RIGHTS CONSTITUTIONALISM AND THE GLOBALIZATION OF LIBERAL LEGALISM

From one perspective, claims that constitutional law, and specifically rights con­stitutionalism, are in paradigmatic crisis appear overblown. Rather, the recent explosion of constitution making would appear to confirm it to be in good health.^[4] The adoption of a bill or charter of rights has been a central feature of the transition process for states emerging from totalitarian shadows, whether those in central and eastern Europe, South Africa, or Latin America.^[5] In some older constitutions, like Australia’s, dormant rights have been given a new lease of life,^[6] while in the UK, new constitutional protections for rights have been grafted onto existing structures.^[7] Indeed, the successful export of a judicially administered charter of fundamental rights is itself a high profile example of globalization.

Rights Constitutionalism and the Globalization of Liberal Legalism 5 contrast to their public law traditions,^[8] has accorded a higher prominence to rights discourse and judicial review.^[9] The argument that rights constitutional­ism has gone global is further supported by the growing use of comparative sources,^[10] leading to a more ‘cosmopolitan’ approach to constitutional adjudi­cation.^[11] In its strongest version, it is said that we are witnessing the emergence of universal principles of constitutional law guiding the formation and execu­tion of public policy.^[12]

Underpinning rights constitutionalism, and so also achieving global salience, is the dominant paradigm of contemporary western law, namely liberal legal­ism. This paradigm was born from the Enlightenment ideals of ‘rationalism, universalism, certainty and order.’^[13] In the liberal philosophy of the moderns, the most rational form of social organisation was one that gave priority to indi­vidual freedom.^[14] In practice, this was to be delivered through the modern state, which was seen as the exclusive location of both political sovereignty, as this was where political power actually resided, and legal sovereignty, as the state alone had the right to exercise that political power.^[15] This close connection between political and legal sovereignty gives us the modern understanding of law as the general and universal commands of the state, in contrast with the par­ticular and personal commands of the monarch in pre-modern times.^[16] Moreover, locating both aspects of sovereignty in the state served to protect freedom, as the rule of law would replace arbitrary rule with legal order, enabling citizens to exercise self-government over their own affairs, in the knowledge that the state would protect them from capricious interference with their liberty.

In contemporary terms, the liberal legalist doctrine of the rule of law stands for ‘a commitment to autonomy under law.’^[17] This rests on both the normative priority of individual freedom, and the belief that the state is not only the best, but the only, institution capable of securing that freedom by laying down clear,

consistent and enforceable rules for the conduct of social life.

The global spread of rights constitutionalism exemplifies the ideal that the liberal legalist promise of freedom through law is best secured by entrenching individual rights as higher law guarantees enforceable against the state. On this view, courts emerge as the key actors, cast as the repositories of reason and objectivity, charged with ‘elaborating] the principles of right conduct,’^[19] in contradistinction to the partisan politics of legislatures.^[20] Accordingly, liberty and individual autonomy are best protected when the institutions of state act in accordance with the constitutional law declared and enforced by the courts.

The growing hold of this conception of law as right^[21] would appear to be confirmed by the prominent role now accorded to lawyers and courts in public discourse. In the academy, constitutional scholarship is increasingly taking the form of normative argument directed to courts, focusing on two principal ques­tions. First, how should the general terms of constitutional texts be interpreted? Secondly, and related, what social outcomes should constitutional adjudication promote? Underlying both questions, and reinforced by their increasing centrality in constitutional discourse, are the liberal legalist assumptions that constitutional law is a coherent and autonomous system of norms that operates as an effective tool of social engineering to promote or protect individual freedom. In the broader political context, we can also see that as the adjudica­tion of rights before courts becomes an increasingly prominent aspect of public discourse,^[22] it leads some to argue that we are witnessing the ‘judicialization of politics’,^[23] and the politicisation of law.^[24]