Il nomos infranto: globalizzazione e costituzioni. Del limite come principio essenziale degli ordinamenti giuridici

My paper will aim to illustrate the intrinsic irreconcilability between the predominant form of globalization and the core of democratic constitutionalism. The key idea that I want to explore is how deterritorialization, as the true nature of globalization, challenges the very possibility of a constitutionally-framed coexistence. Deterritorialization consists in a progressive distance between three essential elements of coexistence formulated by political philosophy: territory, community and political power. The emancipation of territory from popular sovereignty removes the very foundations of the idea of Constitution. If the idea of Constitution feeds off the concept of limit, deterritorialization instead represents the overcoming of every limit. The consequences in terms of rights for the majority of the world's population forces us to rethink the concept of limit "as the essential principle of legal systems", which is also the subtitle of my 2007 book on the relation between globalization and constitutions. The first part of my paper will be dedicated to analyzing the "institutions of globalization" and how the procedures through which these institutions design and apply policies across the globe demonstrate the ways in which new juridical forms, despite their apparent consensual model, are characterized by a kind of "emancipation" from popular sovereignty that is functional to their privatization. In this context constitutional rights in particular are being transformed into exceptions to the rules established by the lex mercatoria and its institutions. This situation does not simply represent a weakening of the principle of equality and universal suffrage, but the crisis of the essence and value of Constitutions: rather than tending towards the limitation of a power that is legitimated on the basis of the fragmentation of this very power, systemic decisions in the global order instead progressively remove every constitutional limit and legitimation of power. The normative value of Constitutions is weakened by phenomena of deterritorialization which are driven by the competition between systems to attract foreign investment through the elimination of constitutional guarantees, in particular with regards to labor, health and the environment. Laws produced by institutions of globalization are in fact being increasingly applied to national territories. Nation states appear to replace popular sovereignty with mere territorial sovereignty: their authority is maintained intact so as to implement the rules of globalization on their territory to the detriment of constitutional rules according to forms of popular sovereignty. With the end of territory in favor of a generic spatial element which can be occupied by the rules of globalization, the convergence between system and localization (nomos) evaporates, provoking a "shattered nomos". As a result, a particular notion of Constitution disintegrates, a notion that needs to be understood as a "counter-conduct" to actually existing power relations. The Constitution should coincide with the conduct - in other words the forms of action - which political communities choose to adopt to tackle de facto power and to spread it among subjects. It is in fact only in a shared territory that a coexistence founded upon reciprocal limitation and not upon mere co-presence between indifferent human beings can occur. As such, there has been a lack of attention in international legal debates to the fact that territorial delimitation poses a major obstacle to the concentration and unlimitedness of power. Territorial delimitation is only one implication of the concept of limit that should drive the coexistence in a limited world. Therefore I intend to revive a positive meaning of the concept of limit.