CONSTITUTIONAL GLOBALIZATION IN POLITICAL CONTEXT
We begin our inquiry into the counterhegemonic potential of constitutional globalization by asking why the latter occurred when it did, and whose interests were served by it. In this regard, it is important to locate our discussion in the political context of the late 1980s and 1990s, which, for many states, was a period of transition from previous authoritarian regimes—whether state communism in central and eastern Europe or rule by military junta in Latin America.
This time was marked by an intensity of institutional reform, which sought to embed liberal democracy, and so prevent the return to dictatorship.[661] A key aspect of these ‘waves of democratization’[662] has been reform of the courts, which have as a result played a prominent role in managing the transition to liberal democracy.[663] One high profile aspect of these reforms has been in the field of criminal justice, directed towards eliminating corruption.[664] However, more important for present purposes has been the increased prestige and activism of constitutional courts in adjudicating individual rights.[665] To understand fully the significance of these rule of law reforms, we have to see how their adoption was perceived by key agents of the global economy to promote neoliberalism.The first point to make is that these reforms were not spontaneous and unrelated, but often the site of ‘high intensity globalization.’[666] For example, Santos links what he calls ‘rule of law and judicial programmes’ in Latin America to the ‘reformist pressure’ exerted by ‘USAID, the World Bank, the Inter-American Development Bank, the US Justice Department, the Ford Foundation and the European Union (collectively or through some of its members).’[667] Similarly, he notes USAID’s investment in ‘democracy and rule of law programmes’ in central and eastern Europe in the early 1990s.[668] It is perhaps in the developing world where such programmes are most visible,[669] with western governments and global institutions like the World Bank and International Monetary Fund now taking an active concern in establishing a basic democratic infrastructure.[670]
This renewed interest of the west and international financial agencies in good governance programmes coincided with the awakening of neoliberalism,[671] and it has been suggested that what is novel here is that liberal democratic reforms are seen as necessarily prior to economic liberalisation, not one of its out- comes.[672] This linkage between rule of law reforms and promoting the market economy was made explicit in the World Bank’s 1996 World Development Report, From Plan to Market.[673] There the World Bank argued that transitional societies must adopt ‘a new way of thinking about the entire legal system.’[674] This equates to a vision of the rule of law where ‘laws are applied fairly, transparently and even-handedly to all’—on this basis, ‘individuals can assert and defend their rights; and the state’s powers are defined and limited by law.’[675] In specific terms, the hallmarks of a ‘dynamic, changing economy’[676] are the creation and allocation of property rights[677] and a constitutional structure which ensures that ‘the government will apply the law consistently and will itself abide by certain constraints,[678] refraining from arbitrary intervention and corruption.’[679] Underpinning constitutions and rights are ‘competent and reliable courts’ which ‘provide the foundation on which all enforcement activity...
ultimately depends.’[680] In this way, what is distinctive about law in market economies is that it ‘defines the rules of the game and gives individuals the rights and tools to enforce them.’[681]An important corollary of this democratisation process has been the bolstering of civil society.[682] Regarded as a shorthand term for ‘the collection of intermediary groups and voluntary associations that occupy the space between
122 Rights Constitutionalism and the Counterhegemonic Difficulty the family and the state,’[683] its strengthening is often seen as central to sustaining democratic transitions, for example, by supporting the establishment of political parties in societies with little tradition of competitive politics.[684] However, its main significance is in contrast with the necessary other of the state which gives it meaning in liberal theory, which emphasises the connection between promoting civil society and the neoliberal economic agenda. In David Held’s words, civil society is thus associated with ‘the “rolling back of the state”—that is, the freeing of civil society from state domination,’[685] and so becomes ‘an essential element of any democratic political order.’[686]
The foregoing provides the context for answering Santos’s question: ‘what type of state form is both presupposed and produced by the expansion of judicial power?’[687] Santos himself argues that the latter is related to perceived failures of the democratic and welfare state, and that it should therefore be associated with contemporary neoliberal notions of the weak state.[688] For him, this explains, for example, why the ‘downsizing of the administrative welfare sector’ goes hand in hand with ‘the upsizing of the judicial system’ as the weak state ‘open[s] the space for partial replacement of the political obligation with contractual relations among citizens, corporations, NGOs and the state itself.’[689] This has the further effect of depoliticising the conflict inherent in this transition by casting the issues arising as individual disputes.[690] This analysis, in highlighting that the ‘retreat of the state’ has been in parallel with these rule of law reforms,[691] suggests that the latter are connected to the rise of the Washington consensus in important ways.
Some supporters of neoliberal globalization make this link explicit by pointing out that what is common to international trade and human rights is that both ‘are largely deregulatory—they declare what the State should not do.’[692] On this view, through a series of equations, that rights constitutionalism promotes democracy, and that capitalism is compatible with democracy,[693] the judicial protection of fundamental rights is not seen to present a series of trade-offs between important values, but rather becomes vital to the success of the global economy in neoliberal mode.[694] This faith placed in rights constitutionalism by neoliberal protagonists reflects the hold, in historical and comparative perspec-
tive, of a classical liberal politics of definition, which has at its base the conceptual and normative divide between the state and civil society. Outlining how this has translated into a constitutional jurisprudence which resonates with key elements of neoliberalism provides the context for considering the argument that rights constitutionalism can be remade in a counterhegemonic manner.
