Jiří Přibáň’s inspiring work is devoted to European constitutional imaginaries. Přibáň defines social imaginaries as a ‘collective form of the ethically meaningful life constituted by shared values and legal rules’.Footnote ¹ As Castoriadis stated, an established society is always the product of the instituting imaginary, a radical and unconditional vis formandi that puts into being the world of individuals, language and the material and symbolic relations that define the community.Footnote ² Among the folds of Castoriadis’ research emerges the significant category of the Greek nomos (although Castoriadis does not seem to want to refer to the legal nomos), to indicate the process of creating and sharing social, cultural, symbolic meanings that a community shares and that are institutionalized in a legal imaginary before the law itself.

Nevertheless, Přibáň does not follow Castoriadis’s idea of social imaginary, since he employs Anderson’s sociology of imagined communities, Charles Taylor’s notion of social imaginaries and the autopoietic social systems theory of Niklas Luhmann’s first conceptualisation and Gunther Teubner’s re-elaboration.Footnote ³ It is especially this second aspect that captures the reader’s attention, since in Teubner’s theory the imaginary unit of society is constituted by differentiated social systems. The social unit – analysed by Teubner through theory of societal constitutions – is therefore warranted by the paradox of social differentiation. In other words, for social systems theory – including Teubner’s re-elaboration – the social unit can be ensured only through the processes of social differentiation.Footnote ⁴

The attentive reader wonders how the differentiated society described by Luhmann and Teubner is connected to the social imaginaries of which Přibáň speaks. I, therefore, want to clarify this first aspect of Přibáň’s brilliant work.

Přibáň uses the concept of social imaginaries as entities describing functionally differentiated modern society as one polity. He argues that “imaginaries are societal forces, potential, which reconstitute functionally differentiated society as one legitimate polity”.Footnote ⁵ They evolve through different social systems and represent the constitution of social unity and its pluralism of values. Their main goal is to “transform the plurality of social immanence and differentiated societal forces into the community of transcendental values and ideals”.Footnote ⁶ The particularity of social imaginaries is that they are social and historical constructions related to systemic structures but, at the same time, generate principles that transcend the specificity of systems to constitute general expectations of living in one legitimate polity through legal rules and shared values.

To explain how social imaginaries transform socio-legal pluralism and differentiated forces into an organic community of values and transcendental ideals, Přibáň turns to Teubner’s theory and points out that contemporary imaginaries can work as constitutional forces that drive contemporary legal pluralistic regimes, including the European one, to the societal unity by warranting a systemic difference.

Přibáň is clearly and deeply inspired by Teubner’s recent theory on societal constitutionalism.Footnote ⁷ Both Přibáň’s imaginaries and Teubner’s civil constitutions evolve through different social forces (or systems, for Teubner) but then they pretend to transcend this societal specificity, developing their own constitutional normativity. Constitutional imaginaries thus “constitute social subjects as members of communitas – the community of values”.Footnote ⁸ In other words, Přibáň argues that social imaginaries have the function of constitutionalizing and transforming the societal pluralism made of differentiated societal forces into a community of transcendental values and ideals.

I want to clarify the previous assertions by answering the following questions:

1. (i) How can we develop a sociological theory capable of explaining modern processes of constitutionalisation by the category of social imaginaries?

2. (ii) Can we interpret constitutional imaginaries as part of a broad theory of societal constitutionalism and use it to analyse the contemporary European and transnational legal pluralism?

I will try to answer these questions by intersecting Přibáň’s contribution with Teubner’s theory of societal constitutionalism.

Přibáň argues that ‘Constitutional imaginaries are systemic constructs describing functionally differentiated modern society as one polity and distinguishing between legal and political legitimacies and illegitimacies in it’.Footnote ⁹ Modern constitutions arise from the people’s pouvoir constituant. At a certain point, the people delegate to a political class the task of inscribing in the supreme normative document of the constitution fundamental rights and freedoms and, all those normative meanings (the nomos) that a community shares at that historical moment. The constitution thus comes into being with the aim of organising political power, legitimising, and limiting it, and thus imparting coherence and unity to the social and political order. It becomes a constituent power that transforms de facto power into a legal order that, however, always corresponds to the original creative will. Constituent power founds and, at the same time, delimits the state organisation, ie, all constituted powers.

