Modern constitutionalism is in paradigmatic crisis.

The rise of trans­national corporations undermines the liberal legalist paradigm of consti­tutional law which regarded the state as the only form of political power and the only source of law.

in this book, i have begun the task of considering the basis of a new constitu­tional knowledge by highlighting the explanatory strengths of legal pluralism over liberal legalism. i have argued that legal pluralism enables us to make bet­ter sense of the nature of the paradigmatic transition, and that it provides a more illuminating account of the relationship between rights constitutionalism and private power. in doing so, i have sought to clear the ground for constructing a constitutional epistemology that can respond better to the challenges of global­ization. While I have concentrated on the descriptive richness of legal pluralism, there is a necessary link between this and its prescriptive aspects. if, as legal pluralism contends, our knowledge of law builds and maintains realities, then discarding the old in favour of a new knowledge is a necessary first step in cre­ating a new reality.

A legal pluralist knowledge of constitutionalism builds upon three principal insights of the critique of liberal legalism. it holds first that constitutionalism always involves questions of private, as well as public, power. This follows from the legal pluralist argument in favour of multiple sources of constitutional law, but this applies also to more formal manifestations such as rights constitution­alism. As the state is the source of but one form of power and one form of law, where constitutional texts single these out by prescribing the conditions under which their exercise is deemed legitimate, they are also necessarily addressing other forms of power and law, for example, by not insisting on such special conditions in their case. From its origins, rights constitutionalism has spoken volubly to private power, making clear that its exercise is not of significant polit­ical concern, whether by reserving higher law limits in the form of individual rights for state institutions and law, or by equating corporations with human beings capable of prosecuting rights against the state. As such, legal pluralism makes it clear that the relevant question is not whether, but how constitution­alism engages with private power.

Legal pluralism also opposes the idea that the state is the exclusive location of constitutional discourse, and highlights the need to go beyond the explicit con­stitution to gain a proper purchase on contemporary constitutional phenomena. As the state does not have a monopoly on generating constitutional law, then it is necessary to develop a focus of analysis that takes account of other sites of law production. This reveals that the formal constitution is often less important in structuring and regulating political power than the practices and actors of the global economy. In particular, the spread of the Washington consensus has played a key role in setting the terms of the public policy agenda in a manner favourable to the interests of global capital, notwithstanding that the texts of formal, national constitutions may appear, for example, to suggest a stronger commitment to the values of the welfare state.

Related to the importance of the implicit constitution is the key legal pluralist argument that the instrumental capacities of rights constitutionalism are consid­erably overstated. Internal legal pluralism emphasises how the normal character of constitutional doctrine is incoherence, as judges, like other law-creating sub­jects, construct distinctive personal accounts of the legal world, whose mutual interaction necessarily leads to inconsistency and contradiction. External legal pluralism undermines the social engineering view of constitutionalism by outlin­ing how social change is often attributable to factors other than adjudication, which in many cases produces unintended, and counterproductive, con­sequences. Accordingly, the disordering nature and effects of social life work against the idea that by designing the perfect constitution, or developing the best theory of interpretation, or appointing the most gifted and compassionate judges, we can reorder society according to some normative vision of the good life.

Thus, constitutional law is not solely what the state does, is not manifested exclusively through formal structures, and is not to be explained in terms of a simple command. For legal pluralism, this fuller understanding that takes account of constitutionalism beyond the state, that includes its semiformal and informal locations, and that acknowledges its instrumental limits, has always been necessary to give a more accurate description of constitutional phenom­ena. However, this broader conception of constitutionalism has been sup-

Conclusion: Towards a Legal Pluralist Constitutionalism 147 pressed by the ascendancy of liberal legalist politics of definition which narrow the scope of our constitutional knowledge in general, and which, in its highest form as rights constitutionalism, represents a particularly singlular constitu­tional vision.

However, the liberal legalist paradigm is coming under increasing pressure. The epistemological crisis provoked by globalization, by underscoring the contingent basis of our taken for granted knowledge, means that the politics of constitutional definition are no longer obscured, but are now brought to the surface. Moreover, the political crisis engendered by the realignment of power relations in the global economy, questions the adequacy of a state-based know­ledge of constitutionalism to respond to the rise of transnational corporate power. This makes clear that the liberal legalist politics of definition, while masquerading as the whole, is a necessarily partial constitutional account. If we wish to move to a counterhegemonic form of constitutional discourse, it is therefore imperative to take advantage of the opportunity provided by the par­adigmatic moment to advance a new form of constitutional knowledge.