Modern Constitutionalism as Limitations on the State
A comparative approach reveals that constitutional charters of rights are principally concerned with the limitation of governmental action. Sometimes this is made explicit in the text, such as section 32(1) of the Canadian Charter of Rights and Freedoms,[695] which states that it applies only to the federal and provincial legislatures and governments,[696] or the UK Human Rights Act 1998 which restricts its reach to ‘public authorities’.[697] Sometimes this is emphasised by constitutional courts, for example, the Bundesverfassungsgerichts has said that the ‘primary purpose of [the Germans Constitution’s] basic rights is to safeguard the liberties of the individual against interferences by public authority.’[698] To this it may be countered that newer forms of constitutionalism, such as those adopted in central and eastern Europe, move beyond an exclusive focus on limiting the state, and also contain positive guarantees.[699] I will return to the counterhege- monic potential of positive obligations on the state below, but for now it is important to note that, in formal terms, they generally enjoy a secondary status to, and cannot be directly enforced in the same way as, negative rights.[700] A
124 Rights Constitutionalism and the Counterhegemonic Difficulty comparative perspective shows that while virtually all constitutions enforce negative rights against the state, only some have positive rights, which moreover only become justiciable in limited circumstances, for example, if economic conditions permit.41 Thus, while accounts of constitutionalism which seek to move beyond the traditional approach—whether of the creole liberal,42 postliberal43 or transliberal44 variety—require a qualifying adjective, the basic model of liberal constitutionalism continues to denote negative limits on state action.45
The deeply embedded roots of this central idea, reflecting the classical liberal distrust of the state, and the valorisation of what lies beyond it in the free realm of civil society, is corroborated in the detail of the comparative jurisprudence.
Courts have struck out actions brought against private bodies on the grounds that, ratione personae, they do not cross the threshold for constitutional application. This has its origins in the US state action doctrine discussed in chapter six. Under this heading, the US Supreme Court has excluded from constitutional review: the decision of an utility company to terminate electrical services, allegedly denying due process;46 the removal of anti-war protesters seeking to assert First Amendment rights of expression and assembly from a shopping mall;47 the licensing powers of the state-created Olympic Committee;48 and courts giving effect to the terms of discriminatory wills.49 This doctrine has proved influential beyond the US, most strikingly in Canada, and the Supreme Court there has found the Charter inapplicable to: injunctions applying the common law to restrain secondary picketing;50 the introduction of mandatory retirement schemes by a publicly funded hospital;51 and court orders making provision for custody under statutory divorce laws.52 The removal of private action from constitutional scrutiny has also characterised the approach of courts outside North America: the South African Constitutional Court held in41 See, eg, M Mandel, ‘Legal Politics Italian Style' in Tate and Vallinder, above n 5, at 261.
42 S Woolman and D Davis, ‘The Last Laugh: Du Plessis v De Klerk: Classical Liberalism, Creole Liberalism and the Application of Fundamental Rights Under the Interim and Final Constitutions' (1996) 12 South African Journal of Human Rights 361, 361—62.
43 KE Klare, ‘Legal Culture and Transformative Constitutionalism' (1998) 14 South African Journal of Human Rights 146, 151.
44 Elster et al, above n 1, at 82.
45 A symbolic indication of this argument is the s 8 (2) application provision of the 1996 South African Constitution, which states: ‘A provision of the Bill of Rights binds a natural or juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.' While generally regarded as moving beyond the traditional model, and giving some horizontal dimension to the new Constitution (see H Cheadle and D Davis, ‘The Application of the 1996 Constitution in the Private Sphere' (1996) 12 South African Journal of Human Rights 44, 54—55), it is important to note both the qualifications placed on this, and also how it confirms that the ‘standard' model is direct applicability against governmental institutions.
46 Jackson v Metropolitan Edison Co 419 US 345 (1974).
47 Lloyd Corp v Tanner 407 US 551 (1972).
48 San Francisco Arts & Athletics, Inc v United States Olympic Committee 483 US 522 (1987).
49 Evans v Abney 396 US 435 (1970).
50 RWDSU v Dolphin Delivery (1986) 33 DLR (4th) 174. See also BCGEU v Attorney-General (British Columbia) (1988) 53 DLR (4th) 1.
51 Stoffman v Vancouver General Hospital (1990) 76 DLR (4th) 700 (hereafter, Stoffman).
52 Young v Young (1994) 108 DLR (4th) 193.
one of its first decisions that the Bill of Rights, in speaking principally to stateindividual relations, did not apply to the common law of defamation.[701] The English courts[702] have also invoked the idea of some ‘natural’ private sphere to exclude from review a private regulatory body which otherwise was amenable to the courts’ supervisory jurisdiction.[703]
The obverse of the state action doctrine has been to equate corporations with rights-bearing individuals: in this regard, courts around the world have emulated the US approach and have conferred a range of benefits on corporate litigants. In Canada, for example, the Charter has been employed by corporations: to overturn a statutory ban on the advertising of cigarettes;[704] to strike down legislation granting special search and seizure powers to inspectors investigating restrictive practices;[705] and to gain a religion.[706] The European Court of Human Rights has similarly entertained applications from corporate plaintiffs[707]: in upholding a company’s Article 10 freedom of expression rights,[708] it stated that this Article ‘applies to “everyone”, whether natural or legal persons’[709] and could not be denied on the basis of the applicant’s status as a limited company or its commercial nature. In Australia, the High Court of Justice, even in the absence of a constitutional charter of rights, has sustained complaints by corporations that their freedom of political communication was infringed, setting aside, for example, laws limiting political advertising during election campaigns.[710] It is striking that each time these courts first upheld the constitutional claims of corporations, the appropriateness of extending ‘human’ rights in this way was not considered relevant for judicial comment.[711]