For contemporary constitutional theory, the key challenge posed by globalization undermines the traditional link between constitutionalism and the state: in response to multi-level governance, theories of constitutionalism beyond the state have been advanced. This focus on levels obscures more fundamental epistemological questions raised by globalization about the nature of constitutionalism itself. Critical analysis of three leading schools of constitutionalism beyond the state ± supranational, societal, and new constitutionalism ± highlights their shared assumptions with state-based thought regarding the separation between economics and politics, and the necessarily hegemonic character of constitutionalism. However, globalization intensifies critique of these assumptions, and questions their translation to the transnational context. An alternative scholarly fault line to the state/ non-state cleavage emerges between working within and transcending the politics of constitutional knowledge produced during the nationstate era. A broader globalization perspective reveals the extent to which such processes of constitutional rethinking are under way through developments in the global South.
Within constitutional theory, in comparison to other fields of scholarship, the significance of transnational social movements has been relatively unexamined in the literature. Societal constitutionalism, grounded in the sociological method and open to reexamining received understandings of constitutionalism, would appear conducive to undertaking this enterprise. However, the general absence of social movements from the societal constitutionalism literature is not coincidental, and reflects a shared commitment with more conventional approaches to an institutional conception of constitutionalism, and a belief in the latter's necessary benevolence and Western origin. These assumptions reflect the limited focus of contemporary analyses of globalization and constitutionalism upon "globalization from above." As key protagonists within "globalization from below," social movements represent a form of "constitutionalism from below." Incorporating social movements within constitutional discourse deepens the sociological turn favored by societal constitutionalism by revealing the always-existing noninstitutional dimension of constitutionalism. Moreover, doing so locates in social movements the potential for a transformative constitutional agency which has often proven elusive.
Can rights constitutionalism operate as a social democratic restraint on private power? How should we assess this? Following renewed interest in social democratic legal theory, some propose developing more egalitarian forms of rights constitutionalism as a counterweight to overweening private power in the global economy. Such strategies follow a normative methodology, associated with liberal accounts of legality which emphasize the autonomy of law as an external means of social change. This can be contrasted with traditional social democratic accounts of law as an artifact produced through and in political struggle. This shift of focus to normative argument is at the expense of contextual diagnosis, which remains valuable in questioning whether constitutional strategies can restrain private power in the name of substantive equality. Rights constitutionalism, reflecting its classical liberal roots, continues to protect private power in important ways.; Two strategies, based in innovations in North American and European constitutionalism respectively, have been proposed to overcome this default. First, the Application to State Institutions (ASI) model seeks to extend the reach of constitutional application to include private actors, and; second the Application to Law (LAW) model seeks to extend the scope of rights by requiring all law to conform to constitutional guarantees, including equality. A sociologically grounded analysis of the comparative jurisprudence shows these models retain key elements of the classical liberal framework, such as the state-civil society distinction, and which have in practice militated against any significant democratization of private power.
This paper addresses the counterhegemonic potential of rights constitutionalism in the age of globalization, and in particular its capacity to respond to the rise of significant forms of private power. It locates this issue in the context of the paradigmatic debate of modern law between liberal legalism and legal pluralism. The latter challenges the core epistemological assumptions of orthodox constitutional thought that law is exclusively state law (by positing the existence of non-state legal orders) and that this tends towards coherence and effectiveness. For legal pluralism, constitutionalism's importance does not lie primarily in the outcome of normative argument, but in symbolic terms as a legitimating discourse. Accordingly, to claim that law only emanates from state institutions, and is an effective tool of social engineering, is not simply an analytical statement, but reflects a substantive political agenda. The politics of definition of classical liberalism and the 'new constitutionalism' are contrasted to consider how they set the parameters for political debate. The former, which views constitutionalism as negative limits on the state, reinforces hegemonic interests by its narrow conception of political power as inhering in public institutions, whereas the latter, by locating constitutional norms, for example in the actions of multinational corporations, potentially opens up private power to constitutional scrutiny. It is concluded that the prospects for counterhegemonic constitutionalism lie in opening up the politics of definition of constitutional law to critical debate.
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