At base, a legal pluralist constitutionalism stands for the idea that no form of social power should attract special constitutional protection or limitation on account of its provenance alone. Instead, it ‘presumes that inquiries about legit­imacy, due process, and substantive justification’^[828] are relevant with regard to all exercises of political authority, whatever the source. This approach opens up many of the issues which liberal legalism prefers to keep closed. For example, the central divisions of liberal thought, between public and private, and the state and civil society, can have no a priori status, but must be interrogated as to whether they impede or enhance the accountability of power. This means that the politics of definition are now a central feature of the constitutional debate, and can have no presumptive validity on account of the historic victory of some factions and interests over others: rather, they can be sustained only if they can be justified in contemporary terms.

This has potentially enormous implications for how we view the exercise of political power by corporations, as legal pluralism seeks to reclaim for public discourse questions concerning the operation of the marketplace that have been immunised from constitutional scrutiny. It challenges the idea that the questions of constitutional accountability which we ask of major political actors should depend on their formal classification as public or private by the liberal legalist

politics of definition. More specifically, it doubts whether the test of constitu­tional legitimacy can be satisfied when decisions that have enormous implica­tions for how people conduct their daily lives are taken within the closed confines of the boardroom, or according to the market-based interests of the corporation. It suggests that such decisions require to be justified to, and in some form sanctioned by, those who are affected by their consequences, and more­over, that the content of these decisions should be informed more by considera­tions of the general welfare than narrow self-interest.^[829]

For legal pluralism, the key to provoking debate over the criteria of legitimacy that should apply to all forms of power lies in opening up the meaning of con­stitutionalism to critical scrutiny. The message of this book has been that grand constitutional designs such as that offered by rights constitutionalism (whether in traditional or adapted mode) are both normatively objectionable—poten­tially suppressing other equally valid understandings of constitutionalism—and sociologically questionable, as they are unable to deliver the instrumental gains that they promise. Accordingly, the solution to the issue of private power does not lie in replacing one politics of definition with another, but rather in making them a constant feature of debate, keeping at the surface the question of why we apply the label ‘constitutional’ to some actions, but not others, and the con­sequences of doing or not doing so.

The task of legal pluralism is therefore to develop a constitutional discourse that symbolises the multiple forms of political authority in society, and that encourages wider notions of the accountability of power.^[831] In the academy, there has been some important recent work attempting to retrieve a broader consti­tutional narrative. For example, James Tully has argued that even within the US, the tendency to regard constitutionalism in singular terms is historically misinformed, and sits ill with how Jeffersonian ideas of a continuing constitu­tion have informed US political thought and action.^[832] Others have sought to open up conceptual space by showing that constitutionalism has been used not only to refer to a codified written document, but the general regime whereby power is exercised,⁶ or as ‘the organized form of a political society.’⁷ I conclude by considering some of the ways (without in any way suggesting that the fol­lowing is exhaustive) in which these ideas of constitutional plurality can be, and are being, implemented at a practical level.

One of the most important places where the liberal legalist politics of defini­tion are symbolically reinforced is the classroom. Students are taught in the first week of law school that constitutional law concerns the institutions of state, and the focus of their study is increasingly on courts adjudicating claims of individ­ual rights. Business or commercial law is where they encounter corporations. To the extent these ideas are ingrained in the minds of the next generation of lawyers, this is an effective means of perpetuating the liberal legalist myth. A legal pluralist constitutionalism entails significant rethinking of the basis of legal education. This requires more members of the legal academy to be con­scious of the qualifying adjective of state—and the pluralising consequences of that adjective—which always should be placed before their everyday use of the word ‘law.’ Why not begin constitutional law classes by looking at a corporate charter rather than the formal constitutional text? Such an approach would symbolise that the politics of definition are an integral component of studying and understanding constitutional law.

For some, another way of diversifying our knowledge of constitutionalism is to rethink the uses and forms of constitutional litigation. Santos, one of the lead­ing critics of liberal legalism, has argued that we should take advantage of the ‘indeterminacy and ambiguity’ of adjudication to make the political role of the courts ‘an object of social struggle.’⁸ He suggests that for courts to serve coun- terhegemonic ends, they have to connect the individual disputes before them to their underlying social conflicts.⁹ One proposal for moving to a new under­standing of adjudication draws on developments in US public law litigation that have been described as destabilization rights. These claims, designed ‘to unset­tle and open up public institutions that have chronically failed to meet their obligations,’¹⁰ represent a move away from the command model where parties seek a specific remedy to the lis in question. Instead, the courts acknowledge their limitations in directing social change by setting the broad goals to be achieved, leaving the actors involved to decide how this is to be done.^[833] a partial framework in which the [Jeffersonian] tradition and its two hundred years of demands for recognition—from the popular opposition of the 1780s to abolitionists, suffragettes, labourites, African Americans and the politics of cultural recognition today—cannot be given a fair hearing’ (ibid at 93).

