borrow norms from international law to define the prior normative (i.e. constitutional) premises for the exercise of national governmental authority (Renner, Reference Renner2009, p. 554; Nollkaemper, Reference Nollkaemper2009, p. 77). Often, this means that constitutional courts preside over uncertain transitional processes of national institutional consolidation, and they apply norms derived from international law to block the gaps in existing, generally improvised and tentatively legitimated, national constitutional systems (see Yeh and Chang Reference Yeh and Chang2009, pp. 155, 165). In extreme cases, the entire underlying design of post-transitional states is formed in accordance with dictates received from the international legal arena (see Dann and Al-Ali, Reference Dann and Al-Ali2006). Such weakening of constituent power in national political settings, however, is not exclusive to transitional states. Even in national states with deeply committed traditions of democracy and entrenched regard for the functions allocated to constituent and legislative power, the exercise of constituent power is now normally both constrained and, to some degree, predefined, by international norms, especially by norms concerning human rights (see Fabbrini, Reference Fabbrini2008; Stone Sweet, Reference Stone Sweet2008; Kavanagh, Reference Kavanagh2009, p. 275; Lasser, Reference Lasser2009, p. 24).

Above the national level, the displacement of constituent power is also a prominent characteristic of growing supranational polities. In the European Union (EU), for instance, the lack of a constituent power has long been a matter for concerned reflection (see Kaiser, Reference Kaiser1960; Murswiek, Reference Murswiek1993, p. 165; Walker, Reference Walker, Loughlin and Walker2007).Footnote ²² In the absence of such a power, already constituted actors, usually courts of law, have assumed authority independently to produce and codify an effective supranational constitution for European Member States. This began – tentatively – with the famous Van Gend en Loos and Costa decisions of the European Court of Justice (ECJ) in 1963 and 1964, declaring first the direct effect and then the supremacy of European law in Member-State societies. However, by the 1970s, the ECJ began to form the EU as a normatively consistent (i.e. constitutionalised) political system by designating itself (without specific authorisation by original treaties of the European Economic Communities) as a custodian of rights jurisprudence, and it drew entitlement from this jurisprudence to enforce legal norms with de facto constitutional rank across all incorporated jurisdictions (Stein, Reference Stein1981; Weiler, Reference Weiler1991; Alter, Reference Alter1996; Stone Sweet, Reference Stone Sweet2004; Claes, Reference Claes2007). The ECJ was initially obliged to define itself as a centre of rights jurisprudence because its claims to judicial supremacy in the EU were challenged by powerful national courts (Davies, Reference Davies2012, p. 74), and it appointed itself as a protector of supranational rights norms because this enabled it to assuage the anxieties of national high-court judges, and so to impose a uniform legal structure across traditional divides between national jurisdictions (Douglas-Scott, Reference Douglas-Scott2006, Reference Douglas-Scott, Walker, Shaw and Tierney2011). Through this process, however, the ECJ was able to dispense with classical forms of constituent authorisation, and simply to project a constitution from existing inner-juridical norms. This politically constitutive role of courts is reflected, rather more weakly, in other supranational legal communities (Helfer and Alter, Reference Helfer and Alter2009; Petersmann, Reference Petersmann, Cottier, Pauwelyn and Bürgi Bonami2005, p. 93).

The displacement of constituent power is also visible in the more informal transnational dimension of contemporary political organisation. Inchoately at least, as mentioned, global society in its entirety is in the process of evolving a distinct, multilevel, diffusely co-ordinated political system. The term political system is used here in a manner that is sharply differentiated from more common definitions of the political system as a state: a political system is taken here to mean that set of institutions in a society which are required to produce and authorise collectively relevant decisions. On this definition, the political system of contemporary society both overarches and incorporates national and supranational political domains, but it also adds important transnational dimensions to political institutions situated and operating in national and supranational contexts. The transnational level of the political system is partly configured by international law, arising from norms originally based on interstate agreements. But it has acquired a contingent, internal legal fabric, which is independent of state volition and is generated from multiple sources. The specifically transnational part of the global political system is also marked by an increasingly refined constitutional structure, and, like other dimensions of the global political system, it organises its legal/constitutional dimension without reference to primary constituent acts, obtaining legal order through the recursive power of already constituted actors – primarily international courts. Courts are in fact rapidly evolving as hinge elements in the emergence of a comprehensive transnational constitution, which integrates and systemically consolidates political institutions operating in the national, the supranational, and the more uncertainly defined transnational domains of global society. In this regard, to be sure, it needs to be stated that the creation of transnational law in the general sense of the word is not exclusively the province of judicial bodies. If we accept the increasingly common definition of transnational law as a fully free-standing legal domain (see Jessup, Reference Jessup1959, p. 63; Scott, Reference Scott2009, pp. 873−744), such law is evidently not derived solely from courts. Transnational law is formed in increasingly pluralistic fashion, and, especially below the strictly defined level of public law, it emanates from multiple sources and norm providers (say, law companies, firms, regulators, standard setters, NGOs), which often lack distinct public authority.Footnote ²³ Despite this, however, much transnational law clearly originates (both directly and indirectly) in international judicial institutions. In fact, if we can distinguish certain transnational laws that are able to acquire de facto constitutional rank in contemporary society (i.e. that are commonly binding on transnational legal subjects),Footnote ²⁴ these laws normally presuppose the presence of a system of transjudicial norm construction, and courts, unauthorised by constituent power, remain decisive actors in the promotion of a transnational legal/constitutional order. International courts provide a quasi-constituent framework for regulating and steering exchanges traversing the boundaries between different national societies, and they increasingly produce hard constitutional norms for exchanges in the transnational arena.Footnote ²⁵

