For most lawyers, the question of law never arises—according to the dominant paradigm of liberal legalism, law is exclusively state law, made by legislatures or pronounced by courts.
Moreover, it is simply assumed that law is a coherent system of norms that operates directly on society as a tool of social engineering. This paradigm is so deeply ingrained in the legal imagination that to claim, for example, that law exists outside the state, will appear counterintuitive to many.
However, in recent times, there has been renewed interest in the paradigm of legal pluralism, and its account of the multiple forms of state and non-state laws operating in society. Legal pluralism presents three challenges to the dominant knowledge of law: first, to the centralist notion that law only emanates from the state; secondly, to monist ideas of the systematic coherence and singularity of law; and thirdly, to the positivist view that we can trace a legal order as something ‘out there’ apart from the agents who created it. These challenges set the terms for the paradigmatic debate of modern law.A number of leading writers contend that an age of globalization makes the claims of legal pluralism a central concern for legal theory.[176] Breaking the link between legal and national culture opens to question how we should conceptualise legal phenomena in contemporary times. Accordingly, the paradigmatic debate asks whether liberal legalism or legal pluralism provides the more helpful intellectual framework for constitutional scholarship, both in terms of comprehension and prescription, for responding to the challenges of globalization. In this chapter I elaborate the terms of the paradigmatic debate, and outline the fundamental challenges of legal pluralism to the epistemological foundations of rights constitutionalism. I first locate liberal legalism in the key doctrine of liberal legal and political theory: the rule of law. I then outline the different phases of legal pluralist scholarship to highlight its historical counter-narrative to the assertion that the state alone provides the test for legal order. I next consider how the principal theoretical explanations for legal pluralism undermine the special characteristics claimed on behalf of rights constitutionalism. In this regard, I distinguish between external legal pluralism—which emphasises rights constitutionalism’s limited instrumental effectiveness through its interaction with other legal orders—and internal legal pluralism—which emphasises how constitutional doctrine, as with all legal orders, tends to be marked by relative disorder. To the extent that the legal pluralist challenges can be sustained, this makes the adequacy of the assumption that rights constitutionalism can operate as a counteregemonic restraint on private power a central part of our inquiry.