Unthinking constitutional law: Towards a legal pluralist theory of constitutionalism.

摘要

The challenges of neo-liberal economic globalisation and legal pluralism provide the present context for the study of constitutional law. Part I details the shifting location of political authority, under the rubric of the 'Washington consensus,' from the nation-state to the global economy in general, and to multinational corporations in particular. The rise of global corporate power threatens democracy in two ways: first, procedurally, by reducing the scope for influencing political decisions, and second, substantively, by exacerbating material inequality. Contemporary constitutional normative debate proposes that rights constitutionalism be remade in two ways to respond to hegemonic globalisation: first by extending the reach of rights to private bodies, and second, by expanding the scope of rights to impose positive constitutional duties in the private sphere. Part II locates this issue of rights constitutionalism's counterhegemonic potential in the context of the paradigmatic debate of modern law between liberal legalism and legal pluralism. The latter challenges the central epistemological assumptions of orthodox constitutional scholarship that law is exclusively state law (by positing the existence of non-state legal orders) and that this tends towards coherence and effectiveness. Internal legal pluralism states that disordering influences within adjudication make incoherence the normal condition of constitutional doctrine, while external legal pluralism holds that interaction between various normative orders limits state law's capacity to act directly as an instrument of social engineering.;Part III builds on the argument that rights constitutionalism does not work in the manner generally accepted, and considers how we should approach the former's relationship with democracy. Constitutional law's importance does not lie primarily in the outcome of normative argument, but in symbolic terms as a legitimating discourse. The key question is whether prevailing constitutional politics of definition, which set the bounds of doctrinal argument, disturb or reinforce broader hegemonic discourses. Comparative jurisprudence shows that conceiving of constitutions as higher law, negative limits on state action has favoured hegemonic interests and constrained the development of counterhegemonic constitutional arguments. It is therefore necessary to unthink dominant assumptions of constitutional law to promote a counterhegemonic politics of definition which problematises, rather than protects, private power in constitutional terms.