On the one hand, for instance, courts progressively flesh out a potent jurisprudence, extracted from singular personal rights, and, over the heads of national states, this imposes duties and expectations, on public bodies (Parlett, Reference Parlett2011, pp. 335, 359; Paust, Reference Paust1992, p. 62). Moreover, national courts are increasingly guided by the case-law of international courts, and, intermittently at least, they assume authority to act against, and normatively to veto, other state organs in the polities in which they are situated (Nollkaemper, Reference Nollkaemper2011, pp. 12, 301). In both these respects, courts supplant constituent agency as the source of public law, and they elaborate an effective transnational constitutional order, in which single states gradually take a place alongside other actors and legal subjects (Klabbers, Peters and Ulfstein, Reference Klabbers, Peters and Ulfstein2009, pp. 154, 179), and are bound positively and in semi-obligatory fashion by norms enforced by courts.Footnote ²⁶ To some degree at least, all subjects are now bound by a nationally overarching constitution, which, increasingly, is distilled directly from the subjective rights and obligations of single individuals.Footnote ²⁷ Through this process, the classical distinction of statehood as a constituted centre of public law with a formally sui generis legal personality is progressively diminished. Even the basic idea that states obtain a higher juridical distinction and integrity vis-à-vis other organisations by virtue of their origin in constituent power is eroded through the global norm-setting acts of international courts. In addition, courts play an important role in producing semi-constitutional norms for the regulation of private exchanges; the rights jurisprudence articulated in public international law increasingly filters horizontally into private international law, and in this domain it also places obligations on states, on single persons, and on other organisations, private, public and semi-private/semi-public (Zumbansen, Reference Zumbansen and Smits2006, p. 747; Fischer-Lescano, Reference Fischer-Lescano2003, p. 751). In such cases, too, the basic classical sense that volitional constituent acts underpin processes of compulsory norm production in society becomes precarious. In both respects, courts, with authorities originally defined under international law, increasingly act to dictate principles for a distinctive transnational constitutional order, which is formed simultaneously at a national and at an international level and draws contingently on elements of public and elements of private law. Through the prominence of courts, private and public exchanges are able to draw validity and normative force from internationally pervasive rights norms, which either formally or informally replace constituent authorisation or manifest displays of consent as a basis for regulating and constraining political acts.

In each of these examples, in sum, the founding idea that there is a legitimating externality at the core of constitutional law has become deeply questionable. At different tiers of the global political system, the pre-legal location for unconstrained acts of democratic formation, norm construction and constitution-making has begun to evaporate. As a consequence, a constitutional reality is rapidly emerging that has certain similarities with the juridical conditions of early modernity, which were originally supplanted through the rise of the concept of constituent power. The relatively uniform state-centred legal order designed around the concept of constituent power has been replaced by a legal order composed through multiple and uncertainly overlapping or patchwork patterns of judicial law finding and law-making. In this condition, judicial actors and other less formal norm-setting bodies apply internally authorised norms as ground rules for legal validity.Footnote ²⁸ International courts, interacting fluidly with national courts,Footnote ²⁹ commonly take the place of constitutively authorised actors and institutions in generating and legitimating the basic laws of political organisation (national, supranational and transnational) for society as a whole. Self-evidently, of course, this does not mean that there is no element of constituent democratic volition in contemporary processes of polity building and constitutional foundation. However, in more contemporary history, the primary acts of polity building (national, supranational and transnational) have been centred, to no small extent, around the cross-border borrowing and transplanting of pre-constructed legal norms, usually influenced by international rights jurisprudence. In many cases, even the basic constitutional laws of national polities have taken shape as international judicial principles have been configured in a fashion that is variably adapted to particular national sociopolitical settings.

IV. Rights and/or constituent power

In general terms, therefore, the underlying construction of normative order in contemporary society is based in an increasing interdependence between constituent and constituted power. What most deeply characterises the different levels of the emergent constitutional order is that, in different dimensions, the constituent source of legitimacy is contained within the law, and the symbolic moment of extra-juridical founding and norm production is (to a large degree) effaced from the political system. In turn, the shift from constituent to constituted power as the premise for society's legal/political order reflects the fact that the principle from which the political system derives legitimacy for its legislation has migrated, substantially, from constituent power into rights. At each level (national, supranational and transnational) of the global political system, judicial institutions assume increasing authority to establish primary laws, and, typically, they explain their legislative functions in authorising such laws by reference to rights. On the different planes of global political-systemic formation described above, the justification both for single acts of law and for wider processes of institution-building is mainly derived, not from acts of democratic foundation, but from recourse to rights norms, which, in their original form, are already constituted as formal elements of the inter- or transnational legal order. At different levels of formality, rights norms are cemented in international laws, conventions and judicial case-loads, and courts typically invoke and enforce these rights, instead of constituent power, when they exercise law-making functions. Indeed, the parameters within which democratic law-making can be conducted are almost invariably delineated through a powerful bundle of already defined rights, of which, at different levels of the global political system, judicial bodies act as primary depositaries and interpreters (see Haltern, Reference Haltern2005, p. 370).

Naturally, none of this is meant to say that in contemporary global society rights are not subject to egregious violation. It clearly does not mean that judicial custodians of rights perform their functions without palpable lapses. Yet, the rise of inter- or transnational rights norms as a basis for founding legal and political structures appears to be the most distinctive aspect in contemporary constitutionalism, and it impacts substantially on the construction of all political vocabulary and political practice in global society. The political system of contemporary society has clearly begun to construct hard legal norms to determine exchanges at each of its levels, and so to acquire a de facto transnational constitutional order. This constitution relocates the foundation of its legitimacy from single acts of constituent power to the fluid and multiple forms of authorisation provided by rights.Footnote ³⁰

V. The global constitution and the global political system

The change from constituent power to rights at the centre of the legal/political order of contemporary society is a matter of primary interest for constitutional theory. Indeed, the distinction between national constitutionalism and global constitutionalism currently occupies a central position in constitutional inquiry. Against this background, a significant body of literature has developed that examines the multilevel political system of global society as containing a distinctively post-constituent constitution:Footnote ³¹ that is, a legal/normative order which lacks the original element of collective/volitional centration or active consent, yet nonetheless imposes normative obligations, with a status approaching effective constitutional rank, across the divides between national jurisdictions.Footnote ³²

The literature on the emergent global constitutional order contains significant variations, and it typically divides into two very different theoretical camps. One camp is essentially internationalist, comprising theories that identify a relatively hierarchical, near-unitary constitution, centred in basic human rights conventions and other non-derogable principles of international law, as defining the legal form of contemporary society; one camp, by contrast, is essentially transnationalist, comprising theories that identify a pluralistic constitution, based in hybridised and more spontaneous patterns of transnational law, as founding the legal-normative structure of global society. These two lineages, in turn, are also subject to significant inner variations and differences of emphasis, and it is difficult to canvass all subsidiary lines of this field of research here. To speak generally, however, we can identity both a critical and an affirmative line of analysis within the internationalist literature, and we can identify both a critical and a more affirmative line of analysis within the transnationalist literature on global constitutionalism.

