Constitutional imagination: human rights, culture and development in Luhmann and Unger

Abstract

This research is an exercise of constitutional sociology with implications for the theories of law and constitution. It aims at inquiring - taking into account the historical transformations on the sense and role of human rights and the contemporary design of this typical constitutional institution - how do these rights work and can work in relation not only to the legal system, but also in relation to the economic system (the question of development) and the cultural sphere. The theoretical directive of the study is based on a dialogue between the social systems theory of Niklas Luhmann and the constructive social theory of Roberto Mangabeira Unger. Concerning methodology, the research aims at developing a 'second order observation' on the theme of human rights, in its 'formative' and 'reformative contexts', by analyzing the semantic and structural changes (in law, economy and culture) related to the new configurations of that social institution (i.e. the human rights). In the level of law, we observe the transversality of the problem of constitutional or fundamental rights, through legal orders of different types, as so as the implicit or explicit presence of these rights in the various self-descriptions of legal system. In the level of economy, the theories of development are the key of coordination with the comprehensive sociological theories focused, and, specially, with the diagnosis of the interface 'law and development' that the last theories allow us to present. In the level of culture, changes in the semantics of human rights are coordinated with the emergent global constitutional framework and with the exigencies of democratic experimentalism. (AU)