CONCLUSION

Elaborating the politics of definition advanced by the two conceptions of con­stitutionalism outlined above takes forward our inquiry in three important ways. First, it emphasises how the meaning of ‘constitution’ has been, and continues to be, subject to intense political struggle, putting into perspective the notion of constitutional ‘essences.’ Secondly, it shows that what we regard as, and as not, constitutional has important consequences on how we approach the question of private power.

We can elaborate this by considering the relation between the politics of definition, and the theoretical bases of legal pluralism. Making this connection amplifies the symbolic importance of constitutions, by showing that the key question is what politics of definition take root in the political imagination. We can approach this by exploring some apparent tensions in the legal pluralist position. New constitutionalism seems, on the one hand, to take legal subjec­tivity seriously by emphasising the multiple interactions which make up indi­viduals’ constitutional experiences.^[647] Yet, on the other hand, it also appears to insist that there is a reasonably coherent normative hierarchy which conditions how individuals can exercise their law-creating capacities.^[648] For that matter, the analysis of the US Constitution also appears to suggest that constitutional jurisprudence has been at various times determinate enough to enable corpor­ations to make significant gains.

First, it should be stated that while critical legal pluralism takes individuals’ law-creating capacities seriously, this does not reduce to complete subjectivity, such that legal experiences are solely the product of each individual’s imagina- tion.^[649] Rather, legal subjectivity should be seen in relational terms: ‘[s]ubjects construct and are constructed by State, society and community through their relations with each other.’^[650] These relations can significantly constrain legal subjects, for example when they take the form of ‘[d]ominant narratives,’ imposed ‘either directly through the imposition of brute force dressed up in the guise of State officials, or indirectly through the ideology of legitimated state power,’ and which subjects then ‘recognize and maintain.’^[651] This leads to the second point of clarification, that highlighting the internal and external plural­ism that attaches to all legal orders does not mean that subjects’ experiences of law are hopelessly indeterminate. For example, a theorist such as Sampford, who argues that legal relations are by their nature asymmetrical (and hence work against the possibility of system in law), nonetheless can also hold that the overall legal regime in which individuals find themselves can be relatively stable. This is explained by showing how the disorganising influences which produce social conflict also serve to mute it, the result being ‘a social inertia in which certain interests tend to become entrenched because of the inability of others to dislodge them.’^[652] This social inertia can give a determinate framework to social life by embedding dominant interests against attack from their opponents.^[653]

It is helpful at this point to return to Santos’s account of the structure-agency map of capitalist society. We should recall that for Santos, it is the articulation between different forms of social power, law and knowledge which ‘establish the horizon of determination, the outer structural limits of social life.’^[654] How these articulations develop is the result of a complex, but attenuated, relation­ship between structure and agency, which Santos captures through the metaphor that ‘structures are solid moments or marks in the flowing currents of practice.’^[655] Thus, the prevailing normative hierarchy which shapes individuals’ legal experiences is both the work of human agency, but also a potential con­straint on human agency, especially when it attains the status of commonsense. When the latter situation prevails, Santos argues this should be seen in terms of ‘provisional sedimentations of successfully reiterated courses of action,’ ‘provi­sional’ because they are ‘the context within which determinations and contin­gencies, constraints and opportunities are played out.’^[656] However, although provisional, the prevailing sedimentations have concrete implications in terms of setting the horizon of determination.^[657] To connect this with our discussion of constitutionalism: if we seek to understand the ‘successfully reiterated courses of action’ that inform individuals’ experiences of constitutional law, the above analysis confirms the need to look beyond the traditional focus on state charters of rights.

If we accept the new constitutionalist argument, those processes identified as the ‘constitutionalisation’ of neoliberal practices and ideas can be seen to be the current ‘provisional sedimentations’ at the global level. Casting them in these terms reminds us that they are neither total nor inevitable; nonetheless, they operate in an important ‘boundary-setting’ mode, placing real constraints on political action. The contribution of constitutional globalization, and its poten­tial to act in a ‘path-breaking’^[658] mode, thus depends on its articulation with other forms of law and power in making up these provisional sedimentations. The key here is the extent to which the contingent outcome of the constitutional politics of definition contributes to the embedding of certain ideas as common sense in the popular and (perhaps more important) elite imagination. This inquiry focuses at two levels: first, what political arguments prevail in constitu­tional adjudication, and secondly, how these affect the political arguments that prevail at the broader level of the provisional sedimentations.

We can gain some flavour of the processes involved by returning to the discussion of US constitutionalism. The state action doctrine, in placing a presumptive bar to the constitutional scrutiny of non-state bodies, has led to direct gains by private power in jurisprudential terms. However, the major sym­bolic importance of adjudication in this context lies in how it embeds classical liberal politics of definition as constitutional orthodoxy—both substantively, that constitutions are about limiting government in the name of individual autonomy, and conceptually, that they are legal discourses and so represent ipso facto the legitimate baselines for political action—and how the hold of these ideas at the level of adjudication plays out at the broader level of public discourse (Santos’s horizons of determination) to shape the possibilities of polit­ical action.

We can now place in context the argument that rights constitutionalism can become a greater force for prosecuting counterhegemonic politics at the global level. To succeed, this has to show that constitutionalism can change the provi­sional sedimentations by placing effective restraints on hegemonic private power. Nothing in the argument so far outlined says that such a rearticulation is theoretically impossible—both Sampford and Santos, for example, emphasise the contingent nature of prevailing hegemonies, and the possibilities of ‘trans­formative agency’.^[660] However, whether such a transformation is likely has to be assessed in the light of real material conditions. To answer this, we now ask what politics of definition inform the globalization of rights constitutionalism, and how these politics of definition condition its engagement with private power.