For example, in many prominent internationalist accounts of global law, the rise of the global constitutional system is observed as a final realisation of universal normative order, and the predetermining of constituent power by global rights norms is perceived as the conclusive fulfilment of the Kantian vision of a world constitution.Footnote ³³ By contrast, some critical interpreters (usually gravitating to the political left) view the rise of global transjudicial authority, based in international rights norms, as a process that simply enforces unmandated elite economic prerogatives across global society. From this perspective, global rights are viewed as the antithesis of democratic political practice, and the promotion of rights to create a supra-constitutional normative order is perceived as militating against founding democratic liberties of self-legislation.Footnote ³⁴ Other critical observers (usually, but not always, inclining to the political right) criticise the surrogacy of constituent power by rights as an illegitimate intrusion on the domain of national sovereign agency.Footnote ³⁵ Amongst transnationalist approaches to global law, similarly, some accounts of global constitutionalism interpret the pluralistic normativity of contemporary transnational society as a flexible legal order, in which global society as a whole is able to develop pluralistic analogues to classical constitutional norms, so that it acquires problem-solving capacities not open to overburdened national states (Teubner, Reference Teubner2012, pp. 160−611). By contrast, other transnationalist perspectives reject any assumption that transnational law can generate a reliable or comprehensive normative structure (Krisch, Reference Krisch2010, p. 17; Kingsbury, Reference Kingsbury, Crawford and Koskenniemi2012, pp. 210−212; Oeter, Reference Oeter, Zangl and Zürn2004, p. 60).

For all their differences, however, all these lines of analysis are connected by the fact that they construe the rise of a global constitutional apparatus as a basic element of contemporary society, and they view the growing global or transnational constitutional order as marking a deep breach with classical constitutionalism. At the centre of this diagnosis, in each case, is the perception that the weakening of national constituent power is a structurally defining feature of modern society, which profoundly transforms the legitimating reserves of contemporary society as a whole.

Against this background, this paper attempts to make a distinctive contribution to debate about the present transformation of constitutional order. In particular, it proceeds from the claim that the existing literature on global constitutionalism is marked by an explanatory shortcoming: established analyses have not yet offered a full explanation of changes in contemporary constitutional order, and, above all, they lack a paradigmatic framework to give a causal account of these processes. This is because these approaches have not yet generated a sociological method to capture the relation between constitutional norms and the wider condition of society. In this respect, to be sure, it is clear that analysis of transnational law in particular is often positioned – by express design – at the most sociologically refined end of conventional legal inquiry.Footnote ³⁶ Some approaches to transnational law – for example, in Hirschl (Reference Hirschl2004, p. 43) and Schneiderman (Reference Schneiderman2008, p. 4) – have located the changing pattern of constitutional normativity in the sociological context of global capitalism. Other approaches to transnational law accentuate advanced societal differentiation as the environment for the production of transnational law (Teubner, Reference Teubner2012). Therefore, these inquiries can clearly not stand accused of sociological vacuity. For all their brilliance, however, even such analyses tend to observe constitutional norms as secondary objective forms, which materialise as the result of essentially independent formative processes (for example, globalisation, assertion of hegemony, differentiation). They do not examine the inner reflexive meanings of these norms, they do not probe the structural reasons for the distillation of distinct constitutional norms, and they do not directly link changing norms to changing societal structures: the inner meaning of norms for society is not placed in the focus of inquiry. This means that the sociological content of constitutional norms – disclosing why a society produces, and why it shows structural reliance on, certain norms under certain conjunctures – has not yet been made visible. For this reason, although a large body of literature has identified the changing status of constitutional concepts as a defining fact of modern society, we lack a paradigm through which the changes in constitutional law and the rise of global constitutional norms can be construed in the light of their deeper sociological causes.

This paper aims to correct this sociological gap in research on global constitutionalism. It aims to provide a macro-sociological account of constitutional norms and their functions, and it seeks to position the current transformation of constitutional concepts, especially the displacement of constituent power by rights, in this context. In so doing, in particular, it proceeds from the assumption that existing descriptions of the constitutional normativity of contemporary society lack adequate explanatory force because they remain too focused on the literal legal form of global constitutionalism. Only by isolating constitutional norms as inner-systemic formulae can we capture the latent sociological meanings expressed through them, and only in this manner can we place them in relation to the broad societal forces that determine them. Building on the above analysis of classical constitutions, therefore, this paper attempts to provide a deeply embedded reconstruction of the transformation of constitutional norms in contemporary society. It endeavours to account for the legal norms defining the contemporary global constitution as part of a sociological reaction to specific functional pressures, impacting, within the legal and political system, on society's capacities for political-systemic abstraction, legislative inclusion, and the social production of power. In these respects, this paper intends decisively to separate constitutions (both classical/national and contemporary/transnational) from surface-level or literal accounts of their content and status, and it describes how both classical and contemporary constitutional norms are determined by, and, in turn, adaptively reflect, the evolutionary trajectory of society in general. Above all, the paper seeks to bring together analysis of classical and contemporary constitutional norms in order to propose a long sociological history of constitutional norm creation, and it attempts to explain how constitutional vocabulary sociologically distils the most formative processes in society.

