Hybrid Governance Across National Jurisdictions as a Challenge to Constitutional Law

A technology often reaches perfection when its successor is already in place. Miraculously speedy and reliable punch card readers were finally available on the market when demand shifted to personal computers, to cite only one example. Do constitutions follow the same evolutionary pattern? Constitutional law, in general, and the doctrine of fundamental freedoms, in particular, are in admirable shape. Their dogmatics have been amply tested; they are elegant and rich. But they have been developed for the nation state. Yet governance reality is increasingly different. The state is competing with foreign, international and private governing authorities, or it is joining them in hybrid efforts. Will de-constitutionalization ensue? Or will the existing constitutions be able to face, or even alter, the new reality? This is a paper about governance. Hardly a term is more disputed in the social sciences. This paper looks at (potentially) global, not national or European governance. It therefore cannot avoid using the broadest of all possible definitions of governance. Since on the global scale there is no such thing as a widely undisputed higher order system, the term governance must comprise all modes of social ordering, by whatever actor or actor configuration. The focus of this paper is on divergent governance bodies, not governance tools. It does not want to explore whether the pertinent body uses (quasi-)legal rules, incentives, moral suasion or any other tool for governing the behavior of its addressees. It simply looks at who purports to change the behavior of a class of addressees, in the alleged interest of some protectees. Moreover, when it speaks of governance, the paper exclusively looks at intentional attempts to change the behavior of addressees. The limitation inherent in this becomes clear when looking at a constitutional court. To the extent that it has jurisdiction, one can interpret such a court as the supreme legal authority. At the limit, the court can even overrule the legislator. But, strictly exceptional instances notwithstanding, a constitutional court does not itself write the law. It, at most, invalidates existing rules, or gives them a different meaning. In both cases, parliament remains the governing body. Finally, this is an interdisciplinary paper in that it draws on insights from the social sciences, and from political sciences in particular. But it does so exclusively in the interest of better understanding a dogmatic problem of constitutional law: how can and how should a national constitution react when governance activities cannot (exclusively) be attributed to the governance bodies created by the constitution? More specifically even, the paper does not intend to design the appropriate reaction for a concrete instance of not exclusively public national governance. Its goal is much more modest. It wants to provide constitutional lawyers with a conceptual framework for addressing such concrete design problems. This explains why the paper does, by far, not exploit the richness of the discussion on hybrid international governance in the political sciences. The following sketch purports to address these questions from the angle of the German constitution. It starts with a taxonomy of governance authorities (II). It briefly summarizes the normative arguments for and against international, private and hybrid governance (III). It points to the option of privatizing, internationalizing and hybridizing the constitution itself (IV), but focuses on strategies for the existing national constitutions in the face of an altered reality (V). The concluding dogmatic treatment is confined to fundamental freedoms. It starts by isolating the international (VI) and the private dimension (VII), then goes on to address the more complex private international (VIII) and hybrid forms of governance (IX)