CONSTITUTIONAL RIGHTS AFTER GLOBALIZATION

Vol. 16 No.2 (February 2006), pp.139-141

CONSTITUTIONAL RIGHTS AFTER GLOBALIZATION, by Gavin W. Anderson. Oxford: Hart Publishing, 2005. 176pp. Hardback. £30.00/$60.00. ISBN: 1-84113-448-1.

Reviewed by Julie A. Thomas, Law Library, Drake University. Email: julie.thomas [at] drake.edu.

Gavin W. Anderson, senior lecturer at the University of Glasgow’s School of Law, argues in CONSTITUTIONAL RIGHTS AFTER GLOBALIZATION that the traditional model of constitutional rights, based on liberal legalism, is no longer accurate in the current era of “legal pluralism,” – i.e., globalized political power given to both nation-states and non-state actors, such as multinational corporations – and that the legal pluralist paradigm should therefore supplant liberalism for legal scholars, practitioners, and educators.

Anderson successfully meets the challenge of discussing a potentially dry subject involving esoteric terms that could scare off even the most dedicated scholar – e.g., “counterhegemonic” and “internormativity” – by making his arguments mercifully brief, yet surprisingly clear. In Chapter One he summarizes each chapter to follow; the rest of the book then develops his main points in three parts. Part One outlines and defines globalization’s effects on political power, laying the foundation for Anderson’s suggested paradigm shift. In Part Two, Anderson details his definition of legal pluralism (both internal and external), how it differs from legal liberalism, and how other scholars approach this dichotomy. Part Three begins with Anderson’s answers to common criticisms of legal pluralism and ends with his practical suggestions for embracing the new paradigm of globalization and legal pluralism in constitutional theory.

Anderson makes clear early that his use of the term “globalization,” while applicable to many fields, refers to economics and what is called “the Washington consensus.” The economic neoliberalism of the Reagan/Thatcher era began the reversal of the idea of the state as “principal repository of political power.” As the 20th century wound down, governments around the world minimized their own power through tax reduction, marketplace deregulation, and welfare cutbacks. Taking the place of government intervention, private actors – particularly corporations – took over political power, becoming, in effect, “private international regimes” (p.9).

“Liberal legalism” embraces the traditional view of constitutionalism as individual rights granted by the nation-state. Under this paradigm, law is: 1) formal; 2) coherent; and 3) an effective means of protecting individual rights.

Anderson spends considerable time contrasting legal liberalism from legal pluralism, while also distinguishing external from internal legal pluralism. External legal pluralism has these three characteristics: 1) state law is one of multiple sources of law; 2) the multiple sources of law constantly overlap and [*140] interact; and 3) state law has no special status on the continuum of sources of law. As to the latter characteristic, Anderson stresses that this is not the same as saying the state is no longer important; it is instead another way of stating legal pluralism’s “most famous contention,” i.e., that the state does not have a monopoly on law (p.45).

Internal legal pluralism’s chief characteristics are: 1) the belief in a society characterized by disorder; 2) legal relations are one of a variety of social relations, and law’s inherent asymmetry improves its ability to create internal order within society; and 3) because of law’s incoherence, lawyers and judges “create law as much as they are created by law” (pp.57-58).

This new model extends the reach and broadens the scope of constitutional concerns. The essential question for Anderson, which he believes the existing literature has thus far neglected to answer, is whether rights constitutionalism can operate as a “counter-hegemonic restraint” on private power. He analyzes Ronald Dworkin’s “law as integrity” model as an example of a legal liberalist theory that lacks easy implementation (p.64). Anderson also summarizes the foundational work of Boaventura de Sousa Santos in the field of legal pluralism, noting that Santos’ objective is to “uncouple law from the state, and (re)couple it with social power” (p.52). Charles Sampford’s work linking social and legal disorder and incoherence is discussed in some detail in order to emphasize the idea that judges at all levels, although they may truly and in good faith believe they are completely objective in applying legal precedent, are unavoidably influenced by “the centripetal forces of asymmetrical social and legal relations” that prevent legal coherence (p.57).

Anderson places himself as most closely aligned with the so-called “transformationalist” camp, which sees the world not as one in which nation-states are still the main power centers amidst economic internationalization (as do “skeptics”) nor one in which nation-states are obsolete (as do “hyperglobalists”) (p.19). Rather, for Anderson, the primary reference point in the current environment is not the nation-state, but the global economy. Qualitative changes in the role of multinational corporations are apparent in their increased political activities such as lobbying, donating to parties and candidates, and mobilizing as political groups. Thus, in the global economy, public policy is undeniably shaped in part by pressure exerted by multinational corporations. In addition, Anderson observes that state-corporate and corporate-state nexus continue to form and expand, with corporations increasingly fulfilling essential state-like roles, such as that of direct provider of health care in developing countries, while supranational institutions, such as the World Trade Organization (WTO), function to “police” the global economy (p.29).

Perhaps most controversial is Anderson’s argument that judicial decisions are overemphasized as precedent and their direct effects on society are exaggerated, given the diminution of the nation-state’s power. [*141] He uses case studies in racial equality, abortion rights, and freedom of expression to support this view. Anderson says that studies suggest, for example, that the Warren Court’s BROWN v. BOARD OF EDUCATION decision not only did not have a major direct impact on ending segregation, but that it actually may have resulted in “unintended and often counterproductive consequences” (p.81). Similarly, he suggests that the overall number of abortions in the United States has fallen since ROE v. WADE, because women’s increased political power, the medical profession’s normative influence, and the liberalization of social mores have had more direct effect on American abortion rates than a so-called landmark Supreme Court case.

Anderson ends with suggestions for the practical implementation of legal pluralism. For instance, he proposes teaching first year law students constitutional law by reference to a corporate charter rather than the traditional liberalist use of the constitutional text. He is intrigued with the idea that instead of providing adversarial parties with a specific remedy, courts should set broad goals which the parties themselves then figure out how to achieve. He cites several examples of social movements and pressure groups that have successfully resisted the Washington consensus model by using diverse tactics to bypass official processes and go directly to corporations as the political entities that can solve the problems at hand, whether electricity cutoffs in South Africa or water privatization in Bolivia. Anderson concludes that legal pluralism’s task is “to develop a constitutional discourse that symbolises the multiple forms of political authority in society, and that encourages wider notions of the accountability of power” (p.148).

Anderson’s book is a lucid defense for his thesis that a paradigm shift for rights constitutionalism from legal liberalism to legal pluralism is imperative. And despite his European credentials and the British spellings and international examples throughout the book, Anderson also refers extensively to the United States and its Constitution, courts and cases. CONSTITUTIONAL RIGHTS AFTER GLOBALIZATION is recommended for undergraduate and graduate library collections strong in constitutional and/or international politics and law.

CASE REFERENCES:

BROWN v. BOARD OF EDUCATION, 347 US 483 (1954).

ROE v. WADE, 410 US 113 (1973).

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