To reach these objectives, first, this paper agrees with much current constitutionalist inquiry that we can identify a deep shift in the underlying form of constitutional law, and that this shift is a structurally defining fact of contemporary society. However, it deviates from other constitutionalist approaches by arguing that this shift is most adequately interpreted, not – or not exclusively – as an objectively given legal reality, but as an inner, self-reflexive re-formulation of the political system itself. In a primary sociological dimension, the displacement of constituent power by rights accompanies the emergence of a political system which conducts its exchanges at many societal levels, over quickly widening cultural and geographical distances, and which typically lacks predictable or objective support or justification in national societies and their politically assembled constituencies. If closely (sociologically) analysed, therefore, the legitimatory shift from constituent power to rights allows us to appreciate how, through its multilevel form, the global political apparatus is required to produce and authorise its power in increasingly contingent, positive fashion, and how, to secure this, it presupposes new and highly distinctive processes of inclusion, norm generation and structural formation. The reliance on rights in the political system makes it possible for the political system to obtain and express new sources of authority to sustain its mobilisation of power and its acts of legislation, and it enables it to secure affirmation, acceptance and legitimacy from its addressees (those to whom power and law are objectively applied) in very new, rapidly changing and highly adaptable ways. The shift from constituent power to rights thus opens a window on one of modern society's deepest sociological questions: it touches on the basic question of how contemporary society adapts to new demands for the abstraction of power, for political-systemic formation and for legislative inclusion in the face of its increasingly complex global form.

Second, this paper argues that, although the legitimatory shift (from constituent power to rights) at the centre of the contemporary political system clearly establishes new patterns of normative inclusion, this shift does not, at an underlying functional level, need to be seen exclusively, or even primarily, as marking a deviation from classical models of constitutional order. On the contrary, if viewed against a wide sociological background, the emerging legal/political order of global society can equally be observed as extending and even, in some ways, as consolidating the original adaptive functions of classical constitutionalism and its theoretical vocabulary – albeit in relation to a new societal conjuncture. If we accept the premise that the classical formula of constitutional legitimacy (constituent power and rights) was, at least subliminally, an adaptive or self-reflexive configuration within the political system, we can approach the principle of constitutional legitimacy in contemporary constitutionalism (systemically internalised rights) from a similar functionalist perspective. We can interpret the rise of rights over constituent power as articulating a new constitutional formula, which echoes and replicates the functions of the formula of classical constitutionalism. We can thus observe rights as conceptual or reflexive constructions, in which political institutions internally trace out and objectively project the conditions of their autonomy in a particular societal constellation, and in which society as a whole abstracts for itself an autonomously sustainable aggregate of political functions. Moreover, like the core principles of classical constitutionalism, we can see the reference to rights as an internal self-construction of the political system, which specifically augments the volume of power and legislation that the political system can generate for society more broadly. Behind the different époques of constitutional concept formation, we can identify a deep continuous thread of functional adaption in society's political system and in society more generally.

The fact that constitutional polity building is now usually conducted through reference to rights, in short, can be taken to indicate that rights, like constituent power at the origins of modern society, now form dominant adaptive configurations for the political system. Contemporary society articulates its defining political conflicts and positively abstracts its political functions through reference to this normative term, and it uses the concept of rights as a means for organising its political system as it reacts to deep changes in its inner formative dimensions. Above all, rights provide structural support for society's political system as it loses its centration on national or even generically fixed constituencies, and, accordingly, as it necessitates, and internally generates, new techniques and justifications for producing political power and legitimating legislation. Against this background, rights bring the defining benefit for the political system of contemporary society that they allow it to transform the sources of its legitimacy into inner elements of its own structure. By imagining persons receiving power in society as holders of invariable rights and by defining its power (legislation) as proportioned to rights, the contemporary political system, in each of its national, its supranational and its transnational dimensions, is able to transfer its source of legitimacy from a point outside itself (constituent power) to a point within itself (the single rights holder). Under contemporary constitutional conditions, as outlined above, the political system is able (however counter-factually) to borrow a justification for its power from a body of norms (rights) which it already contains: political actors are able simply to assume authority for themselves by complying with rights, and by referring their decisions (laws) to an inner construction of persons subject to their laws as rights holders. On this basis, the political system can derive validity for its decisions – and even for its founding laws – without any recourse to a situation in which law requires validation outside the law. Through this process of normative internalisation, in fact, rights become constituent power. Rights assume the function that they project an internal basis of legitimacy for the political system: they instil within the political system an internal principle to cover and authorise its distinct legislative acts, they ensure that power is applied in a legal form adapted to its addressees, and they create a general normative background to guide and justify specific law-making functions. In so doing, rights allow the political system to dispense with the external dimension of democracy (symbolised through constituent power). They lend authority to the political system by permitting it autonomously to construct and endlessly to reproduce its legitimating source (the rights holder), so that it can accompany each act of legislation with internally stored, rapidly iterated, justifications. The broad sociological consequence of this, then, is that contemporary societies are able to rely on a global political system which, split across national, supranational and transnational levels, can produce, preserve and legitimate political power in highly contingent and internalistic fashion, and which can utilise political power through society in relative indifference to external actors (persons outside the political system) and with limited dependence on factual objective approval (mandates arising outside the political system). Rights are passed from one level of the contemporary global political system to another, and, at each of its levels, the political system increasingly assumes legitimacy by simply reflecting its power as obligated or proportioned to internally stabilised rights norms. In this respect, rights implant replicable internal residues of constituent power in the political system, and they make it possible for the political system internally to support and spontaneously to underwrite legislation across all different domains of global social order.

