THE CHALLENGE FOR RIGHTS CONSTITUTIONALISM
To many schooled in traditional approaches to legal scholarship, it may appear counter-intuitive that a monograph on constitutionalism should open with a discussion of empirical developments in global political economy.
Constitutional law, as every student is taught in the first week of law classes, is concerned with the establishment and regulation of the institutions of the state.134 This entrenches a knowledge of constitutional law which, with a few exceptions,135 has directed constitutional study away from concerns with private power. This constitutional knowledge reflects the sheer historical weight of the state-centred paradigm,136 but also the functional consideration that regulating the private sphere is the role of legislative politics rather than constitutional law, and the related pragmatic concern that courts and adjudication may not be conducive to placing effective limits on private power.137However, to the extent that analyses of economic globalization require us to rethink the nature and location of political authority, we can see this knowledge of constitutional law increasingly engaging with the economic realm. Two developments in particular have resulted in (some) constitutional lawyers no longer treating private power as a peripheral issue: first, the extent to which, as a result of the reconfiguration of the state, private actors are now deeply involved in the performance of traditional state functions,138 and secondly, political concerns over the exercise of private power, and the extent to which this threatens rights constitutionalism’s goals of protecting freedom and auto- nomy.139 These developments challenge constitutions’ ability to ‘constitute’ in the sense of structuring and regulating the exercise of political power, if they speak only to the institutions of the nation-state.
Accordingly, and also reflecting the growing salience of charters of rights in processing political controversies, the constitutional agenda is now moving beyond its traditional boundaries in the nation-state, and is considering how rights constitutionalism can operate as a check on private power.134 See, eg, AW Bradley and KD Ewing, Constitutional and Administrative Law, 13th edn (Harlow, Pearson, 2003) at 3: ‘[Constitutional law concerns the relationship between the individual and the state, seen from a particular viewpoint, namely the notion of law.’
135 See AS Miller, The Modern Corporate State: Private Government and the American Constitution (Westport, CT, Greenwood Press, 1976).
136 See J Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge, Cambridge University Press, 1995) 67—69. See also W Sadurski, ‘Liberalism and Constitutionalism’ in M Wyrzkowski (ed), Constitutional Cultures (Warsaw, Institute of Public Affairs, 2000) 137, 137.
137 See PW Hogg, ‘The Dolphin Delivery Case: The Application of the Charter to Private Action’ (1987) 51 Saskatchewan Law Review 273, 279.
138 See J Freeman, ‘The Private Role in Public Governance’ (2000) 75 New York University Law Review 543.
139 See T Evans, The Politics of Human Rights: A Global Perspective (London, Pluto, 2001) ch 3.
Two ways have been proposed as a means of updating rights constitutionalism to respond to the empirical challenge of private power in the global economy. The first seeks to extend the reach of constitutional provisions limiting state action, such as freedom of expression or due process rights, so that they also limit private actors. This generally takes the form of an interpretive argument, and seeks to establish that on a proper reading of provisions on constitutional application, a more extensive range of actions becomes subject to constitutional review. This expansive turn is a reaction to the formalistic approach which applies rights only in the strict vertical relationship between individuals and state institutions. This argument takes a variety of forms, for example that the private actor has been licensed by the state, or that it is performing a governmental function.
Accordingly, this opens up the prospect of applying constitutional rights to relations between private parties.If the first reform seeks to expand the reach of classical negative rights, the second is characterised by an attempt to strengthen positive constitutional protection. This responds to the challenge to constitutionalism’s ability to promote freedom and autonomy, by seeking to broaden the scope of constitutional rights. This tends to be expressed in more instrumental terms, and takes seriously the dangers from private power by proposing a thicker conception of constitutional liberty and equality. In practical terms, this emphasises the need for greater positive controls, whether by expanding the set of constitutionally protected rights to include social and economic rights such as the right to health, education and housing, or to place an obligation on the state to act to remedy breaches of constitutional law perpetrated by private actors.
While these proposed reforms move away in part from a state-centred knowledge of constitutional law by addressing the issue of private power, in other important ways they remain firmly within established constitutional epistemology. Debate is joined at how constitutional texts should be interpreted and what values they should promote. It is assumed that what is important is, first, winning the interpretive argument, reflecting the idea that constitutional discourse can be made into a coherent body of normative commands, and, secondly, setting these commands to the correct instrumental coordinates, so that they will act on their subjects to achieve the desired social outcome. As such, these reforms suggest that the issue of private power can be dealt with by adapting our existing constitutional knowledge.
However, making private power a central feature of the constitutional debate raises the stakes more than seems to be realised. In particular, the proposed reforms underestimate how the empirical challenge of economic globalization reveals the extent of the epistemological crisis facing rights constitutionalism.
This crisis is provoked by opening up three fundamental assumptions of our received constitutional knowledge to scrutiny. First, the empirical fact of extensive private power raises the general question of the adequacy of the (persistent) view that state law is the exclusive form of legal normativity. Secondly, locating our discussion in the paradigmatic debate of law brings the assumptions underlying the interpretive and instrumental approaches into play, problematising the idea that autonomy can be promoted by enforcing rights before courts. Thirdly, making private power a key element of the debate makes us ask why it was previously excluded, focusing attention on the politics at work in defining constitutionalism in state-centred terms.The pressing issue for rights constitutionalism in the context of globalization is not simply how to reform constitutional doctrine to deal with the empirical challenge of private power, but rather to confront the implications of the epistemological crisis which the latter provokes and lays bare. This makes the central question for contemporary constitutional scholarship whether existing epistemological structures can deliver any meaningful counterhegemonic engagement with private power. It is therefore important to be clear as to the nature of the epistemological crisis of constitutional law provoked by globalization. Accordingly, we turn now to the terms of the paradigmatic debate of modern law between liberal legalism and legal pluralism.