⁶ See J-E Lane, Constitutions and Political Theory (Manchester and New York, Manchester University Press, 1996) 5-13.

⁷D Castiglione, ‘The Political Theory of the Constitution’ (1996) 44 Political Studies 417, 421.

⁸B de Sousa Santos, Toward a New Legal Common Sense (London, Butterworths, 2002) 350, 348.

⁹Ibid at 346.

¹⁰ CH Sabel and WH Simon, ‘Destabilization Rights: How Public Law Litigation Succeeds’ (2003-04) 117 Harvard Law Review 1016, 1020.

Assuming that we can find a constitutional nexus with private power, such an approach may present an avenue for scrutinising the ways in which cor­porations have been shielded from questions of political accountability. These innovations symbolise that the courts can only be one component of a broader counterhegemonic strategy, and also that powerful law-producing actors are responsible for the consequences of the normative regimes they help to create.

The emergence of social movements as sites of resistance to the Washington consensus can be seen as a form of legal pluralism in action. For some, this holds out the promise of shifting rights discourse ‘from its narrow, state-centred, elitist basis to a grassroots-oriented praxis of the subalterns.’^{11 [834] The diverse tac­tics pursued by the various pressure groups often bypass official processes completely: for example, the campaign against electricity cut-offs in South Africa was mounted directly by activists against the privatised company in the form of ‘illegal’ reconnections.[835] These and other groups are simply regarding corporations as centres of political authority, and devising means of holding that power to account, unconcerned with whether or not the official narrative catches up. In some case, the successes have been quite striking, whether in reversing water privatisation in Bolivia,[836] or in agitating for land reform in Brazil.[837] As with the innovations in litigation, these developments can be seen as one part of promoting legal pluralist ideas of constitutionalism—if seen as the exclusive means, this carries the risk that power politics will eventually prevail. However, as part of a broader strategy, the social movements symbolise that the state is not the only source of constitutional discourse, and also underscore the transformative law-creating capacity of individuals.}

Another response to the pressures on state-centred accounts of constitution­alism is to recover the narrative at the supranational level. This important line of scholarship, under the rubric of postnational constitutionalism, rests on two premises: that constitutional law is ‘an internal and intrinsic characteristic of a polity’ and that in contemporary terms, a polity is not coterminous with the nation-state.^[838] This asks how we devise constitutional language for entities like the EU, raising the question of how to translate key constitutional criteria, such as foundational authority, jurisdictional delineation and representation, in their new setting. However, the lack of fit with traditional constitutional categories is the very strength of postnational constitutionalism, as it takes as its central problematique that these new constitutional entities ‘are not anchored in any of the conventional forms or symbols of legitimacy.’^[839] Accordingly, this opens debate on many of the assumptions left untouched by liberal legalism— not least, what constitutes a polity—asking questions, as James Tully puts it, not just about, but within, the rules.^[840] If we can overcome the continuing tendency to focus on (now supranational) public institutional forms, this approach asks the sorts of questions which legal pluralism argues can and should be asked of corporations. To the extent that we can shift the level and location of constitutional discourse, this symbolises that the meaning of consti­tutionalism can never be fixed, but has to be subject to constant re-examination and re-evaluation in terms of its contemporary relevance and value.

These different ways of imagining constitutionalism emphasise that the constitutional reality that we inhabit is our own doing, and so our own respon­sibility. There is nothing inevitable about the liberal legalist paradigm, or the Washington consensus that it facilitates and supports—just as these are created by humans, they can also be unmade. The emergence of multiple sites of gover­nance which are breaking down old divisions, whether between public and pri­vate, state and civil society, law and non-law, highlight the urgent need to construct a new constitutional reality. The alternative is to struggle on with our existing concepts and ideas, tinkering here, modifying there, without facing up to how these concepts and ideas are a fundamental part of keeping hegemonic forces and interests in place. There is too much at stake here for us to follow this option by default. Instead, we require a paradigm shift. The argu­ment of this book is that legal pluralism can provide this new way of thinking, and so enable us to move to a constitutional discourse that prosecutes the accountability of all forms of power.