Beyond ‘Constitutionalism Beyond the State’

Abstract

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.

Bioethics and Human Rights in the Constitutional Formation of Global Health

“…The paper constructively utilises insight derived from theories of legal fragmentation, global legal pluralism, and transnational and/or global constitutionalism, which acknowledge "the incommensurability of authority claims-in particular of the discrete claims to final authority over the interpretation and extent of jurisdiction of the various political units" 10 and share the vision of "the disorder of orders-countless analytical and normative proposals competing for influence" [32]. Within this framework, Gunther Teubner's concept of self-constitutionalisation of "social fragments" [33] provides a useful starting point and language for discussion [34]. Teubner acknowledges that at the domestic/state level societal orders constitute themselves in parallel with politics and develop their identity and formal rationality through a slow and complex process of specialisation.…”

“…It seeks to engender change by drawing on the strength of democratic forces within and by acting with rights-protecting institutions of the state, to keep the state at the centre of the system, even while seeking to transform it [121]. Similarly, decisions of the Inter-American Court of Human Rights (IACtHR) in cases such as K. 33 , and Paulina Ramirez Jacinto v Mexico 34 , confirmed and further developed women's right to access legal abortions 35 . This has been also recently accompanied by another case, in which the right to access assisted reproduction services has been successfully argued with reference to both anti-discrimination and disability frameworks 36 .…”

Constitutionalizing Austerity: Taking the Public out of Public Policy

“…This view of constitutionalism has been criticized as overly deterministic and dismissive of the potential of contestation by social forces or by the nation state (Strange, ; Anderson, ). Yet there are common tendencies that the concept captures and that are helpful in analyzing trends within contemporary governance.…”

Tyranny and Constitutionalism beyond the State

“…91 Or, the role of economic institutions such as the World Bank Group, the IMF or a supranational body such as the EU in setting both micro and macroeconomic policies within states and the potential lack of ownership of global constitutionalism by constituent actors who may be subject to a pre-ordained hegemonic constitutionalism. 92 Each of these suggest that international law has moved well beyond it sovereign equality base, if that ever existed, to a scenario where individual lives are now directly affected by decisions and actors which operate beyond the state. In such a scenario the presence of the rule of law becomes a significant factor and allows us to question whether law is made openly, administered fairly and applied equally.…”