Alongside the formal dimension, constitutions hand over a material dimension that, in the teaching of Costantino Mortati,Footnote ¹⁰ embodies, rather than the posited norm in the Kelsenian sense, the social and cultural background of a people, the rights and freedoms conquered, the nomos of a community. The category of social imaginary shows its strong utility because it allows us to fully understand the symbolic dimension of our constitutions. Not the form of the norm but the constitutions ‘as specific forms of collective self-representations and political self-identifications beyond formal rational techniques of self-rule’.Footnote ¹¹

Mortati develops the concept of material constitution both in a normative sense and in descriptive and explicative ones. He observes that the functioning of the constitutional order ‘is conditioned by social reality, that has its own intrinsic order and has a series of de facto powers, which either operate directly or influence indirectly the activity of the state organs, they manage to gather around this order of theirs intrinsically the most relevant manifestations of the activity itself’Footnote ¹² . In a normative sense, he tries to construct a theory capable of considering all socio-political needs, enlarging legal formal dimension, including social elements beyond the judicial order.Footnote ¹³ In this sense, the idea of the material constitution is also realistic, because Mortati looks at the legal experience, historically founded, trying to catch material elements (political, socio-economic, cultural ones) that constitute the effective conditions of the legal orders’ existence.

From a descriptive and explicative perspective, the concept of material constitution highlights and narrates all those contradictions of the short century, including struggles and conquests post the Second World War, when social conflicts, cultural expectations and political antagonisms flow in formal constitutions. In developing his theory, Mortati prefigures challenges and crises of the constitutional systems, predicting the mass democracy, the hegemony of de facto powers, and challenges of social movements and participatory democracy. His itinerary is not linear, since historical processes produce polemical dialectics amongst social forces which political parties tries to interpret and select, attempting to synthesize them.

This was Mortati’s declared purpose: to develop a doctrine of constitution in a material sense not as an attempt to find a legal-constitutional foundation of a specific form of State but as research about fundamental and normative (but informal) conditions allowing a State to ‘assume a concrete legal form and to realize its duties’.Footnote ¹⁴

Having clarified Mortati’s idea of material constitution, we can now go back to Přibáň’s ideas on social imaginaries and their constitutionalizing function in a material way.

Přibáň employs a constitutional sociology for which the constitution does not merely has an organisational and limiting function of power, but also the capacity to mobilise social forces and connect them to constitutional powers. This constitutional sociology defines ‘constitutional imaginaries as part of the power and action dynamics in the political system in particular and society in general’.Footnote ¹⁵

Přibáň arrives at a functional conception of the constitution which is characteristic of Gunther Teubner’s system theory of societal constitutions. For this theory, constitutions are not only norms that regulate sovereignty, the exercise of political power, territorial control. They are immersed in a more complex socio-political order characterised by the presence of different social systems.

The theory of societal constitutions, as elaborated by Teubner, shifts the focus from national contexts to transnational ones where social systems and subsystems first develop their own informal and unofficial normativity and then come to develop civil constitutions. Put in other words, the German jurist tries to intercept the material dimension of law, focusing on the new legal pluralism that led to a complex framework made of primary and secondary rules, formal and informal laws, official and unofficial sources. Nevertheless, Teubner does something more: he interprets this contemporary legal pluralism as a constitutional process or – better said – as a new constitutional question beyond national boundaries. We should now wonder if and how it is possible to re-think, in a normative sense, the constitutional national heritage in contexts beyond the state (European and transnational ones).

