Legal pluralism provides a powerful counter to our dominant understand- i ings of constitutional law.
Its challenge to the liberal legalist assumptions of coherence and effectiveness significantly undermines rights constitutionalism’s claims to act as an instrument of social reform.
In Part III, I show that legal pluralism’s significance goes beyond epistemological critique, and also provides us with a sound explanatory basis of the relationship between rights constitutionalism and private power. A more promising way forward here lies in showing how the ‘failures of the instrumental effectiveness of law’ can be compensated for by its ‘symbolic effectiveness.’[538] On this account, the persistence of rights constitutionalism, despite its inability to deliver what it promises, is explained by its power as a legitimating discourse. In other words, constitutional law’s significance is as a site of struggle, rather than as a direct agent for change (or conservation).Legal pluralism’s explanatory strengths rest in showing how the paradigmatic debate brings to the surface a ‘politics of definition of law.’ According to santos, any purported ‘definition’ of law is necessarily a ‘complex intertwining of analytical and political claims,’ and so in the paradigmatic debate, this insight must not only be fully acknowledged, but also ‘conceived as one of the premises of the debate.’[539] This argument places the paradigmatic debate in context: while its outcome may be the supplanting of one form of legal knowledge with another, its primary purpose is to bring to the fore ‘the political nature of many barely apparent analytical claims.’ Thus, the legal pluralist account of constitutional adjudication rendered above should be seen less as the ‘profound questioning of the empirical research in the name of a superior knowledge’ but more as ‘a story about the precariousness of knowledge.’[540] Accordingly, while legal pluralism highlights the short-comings of statecentred methodologies, this does not mean that state law is unimportant—rather it is important in different ways than is imagined by liberal legalism. Grasping how the politics of definition prioritise and legitimate certain forms of inquiry is crucial to understanding how constitutional law does matter.
In this chapter, I focus in detail on what is at stake in the paradigmatic debate. I begin by considering the principal lessons of legal pluralism’s epistemological critique: this does not so much invite us to proffer some other overarching ‘definition’ of law, but rather to focus on the important political purposes which prevailing definitions of law serve. I apply this argument to constitutional law by juxtaposing two competing politics of constitutional definition: classical liberal constitutionalism, whose historical pinnacle is the US Bill of Rights, and scholarship under the rubric of ‘new constitutionalism’, which looks beyond formal documents and laws to the implicit constitutional dimension of the Washington consensus. I show how each engages differently with private power: the former seeks to protect it from, the latter seeks to open it up to, greater constitutional scrutiny. This leads to the conclusion that rights constitutionalism’s hegemonic or counterhegemonic potential does not depend principally on the outcome of normative doctrinal debates. Rather, what is crucial is how the dominant narratives of what is, and is not, a constitution are situated vis-a-vis, and relatively support, broader hegemonic or counterhegemonic discourses.