On this account, the rise of rights over constituent power in today's global constitutional order needs to be observed, sociologically, as a centrally illuminating example of the more general process through which societies construct conceptual norms so that they can internally stabilise their basic functions. In particular, the revised normative fabric of contemporary (global) constitutionalism tracks a profound change in the political system and in the societal production of political power more broadly. As discussed, the legitimating norm of constituent power was never entirely real, and it obtained its reality primarily as a formula produced for and within the political system. However, its quality as a functional formula for the political system has now been diminished, and it has been supplanted by rights. The legitimating principle of rights is also not entirely based in an external reality, and it, too, assumes reality primarily as a formula proposed for and within the political system. We cannot, for example, realistically assume that the construction of persons as rights holders by the political system literally shows recognition of these persons as discernibly recognised or implicated in the social production of power. But, nonetheless, this formula assumes particular efficacy in the construction of political power for contemporary global society, which is marked by highly contingent, unsupported and acentric needs for legislation, and it describes a deep adaptive change in the inner structure of the political system.

If viewed in this light, additionally, we can observe, sociologically, that the rise of rights over constituent power is part of the growing differentiation and increasing internalism of the distinct functional domains of global society.Footnote ³⁷ Rights obtain political prominence as part of the process through which the various function systems in society approach a condition of intense differentiation: that is, as different sectors of society approach a reality of extreme internal complexity, as they are required to conduct their exchanges in very rapid, globally extensive and highly positivised fashion, and as their ability to derive specific support or authority from factual actors or objective principles situated externally to their own functions is diminished or even relinquished.Footnote ³⁸ In this societal condition, society's various spheres of functional activity are obliged to account for, legitimise and reproduce their operations at rapidly increasing levels of autonomy, distinction and internality: that is, they are (to a large degree) required to sustain their functions through principles which they can spontaneously generate and reproduce within their own structure. Rights perform this function – specifically – for the political system. This is how, at a sociological level, we can explain the rising political significance of rights in today's society.Footnote ³⁹ Rights obtain salience in contemporary society as the political system differentiates itself fully from other function systems, and as – by consequence – it forfeits its ability to presume support from specific constituencies, objectively situated actors and milieux, and externally constructed norms. The reference to rights within the political system makes it possible for the political system to function at a high level of differentiated abstraction, to produce power, internalistically, in independence of other parts of society, and, accordingly, to authorise acts of legal inclusion and law-making without being reliant on, or even making reference to, any external structure or source of agency. In other words, the disjunction of rights from constituent power allows modern society to live – politically – with its own highly evolved acentricity and intra-systemic differentiation,Footnote ⁴⁰ and rights now enable society to produce legitimacy for its political functions in a fashion that is rapidly iterated and internally adjusted to this acentricity.Footnote ⁴¹ In contemporary society, rights articulate the grammar of political legitimacy because rights allow society internally to abstract a coherent political structure and effectively to circulate political power without forcing society to organise its political system around a single objective political source or centre or in relation to a single material environment. To this degree, rights enable today's society to cover the rapidly increasing mass of demands for legislation which, in its acentricity, it constantly produces and encounters.

VI. From constituent power to rights: new patterns of inclusion and systemic formation

Observed in a macro-sociological perspective, therefore, each level of the global political system (national, supranational and transnational) is abstracted and supported by rights. In each dimension of the contemporary political system, notably, rights distil internal premises for consistent political functions, and they allow society to adapt to its hyper-complex demands for legislation. This concrete system-building function of rights becomes evident, primarily, in the following dimensions of global political organisation.

First, the system-building force of rights can be observed in the case of national polities, or in the national dimension of the global political system. We can see this already – to some degree – in the historical evolution of consolidated democracies. In the US, for example, where the integral structure of the federal state is traditionally weak, courts of law, reinforced by their assimilation of rights norms derived from international law,Footnote ⁴² played a vital, compensatory role in elaborating the inclusionary, relatively autonomous, structure of the national state (see Skowronek, Reference Skowronek1982, p. 2308). Indeed, as a multilevel and diffusely aggregated political system extending power (legislation) over loosely consolidated territories, the political system of the US is in some respects a prototype for the emergent political system of global society as a whole, and its use of rights as institutes of overarching inclusion has an explanatory value that reaches beyond one national polity. In the specifically national components of the global political system, however, the system-building effect of rights is most pronounced in polities undergoing democratic transition. In most recent processes of democratic or quasi-revolutionary polity building, leading actors within the political system have employed international rights norms in order both to reorganise and stabilise political institutions, and to accompany and authorise single acts of legislation, both constitutional and statutory. In most cases of this kind, the domestic incorporation of international rights norms has made it possible for institutions in transitional polities to function in relative structural autonomy by allowing rights to act as internally insulated sources of legitimacy for their laws. In general, this has brought a number of appreciable benefits in respect of state structure and autonomy.

For example, the use of rights to support legislation has proved stabilising for transitional political systems because it has allowed them to pass laws without first being forced to secure legitimacy by addressing expansive social antagonisms or pacifying hostile fragmented constituencies, and it has even made it possible for political institutions to display internally simplified mandates for legislation in face of deeply divided societies. Notably, in some transitional settings the fact that rights were used to authorise primary constitutional legislation, and so specifically obviated the need for constant external assertion of constituent power, had a deeply solidifying impact on otherwise fragile institutions,Footnote ⁴³ and it greatly simplified autonomous law-making processes in so doing (see Klug, Reference Klug2000, p. 1). Equally importantly, this use of rights enabled political systems to legislate without excessive or obstructive regard for entrenched interests in society at large, and even to dispense with the support of traditionally influential social groups, located outside the political system (strictly defined). In turn, this intensified the evenness with which transitional polities have been able to apply laws to their national societies, and it permitted them generally to maximise their capacities for the positive and relatively autonomous use of power across society. In most cases, this acquired particular importance because democratic political transitions have been conducted in societies marked by a background of chronically depleted autonomy in the political system: that is, by endemic weakness in political structure, by egregious private monopolisation of public office, by low law-making capacities, and, as a result, by reduced penetration of the political system into society. In such settings, the assimilation of rights from an international legal domain provided independent principles for legislation, and it allowed actors within the state to control access to state office, to diminish the countervailing authority of local actors, and generally to tighten the distinction between society's private and public functions. Moreover, in transitional processes, the incorporation of international human rights law normally permitted prominent state institutions, usually constitutional courts, internally to raise the quality of legislation, to subject different stages of the legislative process to procedural scrutiny, and, as a result of this, to transmit legislation more inclusively across society. In each respect, the use of international rights norms in transitional and post-transitional polities has proved vital for their consolidation, and rights have typically enabled precariously differentiated national societies to organise their political functions in a functionally demarcated domain, defined in reasonably reliable and abstracted form. In each respect, in particular, rights have brought manifest structural benefits to newly formed national political systems because they have allowed states to authorise themselves in highly internalistic manner, which has enabled state institutions positively and internally to control both the terms of access to law-making power and the procedures used for power's societal circulation.

