Transnational Economic Constitutionalism in the Varieties of Capitalism

Among the remarkable results of globalization are economic constitutions, which have emerged independently from the political constitutions of the nation-states. Against ordoliberal as well as critical theorists, who expected a uniform economic world-constitution, a fragmented meta-constitution dealing with massive constitutional conflicts has emerged. Moreover, the conflicting economic constitutions are no longer delineated by the boundaries of nation-states but by different boundaries of various transnational production regimes. The constitutional alternative for the national economies—ordoliberal economic constitution versus social-democratic economic democracy—which had been formulated by the classics of economic constitutionalism, Franz Böhm and Hugo Sinzheimer, has been replaced by the opposition in the Western Hemisphere between neocorporatist production regimes in Northern Europe and the financial-capitalist production regimes of the Anglo-American world. Against all predictions of their failure, the neocorporatist constitutions of European economies, after the financial crisis, have undergone a reorganization that resulted in their remarkable resilience. Moreover, they have developed a potential for strengthening economic democracy. In particular, public good–oriented corporate codes of conduct, which emerged in large numbers in the sweep of globalization, have contributed considerably to this potential. The codes opened, beyond the protection of workers’ rights, a new opportunity for societal actors. The oppositional power of civil society—the media, public debate, spontaneous protest, protest movements, NGOs, labor unions, intellectuals, and the professions—as well as the legal norms created by state intervention exercise such massive pressure on corporations that the latter are compelled to enact binding self-restrictions oriented to the public interest: environmental protection, antidiscrimination, human rights, product quality, consumer protection, data protection, freedom of the internet, and fair trade.