Book Review: Constitutional Rights After Globalization, Sovereignty and Its Discontents: On the Primacy of Conflict and the Structure of the Political
| Date | 01 March 2007 |
| Author | Hans Lindahl |
| DOI | 10.1177/0964663907073453 |
| Published date | 01 March 2007 |
| Subject Matter | Articles |
BOOK REVIEWS
GAVIN W. ANDERSON, Constitutional Rights After Globalization. Oxford: Hart, 2005,
156 pp., ISBN 1–84113–448–1, £30.
WILLIAM RASCH, Sovereignty and Its Discontents: On the Primacy of Conflict and the
Structure of the Political. London: Birkbeck Law Press, 2004, 158 pp., ISBN
1–85941–984–4, £23.95.
Globalization, Gavin Anderson argues in Constitutional Rights After Globalization,
confronts constitutionalism with empirical and epistemological challenges that cannot
be adequately addressed within the constraints of ‘liberal legalism’, the dominant
paradigm of contemporary western law. If constitutionalism is about the structuring
and accountability of political power, then, empirically, no account of constitutional
authority can any longer afford to avoid discussing the power networks formed by
multinational corporations and their capacity to govern an increasingly globalized
economy. In effect, the broad acceptance and implementation of neoliberal economic
and political reform, under the auspices of the ‘Washington consensus’, amount to a
qualitative change in how society is organized and functions. Constitutionally, this
qualitative change is reflected, on the one hand, in a shifting understanding of the
state, which is increasingly viewed as a facilitator of global capitalism, and, on the other,
the emergence of multinational corporations as political actors of major importance in
a global setting. In particular, not only are corporations highly implicated in policy
making and execution by states, but, more importantly, they increasingly bypass
states as direct providers of legislative and executive functions. This qualitative trans-
formation has been institutionalized in the WTO, which effectively provides the
‘constitutional structure’ of a world trading system favourable to the exercise of
corporate power. This empirical challenge significantly erodes the claim of legal liber-
alism that the entrenchment and enforcement of rights in state constitutions allow the
securing of individuals and their freedom from encroachment by (state) political
power. Epistemologically, the emergence of multinational corporations as an import-
ant source of political power challenges crucial tenets of legal liberalism. Whereas
legal liberalism introduces the public/private, state/civil society distinctions to protect
the second term of these conceptual pairs from oppression by the state, legal plural-
ism acknowledges that the private power of multinational corporations can be as
oppressive as that of public power. Parrying this danger requires relinquishing legal
liberalism’s assumption that law is coterminous with state law, and recognizing that
even constitutional law can also be generated outside the state.
In the face of this double challenge, Anderson contends that a paradigm shift is
required: legal liberalism must make way for legal pluralism. Whereas legal liberalism
favours a hegemonic reading of rights constitutionalism, in which private power is
protected to the detriment of the public interest, legal pluralism has a counterhegemonic
SOCIAL & LEGAL STUDIES Copyright ©...
GAVIN W. ANDERSON, Constitutional Rights After Globalization. Oxford: Hart, 2005,
156 pp., ISBN 1–84113–448–1, £30.
WILLIAM RASCH, Sovereignty and Its Discontents: On the Primacy of Conflict and the
Structure of the Political. London: Birkbeck Law Press, 2004, 158 pp., ISBN
1–85941–984–4, £23.95.
Globalization, Gavin Anderson argues in Constitutional Rights After Globalization,
confronts constitutionalism with empirical and epistemological challenges that cannot
be adequately addressed within the constraints of ‘liberal legalism’, the dominant
paradigm of contemporary western law. If constitutionalism is about the structuring
and accountability of political power, then, empirically, no account of constitutional
authority can any longer afford to avoid discussing the power networks formed by
multinational corporations and their capacity to govern an increasingly globalized
economy. In effect, the broad acceptance and implementation of neoliberal economic
and political reform, under the auspices of the ‘Washington consensus’, amount to a
qualitative change in how society is organized and functions. Constitutionally, this
qualitative change is reflected, on the one hand, in a shifting understanding of the
state, which is increasingly viewed as a facilitator of global capitalism, and, on the other,
the emergence of multinational corporations as political actors of major importance in
a global setting. In particular, not only are corporations highly implicated in policy
making and execution by states, but, more importantly, they increasingly bypass
states as direct providers of legislative and executive functions. This qualitative trans-
formation has been institutionalized in the WTO, which effectively provides the
‘constitutional structure’ of a world trading system favourable to the exercise of
corporate power. This empirical challenge significantly erodes the claim of legal liber-
alism that the entrenchment and enforcement of rights in state constitutions allow the
securing of individuals and their freedom from encroachment by (state) political
power. Epistemologically, the emergence of multinational corporations as an import-
ant source of political power challenges crucial tenets of legal liberalism. Whereas
legal liberalism introduces the public/private, state/civil society distinctions to protect
the second term of these conceptual pairs from oppression by the state, legal plural-
ism acknowledges that the private power of multinational corporations can be as
oppressive as that of public power. Parrying this danger requires relinquishing legal
liberalism’s assumption that law is coterminous with state law, and recognizing that
even constitutional law can also be generated outside the state.
In the face of this double challenge, Anderson contends that a paradigm shift is
required: legal liberalism must make way for legal pluralism. Whereas legal liberalism
favours a hegemonic reading of rights constitutionalism, in which private power is
protected to the detriment of the public interest, legal pluralism has a counterhegemonic
SOCIAL & LEGAL STUDIES Copyright ©...
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