A NEW DYNAMIC: RIGHTS CONSTITUTIONALISM, GLOBALIZATION AND LEGAL PLURALISM
The challenges of globalization suggest that contemporary debates on constitutionalism must confront the argument that ours is a time of paradigmatic transition. Globalization and legal pluralism combine to challenge some of the key tenets of rights constitutionalism within the liberal legalist paradigm.
They both decentre the nation state as the primary level of analysis and alter our perception of who the key constitutional actors are, removing courts and lawyers from any preordained position. Linked to the foregoing, they both undermine the link between law and national culture and history: global modes of governance are seen as developing their own logic, while according to legal pluralism the state is no longer determinative of the existence or character of law. Furthermore, each questions the notion of law as command: globalization questions where sovereignty resides, while legal pluralism emphasises the indistinct nature of the commands that the state seeks to give. In short, they combine to undermine the orthodoxy that constitutional study is concerned solely with a national document enforced by formal procedures before state courts.Instead, an alternative intellectual framework is proposed, grounded in a new dynamic between rights constitutionalism, globalization and legal pluralism. This dynamic reveals that the empirical challenge of globalization and the epistemological challenge of legal pluralism necessitate a rethinking of constitutional law. This dynamic ushers in an epistemological crisis of liberal legalism. It highlights the lack of fit between the descriptive assumptions of rights constitutionalism, and the empirical world unveiled by globalization and legal pluralism. This underscores the inadequacy of the state-centred account of law in an age of transnational private power. Furthermore, it problematises the liberal legalist assumptions that constitutional doctrine can be remade into a coherent whole which once reordered acts in a linear manner to secure its objectives.
This leads to the conclusion that rights constitutionalism does not deliver what it promises as an instrument of social engineering, casting significant doubt on its effectiveness to restrain private power.The dynamic further reveals the high political stakes of this epistemological crisis. It shows that rather than being an autonomous discourse, rights constitutionalism is a site of struggle between hegemonic and counterhegemonic forces. The key to understanding this struggle is to acknowledge fully the rhetorical dimension of legal discourse, that where we state ‘law is x,’ we are involved in the politics of definition of law. The prize here is to present as an analytical postulate what is actually a political claim,[60] for example, that law is identified exclusively with the state. The politics of definition that prevail thus privilege certain modes of inquiry as commonsensical. On this view, epistemological foundations do not provide a neutral backdrop within which constitutional debates take place, but are themselves an important factor affecting our understanding of the relation between rights constitutionalism and private power. The liberal legalist politics of definition of rights constitutionalism are grounded in the central distinction in liberal theory between the state—which alone is regarded as exercising potentially oppressive political power—and the naturally free realm of civil society. This distinction justifies the historical constitutionalist concern with public power, and has served hegemonic interests well in the past, for example, by treating powerful actors such as corporations as private legal persons, entitled to the benefit, but not required to bear the burden, of constitutional rights.[61] Moreover, they continue to inform modern practice which the available evidence suggests is still seen in terms of processing claims of negative freedoms against the state.[62]
It is at the level of the politics of definition under conditions of globalization that the empirical and epistemological challenges come together.
For all rights constitutionalism’s apparent success, the paradigmatic crisis highlighted by the dynamic brings the issue of the politics of definition to the fore. This is perhaps most evident in the attempts to respond to the empirical challenge of private power by strengthening rights constitutionalism’s negative and positive controls. Where these proposals have been acted upon, the jurisprudential record shows that in practice rights constitutionalism acts as a sword and shield for hegemonic values, while exposing its instrumental limits as a counterhegemonic sword. In this way, the prevailing politics of definition lend powerful symbolic support to the idea that private power is not as serious a political concern as public power, while directing the constitutional agenda away from the question of how private power may be more efficaciously held to account. However, the inability of rights constitutionalism as currently conceived to respond to the empirical challenge of globalization shows that the liberal legalist politics of definition cannot hold under the pressure of the dynamic. This underlines the need for a new politics of definition if we wish to hold private power to constitutional account.The book is organised into three parts. Part I lays out the grounds of the paradigmatic challenge to state-centred views of politics and law by outlining the reconfiguration of political power effected by globalization. The remainder of the book considers the appropriate response to the challenge of paradigmatic transition. In Part II, I argue that this response should be grounded in the paradigm of legal pluralism, which better captures the operation and empirical reality of law. In Part III, I outline the basis of a legal pluralist theory of constitutionalism, which can provide us with a better understanding of the relation between rights constitutionalism and private power.
In the remainder of Part I, I set out how globalization provides the context for the contemporary study of rights constitutionalism.
