Ours is a time of globalization. Debates about what globalization is (or is not), its causes, effects, and future trajectory, have achieved a prominent, if not pre-eminent, position in the social sciences.[1]
One of the central issues in these debates concerns the extent to which political power any longer resides exclusively, or primarily, in the governmental institutions of the nation state.
It is argued that we are witnessing the emergence of significant forms of political authority outside the traditional focus on the public institutions of the state, and that the actors and institutions of the global economy are increasingly setting the terms for the conduct of social life. For some, globalization, and its accompanying reconfiguration of political power, amounts to nothing less than the demise of the paradigm of modernity, making untenable the idea of the nation state as the main organising principle of society.[2]Lawyers have come somewhat late to the globalization debate,[3] and while there is now a burgeoning literature on law and globalization, there is a sense that this work is peripheral to the main business of understanding national (and international) law. This is no more so than in constitutional law, where much scholarship remains focused on the rules establishing and regulating state institutions, and defining the substance and scope of the rights of citizens vis-a-vis the state. While studies of globalization and constitutional law have in the past followed separate trajectories, exploring the linkages between these two fields now requires the urgent attention of constitutional scholarship.
In this book, I argue that we need to reconfigure our understandings of constitutional law and constitutional rights according to the paradigm of legal pluralism. It is this paradigm that enables us to understand better, and respond to, the challenges facing constitutionalism in an age of globalization. Legal pluralism provides us with the tools for capturing the contemporary reality of the multiple sites of governance. Moreover, it underscores the paucity of those accounts of constitutionalism which focus primarily on the adjudication of individual rights in addressing the problems raised by the growth of private power. Rather, legal pluralism reveals the political character of our prevailing definitions of constitutionalism and demonstrates how state-centred accounts prevent us from asking questions of accountability with regard to all forms of political power. Legal pluralism accordingly shows the importance of effecting a paradigm shift in the field of constitutional law. Furthermore, such a shift becomes imperative in the context of the paradigmatic crisis affecting traditional approaches to constitutionalism, which, being increasingly out of touch with contemporary patterns of power, are unable to deliver their promises of promoting liberty and autonomy.