Multiple examples of such processes can be found in recent constitutional transitions. The most striking historical cases are observable in post-1975 Spain, post-1989 Soviet Union, other East European states after 1989, West and Southern Africa, and some Latin American societies in the 1980s and 1990s. In these cases, the domestic absorption of rights defined under international law greatly intensified the legislative reach of state institutions into society, and it substantially accentuated the autonomy and distinction of the political system (Fogelklou, Reference Fogelklou2001, p. 244; Solomon, Reference Solomon2008, p. 66; Inclán and Inclán, Reference Inclán and Inclán2005, p. 78). This was due partly to the fact that the increasing intersection between international human rights law and domestic law provided a basis on which national judiciaries could assume greater consistency, and it led to an elevation of judicial independence and distinction in societies traditionally afflicted by high political control and high regional variation in the exercise of judicial functions. This was also due, in part, to the fact that the assimilation of international law in domestic legal systems allowed national political systems to give supra-constitutional standing to certain principles of normative order, and to evade historically destabilising exposure to unmanageable, often class-based, conflict over legislative procedures.Footnote ⁴⁴ In addition, however, this function of rights is also evident in semi-transitional polities. An important example of this is contemporary China, where over recent years the growing (albeit still only partial) assimilation of international rights norms by judicial bodies has increased the ability of state institutions to penetrate into society, to heighten the inclusionary force of the political system, and significantly to raise the legislative autonomy of the state as a whole (Wan, Reference Wan2007, pp. 739, 742; Paler, Reference Paler2005, p. 301).

In each of these examples, the use of international rights norms to construct legitimacy for transitional political systems generally raised the probability, even in deeply insecure processes of institution building, that state power could be concentrated in a distinct and formally independent legislative apparatus. Despite obvious variations, moreover, the fact that the political system internally constructed itself as authorised by rights meant that normative justifications for legislation became generally identifiable, that legitimacy in the introduction of legislation can be visibly evaluated, and, in consequence, that edicts with the force of law in society could be attributed to a clearly differentiated political order, so that the systemic impact of external prerogatives and external controversies was diminished. As a result, although this process is usually seen as a check on national state sovereignty (see Stein, Reference Stein1994, p. 448), the filtration of international rights norms into transitional national polities typically had the outcome that rights enabled states to reach a condition close to a monopoly of coercive authority within a national society. Indeed, the transplanting of international rights norms has normally meant that, across all parts of society and without regard for embedded private claims to status and influence, the decisions of the political system obtained elevated inclusive force, and were met with increased levels of compliance. The use of rights as internally assimilated sources of systemic legitimacy, therefore, acted widely as a precondition for the structural stability of those components of the global political system that operate predominantly at a national level. Indeed, in some cases, it was only because national societies were penetrated by the global political system and its rights-based mechanisms for legal/political legitimisation that reliable forms of statehood, able to prevail over private authority, were able to develop. The inclusion of national societies in a system of transnational rights repeatedly served as a de facto precondition for the consolidation of national political systems, and, in many cases, it is only because they have been constructed as one part of a global political system that national institutions have been able to generate and enforce legislation effectively.

Alongside their role in consolidating national aspects of the global political system, however, rights play an analogous, or in fact much greater, system-building role in the elaboration of those dimensions of the contemporary political system that extend beyond national environments. In its supra- or transnational extensions, the contemporary global political system shows still deeper reliance on rights as institutes to abstract and to solidify its basic functions of differentiation and structural formation, positive legislation, and social inclusion.

Notably, second, the system-building force of rights can clearly be observed in emergent supranational polities. In such settings, polity formation is normally very deeply reliant on the normative force of rights, and rights bring vital structural support to, and they augment the inclusivity of, different political institutions. In the EU, for example, rights have the particular characteristic that they provide an inner self-reference for the political system, which enables highly diffuse and geographically extensive political institutions to obtain coherence in their organic structure, to mobilise (often highly improbable) support for themselves, and internalistically to project a unified basis of authority for complex acts of legislation. Indeed, the role of rights in the systemic formation of the EU can be seen as a response to the fact that the EU's ability to muster visible external consensus and support for legislation is weak. This means that, like other supranational polities, it is forced to depend on internalistically produced and systemically projected reserves of legitimacy.Footnote ⁴⁵ Of distinct importance in this regard is the fact that European public law, which was supplemented through the 1970s and 1980s through the incremental assimilation of rights norms from the European Convention on Human Rights,Footnote ⁴⁶ has shown an increasing tendency to construct single persons as rights holders, and it imposes immediate positive obligations on states to obviate violation of rights of, by and between private parties.Footnote ⁴⁷ This internal reference to single persons as rights holders has allowed a political system to evolve, which immediately overarches the jurisdictions of national societies, draws these societies together in one normative order, and pierces deep into the legal apparatus of national polities (Garrett, Kelemen and Schulz, Reference Garrett, Kelemen and Schulz1998, p. 169). The single rights holder, not the collective act of constituent power, thus becomes the basic internal source of political-systemic cohesion in the polity of the EU, and it acts as the primary normative reference for the systemic production of political structure.