The premise is the social complexity of our contemporary societies where processes of social differentiation of globalisation reveal deficits of the state instrumentarium. The systemic drive from below the state level increases and, at the same time, social sub-systems move into transnational space and develop their own normative autonomy. One only must think of the Internet, medicine, technology, science, sport, and the money system to realise that the picture becomes more complex and the contours of the legal system thinner and even blurred. The demand from social sub-systems for greater participation in deliberative processes is clear evidence of the crisis of the nation, democracy and traditional institutions of civil society and patriarchal structures.

But fortunately, the state does still exist!

The new constitutional question can be defined as an evolutionary process characterised by different aspects and problems from those of the rule of law and the constitutional state which emerged between 18^th and 20^th centuries. While these legal developments posed the problem of organising the nation-state with its powers and functions and containing political energies within the realm of law, the new constitutional question poses a problem beyond the nation-state, starting with the constitutionalisation processes and social dynamics that, thanks to the economy and digitalisation, go beyond the state borders and the questioning of political institutions of state constitutionalism.

Again, why do we speak of a new ‘constitutional question’?Footnote ¹⁶ Let us think, for instance, of the Internet and its regulation or the Italian Independent Administrative Authorities. In the first case, one only has to think of ICANN, an international management body since 2016, with its functions consisting in the allocation of IP addresses and the worldwide management of domain name systems, international code and root server systems. We are in the presence of a true lex electronica that produces an autonomous digital legislation, as is the lex mercatoria in the economic system. The problem is that different and often opposing private interests converge on this legislation, leading to the systemic forms of corruption as well as effects on fundamental rights such as the protection of personal data. The second example comes from the Italian context, as well as the European one, where some entities (Independent Administrative Authorities) are a model of administrative organization, characterised of a high technical competence. They rule and control public interests, having constitutional relevance (energy, concurrency and market, anti-corruption, personal data, public essential services) and in the exercise of their functions they are free from the governments’ political direction. The CJEU has established that there is any incompatibility between these Authorities and the constitutional frame, because some services, even if public, can also be ruled by structures that do not belong to the constitutional order. So doing the CJEU has strongly stressed out the independence of these subjects from the political power (see, for example, CJEU, C-82/07, Comisión del Mercado de las Telecomunicaciones).

The mentioned examples have to do with the governance structures of the Internet and administrative function separated by legal order and raise questions of the cost-intuitive and not merely regulatory nature. This is for two reasons: the first concerns the need to act on the internal constitution of these systems and their IT and digital processes. The second is the lack of transparency in their governance which leads to the co-constitutional problems of democracy and public control because it affects fundamental freedoms and rights.

Is this only a descriptive perspective, a new socio-legal narration, or are we also facing a normative process, involving new material differentiated elements and postulates?

By considering the framework societal constitutionalism, we are saying that the new constitutional question no longer simply concerns the legitimisation of political power and the organisation of the state but a necessary limitation of the colonising expansionism of social systems beyond states. As Thornhill has pointed out, ‘(…), contemporary society is rapidly acquiring a recognizably transnational constitutional order, and, in different components of the political system, the political exchanges of contemporary society are increasingly ordered in a normative form that amalgamates national and extra-national norms and procedures’.Footnote ¹⁷

Unlike many other scholars (Ferrajoli, for example), Teubner does not intend to refer to a global constitution.Footnote ¹⁸ The theory of social constitutions presupposes the constitutionalisation of social spheres. Underlying it is the idea that states are no longer the only actor able to regulate relations between private subjects moving in transnational space, nor do international organisations have the regulatory capacities necessary to create a binding regulatory system for private actors. The only possibility to contain systemic expansionist tendencies is the constitutionalisation of social spheres. The role of law thus also changes; it is no longer a system that regulates society in a command-and-control manner, but one that provides secondary rules (à la Hart), a regulative space based on a means-goals system.

The materiality of constitutionalising transnational processes works not only in a Mortati way – ie, as an institutional structure coming from below and existing beyond formal law – but also as an attempt to stop or limit the natural colonising expansion of these social systems and sub-systems.

