Rights and Constituent Power in the Global Constitution

Using an approach derived from sociological functionalism, this paper proposes a distinctive reconstruction both of the history of constitutionalism and of the changing form of constitutional law in global society. It argues that constitutional norms form adaptive principles for stabilising the inclusionary legal and political functions of society. Classical patterns of legal/political inclusion tended to rely on democratic forms of will formation (constituent power). Contemporary patterns of legal/political inclusion rely, in contrast, on rights. The shift in emphasis from constituent power to rights forms the constitutional foundation for the emerging global political system.