Globalization presents two fundamental challenges to rights constitutionalism.
First, it highlights a gap between the powers the state is traditionally said to possess, and those which it can now more plausibly be said to have. This challenges the core idea of liberal political theory that the state is the exclusive, or even primary, location of politics.
Secondly, it highlights a further gap between our dominant paradigm of law and the empirical workings of law. This challenges the core idea of liberal legal theory that the state is the exclusive, or even primary, source of law.The emergence of the global economy provides the context for these challenges. in particular, the ascendancy of the washington consensus has led to a reappraisal of the role of the state, as redistributive economic management has given way to greater reliance on the market and private enterprise.[63] These economic changes also have an important ‘political dimension’[64] leading to the claim that economic liberalisation has provoked a ‘transformation [of] sovereignty.’[65] The success of the modern state was predicated on ‘its ability to promote economic well-being, to maintain physical security and to foster a distinctive cultural identity of its citizens.’[66] However, it is this notion of sovereignty, conceived in terms of the state’s capacity to exercise political power, which is seen as increasingly under threat in the globalizing world.
The contention that the state is no longer the principal container of politics has important implications for rights constitutionalism. if constitutional law is concerned with how political power is constituted,[67] and if constitutional rights are concerned with protecting the autonomy of the individual,[68] then the fact of significant sites of private power questions the relevance of an approach that focuses on the state alone. In this chapter, I set out the case that globalization is effecting a shift of authority from the state to the actors and institutions of the global economy. I outline first, with reference to the implementation of neoliberal economic and political reforms, the changing role, and relative decline, of the state. I then discuss the rise in the power of large corporations, and show how these are influencing and in some cases supplanting the political functions of the state. I conclude that this reshaping of political power threatens the orthodoxy that ‘economic as opposed to political sites do not provide generative contexts for constitutional discourse.’[69]