Constitutionalisation becomes possible through a game of double reflexivity: on the one hand, each system continues to auto-produce its components and connects them to keep itself alive; on the other hand, the system must couple with the right in a reflexive way, so that normativity exploding beyond state borders is constitutionally limited.Footnote ¹⁹ Reflexivity (that is a relevant aspect both in Luhmann’s theory and in Teubner’s research) indicates the capacity of law to be reasonable and to rule society by ruling itself. The functional element that comes from the constitutional modern theory means the need of a constitutionalism, which limits the expansionism of the social sub-systems in supranational spaces.

Social constitutionalism therefore means that the constituent process no longer refers exclusively to either the birth of modern constitutions, or to the constitution as the supreme normative document of the people as organizing power with attributed roles and functions. Societal constitutionalism means that constitutional normativity breaks the schemes of the constitution and that different social islands (social systems and sub-systems, as described by the Luhmannian and Teubnerian systemic theory) now produce their own spontaneous normativity that claims to have a specific constitutional value.

What societal constitutionalism shows in the European integration process is that law is no longer sufficient to coagulate the European social imaginary. That process of building and governing Europe through the principle of territoriality of law, begun with the emperor Charlemagne (800 CE), can no longer be applied. The legal experience of the ius commune, capable of institutionalising heterogeneous elements, such as Latinity, Germanity, Roman law, ius Canonicus, Christianity, has lost its centrality and power because normativity now comes from elsewhere. Science, money, the Internet, MNCs, NGOs express their own constitutional processes that often develop expansionistic tendences.

It is no longer a question of admitting that systems such as economics, money, science, technology, universities, etc. produce their own normativity since the real challenge is to understand how this normative process and heritage break the legal frameworks as we know them and aspire to assume constitutional significance. We are definitively invoking a new constitutional governance capable of functionally limiting the perverse expansionistic tendences of the social systems and sub-systems. A constitutional governance whose main features are the reflexivity and the functional element.

According to Přibáň, the European polity would find its own legitimacy in three general imaginaries, made of (i) the common market, (ii) universal rights and (iii) democratic power. These imaginaries are accompanied by specific imaginaries of European integration through legal pluralism, administrative rationality of calculemus, economic prosperity and democratically mobilised non-state community.Footnote ²⁰

Are we not talking here about constitutional governance that has gone beyond national borders? Beyond the uncertainty that inevitably accompanies the word governance, there is no doubt that this category, lowered in the context of globalisation, manages to grasp a flexible, changeable, pluralist regulation. The results are the impossibility of reducing global society to the unity and the tendency to govern global legal phenomena while maintaining systemic differentiation. I am not referring to a governance of the world that would require a central authority capable of governing but a governance over the world that welcomes differentiation and, only by accepting it, can guarantee a synthesis of the opposing interests. I am talking of a descriptive model with an intrinsic normative value too, ‘that arises from social constitutionalism borrowing from it both the reflexive element and the functional one. It is therefore a governance that should express a reasonable law capable of turning back on itself and able to limit systemic colonizing expansions’.Footnote ²¹

If we look at the current European situation, we must agree that Europe has the only chance of counterbalancing economic and monetary policy (which remains its primary interest) with a constitutional governance capable of pursuing a serious process of political, cultural, and social integration, based precisely on the respect for all existing differences. And before a European constitution, we need a culture of constitutionality that can start from reflexivity and responsibility.

The challenges of recent years, from the pandemics to the current conflicts between Russia and Ukraine, and between Hamas and Israel, represent a clear and necessary test for Europe. Starting with the Next Generation EU approved by the European Council in 2020 to support Member States hit hard by the COVID-19 crisis and addressing the geo-political role that Europe can (and should) play on the global chessboard will tell us how much common cultural and socio-legal imaginaries are able to strengthen a European constitutional governance.Footnote ²²