The system-building results of rights norms in the EU can be viewed, most obviously, in the fact that rights are used to conjoin and bind different tiers of the supranational European polity. Rights provide a universal normative register, which imposes common standards across separate parts of the supranational polity, and ensures that decisions can be made at different levels of the polity in relatively uniform fashion.Footnote ⁴⁸ Through the ECJ's doctrine of direct effect, in particular, both primary laws and regular statutes in national jurisdictions are partly formed by courts (Maduro, Reference Maduro2005, pp. 335−356; Pernice, Reference Pernice1999), and, internally authorised by its enforcement of rights, the ECJ acts in conjunction with national courts to weld the different levels of the supranational political order into a coherent whole (Kokott, Reference Kokott1998, p. 75; Lasser, Reference Lasser2009, p. 3). In this respect, it has often been noted that the EU, like other rising supranational polities, relies extensively on preliminary referrals between national and supranational courts to ensure conformity between national and supranational laws, and it draws justification for legislation from implicitly deferential dialogue between national and supranational courts and their judges – which is directed in part by presumptions regarding rights (Alter, Reference Alter2001, p. 54; De Visser and Claes, Reference Visser, Claes, Larouche and Cserne2013). This means that, in the EU, supranational judicial power reaches deep into national legislative procedures, and judges, attentive to questions of normative compliance, are able to police the process of legislation in Member States long before draft laws assume the form of statute (Alter, Reference Alter1998).Footnote ⁴⁹ This also means that the authority of legislation can be defined in highly internalistic fashion, without frequent reversion to authorising principles or directives external to the political system, so that legislation is normatively insulated against contest as it approaches the statute book. Although typically seen as reducing the democratic substance of legislation (Brunkhorst, Reference Brunkhorst2012, p. 201), such judicialisation of legislative procedure often engenders inner-systemic legitimacy for legislation in the face of low manifest support and high degrees of external uncertainty, and it allows legislators internally to adjust to rising insecurity in legislative outcomes. In all these respects, rights assume simultaneous legitimating and system-building functions. They provide internal normative cohesion for the EU polity as a whole, and they allow the political system of the EU to hold itself, and to produce legislation, at an improbably high level of internal consistency and differentiation against its unstructured and disconnected external environments.

In addition, however, the role of rights in the systemic formation of the EU as a polity has a simpler, more concrete structural dimension. For example, it is notable that the EU uses rights to construct a normative framework within which it can devolve particular law-making functions to private actors and organisations, and rights thus serve flexibly to reinforce and extend its capacities for legislation. The fact that, in the EU, policies are increasingly explained through an overlying reference to rights means that it can allocate legislative competence to a fluid array of actors and organisations, situated, as momentarily required, either in supranational or national, or in private or public, domains, as long as those actors are qualified and recognised as obligated to rights norms.Footnote ⁵⁰ One result of this is that the EU can easily widen its own perimeters by incorporating different organisations in the political system, and, often temporarily, it is able to lend legislative power to a number of different bodies, including bodies with essentially private-legal status. This means – in turn – that the political system can construct a broad and easily extensible social periphery for its institutions, connecting it more integrally with the social environments to which it applies power, and it can utilise rights to embed itself, and expand its law-making capacities, in societies in which institutional and consensual foundations for its power are otherwise fragile (see Schuppert, Reference Schuppert2011, p. 386; Frerichs, Reference Frerichs2008). Moreover, it is notable that, in partial emulation of the US, the strengthening of presumptions in favour of singular rights has promoted a growing culture of litigation in the EU, which also means that courts can supplement the inclusionary legislative force of the political system across society (Kelemen, Reference Kelemen, Börzel and Cichowski2003, Reference Kelemen2006). In both these respects, rights acquire the most vital importance for the EU as polity, and they generally bring internal cohesion and legislative flexibility to its supranational structure despite its insecure social foundations and lack of conventional reserves of legitimacy.

Equally significantly, then, the system-building force of rights can be observed – third – in the more generalised construction of a transnational political system in contemporary society: if the formation of those dimensions of political-systemic organisation which are founded neither in national nor supra-national jurisdiction nor in specific interstate agreements. Most straightforwardly, of course, rights contribute to the construction of a transnational political system because certain rights norms have effective inviolable or erga omnes status for national states. To this extent, these rights vertically frame acts of national states within an international normative order, and they are internalised in national polities as patterns of orientation for legislative acts. In this respect, rights help to create a normative structure to facilitate legislation both at nation-state level and across the boundaries between national states, in relation to legal phenomena resulting from the international domain. However, at the same time, the system-building effect of rights at a transnational level is visible in certain rather less clearly prescribed and formalised ways, and rights also establish a more flexible system for ordering for transnational exchanges. In particular, rights project a systemic framework in which institutions embedded in different national settings are brought into convergence across national divides, and in which those interactions (governmental, sub- and inter-governmental), which can only be performed beyond the limits of fixed national jurisdictions, are co-ordinated (see Slaughter, Reference Slaughter2004). On the one hand, for example, in the transnational domain, rights have increasing force as principles that govern acts of international or interstate organisations, and they create a normative system in which such organisations explain and legitimate their actions, projecting a clear regulatory structure for legislative procedures not centred around nationally embedded institutions (Reinisch, Reference Reinisch2001, p. 134). On the other hand, rights habitually trace out contours of compatibility both between institutions and between individual persons that are based in separate national settings, but which engage with each other across national jurisdictional frontiers. Under the authority of international courts and international rights conventions, for example, expectations in respect of rights create a quasi-constitutional substructure for inter- or transnational regulation, and, often through intense (although disputed) third-party application,Footnote ⁵¹ they define a normative/inclusionary background in which, with some degree of cohesion, societies can order both institutional and personal interactions traversing national boundaries (Mills, Reference Mills2009, pp. 124−125). Exchanges in different national societies reaching beyond the boundaries of these societies are increasingly measured against standards derived from international rights norms; rights provide a normative hyper-code to cover those acts and exchanges located at intersections between different national legal orders. In a variety of ways, in consequence, rights norms increasingly consolidate an internal backstopping structure, which helps to connect and render compatible different tiers in an emerging global political system. Rights become most prominently articulated at the conjunctures or overlaps between national and transnational levels of the global political system, and they generally provide flexible patterns of normative orientation, which allow meaningful law-making and legal regulation in circumstances where legal phenomena are not subject to express constitutional organisation.

