GLOBALIZATION AND THE EPISTEMOLOGICAL CHALLENGE OF LEGAL PLURALISM
At an empirical level, the challenge of private power focuses debate on the boundaries of constitutional law and scholarship in an age of globalization. Much of this is to be welcomed, not least in reassessing the utility of key dichotomies in liberal thought, including that between public and private.
However, there is one boundary which remains largely immune to this process of rethinking, namely the epistemological one. Globalization also challenges core elements of received legal and constitutional knowledge, and heralds the ‘passing’ of the ‘inexorable linkage of law with sovereignty and the state.’[44] In the context of significant sites of non-state authority in the global economy, the state is often no longer able to command, while the commands of other bodies are at times more authoritative. Theories of law whose test of legal order is satisfied solely by the formal pedigree of a rule in official processes ‘just do not fit the modern facts.’[45]One important development that doubts any necessary connection between the state and law is the emergence of new forms of law attendant on changing global business practices. A leading example is the ‘movement towards a relatively uniform global contract and commercial law’[46] through the global
Globalization and the Epistemological Challenge of Legal Pluralism 11 organisation of business practices. The relative unimportance of the state is underscored by the claim that this ‘system of private lawmaking’ can successfully exist in the absence of a ‘transnational court or transnational sovereign to resolve disputes.’[47] Others highlight how the legal profession can no longer be principally regarded in national terms, but is taking on a ‘transnational’ character as lawyers employ an increasingly homogeneous set of practices in servicing global business.[48] What is important here is that the primary reference point in explaining these global forms of law is not the nation-state, but the global economy.
These arguments undermine the link between legal and political sovereignty that is at the heart of the liberal legalist conception of law.[49] In the context of the global economy, the increasing pressure on the state’s capacity to exercise political power undermines claims that the state is ‘the exclusive legal-political form of power’[50] in society. Moreover, these developments highlight the legal bases of other forms of social power, thus decoupling law from the state.[51] Harry Arthurs develops this point to argue that even constitutional law can be generated outside the state,[52] and addresses the argument that in placing limits on the policy options available to states, the WTO agreements should be regarded as the ‘constitution of the world economy.’[53] While he agrees that the global economy necessitates a broader constitutional focus than the traditional state-centred approach, he contends that we also have to adjust our focus outwards to see how these formal regimes are ‘complemented, modified or displaced, by private processes of negotiations, legislation, regulation, adjudication and administration.’[54] On this account constitutional law is also found in the activities of large multinational corporations.[55]
These developments highlight the claims of the paradigm of legal pluralism, which questions whether ‘the equation between nation, state and law’[56] alone provides the test for legal order. While legal pluralist scholarship predates contemporary globalization discourse, it has existed at the margins of legal study, seen as concerned with the ‘exotic or pathological.’[57] However, the challenge of globalization calls for a timely re-examination of legal pluralism’s contention to
provide a more plausible knowledge of law. The core charge of legal pluralism is that the liberal legalist paradigm rests on a fundamental misdescription, and that the reduction of law to state law is empirically unsustainable: instead, it posits multiple sources of law.
These include laws made in the family, in the workplace, in indigenous societies, among neighbours, which contribute to the legal orderings of these settings while lacking the imprimatur of the state. Legal pluralism further charges that not only can we find law beyond the state, but that formal state law fails to exhibit the special characteristics claimed on its behalf: in particular, it is often incoherent and instrumentally ineffective.The claims of legal pluralism are particularly important given that proposals to reform rights constitutionalism generally take for granted the key tenets of liberal legalism: it is assumed that the relation between rights constitutionalism and private power, and the ability of the former to constrain the latter, turns on the outcome of normative constitutional debate over how rights should be interpreted, or the values they should embody. This can be seen as a sub- paradigmatic response,[58] with private power presenting a challenge within rather than to rights constitutionalism, and one that can be resolved using existing resources. We can contrast this with the legal pluralist call to engage debate at the paradigmatic level, which requires us to ‘reconsider... the assumptions and intellectual structures upon which our analysis and actions are based.’[59] Thus, the key challenge of legal pluralism is whether the tools and concepts associated with state-centred approaches to law are adequate to theorising and responding to the issue of private power. In other words, the paradigmatic debate of modern law makes the adequacy of our existing legal and constitutional knowledge a central component of the inquiry into the relation between rights constitutionalism and private political power.