Globalization, Legal Pluralism, and the New Constitutionalism

This essay discusses questions raised in Gavin Anderson's 'Constitutional Rights after Globalization' (Oxford, Hart Publishing, 2005). The book argues that in conditions of economic globalization the role and nature of rights constitutionalism must be radically rethought and restructured if private market-based concerns are not to prevail over broader notions of the public interest that are nominally in the keeping of national governments. Economic globalization is said to challenge directly the ability of constitutions to structure and regulate the exercise of political power because such power now lies increasingly with constitutionally unaccountable actors such as MNCs. This essay suggests that there is some confusion in this analysis because the power of MNCs lies in both their economic and political influence, whereas ‘political power’ – the traditional subject of constitutional law – is best understood as the immediate power to take political decisions. Anderson argues also that economic globalization has led to an epistemological crisis in modern constitutionalism and he advocates a critical pluralist jurisprudence of ‘new constitutionalism’, which aims to make explicit an expanded concept of politics that reveals unconventional social relations of power. This essay invokes the sociological idea of ‘living law’ to suggest that Anderson’s claim that the commands and decisions of constitutional law are muted by the workings of other, multiple legal forms or sources is simply to acknowledge that courts generally do not attempt to change the traditional practices and attitudes of a community without there being any extra-judicial demand from any community source. Moreover, a nation-state can obviously have a constitution; less obviously, so too can a ‘transnational-state’; but the global economy, or any economy, on which institutions such as NAFTA or the WTO have been imposed, cannot have a constitution or even a ‘constitutional framework’. An economy is not a state or an institution; it is a trading order and not a self-referential legal order

Constitutional law · Constitutionalism · Democracy · Globalization · Jurisprudence · Law and economics · Pluralism (philosophy · Political economy · Political science · Politics · Power (physics · Sociology · Conflict of Laws and Jurisdiction · International Arbitration and Investment Law · Judicial and Constitutional Studies · Law