In close relation to this, fourth, rights also perform transnational system-building functions because they establish a hybrid legal-systemic order, fusing private law and public international law, which also brings some degree of normative stability and uniform regulatory structure to exchanges located beyond the domain of purely national jurisdiction. The fact that in transnational society private persons are able (however variably) to claim immediate rights protection means that exchanges in both private and public law are increasingly proportioned to expectations in respect of rights, so that rights are invoked to authorise, control and normatively to determine interactions that occur in both legal dimensions (Wernicke, Reference Wernicke2007, pp. 402−406). This means that public and private law can easily combine, and together they permit the emergence and consolidation of a transjudicial legal system, which, however fluidly, creates, through reference to rights, a normative structure standing outside national states, which is able to produce laws that guide the actions of both private and public actors in the transnational arena.Footnote ⁵² At a most general level, for example, expectations in respect of rights filter pervasively into private law, and they increasingly shape cross-boundary guidelines in respect of trade, labour, employment, medicine, healthcare, sport, media, electronic communications (Internet), etc.Footnote ⁵³ Across national divides, these standards then gain growing (although always contested) obligatory force for both private and public actors (Wood and Scharffs, Reference Wood and Scharffs2002, p. 566). In some cases, more specifically, rights are assimilated directly in judicial rulings to establish a body of international private law containing quasi-constitutional obligations for public bodies.Footnote ⁵⁴ Moreover, the growing frequency of extra-territorial tort proceedings means that private persons and organisations can increasingly be held to account for promoting human rights abuses, and even for association with public bodies guilty of contravening human rights norms.Footnote ⁵⁵ Under certain circumstances, this has the result that private individuals can assert rights in international law, and, to some degree, it even engenders laws with obligatory force for both public and private bodies (Kunstle, Reference Kunstle1996, pp. 320, 346). In each regard, rights move between public and private law, and they underpin a system of legal/political inclusion which is able flexibly to bridge the national and the transnational dimensions of global society, and which, spontaneously and with little express political authorisation, produces hard norms for global political organisation. Indeed, the increasing inner spontaneity of transnational law creates a legal environment in which even the attribution of law-making powers, classically reserved for publicly constituted actors, becomes hybridised. Against this background, for example, private associations, especially those assuming accountability for rights protections such as non-governmental organisations (NGOs), can easily assume quasi-public functions of governance and legislation:Footnote ⁵⁶ NGOs in particular obtain the authority to set normative standards, which assume near-obligatory status for public and private actors, both nationally and internationally (Spiro, Reference Spiro1995, p. 48; Reference Spiro2000, p. 572; Gunning, Reference Gunning1991, p. 230). In all these respects, rights make it possible for global society to construct a hybrid model of public/private normativity, legislative authority, and normatively structured governance. This system of governance does not depend on specifically articulated (i.e. constituent) authorisation, and it can be extended rapidly across different spheres of society, providing a highly flexible normative setting for the co-ordination of many different exchanges and many acts of legislation. This system of governance derives authority and cohesion primarily from rights.

In the transnational dimension of the contemporary political system, in consequence, rights steer and inform acts of legislation and judicial rulings in both the private and the public legal domains. On one hand, this means that acts of national states and other classical public institutions are pre-defined by an amalgamated body of private/public rights norms (Calliess and Zumbansen, Reference Calliess and Zumbansen2010, pp. 75, 166−168, 243). This has the system-building consequence that those acts of national public institutions reaching across national boundaries can be located and addressed in a normatively pre-defined environment, so that these institutions are insulated against legislative uncertainty and derive authority and direction from already established norms. On the other hand, this means that laws with obligatory status can be generated very flexibly and spontaneously, and laws can be produced in many different locations in society. Through a series of complex and contingent processes, rights stabilise legislative environments outside simple state jurisdiction, and they offer a reasonably secure framework for orienting and justifying legislation in such contexts. In fact, rights now freely cross the boundaries between different categories of law, and they allow society, from within the law, to generate a fluid regulatory apparatus through which it can capture and legislate over transnational legal phenomena. In this respect, rights augment and maximise the legislative capacities of society in the face of the increasing quantity of transnational or unlocalised exchanges that society produces and contains. In addition, however, this has the further system-building consequence that organisations (in particular NGOs) that define their functions as relevant for rights are often able to assume authority, and even formal personality, under law, and they are widely incorporated as powerful players within the transnational political system.Footnote ⁵⁷ The reference to rights allows multiple actors to move in and out of the political system, often assuming temporary, very specific, regulatory functions. Indeed, transnational rights establish a normative order in which a variety of organisations, some originating in the private domain, can be accorded governance functions, address extensive regulatory problems (especially in economic practices), and even assume de facto legislative power.Footnote ⁵⁸ In these respects, rights enable global society to generate normatively consolidated political structures in highly improvised fashion, and they allow society to perform a relatively spontaneous and internally controlled extension of the political order, so that acts of legislation regarding the mass of transnational phenomena in society can be conducted in adequately iterable, spontaneous and internally positivised fashion.Footnote ⁵⁹

More tentatively, fifth, the system-building force of rights in contemporary society is also observable in the fact that rights allow different areas of social practice, especially those extending beyond clearly consolidated national-jurisdictional boundaries, independently to generate a normative order for their exchanges. For example, we can observe that global interactions in medicine, art, science, etc., borrow from international human rights law a skeletal set of principles to organise their exchanges, and, even in matters which escape all vertically obligatory regulation, the reference to rights means that different functional sectors of global society can internally project normative constructs to control and temporally to determine their operations.Footnote ⁶⁰ On this basis, each sphere of functional exchange in society, reaching horizontally across national boundaries, is able to give itself a recognisably political-systemic structure, and so to regulate its interactions, in relative differentiation and autonomy, without immediate reliance on conventional or state-centred public institutions.