In chapter two, I argue that, as a consequence of economic globalization, we are witnessing a significant change in the location of political authority, to the advantage of private, particularly corporate, power. I consider the principal ways in which this is manifested, first by outlining the nature and reach of the Washington consensus and how this has recast the role of the state. I elaborate the extent of global corporate political power, drawing on both quantitative and qualitative arguments, to show how corporations influence state policy apparatuses and have come to resemble states themselves. I outline the impact which these changes have had on constitutional discourse in moving the issue of private power to the centre of debate, and discuss the ensuing proposals for reorienting constitutionalism by extending the application of negative rights, and deepening the scope of positive rights. I conclude by querying whether this normative approach is an adequate response to the challenges of the paradigmatic transition.In Part II, I argue that the descriptive basis of liberal legal and constitutional theory ill fits our age, and that instead the paradigm of legal pluralism accords better with the empirical record. In chapter three, I outline the terms of the paradigmatic debate between liberal legalism and legal pluralism. For liberal legalism, law is exclusively state law, tends towards system and order, and its commands are the primary tools of social engineering. Legal pluralism, in contrast, questions the necessary state provenance of law, and doubts claims for its coherence and instrumentality. Here, I develop the theoretical basis of legal pluralism’s challenge to liberal legalism, from which I interrogate the latter’s epistemological assumptions in chapters four and five. I outline first external legal pluralism, which sees the world in terms of a multiplicity of interacting (official and unofficial) legal systems and second, internal legal pluralism, which emphasises the asymmetrical and disordering nature of legal relations.
In the following two chapters, I test whether liberal legalism or legal pluralism offers the more plausible description of constitutional adjudication.In chapter four, I consider Ronald Dworkin’s theory of ‘law as integrity.’ Dworkin’s position is important, given his thesis that constitutional law is primarily an interpretive exercise, which properly executed, can provide the right answer in hard cases. However, I contend, with reference to jurisprudence on affirmative action, obscenity and hate speech, that reading his theory against the insights of internal legal pluralism highlights some generic problems of the argument from coherence. First, that the abstract nature of constitutional doctrine can produce contrary results when applying the same theory of interpretation, and secondly, that adjudication is not best characterised as the search for coherent principle, but is in practice subject to a series of disordering influences. Chapter five examines whether there is any necessary link between winning the normative argument in court, and translating its assumed social benefits into practice. I present case-studies in three classic fields of constitutional litigation, namely racial equality, abortion and freedom of expression. I argue that in each case the empirical record suggests that the command of constitutional law is muted by the workings of external legal pluralism, and that the assumed importance of courts’ rulings, both in direct and indirect terms, is overstated. I reach the interim conclusion that normative theories significantly overestimate the capacity of constitutional adjudication to reorder doctrine and society.
In Part III, I consider the implications of the argument that liberal legalism rest on unsure epistemological foundations for the relationship between rights constitutionalism and private power. In chapter six, I discuss the nature of the politics of definition, and show how the key issue becomes what consequences follow from certain definitions taking hold in the legal, and broader, imaginations.
I contrast the prevailing state-centred politics of definition, rooted in classical liberal political theory, with that advanced by the ‘new constitutionalism’ which draws attention to the constitutional dimension of economic globalization. I show how, on the key issue of rights constitutionalism’s counterhege- monic potential, the former operates to protect private power, while the latter seeks to open its exercise to greater account and scrutiny. This reveals that the major importance of rights constitutionalism lies not at the instrumental level of adjudication, but at the symbolic level of how its prevailing politics of definition consolidate or disturb hegemonic interests.Chapter seven addresses this question by exploring the consequences of the prevailing politics of definition in terms of the issue of rights constitutionalism’s engagement with private power. I focus on two strands of the comparative jurisprudence, drawn from the North American and European constitutional experiences respectively, which seek to hold private power to greater constitutional account. The first, the Application to State Institutions (or ASI) model, retains the formal idea that constitutions only apply to the state, but expands the situations where the state can be said to be acting, for example, where non-state bodies are carrying out public functions. The second, the Application to Law (or LAW) model, extends the nature of constitutional obligations beyond the traditional negative limits on government, for example, requiring states to ensure that the positive law does not enable private parties to disregard fundamental rights. My argument is that when we consider how these doctrinal positions have been employed in actual adjudication, this reflects a politics of definition where the state-civil society divide is still strong, and which reveals the limits of rights constitutionalism operating in a counterhegemonic mode.
I conclude by outlining the beginnings of a legal pluralist constitutionalism. I argue that the key to moving to a counterhegemonic constitutional discourse lies in abandoning narrow conceptions of constitutionalism in terms of the adjudication of rights, but instead broadening the terms of debate by opening up the meaning of constitutionalism to debate and scrutiny. Drawing on some recent theoretical and practical developments, I discuss how we might move to an alternative constitutional discourse which symbolises the plural sources of constitutional law, and promotes broader forms of political accountability.