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Constitutional Rights after Globalization
By
Gavin Anderson
Description
Constitutional
Rights after Globalization juxtaposes the globalization of the
economy and the worldwide spread of constitutional charters of
rights. The shift of political authority to powerful economic actors
entailed by neo-liberal globalization challenges the traditional
state-centred focus of constitutional law. Contemporary debate has
responded to this challenge in normative terms, whether by
reinterpreting rights or redirecting their ends, e.g. to reach
private actors. However, globalization undermines the liberal
legalist epistemology on which these approaches rest, by positing the
existence of multiple sites of legal production, (e.g. multinational
corporations) beyond the state. This dynamic, between globalization
and legal pluralism on one side, and rights constitutionalism on the
other, provides the context for addressing the question of rights
constitutionalism’s counterhegemonic potential. This shows
first that the interpretive and instrumental assumptions underlying
constitutional adjudication are empirically suspect: constitutional
law tends more to disorder than coherence, and frequently is an
ineffective tool for social change. Instead, legal pluralism contends
that constitutionalism’s importance lies in symbolic terms as a
legitimating discourse. The competing liberal and ‘new’
politics of definition (the latter highlighting how neoliberal values
and institutions constrain political action) are contrasted to show
how each advances different agenda. A comparative survey of
constitutionalism’s engagement with private power shows that
conceiving of constitutions in the predominant liberal, legalist mode
has broadly favoured hegemonic interests. It is concluded that
counterhegemonic forms of constitutional discourse cannot be effected
within, but only by unthinking, the dominant liberal legalist
paradigm, in a manner that takes seriously all exercises of political
power.
Gavin W Anderson
is Senior Lecturer in the School of Law, University of Glasgow.
Contents
1
Constitutionalism in an age of globalization 3
2 Globalization
and the reconfiguration of political power 17
3 The
paradigmatic debate : liberal legalism and legal pluralism 39
4 Internal legal
pluralism and the interpretive question 59
5 External legal
pluralism and the instrumental question 79
6 Legal pluralism
and the politics of constitutional definition 99
7 Rights
constitutionalism and the counterhegemonic difficulty 119
Conclusion :
towards a legal pluralist constitutionalism 145
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