An Integrated Theory of Constitutionalism in World Society: Beyond the Public/Private and National/Transnational Distinctions

Traditionally constitutional theory has relied on two central distinctions: The public/private and the national/transnational distinction. The societal developments of the past decades have however led to an increased erosion of these distinctions. In the academic literature, this development have both been regarded a indicating a triumph as well as a failure of constitutionalism. This article circumvents this standoff by questioning the very foundation of constitutional theory in the public/private and the national/transnational distinctions. It is argued that the object of constitutions is formal organisations as such and not the particular type of formal organisation which is associated with statehood. Thus, they can be public or private, national or transnational. On this background, a distinction is introduced between the internal setup of constitutional orders, the external strive for compatibility between orders through constitutionalisation and the idea of constitutionalism as a way of approaching the future.