For a New Social Contract

This is an age of uncertainty for constitutionalism and contemporary democracies. On the one hand, they are exposed to increasing demands to deliver “goods” such as economic prosperity and peace, to ordinary citizens in an effective way, and to address global problems, such as climate change, health, etc. On the other hand, their underpinnings are questioned to an unprecedented extent in terms of legitimacy and inclusiveness (or justice).

These two poles – effectiveness and legitimacy/justice- are not necessarily in tension with each other, but generate a number of claims that are potentially contradictory and require a renewed analysis of the main parameters of Western liberal democracy.

The paper seeks to go beyond those studies on the relationship between constitutionalism and democracy that either assume an inherent conflict between them, or proclaim the end of State sovereignty, or, on the contrary, assume State sovereignty as exclusive paradigm of constitutional studies. Rather, the ambition is to keep in mind the process of transformation that familiar legal and political categories are going through. The claim is that it is necessary to identify as clearly as possible the complex variety of actors or subjects involved in such process of transformation of contemporary democracies - including those who are potentially the losers and winners- as well as the stakes, the interplay between such actors/subjects and the implications and challenges for the nature and scope of contemporary legal systems. The paper advocates a new form of social contract, which is particularly urgent in the context of the climate crisis and the relevance of non-human agents. Moreover, methodologically, the paper attempts to build a bridge between philosophy of law and sociology of law.